Her Majesty the Queen - v. -, 2012 SKPC 183

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 183 Date: December 12, 2012 Information: 44331369 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Pascal Mertins Appearing: Jaimie MacLean For the Crown Kathy Hodgson-Smith For the Accused DECISION ON VOIR DIRE D.E. LABACH , J [ 1 ] The accused, Pascal Mertins, is charged with impaired driving contrary to section 253(1) (

a) of the Criminal Code and

driving while over .08 contrary to section 253(1)(

b) of the Criminal Code . His trial began with a voir dire on whether his sections 8, 9, 10(

a) and/or 10(

b) Charter rights were violated. In the course of the voir dire , the Crown called the arresting officer and the Intoxilyzer technician; the Defence called the accused and a civilian witness. In closing argument on the voir dire , Defence counsel abandoned their allegation that the accused’s

section 10(

a) Charter right was violated. This is my decision on the remaining Charter issues. FACTS [ 2 ] On the evening of March 18, 2012, the accused, Pascal Mertins, drove to the Extra Foods grocery store at the Canarama Shopping Mall on Warman Road in Saskatoon. His three and one half year old son was ill and he went to pick up some milk for him and a diet Coke for his wife. [ 3 ] After leaving the grocery store, he travelled south on Warman Road.

As he neared the intersection of Warman Road and 7 th Avenue, he sped up to get around another southbound vehicle in the lane beside him so that he could make a left hand turn onto 7 th Avenue. [ 4 ] At this same time, Constable Keating was travelling north on Warman Road in an unmarked patrol car. He noticed a silver Impala travelling southbound at what he felt was a high rate of speed. He engaged his radar equipment and determined that the Impala was travelling at a speed of 85 kilometres per hour. The speed limit on Warman Road was 60 kilometres per hour.

As a result, Constable Keating made a u-turn at the next break in the median and pursued this vehicle with his emergency lights engaged in order to effect a traffic stop. [ 5 ] As the accused turned east on 7 th Avenue he noticed the police vehicle behind him. He pulled over to the curb to let it pass but it pulled in behind him. The accused was surprised and nervous that he was being stopped. [ 6 ] It was 8:42 p.m. when Constable Keating pulled in behind the silver Impala. As he approached the driver’s door of the car, he noticed the accused behind the wheel.

He asked the accused for his drivers licence and registration and told him he was speeding. [ 7 ] The accused took out his wallet and began thumbing through it looking for his drivers licence. He had a number of cards in his wallet including an older drivers licence and a newer one. He offered the older licence to Constable Keating but the officer asked him for the newer one. The accused kept going by his new licence and eventually Constable Keating had to point it out to him. The accused apologized for speeding and told the officer that he had to get the milk that he had home to his child.

He asked if he could call home but Constable Keating did not respond. [ 8 ] Constable Keating took the accused’s drivers licence and went back to his police vehicle. While dealing with the accused, he had noted a smell of beverage alcohol coming from him when he spoke and his eyes were glassy. He suspected that the accused was under the influence of alcohol so he decided he would detain the accused for an approved screening device test.

He did not have a device with him in his police vehicle but before he could radio for one to be brought to him, he noticed the accused get out of his vehicle. [ 9 ] According to the accused, it was taking awhile for the officer to deal with him. He eventually decided that he needed to speak to the officer about the fact that his wife and child were waiting for him to get back home with the milk. So he opened his car door and got out. He started waving his finger at the officer to get his attention.

All of a sudden he heard the officer yelling at him but he could not understand what the officer was saying. [ 10 ] When Constable Keating noticed the accused get out of his car, he turned on his vehicle loudspeaker and told the accused to get back into his car. When the accused did not follow his instruction, he got out and went toward the accused. He grabbed the accused, took him to the ground and handcuffed him.

The accused did not realize that he was not allowed to get out of his vehicle and he kept asking, “What is going on?” Constable Keating took the accused to the back of his police vehicle and radioed for an approved screening device to be brought to his location. He was advised that it would take approximately ten minutes for someone to attend with a device. He did not put the accused in the back of his police car because he did not have a silent patrolman installed in his vehicle.

There is no evidence that Constable Keating told the accused that he was being detained to provide a breath sample into a roadside screening device. Instead, it appears that he and the accused just waited at the back of his vehicle for the device to show up.

[ 11 ] I digress at this point to comment on one of the few areas of disagreement in the evidence. Constable Keating testified that after the accused got out of his car and was waving his finger at him, he started walking away. According to the officer, when he went after him, the accused stopped, clenched his fist, turned around and took a swing at him. At this point the officer took him to the ground, handcuffed him and placed him under arrest for assaulting a peace officer. [ 12 ] I do not accept Constable Keating’s evidence that this occurred.

The accused denied either walking away or swinging his fist at the officer and this explanation was corroborated by Sean Wilson, the only other person that witnessed this incident. Mr. Wilson was called by the Defence to give evidence on the voir dire. He testified that he was driving by when he noticed the officer and the accused talking by the drivers door of the accused’s vehicle. All of a sudden, he saw the officer take the accused to the ground. He did not see the accused swing at the officer or fight back. He described the accused as being submissive. Mr.

Wilson was sober, he drove by slowly as the officer’s emergency lights were on and he had no reason to fabricate or embellish his testimony on this point. [ 13 ] The accused had no recollection of the officer arresting him for assault. Constable Keating, by his own admission never gave the accused any rights or warning regarding this charge even though there was time to do this as they were waiting at the back of the officer’s police vehicle. I also note that Constable Keating never charged the accused with assaulting a peace officer.

He explained that he did not do this because the accused had calmed down considerably, no one was hurt and he did not think that the accused needed to be charged with assault. I understand that an officer has a discretion as to whether to lay a charge, but in this case I am not satisfied beyond a reasonable doubt that anything occurred that would justify an assault charge.

Consequently, while I do accept that the accused did not comply with Constable Keating’s demand that he get back in his car, I am not satisfied on the evidence that he walked away from the officer, that he took a swing at him or that he was arrested for assaulting a peace officer. [ 14 ] At 8:58 p.m. a marked patrol car arrived with an approved screening device. Constable Keating then made a formal approved screening device demand on the accused. He understood the demand and provided an appropriate sample on his first attempt. The result was a fail.

Constable Keating explained the fail reading to the accused and arrested him for impaired driving. At 8:59 p.m. he read the accused a breath demand. At 9:01 p.m. he read the accused his right to counsel and at 9:02 p.m., his police warning. When asked if he understood the breath demand, right to counsel and the police warning, the accused said “Yes”. When asked if he wanted to call a lawyer the accused responded, “No”. [ 15 ] The patrol car transported the accused to the Saskatoon Police station and Constable Keating followed shortly thereafter.

By the time Constable Keating arrived, the accused was being booked into detention. At 9:19 p.m. Constable Keating took the accused to an interview room where they were met by Constable Kluz, the Intoxilyzer operator. [ 16 ] Constable Kluz introduced himself as the breath technician and asked the accused if he understood the breath demand that had been made upon him. The accused responded by saying, “I understand everything. You have your tasks.” He then asked the accused if he would provide samples of his breath and the accused said, “Of course”. Finally he read the accused a secondary police warning.

When asked if he understood, the accused responded, “Somehow, yah”. He was not satisfied that this response was indicative that the accused understood this warning so he explained it again. This time, the accused responded “Yah”. He did not confirm whether the accused had waived his right to counsel or not. [ 17 ] Constable Kluz then took the accused to the Intoxilyzer room. The accused was cooperative and had no problems providing suitable samples of his breath.

His first sample, taken at 9:37 p.m., was .13; his second at 9:58 p.m. was .12. [ 18 ] After the tests were completed, Constable Keating arrested the accused for driving while over .08 and read him his right to counsel and police warning again. The accused did not wish to speak to a lawyer regarding this new charge. As soon as the officer had prepared the accused’s paperwork he was released to a neighbour that had come to pick him up. ISSUES

a) Did Constable Keating fail to make the approved screening device demand forthwith thereby violating the accused ’s

section 8, 9 and/or 10(

b) Charter rights?

b) Was there a violation of the accused’s

section 10(

b) Charter right to counsel once he was arrested for impaired driving?

c) If the accused’s

section 8, 9 and/or 10(

b) Charter rights were violated, should the evidence obtained as a result of the breachesbe excluded pursuant to section 24(2) of the Charter? ANALYSIS

a) Did Constable Keating fail to make the approved screening device demand forthwith thereby violating the accused’s

section 8,9 and/or 10(

b) Charter rights? [19] Compliance with a demand for a breath sample into an approved screening device pursuant to section 254(2) of the CriminalCode requires firstly that a peace officer have reasonable grounds to suspect that a person has recently been operating or in care andcontrol of a motor vehicle. Secondly, it requires that a peace officer must have reasonable grounds to suspect the person has alcohol or adrug in his body and thirdly, that the sample be provided “forthwith”. See R. v.

Harvey 2010 SKPC 27 at paragraph 17. [20] In the present case, Constable Keating observed the accused behind the wheel of the silver Impala he had pulled over forspeeding. After dealing with the accused and noticing the trouble he had locating his driver’s licence, his glassy eyes and the odour ofbeverage alcohol coming from his breath, he had a reasonable suspicion that the accused had alcohol in his body.

The only question thatI need concern myself with is whether the sample was provided “forthwith”. [21] “Forthwith” in the context of section 254(2) means not only that the accused driver must provide an immediate breath sample,but that a peace officer must make an immediate demand for a breath sample. In R. v. Billette, [2001] S.J. No. 227 (Sask. Q.B.), MadamJustice Ryan-Froslie, speaking on this point, said: 12 It is obvious that the procedural scheme set out in

section 254 of the Criminal Code depends upon timing. Time is very important. The reason for this is obvious. If the Crown is to prove an offence within the necessary window, samples must be taken in a timelyfashion. Thus, while section 254(2) does not state that the demand must be made “forthwith”, it is implicit that this is the case. JusticeArbour of the Ontario Court of Appeal in R. v.

Pierman (1994) (ON CA), 19 O.R. (3d) 704, speaking for the majority,held this view and stated at paragraph 5 as follows: . . . [I]t is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driverhas alcohol in his or her body. This is the only

interpretation which is consistent with the judicial acceptance of an infringement on theright to counsel provided for in

section 10(

b) of the Charter. If the police had discretion to wait before making the demand, the suspectwould be detained and therefore entitled to consult a lawyer. The basis upon which the courts have held that Parliament may infringe ona suspect’s right to counsel is that there is no opportunity for the police to accommodate that right if the breath sample must be taken“forthwith”. It follows, in my view, that for the

section to maintain its constitutional integrity we must assume it also contemplates thatthere be no opportunity for the suspect to consult counsel before the demand is made. [22] In R. v. Woods 2005 SCC 42 , [2005] 2 S.C.R. 205 (S.C.C.), the Supreme Court of Canada addressed theinterpretation to be given to the word “forthwith” in section 254(2). At paragraph 44 of the judgment Mr.

Justice Fish said: 44 The “forthwith” requirement in section 254(2) appears to me, however, to connote a prompt demand by the peace officer, and animmediate response by the person to whom that demand is addressed. . . . . [23] Thus while this term has implicit and explicit requirements, the application of “forthwith” to the circumstances of any givencase is not, however, without common sense. In R. v. Janzen, 2006 SKCA 111 , [2006] S.J. No. 629, Mr. Justice Cameron,speaking for the Saskatchewan Court of Appeal, addressed the Crown’s argument that the lower court misinterpreted the word

“forthwith” in section 254(2). At paragraph 4, he stated: [4] Turning to the first, we note that the leading cases on the issues raised by this ground of appeal stand for the proposition that“forthwith” means without delay, or its equivalent, and demonstrate that the expression without delay is to be taken as meaning withoutunreasonable or unjustified delay: R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640; R. v. Bernshaw, (SCC),[1995] 1 S.C.R. 254; R. v. Dewald, (SCC), [1996] 1 S.C.R. 68; R. v. Woods, 2005 SCC 42 , [2005] 2 S.C.R.205. (See too, R. v. Ritchie, 2004 SKCA 9 , [2005] 11 W.W.R. 593 (Sask. C.A.).

We also note that the cases stand for theadditional proposition that, in determining whether a particular roadside screening test has been administered forthwith, it is necessary tohave regard for the circumstances of the case, including the extent of the lapse of time and the reason for it, and to assess the matter withthe following considerations in mind: (

i) the balance between Parliament’s objective in combating the evils of drinking and driving, onthe one hand, and the person’s constitutional right to be free of unreasonable search or seizure, on the other; and (ii) the fact that aperson’s constitutional right to consult counsel is suspended upon demand to provide a sample of breath pursuant to section 254(4). [24] And in R. v.

Harvey, supra, at paragraph 19, my brother Judge Kalmakoff said: [19] “Forthwith” is not defined by a fixed period of time, and determining whether the “forthwith” requirement in section 254(2) is metis not accomplished by simply calculating the number of minutes that have elapsed from stop to test. Whenever there is delay, thecircumstances must be examined, including the length of the delay and the reasons for it.

It is a somewhat flexible standard which musttake into account the particular circumstances of the case. [25] On the facts of the case before me, Constable Keating stopped the accused for speeding at 8:42 p.m. Based on hisobservations of the accused in the short time that he dealt with him, he suspected that the accused had recently been consuming alcohol. As a result this traffic stop became a more serious criminal investigation when he decided to demand that the accused provide a sampleof his breath into an approved screening device.

While Constable Keating did not give a time as to when he decided he had the basis fora section 254(2) demand, I can infer from the evidence that if it was not at 8:42 p.m., it was within a minute of that time. [26] The officer did not have an approved screening device with him. He was about to radio dispatch to have one brought to himwhen he noticed the accused getting out of his car. He instructed him to get back in his car but the accused did not. So, ConstableKeating went to the accused, took him down, handcuffed him and took him to the back of his patrol car.

At this point he radioed for anapproved screening device and was told it would take some ten minutes for another officer to get to his location with one. There isnothing in the evidence as to what Constable Keating did with the accused or said to him while they waited for the device to show up. Itappears that they just stood at the back of his police vehicle and waited. [27] At 8:58 p.m. a patrol car arrived with an approved screening device and immediately upon receiving the device, ConstableKeating made a formal demand on the accused.

According to the evidence, this was the first time that Constable Keating mentionedanything to the accused about providing a breath sample into an approved screening device. [28] The accused provided a sample immediately and the result was a fail.

He was arrested for impaired driving and by 8:59 p.m.,Constable Keating was reading the accused the breath demand followed thereafter by a Charter right to counsel and the police warning. [29] From the time Constable Keating formed his suspicion and decided he was going to make a section 254(2) demand until theformal demand was made and the accused provided a sample into the device was approximately 16 minutes. Of this time, the first six orso minutes after he formed the demand were taken up by Constable Keating trying to get the accused to stay in his vehicle.

When theaccused would not comply with the officer’s instruction in that regard he had to be handcuffed. There was no opportunity for ConstableKeating to radio for a device or give the accused the demand because his attention was focused on ensuring his safety and making surethat the accused did not flee the scene. [30] However, I am not satisfied that Constable Keating’s actions over the remaining ten minutes comply with the definition offorthwith as set forth in the case law.

Specifically the only evidence as to what occurred after the accused was handcuffed was thatConstable Keating radioed for an approved screening device and was told that it would take some ten minutes to arrive. He did notmake an approved screening device demand on the accused. There is absolutely no evidence as to what Constable Keating said or didwith the accused over that time frame, if he did or said anything at all. [31] A similar problem arose in the case of R. v. Anderson, 2011 SKCA 13. In that case, officers stopped the accused at 1:11 a.m.

for traffic safety reasons. At some point, the stop changed from a traffic safety inquiry to the investigation of a possible criminaloffence. The accused was told to exit his vehicle and have a seat in the police car without being told why. At 1:14 a.m. the officer madean approved screening device demand, the accused complied and failed. Despite the fact that there was only a three minute delay fromthe time of the stop until the time of the demand, the Saskatchewan Court of Appeal held that the demand did not comply with the“forthwith” requirements as set forth in the case law. Mr.

Justice Lane, speaking for the Court said: [18] . . . . Finally, and most importantly for the purposes of this appeal, section 254(2) requires a police officer to make a demand. It isnot until after the officer makes the demand that the accused becomes lawfully detained (See, for example, R v. Anderson, 2006 SKPC18, 276 Sask. R. 304 - note this is not the trial decision of this case). The demand must be made by the police officer as soon as thepolice officer forms the reasonable suspicion the driver has alcohol in his or her body (See: R. v.

Pierman (1994), (ONCA), 19 O.R. (3d) 704 (C.A.), Arbour, J.A. dissenting in part, affirmed by the Supreme Court of Canada in (SCC),[1996] 1 S.C.R. 68). [19] Assuming all the requirements of section 254(2) are met, the detention would not be arbitrary and there would be no infringement ofthe Respondent’s constitutional rights.

However, in the case before us, the officers did not demand an ASD when the accused was askedto go to the back of the police car. [20] The Appellant argues the demand was not necessary in the circumstances because it was clear to the Respondent why he was beingdetained and he knew in these circumstances a demand would be made. However, the Respondent’s Charter rights cannot so easily bedispensed with. As the Supreme Court of Canada has affirmed, the “Charter must not be seen as something to be swept away in theinterests of expediency.” (R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569 at paragraph 97).

The requirement that a demand be made doesnot impose an onerous obligation on the officer. The failure to make the demand makes the detention unlawful, arbitrary, and thereforecontrary to

section 9 of the Charter. [32] Applying the principles set forth in Anderson, Woods, Janzen and Harvey, Constable Keating should have made his demandon the accused when he formed the reasonable suspicion that the accused had alcohol in his body and that he was going to proceed withan approved screening device test. I accept that he was unable to make the demand at that time because of the actions of the accused. But when he handcuffed the accused and took him to the back of his police vehicle, the accused became cooperative.

Despite this, thereis no evidence that Constable Keating was doing anything but standing with the accused at the back of his police car waiting for thedevice to arrive. Once the officer regained control of the situation, it was incumbent upon him to the make the demand and wait for thedevice to arrive, not just sit there and do nothing.

By not doing so, his actions did not meet the “forthwith” requirement in section 254(2)of the Criminal Code and as defined in the case law and the accused’s detention at this point was unlawful and arbitrary. [33] Additionally, Constable Keating should have given some thought to whether waiting ten minutes for the approved screeningdevice to show up exceeded the authority provided by section 254(2). He should have directed his mind to whether he was going to beable to comply with the “forthwith” requirement or whether he should give the accused a right to counsel.

While Constable Keating haddecided that he was detaining the accused for an approved screening device test, he never conveyed this to the accused. To this point intime, all the accused knew is that the officer had stopped him for speeding. The accused’s confusion should have been evident to theofficer when the accused kept saying “What is going on?” It should have occurred to the officer that he had a duty to advise theaccused why he was detained and make a formal section 254(2) demand.

If he was not going to make a formal demand at this stage butrather wait until the device showed up to do that, the officer should have considered whether he needed to facilitate the accused’sexercise of his right to counsel at the roadside while they were waiting and whether he was in a position to do that. The accused had acell phone as he had asked the officer if he could call home when he was first stopped. Not directing his mind to these possibilities andjust standing there doing nothing was not acceptable. [34] In R. v. Woods, supra, Mr.

Justice Fish said at paragraphs 14 and 15: 14 The constitutional obstacle is no easier for the Crown to overcome. Section 254(2) depends for its constitutional validity on itsimplicit and explicit requirements of immediacy. This immediacy requirement is implicit as regards the police demand for a breathsample, and explicit as to the mandatory response: the driver must provide a breath sample “forthwith”. 15 Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of sections 8, 9and 10 of the Canadian Charter of Rights and Freedoms.

But for its requirement of immediacy, section 254(2) would not passconstitutional muster. . . . [35] In other words, the immediacy requirement is integral to the validity of section 254(2). A peace officer is required to makethe demand forthwith and the roadside test is to be administered forthwith. The Crown can only rely on section 254(2) to justify anarbitrary detention, an unreasonable seizure of someone’s breath and a failure to provide right to counsel upon detention where the police

administer the test forthwith. Where the police do not do so, they are not acting within the scope of section 254(2) and that sectiontherefore cannot be relied upon to justify the Charter violations. See R v. Shire, [2007] S.J. 21 (Sask. Q.B.) at paragraph 19; R v.Husulak, [2006] S.J. 480 (Sask. Q.B.) at paragraphs 29-33. [36] Given Constable Keating’s failure to make the approved screening device demand forthwith, I am satisfied that he breachedthe accused’s

section 8 Charter right to be free from the unreasonable seizure of his breath, his

section 9 Charter right to be free fromarbitrary detention and his

section 10(

b) Charter right to counsel.

b) Was there a violation of the accused’s

section 10(

b) Charter right to counsel once he was arrested for impaired driving? [37] When considering whether an accused’s

section 10(

b) Charter right has been violated, a court must bear in mind that anaccused person has a right to retain and instruct counsel of their choice. This right imposes both an informational and animplementational duty on the police. The informational duty is to inform the individual of his or her right to retain and instruct counselwithout delay and the existence and availability of Legal Aid and duty counsel. The implementational duty is twofold and only arisesupon the individual indicating a desire to exercise their right to counsel.

The first implementational duty is to provide an individual witha reasonable opportunity to contact counsel; the second is to refrain eliciting evidence from them until they have had that reasonableopportunity. See R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233; R. v. Ross, (SCC), [1989] 1 S.C.R. 3; R. v. Bartle (1994), (SCC), 33 C.R. (4th) 1 (S.C.C.); R. v.

Luong, 2000 ABCA 301 , [2000] A.J. 1310 (Alta.C.A.). [38] Once an individual asserts their right to counsel and has been duly diligent in exercising it, if they indicate that they havechanged their mind and no longer want legal advice, the Crown is required to prove a valid waiver of the right to counsel.

In such a case,the police have an additional obligation to advise the individual of their right to a reasonable opportunity to contact a lawyer and of thepolice obligation not to take any statements or require the individual to participate in any potentially incriminating process until they havehad that reasonable opportunity (the Prosper warning). See R v. Prosper, (SCC), [1994] 3 S.C.R. 236; R. v. Luong,supra. [39] In the present case, Constable Keating arrested the accused for impaired driving after he registered a fail reading on theapproved screening device.

He immediately read the accused a breath demand, a right to counsel and the police warning. When asked ifhe understood the Charter right to counsel the accused responded “Yes”. When asked if he wanted to contact a lawyer, the accusedresponded “No”. The accused was not asked again at the roadside or at the police station whether he wanted to contact a lawyer. [40] The accused urges me to find that he did not understand his right to counsel.

He testified that he did not realize that ConstableKeating had asked him if he wanted to call a lawyer or that he could call a lawyer before he provided breath samples. [41] Based on the evidence, I cannot agree that the accused did not understand his right to counsel. In cross-examination, theaccused admitted that he was nervous and wanted to get things done so he could get back home. He said that he did not know whatConstable Keating said to him about a lawyer because he was not thinking about it at the time.

He said that while he did not understand his right to counsel, he did not ask any questions about it. [42] It is obvious to me that the accused did not recall what the officer said to him because of how nervous he was feeling at thetime. But not remembering it is different than not understanding it. Constable Keating read the accused an approved screening devicedemand and then explained the resultant fail to the accused. The accused acknowledged that he understood this. Constable Keating thenread the accused a breath demand, a right to counsel and the police warning.

When asked if he understood each of these, he respondedthat he did. And at the police station, when Constable Kluz asked the accused if he understood the breath demand and would providebreath samples, the accused said that he “understood everything” and would provide samples. Constable Kluz read the accused asecondary warning but was not satisfied with the accused’s response that he understood, so he read it again to him and this time theaccused indicated that he understood. [43] The accused struck me as an intelligent man.

He was educated, had come from Germany to work as a boiler inspector andwas trying to become a Canadian citizen. If he did not understand his right to counsel or any of the other things said to him, I expect thathe would have advised the officers of that or at the very least, asked questions about it. I do not believe that he did not understand all of

the things the officers were saying to him including the nature and extent of his right to counsel. [44] It is clear from the evidence that he was properly informed by Constable Keating of his right to free, immediate legal adviceupon his arrest for impaired driving. I have no hesitation finding that he understood that right and that he waived it in a clear andunequivocal manner. Since he did not indicate a desire to exercise his right to counsel, the implementational duties on the police did notarise and there was no requirement for a Prosper warning. [45] The accused has not satisfied me on a balance of probabilities that his

section 10(

b) Charter right to counsel was violatedonce he was arrested for impaired driving.

c) If the accused’s

section 8, 9 and/or 10(

b) Charter rights were violated, should the evidence obtained as a result of the breachesbe excluded pursuant to section 24(2) of the Charter? [46] Far and away the most common cases in which I am asked to apply section 24(2) and exclude evidence are drinking anddriving cases. The test to determine whether to exclude approved screening device results, Intoxilyzer readings and signs of impairmentis the same test as for any other section 24(2) application. R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 (S.C.C.), the seminalcase on section 24(2) of the Charter, directs a judge to consider the seriousness of the breach, the impact of the breach on the Charterprotected interests of the accused and society’s interest in the adjudication of the case on its merits in light of their effect on theadministration of justice. [47] This was the view of Borenstein, J. in the case of R. v. Vijayam, 2010 ONCJ 537 , [2010] O.J. No. 4914 (Ont. C.J.). The facts of that case are somewhat analogous to the case before me. Mr.

Vijayam was stopped for improper driving and in the courseof dealing with him, the officer became suspicious that he had been drinking. As a result, the officer made an approved screening devicedemand. She did not have a device with her and it took 18 minutes for one to arrive. During that time, Mr. Vijayam was not informed ofhis right to counsel. The only issue before the court was whether the accused’s

section 10(

b) Charter right was breached. The learnedjudge found a

section 10(

b) breach of the Charter on the basis that the roadside test was not in compliance with the forthwithrequirement in section 254(2) of the Criminal Code.

In the course of applying the section 24(2) test, Judge Borenstein had this to sayabout the seriousness of the state infringing conduct: 18 When assessing the seriousness of the Charter infringing state conduct as it relates to the issue of whether to admit or excludeevidence, the underlying rationale is that courts should consider whether admitting evidence obtained in breach of the Charter would beseen as the Courts approving of Charter infringing state conduct. The more serious the Charter infringing conduct, the greater the needfor the Court to distance itself from that conduct by excluding the evidence.

Conversely, the less serious the misconduct, the less needfor a Court to disassociate itself from the conduct by excluding the evidence. The inquiry is not an abstract one but is an assessment ofwhat actually occurred in a given case. . . . . 22 The officer detained Mr. Vijayam pursuant to section 254(2). She demanded that he provide a sample of his breath forthwith into adevice which she did not have.

When that does happen, officers should pay attention as to how long they are detaining the individualand the risk that they will be exceeding the authority provided by section 254(2) and the risk that they may be violating a detainee’s rightto counsel. They must consider whether they are in a position to provide the test forthwith and whether they can suspend the right tocounsel. Simply, not thinking about the matter is not an answer. I have not heard that the officer was doing anything at the side of theroad other than waiting for the device.

While I accept the officer was honest, and did not avert to the passage of time, I do not equateinattention as good faith. It is not bad faith, it is not flagrant or egregious. But it is not good faith. Good faith cannot be said to existwhen an officer was simply not paying attention to her responsibilities or the rights of those she was detaining. [48] In assessing the impact on Mr. Vijayam’s Charter protected interests, Judge Borenstein said: 24 When assessing the impact of the breach on Mr.

Vijayam’s Charter protected interests in relation to the issue of whether to admit orexclude evidence, the underlying rationale is that courts must proclaim the importance of the rights under the Charter and demonstratethat the Courts take violations of the rights of accused seriously. The more significant the impact of the breach on the Charter protectedinterests of an accused, the greater the need for the Courts to exclude the evidence.

25 In one sense, the impact of this breach can be seen as minor. There was very little impact upon Mr. Vijayam’s bodily integrity or hisprivacy or his dignity. However, over the last 20 years, and as recognized in Grant, the Courts have repeatedly held that individuals,even though detained, still have the ability to freely choose whether to participate in a police investigation by providing evidence againsthim or herself unless required by law.

Violations which undermine an accused’s ability to make that decision have a significant impacton the Charter protected interests of that accused, notably, the right to choose not to incriminate oneself. In this case, given the delay atroadside, the test was not administered forthwith and the roadside test was unlawful. Had Mr. Vijayam refused to comply with thepolice demand and had he been charged, he would have had a defence: see R. v. Cote, (1992) (ON CA), 70 C.C.C.(3d) 280 (Ont. C.A.); R. v.

Woods (2005), 2005 SCC 42 , 197 C.C.C. (3d) 353 (S.C.C.) Whether that would have been thecourse of events is speculative given that he was never afforded his right to counsel. [49] I agree with these comments by Judge Borenstein. I find them to have applicability to my section 24(2) assessment. As Iexamine the seriousness of the state infringing conduct in the present case, I do not believe that Constable Keating set out to deliberatelyviolate the accused’s Charter rights. I think the best way to describe his dealings with the accused would be careless or disregardful.

When the accused got out of his vehicle he was wondering why it was taking so long for the officer to address his speeding infraction. He had no idea that Constable Keating’s investigation had changed from that of a traffic act infraction to a more serious offence ofCriminal Code impaired driving because the officer had not advised him of such.

Even after the officer handcuffed the accused he stillnever advised him that he was being detained for an approved screening device test despite the fact that the accused kept asking whatwas going on. [50] Constable Keating was also aware that an approved screening device would not be available for some ten minutes yet he gaveno thought to the requirements of section 254(2) or what his responsibilities were if he could not abide by the requirements of section254(2).

He did not make a formal approved screening device demand on the accused when they were waiting for the device to show upand there is no evidence that he gave any consideration as to whether he was violating the accused’s right to counsel or whether he wasarbitrarily detaining him while they were just standing there waiting for the device to be delivered.

Just standing there with the accuseddoing nothing was not compliance with the officer’s responsibilities under section 254(2). [51] Constable Keating had only been a police officer for some three years at the time of this incident, but he was a police officernonetheless and the accused and society should expect him to be cognizant of his responsibilities. His conduct showed an unfortunatedisregard of the accused’s Charter rights, and as a result, these breaches of sections 8, 9 and 10(

b) fall at the more serious end of thespectrum. [52] Looking next at the impact of these breaches on the Charter protected interests of the accused, it is trite to say that the courtstake violations of the rights of an accused seriously. However, in certain circumstances breaches of a person’s rights and freedoms havebeen determined to be demonstrably justified as a reasonable limit prescribed by law. Section 254(2) is one such law.

This sectioncontains the power to arbitrarily detain someone, to demand that that person provide evidence that can be used against them to demandfurther evidence which could form the basis of a prosecution against them and results in the suspension of a person’s Constitutional rightto counsel while all of this is occurring. The balance for the Court is that these breaches are only justified if the criteria set forth in thissection are strictly met, and rightly so.

If the requirements for a section 254(2) demand are not met, then the police are acting withoutlawful authority. [53] In this case, the arbitrary detention of the accused resulted in his arrest and transport to the police station in handcuffs in apatrol car. The unreasonable seizure of his breath led to further demands requiring the accused to provide self-incriminating evidence.

The denial of his right to counsel meant that the accused was not able to access the legal advice necessary to allow him to make aninformed decision as to whether to participate in this police investigation against him or to choose not to incriminate himself. The impactof these breaches on the accused was significant. [54] I accept that society has a strong interest in criminal cases being adjudicated on their merits. There is no argument in this casethat the fail result on the approved screening device and the Intoxilyzer readings were not reliable.

These results and any observations ofimpairment were relevant and necessary to the Crown’s case. [55] Balancing these three factors, I am of the view that the fail result on the approved screening device, the Certificate ofAnalyses and any signs of impairment should be excluded from evidence in this case. I could not sum up this balancing any better thanBorenstein, J. in paragraph 28 of Vijayam, supra and his words are most appropriate in the present case: 28 In the end, balancing all of these considerations, it is my view that the evidence should be excluded. At first blush, excluding the

28 In the end, balancing all of these considerations, it is my view that the evidence should be excluded. At first blush, excluding the readings based on a delay at roadside of 18 minutes between the demand and the attempted administration of the test may provoke criticism and be seen to over compensate Mr. Vijayam for the breach of his right to counsel.

However, in my view, a properly informed observer, sensitive to the importance of the values enshrined in the Charter , aware of the importance of roadside screening, and aware of the careful compromises that has resulted in a legislative scheme which permits roadside screening in a manner that is constitutional, would conclude otherwise.

Given that carefully crafted legislative scheme which permits roadside screening in a constitutional manner, if the courts were to admit evidence where police failed to comply with the legislation for no reason other than they did not turn their minds to the issue on the night in question, in the long term, it could bring the administration of justice into disrepute. CONCLUSION [ 56 ] The evidence of the fail result on the approved screening device, the Certificate of Analyses and any signs of impairment noted by the officers are excluded from evidence on the trial proper. ______________________ D.E. Labach, J