HER MAJESTY THE QUEEN - v. -, 2011 NBPC 1

R. v. Jamie Frederick James 2011 NBPC 1 Tabufile : 14176313 CANADA PROVINCIAL COURT OF NEW BRUNSWICK BETWEEN: HER MAJESTY THE QUEEN - and - JAMIE FREDERICK JAMES Decision rendered by the Honorable Paul E. Duffie in the matter of charges under paragraph 253(1) (

b) and paragraph 253(1)(

a) of the Criminal Code of Canada . DATES OF HEARINGS: August 26 th , 2010 and November 10 th , 2010. PLACES OF HEARINGS: Miramichi and Fredericton, New Brunswick DATE OF DECISION: January 12 th , 2011 APPEARANCES : Mr. George Chiasson, Q.C. on behalf of the crown Mr. Randy McDonald, on behalf of the defense DUFFIE, Prov. Ct. J. CHARGES [ 1 ] Mr.

Jamie Frederick James stands charged of the following two offences that allegedly occurred on January 8 th , 2010, at or near the City of Miramichi, New Brunswick that: COUNT 1: On or about the 8 th day of January, 2010 at or near the City of Miramichi, in the County of Northumberland and Province of New Brunswick having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood, did operate a motor vehicle, contrary to Section 253(1) (

b) of the Criminal Code of Canada and amendments thereto; AND: COUNT 2: On or about the 8 th day of January, 2010 at or near the City of Miramichi, in the County of Northumberland and Province of New Brunswick while his ability to operate a vehicle was impaired by alcohol or a drug, did operate a motor vehicle, contrary to Section 253(1) (

a) of the Criminal Code of Canada and amendments thereto;

INTRODUCTION [ 2 ] By notice of application filed on October 19 th , 2009, Mr. James has brought a Charter application seeking the exclusion of the evidence seized by the officer pursuant to s. 24(2) of the Charter of Rights and Freedoms (Charter) based on alleged breaches of his rights under sections 8 , 9 and 10(

b) of the Charter . [ 3 ] The evidence in this case was adduced by way of a combine Charter voir dire and trial. [ 4 ] Four issues have been raised for determination: (

i) Was there a lawful demand under section 254 (2) of the Criminal Code considering the evidence of the police officer with respect to his understanding of a failure reading from the Approved Screening device and did Constable Gallant have a duty to test the ASD to insure it was working properly prior to obtaining the breath sample from Mr. James and thus in violation of s. 8 of the Charter ? (ii) Was Mr. James’ right to counsel violated pursuant to s. 10 (

b) of the Charter ? (iii) Is the suitability of the breathalyzer tests flawed because of an unusual delay between the taking of the first test and the second test? (iv) Was Mr. James arbitrarily detained in violation of s. 9 of the Charter ? The Applicable Principles [ 5 ] In this case, Mr. James is presumed to be innocent, unless and until the crown has proven each essential element of this offence beyond a reasonable doubt. [ 6 ] Reasonable doubt is based upon reason and common sense.

It is logically connected to the evidence or the lack of evidence. [ 7 ] It is not enough for me to believe that the defendant is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. [ 8 ] In assessing the credibility of the witnesses in this case, I remind myself of the principles articulated by the Supreme Court of Canada in R. v. W.D.

(1991) CanLII 93 (S.C.C.). CROWN’S EVIDENCE [ 9 ] Constable Bradly Gallant, a peace officer with the City of Miramichi, testified that at approximately 2:00 a.m. on January 8 th , 2009, he was patrolling along Duke Street which is situated on the Chatham side of the City of Miramichi, in the Province of New Brunswick, near a local bar known as Dooly’s. While proceeding along Duke Street, he noticed Mr. James’ vehicle starting to exit the Dooly’s parking lot indicating with its signal light that he intended to turn right onto Duke Street. However, Mr.

James vehicle did not proceed immediately onto the said street, instead appeared to wait for the police vehicle driven by Constable Gallant, passed in front of him and then Mr. James proceeded right onto Duke Street now following Constable Gallant’s police vehicle. [ 10 ] Constable Gallant was of the opinion that Mr. James had plenty of time to enter unto Duke Street before he passed in front of him. In addition, Constable Gallant states Mr. James, thereafter, took various streets in such a manner that Mr. James’s vehicle had really only circled the block.

Constable Gallant found this to be unusual and along with the fact that Mr. James’ vehicle waited to enter onto Duke Street longer than required all increased Constable Gallant’s curiosity in regards to what Mr. James was up to. Constable Gallant, at this point, was of the opinion that Mr. James’ vehicle was trying to avoid him and since he had just left the Dooly’s bar the sobriety of the driver of the vehicle became a concern for the constable.

He, consequently, maneuvered his police cruiser so that he now was behind the James’ vehicle and stopped it. [ 11 ] Once the James’ vehicle was stopped, Constable Gallant identified Mr. James as the driver and noticed a moderate smell of alcohol emanating from Mr. James’ breath and observed that his eyes were bloodshot and that his speech was slow but coherent. There were two other passengers in the vehicle with him. [ 12 ] Constable Gallant testified that he suspected that Mr. James had consumed alcohol and thus at 2:19 a.m. made a demand under s.

254 (2) of the Criminal Code for Mr. James to provide a sample of his breath in an approved screening device (ASD), commonly referred to as the road side screening device. Mr. James agreed to take the test which was administered in Constable Gallant’s police cruiser and Mr. James registered a fail which indicated to Constable Gallant that Mr. James’ alcohol level was over the legal limit. Consequently, Constable Gallant, at 2:34 a.m. read a second demand to Mr. James under s. 254 (3) of the Criminal Code to provide a second breath test but this time in an approved breathalyzer machine which Mr.

James agreed to do and which was carried out at the City of Miramichi police station. [ 13 ] As to the ASD demand, Constable Gallant never self-tested the screening device prior to administering the same to Mr. James however, he testified that their screening devices were calibrated every two weeks and were set up to detect an alcohol level of one hundred and ten milligrams of alcohol in one hundred milliliters of blood or more. Once a breath sample was given and if the device registered an “F” this was confirmation that the individual failed the test as he was over the legal limit.

Constable Gallant testified that the results of the test along with the other signs of the presence of alcohol provided him with the required reasonable and probable grounds to make the second breathalyzer demand. [ 14 ] Both demands for the breath test were made in Constable Gallant’s police vehicle. The required police caution and right to counsel were also given at the time when the second demand was made for the breathalyzer test. Once at the police station, Mr.

James took advantage of his right to counsel and spoke with his lawyer prior to taking the breathalyzer test. [ 15 ] Two breath samples were taken at 3:29 a.m. and 4:08 a.m. by a qualified technician. Constable Gallant testified that after the first test and while waiting for the second test to be administered that Mr. James requested to go to the washroom which he did. Constable Gallant supervised him during this time and while returning to the breathalyzer room Mr. James stopped at a water fountain and took some water in his hands and drank some of it. Constable Gallant told him immediately to spit it out.

Constable Gallant informed the qualified technician of the incident, who admonished Constable Gallant for allowing the incident to occur and then she waited forty minutes to take the second required sample which is well over the required fifteen minutes wait to administer a second test. [ 16 ] After the second test and all the required documentation was prepared and served upon Mr. James, the issue of his release arose. Constable Gallant testified that he offered to call someone to come get him such as his father, but says that Mr. James didn’t want to call his father or bother his father at this time of night.

Constable Gallant says Mr. James eventually became belligerent over the issue and decided, on his own, to stay overnight in their jail cell. [ 17 ] The crown is seeking to introduce the Certificate of Analysis of the qualified technician as proof of Mr. Gallant’s alcohol level. [ 18 ] On cross-examination, Constable Gallant admitted that while he maneuvered his police vehicle to get behind Mr. James’ vehicle, he had an opportunity to follow the vehicle and that at no time did he notice any erratic driving. Constable Gallant further agreed that Mr.

James did not fumble to produce his license, registration or insurance documentation when requested to do so. [ 19 ] Constable Gallant said that it was the totality of the circumstances that caused him concerned such as leaving the Dooly’s club, taking a strange route out of the city, seemingly trying to avoid the police vehicle that made him suspicious. Once he stopped the Mr. James’ vehicle the smell of alcohol, blood shot eyes and slow speech confirmed his suspicion that Mr. James had consumed alcohol and thus made the demand for the ASD. Up until Mr.

James failed the ASD test Constable Gallant admitted he did not have the required reasonable and probable grounds to make a breathalyzer demand. [ 20 ] Constable Gallant also testified on cross-examination that once he read the right to counsel, in his police cruiser, Mr. James wanted to use his cell phone to call someone but did not know who. Constable Gallant disallowed the call and seized the cell phone from Mr. James.

He stated that this was police policy and that cell phones were not allowed as pictures or a video could be taken of the scene and that the privacy of the call, if it was to the lawyer, could not be insured. The accepted practice was to have the individual to exercise his right to counsel once transported to the police station. [ 21 ] When cross-examined as to the release of Mr. James, after all was completed with him, Constable Gallant was quite cavalier in his answers. First, he testified in direct that there would not have been a problem with Mr.

James taking a cab however, in cross- examination he admitted that Mr. James taking a cab would not have been an option and he preferred have someone come to pick him up. Particularly, he says, in these circumstances Mr. James didn’t know where he wanted to go. [ 22 ] On the issue of the eventual release of Mr. James, Constable Gallant says his shift finished at 6:30 a.m. and he said he did not

leave any instructions for the release of Mr. James and said that the next shift would release him when they saw fit. He did say hispractice was to release an individual, in these circumstances, after approximately four hours. [23] He also admitted it was not his practice to make notes of the conversation and circumstances surrounding the release of anindividual and thus no notes of the events of the release of Mr. James were written down. [24] It should be noted that Constable Gallant testified that, at the scene, he did request back-up as he had to deal with the seizure ofMr.

James’s vehicle, his dog and one of the passengers, who was highly intoxicated and became agitated thus creating a commotion. This individual was also arrested by one of Constable Gallant’s colleagues. EVIDENCE OF THE DEFENCE: [25] Mr. James testified that on the evening in question he left Dooly’s and was giving a ride home to two of his friends. Hecontradicts and disputes the evidence of Constable Gallant that he took a bizarre route when leaving the Dooly's parking lot.

He says hewas proceeding towards the Nelson region and that he took the appropriate route to do so. [26] He confirms that he requested and was denied the opportunity to call his lawyer at the scene with his cell phone. He advisedConstable Gallant that he wanted to call a lawyer by the name of Mr. Lutz and this was confirmed by Constable Gallant in his testimony. [27] At the police station, once the test and all of the documentation were completed, Mr. James testified that he was arbitrarilylocked in the police cell until 1:30 p.m. next day.

He adds he was not offered the opportunity to take a cab to go his father’s house as herequested which was a short distance away. He denies that he became belligerent and says they assumed that he was after asking somequestion about the documentation he had been served. The next day he says he requested to be released, as he had a previouscommitment to pick-up his son at 12:00 noon, but was denied. He says he was finally release around 1:30 and at that time they offeredhim a cab to leave. [28] Mr. James maintained that he had two drinks that evening and thus admitted that his breath had the smell of alcohol.

ANALYSIS Approved Screening Device (ASD) The Charter of Rights and Freedoms 8. Everyone has the right to be secure against unreasonable search or seizure. [29] A police officer lacking reasonable and probable ground to make a demand to a person to provide breath samples in abreathalyzer machine, may pursuant to section 254(2) of the Criminal Code, make a roadside screening demand, in an ApprovedScreening Device (ASD), if the officer “reasonably suspects” that a person operating a motor vehicle “has alcohol” in his or her body.

That is to say, a peace officer can request the screening test merely upon entertaining a reasonable suspicion that alcohol is in a person’sbody. A “fail” result may be considered, along with any other indicia of impairment, in order to provide the police officer with thenecessary reasonable and probable grounds to make a breathalyzer demand. In order to satisfy this requirement, the officer must haveboth objective and subjective grounds for this suspicion. (see R v.

Bernshaw (S.C.C.) [30] I find that Constable Gallant subjectively believed, after the ASD test, that reasonable and probable grounds existed to make thebreathalyzer demand and after an objective analysis, in my view, makes those reasonable and grounds appropriate. Briefly, the smell ofalcohol, the blood shot eyes, the slow speech and failed ASD test, in my view, are conclusive in that regard. [31] Defence counsel submitted the case of R. v. Binelli, 2101 ONSC 539 in support of his argument that Constable Gallant had nottested the screening device and had not properly articulated what an “F” meant in the process.

[32] In the Binelli case, supra, the Judge found that the officers did not testify that the device was in proper working order, neitherofficer tested the machine and did not testify that they had any reasonable grounds to believe that the device was in working order. [33] In the present case, Constable Gallant did not self-test the device prior to using it however; he testified that he relied on theproper calibration of the device since it was calibrated every two weeks. Consequently, in my view, the Binelli case, supra, can bedistinguished.

It is true that in most cases we see that the officers will self-test the machine while some only self-test if they concludethat the individual is trying to avoid providing a suitable sample. In this regard, the crown submitted the case of R. v. Mastromartino, (ON S.C.) which, in my view, is applicable in the present case: At pages 19 and 20 paragraph 79, the judge states: An officer using an ASD need only have a reasonable belief that the device is properly calibrated and in working order beforerelying on a “fail” result to confirm his or her suspicions that a driver may be impaired or over the legal limit.

There is norequirement the officer knew the calibration setting of the device, when it was last calibrated, or whether the device was in factworking properly: R. v. Coutts (ON C.A.), (1995), 45 O.R. (3d) 288 (Ont. C.A.); R. v. MacDonnell [2004] O.J.No. 927 (S.C.J.)(Q.L.); R. v. Hill [2001] O.J. NO. 4505 (S.C.J.)(QL). As Moldaver J.A. noted in Coutts at p. 232: Manifestly, where a roadside test is being used solely for the purpose of confirming or rejecting a police officer’ssuspicion that a motorist might be impaired or over the legal limit, none of these facts need be proved.

It is sufficient if theadministering officer believes them to be true. Where, however, the test result is being offered for the truth of its contents, thesefacts must be proved by admissible evidence. [34] In my view, Constable Gallant’s evidence in regards to the device he was using demonstrated he had a reasonable belief that thedevice was properly calibrated and in working order. Finally, the onus was on the accused to lead evidence at trial that there was a “highdegree of unreliability with respect to the screening device” at the time that it was administered to Mr. James. (See R. v.

Bernshaw(1995) CanLII 150 (S.C.C.) [35] There was no evidence advanced suggesting that the device functioned unreliably. Accordingly, I find that Constable Gallant’sreasonable and probable grounds to make the ASD demand were not undermined by Constable Gallant’s lack of self-testing the device. [36] As to the submission that by reason of Constable Gallant not properly explaining in his testimony the meaning of a failed resultof the ASD test and thus the court should hold that that failure would make it such that Constable Gallant could not have had the beliefthat Mr.

James had more than 80 milligrams of alcohol in 100 millilitres of blood in his body at the time. I noted earlier that ConstableGallant quite properly explained the calibration of the screening device which was calibrated in favour of an accused as it was calibratedto detect readings of 110 milligrams of alcohol, or more, in 100 millilitres of blood well over the legal limit. The constable also indicatedthat the fail meant to him that Mr.

James was “over the legal limit”. [37] Therefore, I conclude there was no s. 8 violation that would required me to consider exclusion of the breathalyzer resultspursuant to s. 24 (2) of the Charter. Right to counsel pursuant to s. 10 (

b) of the Charter The Charter of Rights and Freedoms 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right. [38] Mr. James argues that since Constable Gallant did not allow him to make his cell phone call to his lawyer in the police vehicle,his right to retain and instruct counsel without delay was denied. Interestingly, Constable Gallant never brought up the issue of theattempted cell phone call in the police vehicle in his direct examination. It was under cross-examination that he did admit that Mr. Jameswanted to make a call, as he testified, “to someone” with his cell phone and said that he didn’t know who Mr. James wanted to call.

Inthis regard, I believe Mr. James’ version of the events when he testified that once he was given his right to counsel he decided to try tocontact his lawyer immediately with his cell phone and advised Constable Gallant of his desire to do so. In fact, as confirmed byConstable Gallant, Mr. James named Mr. Lutz as his lawyer who he wanted to contact. Mr. James’s relies on R. v. Sharkey, 2010

NBPC 9 case in which Judge McCarroll, of this court, concluded that the refusal to allow Mr. Sharkey to make a cell phone call from thepolice vehicle to be in violation of Mr. Sharkey’s s 10 (

b) Charter rights. [39] Of course, with the advancement of technology this issue of the cell phone call from the police vehicle will become more of thenorm than the exception. How should courts deal with this reality is a more difficult issue. The right to counsel under s. 10 (

b) of theCharter is to be exercised right without delay. The regular procedure, in our type of case, is to transport the accused to the policestation and provide him or her the opportunity to call a lawyer of their choice or have access to a legal aid lawyer and as long as theaccused was given reasonable opportunity to exercise the right to retain and instruct counsel without delay it satisfied the s. 10 (b)requirement. (See R. v. Manninen, (SCC), 1987 1 S.C.R. 1233). See also R v. Suberu, 2009 SCC 33 where the courtheld that the phrase “without delay” in s. 10 (

b) must be interpreted as “immediately”. The immediacy of this obligation is only subjectto concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter. [40] Certainly Mr. James could not be blamed to want to use his cell phone in the police vehicle after the right to counsel was read tohim from a standardized card. While reading the same card in evidence, Constable Gallant advised Mr.

James that he had the right tocounsel “without delay” and continued to advise that such contact to counsel could be made “right now” and finally asked a second timeMr. James if he wanted to contact a lawyer “right now”. So much was the emphasis on “right now” one could have been left with theimpression that if a contact was not made immediately, one may lose his or her opportunity to do so later. [41] I note that Mr.

James did speak to his lawyer before taking the breathalyzer test at the police station some twenty minutes afterthe right to counsel was provided which I would conclude is within a reasonable time frame. This was not the situation in the R. v.Sharkey case, supra, where one hour elapsed after the right to counsel was read and the denial of the use of the cell phone. [42] In my view, the cell phone issue will have to be resolved at one point in a more adequate manner that I am prepared to do at thistime because there are issues to be decided in regards to the immediate use of a cell phone in a police vehicle.

As Constable Gallantexpressed under cross-examination, matters such as police security and the privacy of the call are at stake and I agree. [43] It appears to me that the use of a cell phone, at the scene, in a police vehicle will, some day, become part of the norm.Consequently, particular rules will have to be developed to accommodate this transition. Such as those wishing to use the expedientdevice of a cell phone should be prepared to waive the privacy of the call. In other words, the officer would remain present during a cellphone call or conversation.

It would be highly dangerous to allow an alleged accused under the potential influence of alcohol and/ordrugs to make a private call from a police vehicle. He may call friends to come to his rescue et cetera. While such a call at the policestation would be futile. [44] Constable Gallant also expressed concerns that the cell phone may be used to take pictures which would not be acceptable. I seethis less of a concern and something that can be controlled by the officer at the scene. [45] In the present case I believe it is sufficient to say that, I find that since Constable Gallant advised Mr.

James that he had the rightto call his lawyer “right now” on two occasions and did not provide him the opportunity to so by using his cell phone did violate Mr.James s. 10 (

b) rights to contact counsel without delay. [46] Since there is an s. 10 (

b) violation, I must consider the exclusion of the breathalyzer results pursuant to s. 24 (2) of the charterwhich I shall do once all of the issues have been dealt with. Suitability of the breathalyzer test [47] Mr. James argues that the requirement under s. 254 (3) of the Criminal Code that the breath samples be provided as soon aspracticable was violated once Mr. James drank some water between test and that a longer period than usual was required to take thesecond test. Mr.

James’ counsel also argued that the effects of drinking water between tests on one’s alcohol level are unknown and thuscreates a reasonable doubt as to the suitability of the second test. [48] Section 254 (3) reads in part:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding threehours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demandmade as soon as practicable, require the person

(

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion , will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or (Underlining is mine) [ 49 ] Without any evidence to the contrary, the qualified technician’s opinion as to whether a proper analysis was obtained rests with him or her. In this case, the technician upon being advised that Mr. James had consumed some water decided to wait longer than the required fifteen minutes. Thereafter, she obviously was satisfied that the test was suitable and a proper analysis. [ 50 ] In R. v.

Melville , 2007, CanLII 520 (ONCA) , the court had this to say about a qualified technician’s role and I find it applicable herein: Page 2 paragraph 4: We disagree. The language of s. 254(3) of the Criminal Code as interpreted in R . v . Dobrowski , [2005] O.J. No. 2576 contemplates that a qualified technician may in the course of administering a test, determine that a sample is unsuitable in which case a demand for a further sample may be made under the scheme.

In this case, the qualified technician made the assessment based on her training that the second sample provided by the appellant was not suitable for analysis. Whether she was ultimately, as a matter of science, right or wrong in that assessment is irrelevant. Under the statutory scheme, she was entitled to make that assessment in good faith. Her good faith was not challenged in this proceeding . [ 51 ] Consequently, I find that the breath samples that were provided by Mr. James to be suitable and properly analyzed. Was Mr. James arbitrarily detained in violation of s. 9 of the Charter ?

The Charter of Rights and Freedoms 9. Everyone has the right not to be arbitrarily detained or imprisoned. [ 52 ] Mr. James was served the required documentation after taking the breathalyzer test and he was then incarcerated from 5:00 a.m. until 1:30 p.m. the next day. This time of incarceration is well over the normal four hours Constable Gallant says was his practice. Counsel for Mr. James says the length of the incarceration under the circumstances was in violation Mr. James s. 9 Charter rights. [ 53 ] As pointed out earlier, there are contradictions as to what occurred when the time came to releasing Mr.

James on the early morning of January 9th, 2010. First, Constable Gallant testified that the matter became complicated when he suggested to Mr. James that he could call his father and Mr. James refused that option. The issue of taking a cab was not suggested by Mr. James says Constable Gallant however, Mr. James testified that he did request a cab and was denied. Constable Gallant testified in direct examination that if Mr. James would have requested a cab he would have agreed to it.

On cross-examination Constable Gallant testified that a cab is usually not allowed and not the preferred option when releasing an individual. In the end Constable Gallant says Mr. James became belligerent and said “what the hell, lock me up and I’ll get out in the morning”. [ 54 ] I found Mr. James’ evidence, that he did not become belligerent, when the issue of his release was being considered, to be very weak. He testified that he thought he was being unfairly treated as well as his dog which had been brought to a kennel and expressed a lot of frustration. My sense was that at this particular time, Mr.

James was not very cooperative and I don’t accept his testimony in this regard. [ 55 ] In the present case, where there has been an arrest without a warrant ss. 497 and 498 of the Criminal Code contain the guiding

principles that a police officer must respect and they are in part set as follows: Release from custody by peace officer 497 .

(1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence described in paragraph 496( a ), (

b) or ( c ), the peace officer shall, as soon as practicable, (

a) release the person from custody with the intention of compelling their appearance by way of summons; or (

b) issue an appearance notice to the person and then release them. Exception

(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. Release from custody by officer in charge 498 .

(1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496( a ), (

b) or ( c ), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable, (

a) release the person with the intention of compelling their appearance by way of summons; (

b) release the person on their giving a promise to appear; (

c) release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or (

d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs. Exception

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

(Underlining is mine) [56]

Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. [57] Section 24 (1) of the Charter provides that anyone whose rights or freedoms, as guaranteed by the Charter, have been infringedor denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in thecircumstances. [58] In my view, based on the provision of s. 497 and particularly the parts I have underlined, Mr.

James detention could only bejustified on the basis that it was necessary for the public interest and/or the prevention of the continuation or repetition of the offence ofimpaired driving. The other exceptions provided for in s. 497 would not be applicable considering the circumstances of this case. In anyevent, there was no evidence adduced by the crown to satisfy these exceptions. [59] Constable Gallant’s evidence was that Mr. James himself agreed to remain in custody while Mr. James’ denied he took thatposition. In any event, Mr.

James was incarcerated from approximately 5:00 a.m. to 1:30 the next day which, in my view, raises someconcern. [60] Counsel for Mr. James’ submits the case of R. v. Poletz,

(2009) SKPC 121 in support of his position that the post detention ofMr. James was arbitrary and in violation of his s. 9 Charter rights and I agree with him. [61] It is important for me to advise, at this time, that I found Constable Gallant’s attitude and tone as a witness to be of someconcern. At times, during his testimony, he was very cavalier and at other times, he seemed disinterested. He had little or no interests inthe issue of Mr. James’ incarceration that evening and his eventual release the next day.

Constable Gallant testified that it was not hispractice to take notes surrounding the release of an accused. This may be acceptable if the accused is released. However, such notesshould be taken if the accused is detained in order to satisfy proper disclosure. In any event, after considering all of Constable Gallant’stestimony I was left with the impression the constable was not very happy with the fact that one of the passengers at the scene becameuncooperative and was also eventually arrested on a separate matter and detained the same length of time as Mr. James. Also plus thefact that Mr.

James took a drink of water between tests and that Constable Gallant was chastised by the qualified technician for thisincident seemed to disturb him as well. Finally, Constable Gallant appeared to have had enough once he says Mr. James becamebelligerent when discussing his potential release after the breath test. From that point it is clear that Constable Gallant’s attitude towardsMr. James post-breath detention and eventual release was, at the very least, unprofessional and, in my view, vengeful. [62] For certain, it was clear from Constable Gallant’s testimony that once Mr.

James was incarcerated he no longer was concernedwith him. He said his shift was finished at around 6:30 a.m. and that those left in charge would deal with Mr. James as they saw fit andleft no instructions with regards Mr. James’s release. [63] I am prepared to accept and find that Mr. James became belligerent during the discussion for his release, however, it appears asthough that belligerence was relatively short-lived, and there is no evidence that it continued after Mr. James was locked in a cell. Furthermore, there is no evidence that anyone checked on Mr.

James to assess his sobriety at any point between the completion of thebreath tests and his release at 1:30 p.m. the next day. [64] Even by concluding Mr. James was initially properly detained under ss. 497 or 498 of the Criminal Code I am not satisfied, basedon the evidence, that Mr. James' continued detention was necessary in the public interest, having regard to all of the circumstances,especially in light of the fact there is no evidence as to whether his condition was checked by officers with an eye towards his release atany time before 1:30 p.m. In addition, Mr.

James testified that he requested to be released the next morning because he had a priorcommitment with his son at 12:00 noon. Mr. James says he was refused that request and was eventually released at 1:30 p.m. Thisevidence is uncontradicted as the crown did not call any evidence in regards to who took charge of Mr. James after Constable Gallant’sshift was completed and why and when he was released. [65] In R. v. Poletz, supra, Justice Hinds outlined the following principle which I subscribed to found at page 18 in paragraph 86: [ Justice Allbright, of the Saskatchewan Court of Queen’s Bench, in R. v.

S.L.L., 2002 SKQB 425 2002 SKQB425, [2002] S.J. No. 774 (S.L.L.), affirmed the trial judge’s findings that “as soon as practicable” as found in

section 497 and

section 428, is “not to be interpreted to mean when the police find it most convenient from their point of view, and the phrase "asnecessary" is not to be interpreted that way either” (S.L.L.). In R. v. Paquette, 2002 SKPC 18 , 2002 SKPC 18, [2002]S.J. No. 78 at 21, rev’d on other grounds 2002 SKQB 427 2002 SKQB 427, [2002] S.J. No. 613, Goliath J., found thatthe detention of the accused was in violation of

section 498, because it was “for reasons of convenience and perhaps lack ofresources, rather than necessity or legal justification”. [66] I find that the officers here did not meet the standard of reasonableness, and Mr. James’ continued detention, or over holding wasunlawful. Such an unlawful detention is arbitrary, and I am therefore satisfied on a balance of probabilities that Mr. James’ continueddetention was a violation of his rights under

section 9 of the Charter. Review under s. 24 (2) of the Charter Enforcement of guaranteed rights and freedoms 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed ordenied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regardto all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [67] Since I have found violation of Mr. James’ Charter rights under both

section 10 (

b) and

section 9 of the Charter I now begin myanalysis of s. 10 (

b) violation. I will be referring to the principles and guidelines set out in the Supreme Court of Canada case R. v.Grant, 2009 SCC 32 . The Supreme Court outlined the three following steps that must be considered in determining whetherthe evidence seized would bring the administration of justice into disrepute pursuant to s. 24(2) of the Charter. Right to Counsel [68]

(1) The seriousness of the Charter-infringing state conduct. I find that Charter rights infringed in regards to the right to counsel to be serious. However, in the circumstances, I believe, at least atthis point during his investigation, Constable Gallant’s conduct in his police vehicle was carried out in good faith. He followed thenormal procedure in regards to the right to counsel and explained his concern over the fact of Mr. James using his cell phone. As wellMr. James, did within a reasonable time, speak to his counsel before taking the breathalyzer test. The violation was short lived andeventually repaired. (see R. v. Couturier

(2004) NBCA 91)

(2) The impact of the breach on the Charter/protected interest of the accused. I find that the impact of the Charter breach on the accused to be serious; however, again the fact that in reality no damage was done andthe violation rectified limits the impact to a nullity.

(3) Society’s interest in the adjudication of the case on its merits.

There is no doubt that it would be in society’s interest to have the case decided on its merits. Society, I am sure, would be concernedwith finding an individual intoxicated while driving and would consider this to be a serious public threat. Secondly, the result of thebreath samples is recognized as reliable evidence and obviously was evidence crucial to the crown’s case.

Finally, the evidencerequested to be excluded is the Certificate of Analysis which sets out the results of the breath test which would be crucial to the crown’scase. [69] Notwithstanding the Charter breach under s. 10 (b), after review of the guiding principles under R. v.

Grant, supra, I concludethat the admission of the Certificate of Analysis would not bring the administration of justice into disrepute. [70] It was uncontested that, without the failure of the approved screening device test, Constable Gallant would not have hadreasonable and probable grounds to request a breathalyzer test. [71] With that in mind, the Crown reasonably conceded during the proceedings that it has failed to establish the charge of impairedoperation of a motor vehicle to the degree required.

There certainly are some indicia of impairment, but insufficient to establish beyonda reasonable doubt that on the day in question Mr. James’ ability to operate the motor vehicle was impaired by alcohol or a drug. As aresult, the charge contained in count number two will be dismissed. Arbitrary Detention Enforcement of guaranteed rights and freedoms 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [72] Having made the determination that Mr. James was arbitrarily detained after his arrest and eventual incarceration, the questionnow turns to what remedy, if any, is appropriate and just in the circumstances. [73] In R. v.

Poletz, supra, Judge Hinds outlines the starting principles to be considered in regards to s. 24 (1) of the Charter analysisand as to what is the proper remedy in these types of cases as follows: Page 23 at paragraphs 119 and 120 state: There are a number of remedies available under s. 24(1) of the Charter. These include: civil damages, the imposition of costsor a less severe penalty, such as a reduction of any fine payable and a stay of proceedings. In this case the defence submits thatthe appropriate and just remedy is a judicial stay of proceedings. In R. v. Regan, 2002 SCC 12 , [2002] S.C.J. No. 14, Mr.

Justice Lebel speaking for the Supreme Court of Canada setout the test to be applied for when the remedy of a judicial stay of proceedings is granted at paragraphs 53 -54: 53. A stay of proceedings is only one remedy to an abuse of process, but the most drastic one: "that ultimate remedy", as thisCourt in Tobiass, supra, at para. 86, called it. It is ultimate in the sense that it is final.

Charges that are stayed may never beprosecuted; an alleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact.For these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met: "the threshold forobtaining a stay of proceedings remains, under the Charter as under the common law doctrine of abuse of process, the 'clearest ofcases'" (O'Connor, supra, at para. 68). 54.

Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justicesystem, a stay of proceedings will only be appropriate when two criteria are met: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial,or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice. [O'Connor, at para. 75] The Court's judgment in Tobiass, at para. 91, emphasized that the first criterion is critically important.

It reflects the fact that astay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a pastwrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as

a whole, in the future. [ 74 ] The analysis, hereafter, is a difficult one because in these types of cases the remedy is invariably linked to the individual facts of the case, the nature of the violation and its long term consequences. [ 75 ] The breach that I have found in this case had no effect on the fairness of Mr. James’ trial, as there was no evidence gained as a result of his detention, and no resulting prejudice to his ability to make full answer and defence.

This case falls into the ‘residual category’ where I must consider whether the conduct of the police contravened any fundamental notions or undermined the integrity of the judicial process. [ 76 ] I have considered the various less serious remedies available and find them to be inappropriate in the circumstances as they would not be suitable to ensure proper police conduct in the future. In the present case, I am satisfied that the police officers acted in bad faith.

I conclude that the evidence showed that the systemic practice on the part of the Miramichi Police Service was to allow individuals to be released by those in charged as they saw fit. If this is the case, then the onus was on the crown to produce evidence why the police saw fit not to release Mr. James in a timely manner. There is no evidence of continued misconduct on the part of Mr. James and there is evidence, which I accept, that Mr.

James requested to be released and no evidence as to why he was not. [ 77 ] As I previously mentioned, the tone and ‘laissez faire’ attitude of Constable Gallant’s testimony left me with the impression that Mr. James’ was being unusually detained to punish him. In fact, Mr. James testified that his passenger friend received the same treatment and he also had requested to be released before 1:30 p.m. without success. [ 78 ] Based on the criteria set out in the R. v. Regan , a stay of proceedings is the appropriate remedy to insure that the prejudice suffered by Mr.

James is not perpetrated in the future and is the only reasonable remedy to remove the prejudice. One must always be mindful that all accused, at this stage, should benefit from the presumption of innocence and their detention must be limited to a reasonable time unless the authorities can provide evidence why their continued detention was required. In my view, this is one of the reasons that s. 9 found its way into the Charter . Conclusion [ 79 ] First, I am satisfied, on a balance of probabilities, that Mr. James’ rights under

section 9 of the Charter were violated by his post- breath test detention. I am also satisfied, that a stay of proceedings is not a drastic remedy in the circumstances and find it is the appropriate and just remedy under section 24 (1) of the Charter . A judicial stay of proceedings will be entered on the charge under section 253 (1) (

b) of the Criminal Code . Secondly, I find Mr. James’ not guilty of the charge of impaired driving under s. 253 (1) (

a) of the Criminal Code of Canada. Rendered at the City of Fredericton, New Brunswick, this 12 th day of January, 2011. ___________________________________________ Paul E. Duffie Judge of the Provincial Court of New Brunswick