) ) HER MAJESTY THE QUEEN ) Alan Semchuk ) for the Crown - v. - ), 2013 MBPC 27

2013 MBPC 27 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Alan Semchuk ) for the Crown - and - ) ) TRAVIS DAVIS WIEBE ) Mark Wasyliw ) for the Accused Accused. ) ) Judgment Delivered: ) May 14 th , 2013 ) HARAPIAK, P.J. RULING ON VOIR DIRE [ 1 ] In the early morning hours of July 15 th , 2012 Travis Davis Wiebe drove up to the McDonald’s drive-through window in Dauphin, Manitoba, right in front of a police cruiser, hoping to order a Big Mac.

He did not get his hamburger as the lunch menu was not being served, but his interaction with the server resulted in a drive impaired investigation after he was flagged to the officer as a “drunk driver”. [ 2 ] Mr. Wiebe was eventually charged with driving impaired and refusing to provide a breath sample and proceeded to trial on April 2, 2013. The Crown’s two witness case went in primarily on a blended voir dire and the matter was adjourned to today for decision.

THE FACTS [ 3 ] The investigating officer was patrolling alone, a little less than six months into her career, when she came across the accused that night. Even prior to the server flagging the driver as “drunk” she had called in the 2002 GMC Sierra truck’s plates as they were expired. [ 4 ] The constable saw the colour of the accused’s shirt and visually tracked him as he pulled away from the take-out window and into special order parking without any problem.

She then watched the vehicle lights go off and saw him exit the driver’s side, open the hood of the truck and proceed to check his oil. [ 5 ] Pulling up at an angle on the driver’s side about 20 feet away to the rear, the officer began to speak in a slightly raised voice to get the accused’s attention. The accused did not react and continued to check his oil. The office directed him to approach to “take him out of his comfort zone”. She stated she had officer safety concerns as she noticed that there were two more men in the truck and she was an officer on her own who was out-sized and out-numbered.

[ 6 ] The constable immediately told the accused she was investigating an impaired driving complaint. He advised he had not been drinking and did not respond when she asked where he was coming from. He simply avoided her gaze and stared into the darkness. [ 7 ] At this point a backup officer arrived. The investigating officer noticed the accused had a look on his face that led her to believe he was “not all there”, and had glossy eyes. She asked for his driver’s license so he went back to the truck.

When he turned he set off in the wrong direction and had to make a 180 degree turn to start going in the right direction. He kicked something and seemed wobbly when he walked. [ 8 ] When the accused returned he advised he could not find his wallet and was carrying a McDonald’s orange juice container. The officer told him, as she considered the container to be a potential source of interference with breath tests, to put the cup down. Instead of complying he removed the lid in a slow and deliberate manner.

Once the lid was off he started to drink the juice very quickly. [ 9 ] After the accused had consumed some of the juice the officer hit the container out of his hand – without, to the best of her recollection - striking him.

It took him a moment to react to this and he just stood there with his hand still out. [ 10 ] The officer testified that the accused’s reactions were slow, his eyes were closing and glossy, his ability to pay attention was poor (staring off into space, not responding to questions, not taking direction), and he had unsteady balance (wobbly walk after 180 degree turn), poor coordination (overly careful care of orange juice lid) and impaired motor skills (fumbling with dipstick).

His speech was impacted as well although the nature of this impact was not as clearly articulated as some of the other indicia. [ 11 ] It was then, at 5:05 a.m., that the officer told the accused he was under arrest for impaired driving. The accused partially shut his eyes and then slowly and carefully turned around, offered his hands to be handcuffed and was placed, after a cursory search, in the police cruiser. [ 12 ] The officer then left, went to get a pen from her fellow officer, to arrange towing of the vehicle and to speak to the passengers.

When she again entered her police cruiser she noted a strong smell of alcohol and began to re-advise about reason for arrest, give rights to counsel and the standard police caution at 5:13 a.m. The accused advised that he understood his right to counsel and would like to speak to a lawyer. [ 13 ] There was a further delay when the officer got out of the vehicle, leaving the accused staring out the window and refusing to talk to her, and went to further coordinate passenger movement and towing of the truck.

The officer left the scene at 5:22 a.m. and arrived at the detachment at 5:25 a.m. [ 14 ] The officer forgot to give the breath demand to the accused at the scene. She acknowledged this was an oversight which she remedied just before proceeding into the detachment garage at 5:27 a.m. After reading the breath demand verbatim she asked him if he was willing to provide a sample and he replied he was not, as he had been sitting in the back seat.

She acknowledged that asking him that question prior to giving him an opportunity to consult with counsel was premature and spoke of training she has since received which made this clear to her. After his refusal she read him the refusal demand and he again said he would not comply. [ 15 ] The accused was searched at this point for officer and personal safety and was given an opportunity to talk to counsel. The officer dialed the Legal Aid 1-800 number for him and transferred the call to the private telephone room after giving brief details to the on-call person.

The lawyer spoke to the officer, advising that the accused said he had not been driving. The officer assured counsel she had a different view of that. [ 16 ] The Constable had no recollection of the accused asking to give samples after speaking to counsel and she did not provide him another opportunity to provide any. [ 17 ] The issues for this court to resolve are multiple – 1. Does s. 76.1 of the Highway Traffic Act apply here or was the accused subject to an arbitrary detention in breach of his s. 9 Charter right and a consequential breach of s. 10(b)? 2.

Was the degree of or use of force to strike the container of orange juice out of the accused’s hands excessive and outside the scope of s. 25 of the Criminal Code ?

3. Did the officer have subjectively and objectively reasonable grounds to believe that Mr. Wiebe was driving impaired or over .08? Was the breath demand made “as soon as practicable” and, if not, was this a breach of his s. 8 Charter right to be secure against unreasonable search and seizure? 4. Did the officer breach the accused’s s. 10(

b) rights by failing to implement his right to counsel before questioning him on his willingness to comply with the breath demand? 5. Should the officer have given the accused a further chance to comply with a breath demand after speaking to counsel? 6. If any of the accused’s

section 8, 9 or 10 Charter rights have been breached, should evidence against the accused be excluded under s. 24(2)? s. 76.1(1) OF THE HIGHWAY TRAFFIC ACT [ 18 ] Although the Canadian Charter of Rights and Freedoms guarantees everyone “the right not to be arbitrarily detained or imprisoned” Charter rights are not without “reasonable” limits. [ 19 ] In R. v. Orbanski ,

(2005) S.C.C. 37 the Supreme Court held, for example, that the right to counsel is suspended at roadside during roadside screenings undertaken pursuant to s. 76.1 of the Highway Traffic Act . [ 20 ] S. 76.1 authorizes a peace officer to require a driver of a vehicle to stop, and allows the officer to request, without notice of right to counsel, inspection of documents, information about alcohol consumption, other personal data as well as demand participation in field sobriety testing. [ 21 ] In this case the officer pulled up behind the accused making it difficult for him to drive off.

She asked him to come away from his vehicle to remove him from his “comfort zone” and expected his compliance with her directions to retrieve his wallet and put down his drink. From the point she asked him to move away from his vehicle he was clearly detained by the officer. This normally triggers s. 10(

b) counsel rights. [ 22 ] Justice Charron, for the majority in Orbanski (supra) , in two cases involving the constitutionality of the non-particularized forerunner of these provisions wrote, at paragraph 3, that: “these screening measures, used in each case for assessing the sobriety of the driver, were authorized by law and incompatible with the exercise of the right to counsel by the detained motorist at the roadside. The resulting limitations on the s. 10(

b) right to counsel were reasonable and demonstrably justified under s. 1 of the Charter . Specifically, the limits arose by necessary implication from the legislative provisions found in the Manitoba Highway Traffic Act , S.M. 1985-86, c.3, C.C.S.M. c. H60, and their operating requirements.

Affirming the validity of such screening measures for the limited purpose of assessing the sobriety of the driver at the roadside properly balances the strong public interest in combating the social evil of drinking and driving with the need to protect the Charter rights of individuals.” [ 23 ] In this case the officer was performing a screening function in the period of time preceding arrest – she had a report about a possible impaired driver, but she did not yet have reasonable grounds herself to take any action. She proceeded to assess the situation – as permitted by s. 76.1 .

She asked if the accused had been drinking, she directed him to get his registration and she observed his walking, speech and lack of compliance before coming to the determination that she felt she had reasonable grounds to make an evidentiary breath demand. If s. 76.1 applies the delay in giving information about right to counsel is justified. Does s. 76.1 apply to this case? The accused says it does not. [ 24 ] Counsel for the accused points out that s. 74(1)(

a) of the HTA states that: “the provisions of this part (including 76.1 I should note) relating to the operation of vehicles refer only to the operation of vehicles upon a highway.” He submits that, as this incident took place in a parking lot that the officer cannot rely on the authority outlined in s. 76.1 and corresponding suspension of Charter rights. He relies on the 2007 MBQB decision of R. v. Bowler 2007 MBQB 200 where the court found that s. 76(1) did not apply to parking lots as they did not fall into the definition of highways or roadways. [ 25 ] The first problem with this argument is that counsel himself made it four times in 2011 and was unsuccessful each time – the

various judges finding that the Justice in Bowler (supra) had been in error or the case was distinguishable as that parking lot wasabandoned. R. v. Bedernjak, 2011 MBQB 47 , R. v. Duma, 2011 MBPC 19, R. v. Leslie, unreported decision of Judge Lerner, Provincial Court of Manitoba, May 2nd, 2011, and R. v. Ferland, 2011 MBPC, 66. These four decisions (none of which were providedto this court) stand for clear, analytically sound authority that parking lots, thanks to s. 236 of the Highway Traffic Act, are locationswhere people are subject to the investigative authority of police officers granted by s. 76.1 of the Highway Traffic Act. [26] S. 236(1) allows that: “[n]otwithstanding

section 74, any person who operates a motor vehicle in any place designed and intended, and primarily used, for theparking of vehicles, including the necessary passageways thereon, has the same rights and duties, and is subject to the same penaltiesprovided for a violation of any provision of this Act, as a person operating a motor vehicle upon a highway.” [27] My brother Judge Lerner, in oral reasons, analyzed this statutory

interpretation problem in R. v. Leslie (supra), citing JusticeIacobucci of the Supreme Court of Canada in Rizzo and Rizzo Shoes Limited, (1998) (SCC), 1 SCR 27, where hewrote that: “[i]t is a well-established principle of statutory

interpretation that the legislature does not intend to produce absurd consequences.” Judge Lerner found that acceding to counsel’s argument that parking lots are not subject to 76.1 would “lead to an absurd results-result (sic) if the rights and duties of motorists in parking lots referenced in

section 236 as being the same asmotorists on a highway were interpreted as accompanying-encompassing, rather, everything but the rights and duties associated with theinvestigation by police of perhaps one of the greatest hazards on the highway, that of impaired driving and its related offences.” [28]

Section 236 of the Highway Traffic Act effectively brings s. 76.1 into operation against individual drivers in parking lots.Therefore, as s. 76.1(1) expressly permits the type of screening that occurred here and as that provision has passed constitutional scrutinyin R. v. Orbanski (supra) s. 10(

b) rights were suspended and no breach occurred. [29] The accused also argues that as he was doing maintenance off the roadway that s. 76.1 does not apply to him. I do not acceptthis. He was driving just moments before and could have driven again moments later. Special order parking is not a long-term parkingspot. The officer’s authority to screen for impaired drivers cannot be defeated by merely popping one’s hood and checking the oil. [30] I would like to comment about the principle of judicial comity. My sister Judge Smith in her 2009 decision R. v.

Kehler M.J.NO. 237 reviewed the doctrine of stare decisis and judicial comity. She wrote that: “[a]ll courts accept that the stare decisis doctrine requires courts to follow decisions reached by a higher court exercising its appellate orsupervisory authority. Such decisions are binding on the lower courts. Ewaschuk, J. observed in R. v.

Hummel, (1987), (ON SC), 36 C.C.C. (3d) 8 at paragraph 7 that “it [stare decisis] is the glue that holds together the various levels of Canadian courtsand it is the principle that elevates the rule of law above the rule of individual judges.” [31] Judge Smith reviewed the approach judges of the same level of court should have when deciding whether to “depart from theanalysis taken by a judge of the same court.” [32] This principle (called judicial comity) was addressed at length by Justice Klebuc in R. v.

Butchko, 2004 SKQB 140, a decisionrelied heavily on by Judge Smith. “That principle”, she wrote, “requires, as a general rule, that a judge not decide a legal matter or issuedifferently than a judge of the same court.” [33] There are three schools of thought respecting judicial comity. (Holmes v. Jarrett, (ON SC), [1993] O.J. No.679, (Ct.J. – G.D.)) “The “authoritative view” holds that judges must follow all prior decisions of the same court without exception, with any errors to becorrected by the court of appeal.

The “persuasive view” holds that prior decisions are to be followed as a matter of judicial comity,departing only when prior decisions are considered to be “wrong”. The “conformity view” adopts the notion of Justice Wilson in ReHansard Spruce Mills Ltd., (BC SC), [1954] B.C.J. No. 136, that judges should follow judgments of their brother orsister judges unless

a) Subsequent decisions have affected the validity of the impugned judgment;

b) It is demonstrated that some binding authority in case law or some relevant statute was not considered;

c) The judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial judges, where the exigenciesof the trial require an immediate decision without opportunity to fully consult authority.” [34] Judge Smith ended by agreeing that she was “not bound to follow a decision made by a colleague on the same legal point.

Yet based on the case law discussed and the policy reasonsthat underlie the principles of stare decisis and judicial comity,” she concluded, ”there should be some compelling or strong reason for a judge of this court to take an opposite position on an issue previously decidedby another member of this Bench.” [35] There is no compelling reason for me to take a different approach here, and I believe the decisions already authored by thiscourt and the Bedernjak (supra) decision suggesting that Bowler, (supra) the case relied upon by counsel was in error settle the point,but for any further authority from a higher court. s. 25 OF THE CRIMINAL CODE OF CANADA [36] s. 25(1) of the Criminal Code of Canada states, among other things, that: “[e]veryone who is required or authorized by law to do anything in the administration or enforcement of the law

b) as a peace officer orpublic officer…is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much forceas is necessary for that purpose.” [37] Objectively, did the officer have reasonable grounds to knock the orange juice container out of the accused’s hands? To review– Mr. Wiebe came back from his truck without his wallet, but with a see-through container of orange juice with a lid. He was told to putit down but ignored that direction and instead removed the lid carefully and then began to quickly drink the fluid.

The officer, moving inat this point to make the arrest, knocked it out of his hand. She was concerned that he was attempting to contaminate or interfere withthe breath testing in some way. [38] Drinking alcohol after drinking can, of course, interfere with a sample meant to assess alcohol content while driving. Defencecounsel conceded that the officer’s grounds might have been reasonable if the container could have contained alcohol. Was itreasonable to be suspicious that there may have been some ulterior purpose to drinking the orange juice?

The fact that he refused to putit down and that, after moving quite slowly he proceeded to drink with a sense of urgency make the officer’s suspicions about his actionsand lack of compliance understandable and her action in knocking it out of his hand reasonable. [39] It is important to remember, when assessing the officer’s behavior, the comments from the Supreme Court of Canada in R. v.Nasogaluak 2010 SCC 6 , [2010] 1 S.C.R. 206, where Justice LeBel wrote: “Police actions should not be judged against a standard of perfection.

It must be remembered that the police engage in dangerous anddemanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.”

[40] I find the force used was no more than necessary and is in compliance with s. 25(1). s. 8 BREACH? [41] The Charter of Rights and Freedoms guarantees, at s. 8, that “[e]veryone has the right to be secure against unreasonable searchor seizure.” There is a presumption that any warrantless search is unreasonable (Hunter v. Southam Inc. 1984 SCR 145) unless thesearch was “

a) authorized by law;

b) the law itself is reasonable and

c) the manner in which the search was carried out was reasonable.” That is from R. v. Collins, (SCC), [1987] 1 SCR 265. [42] As this was a warrantless search the onus is on the Crown to prove these factors have been met. [43] The

section that authorizes this type of search is found at s. 254(3) of the Criminal Code. It states: “If a peace officer has reasonable grounds to believe that a person is committing or, at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, 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 theconcentration, if any, of alcohol in the person’s blood, or (ii) If the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable ofproviding a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of thequalified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood; and

b) If necessary, to accompany the peace officer for that purpose.” [44] There is evidence the accused was driving just prior to his interaction with the police officer. The officer tracked him visuallyfrom the drive-through window to the special order parking spot. Were there, subjectively, reasonable grounds to believe an offence hadbeen committed? [45] It has been clearly laid out by the Supreme Court, both in R. v. Bernshaw, (SCC), [1995] 1 SCR 254 andagain in R. v.

Shepherd, 2009 SCC 35 , [2009] 2 SCR 527 that there is a: “subjective and objective component to establishing reasonable and probable grounds; that is, the officer must have an honest belief thatthe suspect committed an offence under s. 253 of the Criminal Code, and there must be reasonable grounds for this belief.” (R. v.Bernshaw) [46] Here the officer didn’t just receive a tip, but personally interviewed a witness who just observed the accused and believed hewas “drunk” due to the way he was speaking. The officer testified that, once she began to interact with Mr.

Wiebe she also came to theconclusion that he was impaired by alcohol. She pointed to his apparent confusion and inability to focus (staring into the distance andignoring her questions), his glossy, half-shut eyes and somewhat vacant stare, his wobbly walk and poor motor skills, illustrated by slowmovements, a false start in the wrong direction when returning to his truck, and fumbling with the dipstick while checking the oil.

Evenwithout the strong smell of alcohol that she observed when she returned to the car the multiple indicia which touched upon his motorskills and ability to appropriately respond to direction gave her grounds, both subjectively, and objectively, to demand an evidentiarybreath sample.

AS SOON AS PRACTICABLE [47] Was this demand made “as soon as practicable”? The caselaw is clear that “as soon as practicable” should be interpreted asmeaning “within a reasonably prompt time” and not “as soon as possible.” R. v. Ashby (1980), (ON CA), 57 C.C.C.(2d) 348 (ONCA). [48] In this case this junior officer candidly admitted that she simply forgot to make the demand at the scene before requiring theaccused to go with her for the purpose of breath testing. She completed the other requirements of reason for arrest, rights to counsel andpolice caution by 5:13 a.m.

She then left the accused in the cruiser car for 7 or 8 minutes while she coordinated passenger movementand towing of the vehicle and then traveled to the detachment. She did not give him his breath demand until just prior to entering thepolice garage at 5:27 a.m.; some 14 minutes after she first had the opportunity to do so. This was not within a reasonably prompt timeand was a breach of the accused’s s. 8 rights. I will deal with s. 24(2) issues later in my reasons. DID THE OFFICER BREACH THE ACCUSED’S s. 10(

b) RIGHTS? [49] Chief Justice Lamer, writing for the majority in R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, reviewed thepurpose of s. 10(

b) as being: “to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtainadvice on how to exercise those rights and fulfill those obligations: R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233, at pp.1242-43. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position ofdisadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk ofincriminating him- or herself.

Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate needof legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: Brydges, at p. 206; R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, at pp. 176-77; and Prosper.” [50] There are multiple duties imposed on state authorities upon arrest or detention of a person.

Chief Justice Lamer notes, in Bartle(supra), the first as being informational and the next two implementational: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [51] In this case the officer, upon completing the breath demand, and after the accused had indicated he wished to speak to counsel,immediately asked him if he was prepared to provide a breath sample.

She advises that she has since received training and realizes thiswas an error – that she has an obligation to hold off until the accused had a reasonable opportunity to consult with counsel. This wouldnot have been difficult as she had arrived at the detachment and the telephone room was readily available. The accused did not blurt outhis refusal – he was answering a direct question without the legal information necessary for him to answer with full knowledge of theconsequences to him. This questioning was a breach of the accused’s s. 10(

b) rights to counsel, specifically the requirement that thepolice hold off questioning. R. v. Prosper (SCC), [1994] 3 S.C.R. 236. I will deal with s. 24(2) below. DOES A PROPER REFUSAL DEMAND REQUIRE ANOTHER CHANCE TO BLOW? [52] The final issue centres around what happened after the accused was able to exercise his right to counsel. If he was prepared toblow, should he have let the officer know that instead of remaining silent? Should she have given him another breath demand? Therehave been different opinions on this over the years. [53] In R. v. Sullivan, (BCCA), relied upon by the Crown, the British Columbia Court of Appeal was quite

dismissive of an accused’s Charter application where he refused to comply with a breath demand and then, after consulting with counsel,did not volunteer a sample on his own. The Court of Appeal found that the initial words of refusal were conditional, but that, afterspeaking to counsel “his conditional refusal became by his own silence non-conditional.” [54] My colleague Judge Martin, writing on this point in R. v. Williamson, 2010 MBPC 14 pointed out that Sullivan (supra) pre-dated the Supreme Court of Canada decisions of Bartle (supra), and Prosper (supra), which would, in my view, make relying on its lackof finding of a s. 10(

b) breach and subsequent analysis in this type of situation risky. Judge Martin viewed Sullivan (supra) as aprecedent, with mixed consideration in subsequent jurisprudence, that really spoke to the elements of the offence of refusal. I agree withher. [55] Justice Dewar, while questioning whether reasonable excuse for refusal should even be considered during a Charter voir dire,adopted the Sullivan (supra) reasoning in R. v. Dotremont, 2011 MBQB 88, holding that: “[p]roof beyond a reasonable doubt of that demand is a requirement before a conviction can occur.

In most instances, therefore, thedemand need only be made once. If there is confusion in the mind of the accused about the demand, that is a matter which arises whenthe court considers whether the accused has a reasonable excuse to refuse the demand, not during a voir dire respecting an alleged s.10(

b) breach.” [56] Justice Dewar is clear that the original breath demand and refusal demand can all be read to the accused before having anopportunity to consult with counsel, but was disapproving of Crown’s reliance on pre-advice statements, as follows: “This information would in my mind help the accused in any subsequent discussion with a lawyer as to what the police were expectinghim to do.

The error by the Crown in this case was to attempt to place into evidence the accused’s answer that was given before he hadthe opportunity to speak to his lawyer.” [57] Although Justice Dewar was not convinced, in Dotremont, (supra), that a second demand after advice from counsel wasrequired by law he thought it “would have been prudent to ensure that an accused could not defend on the basis that he was, after his call, waiting for another demandto be repeated…” s. 24(2) ANALYSIS [58] Having found two separate Charter breaches here, under s. 8 and s. 10(

b) I must undertake the three step analysis dictated bythe Supreme Court of Canada in the case of R. v.

Grant, 2009 SCC 32 , 2009 Carswell Ont 4104, requiring that I: “assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: 1) the seriousness of the Charter-infringing state conduct; 2) the impact of the breach on the Charter-protected interests of the accused, and 3) society’s interest in the adjudication of the case on its merits.” s. 8 BREACH [59] As the law authorizing seizure of evidentiary breath samples was not strictly complied with when the breath demand was notmade “as soon as practicable” I have found a breach of s. 8 of the Charter.

The officer seemed to have been acting in good faith inpromptly advising the accused of his reason for arrest, his rights to counsel and administering the police caution. This breach was theresult of an oversight on the part of the inexperienced officer which she remedied very quickly when she arrived at the detachment, andno evidence was gathered as a result of the breach.

[ 60 ] In the continuum of breaches the delay of the breath demand was minor and fleeting. The impact on the accused’s protected privacy interests was minimal as, although he was required to attend to the detachment, no breath tests were ever attempted. The application for a Charter remedy is denied. s. 10(

b) BREACH [ 61 ] I take a very different view of the 10(

b) breach. The Crown has been careful to point out that the offence was made out with the single demand made by the officer, prior to the accused being able to consult with counsel. This illustrates the great jeopardy the accused was in when he spoke. The Crown argues that the authorities should not have to chase down a reply – once the accused gets legal advice he should let the officer know if that changes his mind. [ 62 ] The officer was candid in her testimony that she would not attempt to elicit a response to a breath demand prior to implementing counsel rights in the future.

This was not a spontaneous comment from the accused, as seen in some cases. A question was asked, and he responded, prior to consulting with counsel, despite having indicated he wished legal advice. It appears that the officer’s actions that day were undertaken in good faith.

On the first line of inquiry under Grant (supra), however, good faith alone isn’t enough to excuse an officer’s Charter -infringing conduct. “…[I]gnorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith.” ( Grant (supra) para. 75) [ 63 ] The Supreme Court reminds us that: “[s]tatements by the accused engage the principle against self-incrimination, “one of the cornerstones of our criminal law”: R. v.

Henry, 2005 SCC 76 , [2005] 3 S.C.R. 609 S.C.C., at para. 2.” “…an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate…” including “the right to counsel in s. 10(b)”. ( Grant (supra) para. 89) [ 64 ] The importance of this Charter value and the great jeopardy a detained, uninformed accused is in, particularly in a technical, complex area of law such as the drive impaired and over .08 regime, convinces me that the first ground strongly favours exclusion of the refusal. [ 65 ] Secondly, what impact did this breach actually have on the protected interests of the accused? [ 66 ] The accused, without the opportunity to speak to his lawyer, having specifically requested such a chance, was asked a question – the answer which was an essential part of the offence he is alleged to have committed.

This cannot be interpreted as him exercising a meaningful and informed choice to speak. The second ground stands strongly in support of exclusion. [ 67 ] The community expects that criminal offences will be tried on their merits and that trials will not be derailed lightly. Since the clarification respecting 24(2) analyses in the Grant (supra) decision a number of minor Charter breaches have not proven fatal to prosecutions as, in a review of the outlined factors, society’s interest in proceeding outweighs the other two.

Although there are often strong arguments to be made, in breath sample cases, that the evidence obtained is reliable and obtained with a minimum of inconvenience for the accused, this is not a breath sample case. The Charter breach here resulted in the evidence against the accused. This factor argues in favour of exclusion as well.

I have also considered that it does not end the Crown’s case against the accused with respect to the entirety of the incident – there is still an argument to be made on the drive impaired charge. [ 68 ] Having considered all of the factors required by Grant (supra) I am convinced that the admission of the refusal statements prior to advice from counsel would bring the administration of justice into disrepute and they are excluded. ________________________ Harapiak, P.J.