2012 MBPC 4, 2012 MBPC 4

CITATION# 2012 MBPC 4 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Ms Keri K. Anderson, for the Crown ) - and - ) ) Tyler Duane Croom ) ) Ms Roberta L. Campbell, for the Accused ) ) Judgment delivered: ) January 10, 2012 FRED SANDHU, P.J. [ 1 ] Mr. Croom is charged with driving a motor vehicle with a blood alcohol level over .08. [ 2 ] The sole issue at trial, on an omnibus voir dire , is the admissibility of the Certificate of Analysis (“COA”) obtained subsequent to a fail reading on an Approved Roadside Screening Device (“ASD”).

There is little evidence of actual impairment and I would acquit on any such charge. [ 3 ] If the COA is admitted the accused is guilty of the crime of driving a motor vehicle with a blood alcohol concentration of over .08 milligrams in 100 millilitres of blood. If not there would have to be an acquittal. [ 4 ] The seminal issue on determining the admissibility of the COA is whether the demand for the ASD, that gave the sole grounds for administering a Breathalyser test which produced the COA, was validly made, and, more importantly, validly administered. [ 5 ] The fact situation is simple though unique.

There is no credibility issue. [ 6 ] The facts may be summarized as follows: [ 7 ] Late on a darkened and pleasant summer night, the Selkirk RCMP and other detachment RCMP offices received reports of a large party, a possible fire, and possible impaired drivers in an area around a local gravel pit, known as the Springfield Gravel Pits. Several police units arrived and set up a checkpoint on the way out of the gravel pit. Halfway up the hill, on a path, in the dark, they noticed what appeared to be a fire in the bush up a hillside.

Several officers, including the arresting officer went up the hill, taking 10 minutes or so to arrive at the scene of what was a vehicle on fire. Their police vehicles were left on the gravel pit road. As they attended to the fire scene the officers noted several young people walking down the same path. The fire department was called, the scene secured and some of the officers continued up the path, looking for stragglers. This took about 15 minutes, and the officers, including the arresting officer then went back down the same path.

Near the scene of the fire a vehicle suddenly appeared on another path or road, driven by the accused. There were several young people in the box of what was a pickup truck. There was alcohol in the truck`s box, as seen by police. [ 8 ] The accused was seen exiting his vehicle, with some passengers in it, and throwing something underneath. The investigating officer attended and seized what were found to be the keys to the vehicle. The accused himself was displaying little to no signs of impairment, but had the odour of alcohol on his breath and there were other circumstances indicating the consumption of alcohol.

The accused admitted to consuming half of one beer and was a young person with a restricted zero tolerance for alcohol driver’s license. The arresting officer made an ASD demand at 00:57 hours. [ 9 ] The investigating officer had no grounds to arrest for impaired driving, or driving over .08 as there was little evidence to that effect. The accused displayed few signs of impairment. That is not in issue. The officer made a valid ASD demand.

I find the demand to be proper, being based on reasonable suspicion of alcohol in the blood of a driver of a motor vehicle. [ 10 ] The ASD instrument was not with the investigating officers. The nearest one was down the hillside in one of the RCMP vehicles parked in the gravel pit. The investigating and eventual arresting officer escorted the accused, who was cooperative throughout, to the parked RCMP vehicle in the gravel pit parking lot, literally “over hill and dale”.

This was a process that took about 15 minutes with another 8 minutes before the ASD was administered in the back of the police vehicle and a fail was indicated. It should be noted that the accused throughout displayed little to no signs of impairment, and easily negotiated the walk down the hills and dales of the Springfield Gravel Pits and into the police vehicle that contained the ASD.

[11] After failing the ASD the accused was then arrested for drive over .08 and subsequently taken to a local detachment where heblew over the legal limit and was so charged. No other issues arise from this. The accused was co-operative throughout and was properlyadministered all rights and information. [12] In my opinion, the officer had grounds to detain for the purposes of administrating an ASD forthwith, as required by law, as hasalready been said. But the ASD was not at roadside. It was not administered forthwith or immediate.

The accused was in police custodyfor approximately 23 minutes before the ASD was administered. The detention was, in my opinion, unlawful and a violation of the s. 9Charter enshrined right to be free from arbitrary or unlawful detention. [13] R. v. Grant, 2009 SCC 32, 245 C.C.C. (3d) 1 : “[16] Constitutional guarantees such as ss. 9 and 10 should be interpreted in a “generous rather than . . . legalistic [way], aimed atfulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection” (R. v. Big M Drug MartLtd., (SCC), [1985] 1 S.C.R. 295, at p. 344).

Unduly narrow, technical approaches to Charter

interpretation must beavoided, given their potential to “subvert the goal of ensuring that right holders enjoy the full benefit and protection of the Charter”(Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 23). [17] While the twin principles of purposive and generous

interpretation are related and sometimes conflated, they are not the same. Thepurpose of a right must always be the dominant concern in its

interpretation; generosity of

interpretation is subordinate to andconstrained by that purpose (P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), vol. 2, at pp. 36-30 and 36-31). While a narrowapproach risks impoverishing a Charter right, an overly generous approach risks expanding its protection beyond its intended purposes.

In brief, we must construe the language of ss. 9 and 10 in a generous way that furthers, without overshooting, its purpose: Big M DrugMart, at p. 344.” [14] Applying such a broader scope to this detention of the accused, although initially lawful for the purposes of making the ASDdemand, such lawful detention does not extend to situations where the ASD is not readily available, and an accused is forced, withoutrecourse and under detention, to walk 15 minutes down a hillside and bush to arrive at that instrument, with the ASD actually beingadministered some 23 minutes after the demand. [15] The intent of the Criminal Code ASD provisions, where Charter rights are permitted to be briefly suspended in order to affectthat intent to facilitate the detection of impaired drivers, is not met where the ASD is administered in such circumstances.

To be forced towalk 15 minutes under police custody and escorted to an alcohol detection device that is intended to be used ``forthwith``, by thecharging legislation, and at roadside, is not a lawful detention and a violation of s.9 of the Charter. [16] In R. v. Cote (1992), (ON CA), 70 CCC (3rd) 280 (Ont. C.A.) was a situation where the investigating officerdid not have the screening device with him and had to take the accused to the detachment. A total of 14 minutes elapsed between themaking of the demand and when the device was ready.

For the sample to be provided “forthwith” it must be provided immediately,meaning very shortly after the accused has been requested to accompany the officer for the purpose of providing the sample, usually atthe side of the road or in the immediate vicinity. [17] What is the remedy? [18] Grant provides trial Courts with a full and clear analytic framework in deciding that question under s. 24(2) of the Charter: “[67] The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice.

The term “administration ofjustice” is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly,however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. [68] The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining theintegrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediatecriticism. But s. 24(2) does not focus on immediate reaction to the individual case.

Rather, it looks to whether the overall repute of thejustice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It askswhether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that theadmission of the evidence would bring the administration of justice into disrepute. [69] Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done tothe administration of justice.

Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breachdoes not do further damage to the repute of the justice system.” [19] Looking at the issue prospectively, would the administration of justice be brought more into disrepute by the admission of theevidence (Certificate of Analysis) than by its exclusion? [20] It is true that the COA is reliable, independent evidence of a crime. The COA was produced after a failure on the ASD andsubsequent arrest. It stands as reliable proof of a crime.

I appreciate that, in Grant, the Supreme Court of Canada indicated that aviolation such as the taking of a breath sample is a less egregious violation and intrusion into bodily integrity than other tests such as thetaking of blood. The court held that the taking of a breath sample could result in such evidence obtained from an accused’s body beingadmitted into evidence dependent on the circumstances. In essence, the court has recognized that the taking of a breath sample in thecircumstances of a Charter breach will have a lower impact on those protected interests than was previously the case. The Crown argued

that collection of the breath sample, via an ASD, was not a deliberate or egregious breach in this case. Failing the ASD is not a crime. It was a good faith exercise. The taking of the breath sample was non-intrusive in nature and did not infringe on the accused’s dignity. [ 21 ] Although the ASD was illegally and improperly administered in the course of what was initially a lawful detention, ought the subsequently obtained COA via breathalyser be admitted or excluded as evidence, on a s.24 (2) analysis and balancing of the various factors? [ 22 ] I must answer that question by excluding the evidence.

I do so as the admission of this evidence would likely bring the administration of justice into disrepute more so than by its exclusion. [ 23 ] Per Grant : “[71] When faced with an application for exclusion under s. 24(2), a court must 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 (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.” [ 24 ] Although the conduct is not overly serious and in good faith, a legal demand for an ASD test, followed by a 23 minute escort to an ASD that was not at roadside, is of concern.

To condone such conduct would essentially mean the word “roadside” and “forthwith” would be distorted to the extent that the legislated sections of the Criminal Code mandating these restrictions would be rendered meaningless. [ 25 ] The message that would be sent to the citizenry is one that the justice system should not send: that state authorities can ignore legislated mandates that are intended to restrict loss of liberty, where the legislated intent was to have a quick investigative, roadside procedure, free as possible from restraints on liberty. [ 26 ] Although society certainly has an interest in adjudication of this offence and these type of offences generally, there cannot ever be a conclusion that condones illegal police investigations, or actions contrary to statutes, in this case the Criminal Code ’ s clear intent and purpose.

I appreciate that the COA is very reliable evidence, and that this weighs in favour of admission. It is, however, the long-term repute of the justice system that is s. 24(2)’s focus, per Grant : “[83] The importance of the evidence to the prosecution’s case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense.

The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.” [24] The trial Judge is afforded wide discretion in this objective assessment under s. 24(2), per Grant : “[86] In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck.

Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved.

Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. [227] The question the judge must answer is whether the repute of the administration of justice would be better protected by admitting the evidence or by excluding it. In some cases, the impact on constitutional rights will be the determining factor because, owing to certain circumstances of the violation, the long-term effect of admitting the evidence would be to bring the administration of justice into disrepute. But the converse is also true.

Thus, there will be other cases in which it is the public interest in an adjudication on the merits that should prevail: see, for example, the companion case of R. v. Harrison , 2009 SCC 34 . Absent an error in principle, the decision is a matter for the trier of fact.” [25] In the balance, I find that the violation of the accused’s right to be free from arbitrary detention, combined with the violations of Criminal Code law respecting “forthwith” and “roadside” administration (that is, as to how ASD’s are to be administered by the requirements of statute law) dictates in favour of exclusion of the COA.

Although the “fruit of the poisoned tree” is not always a good or winning argument, in this case it applies.

[26] In my view, to admit the evidence of the COA having only been obtained due to an arrest of a driver over .08 (after the ASD was administered), which itself was only available because of the illegally obtained ASD result, would condone police behaviour to the extent that the ASD Criminal Code statute sections would be rendered, if not meaningless, so wide in scope as to invite repeated violations of the right to be free of arbitrary detention under similar circumstances.

It would potentially open up the ASD regime to unintended and ill advised investigative procedures that would not respect those very same laws. [ 27 ] In my opinion, the administration of justice would be brought more into disrepute by the admission of the evidence than the exclusion. [ 28 ] The Charter Motion is granted. The Certificate of Analysis is excluded and the accused is acquitted. “ORIGINAL SIGNED BY:” FRED SANDHU, P.J.