Her Majesty the Queen - v. -, 2016 SKPC 39

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 039 Date: March 11, 2016 Information: 90013155 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Darla Marie McWilliams Appearing: Ms. N. Quaroni For the Crown Ms. S.Fox For the Accused DECISION ON CHARTER VOIR DIRE & TRIAL M. HINDS, J INTRODUCTION 1 .

Darla Marie McWilliams is charged that on or about August 17, 2015, at or near Regina, she did without reasonable excuse, fail or refuse to comply with a demand made to her by a peace officer pursuant to section 254(2) of the Criminal Code , to provide a sample of her breath to enable analysis to be made by means of an Approved Screening Device contrary to section 254(5) of the Criminal Code . 2 . The defence takes the position that the Approved Screening Device (ASD) demand was not made forthwith. As a result the defence maintains there was no obligation on Ms.

McWilliams to comply with an unlawful ASD demand and hence there is no basis for a refusal charge. The defence also submits that since the ASD demand was not lawful then: (1) the detention of Ms. McWilliams, necessary to obtain the breath sample, was arbitrary and violates

section 9 of the Charter of Rights and Freedoms ( Charter) : and

(2) Ms. McWilliam’s rights under

section 10(

b) of the Charter are not suspended during the period of her detention and attempts to obtain samples of her breath without informing Ms. McWilliams of, and implementing, the right to counsel violates

section 10(

b) of the Charter . 3 . Finally submits that the police detained Ms. McWilliams and violated her rights under

section 10(

a) of the Charter . 4 . As a result, the defence takes the position that any refusal evidence should not be admitted into evidence at trial. 5 . At the onset of the trial, the Court entered into a voir dire in order to determine whether the refusal evidence should be entered into evidence. There were four witnesses: Kendall Abstreiter, Constables Eric Justason, Chris Ramponi and Curtis Warner. At the conclusion of the Charter voir dire counsel for the Crown and for Ms. McWilliams indicated no further evidence would be called at the trial, regardless of my ruling on the Charter issues.

Counsel also agreed that any admissible evidence from the voir dire could be applied to the trial. 6 . In this case I determined that the Crown did not prove the lawfulness of the Approved Screening Device. Ms. McWilliams was not obliged to comply with an unlawful demand. During the Charter voir dire I have determined that there was a breach of the accused’s

section 9 and 10 (

a) and (

b) Charter rights. I embarked upon the section 24(2) analysis set out by the Supreme Court of Canada in R v Grant , 2009 SCC 32 , [2009] SCJ No 32, and found that refusal evidence should not be admitted into evidence at the trial. As a result I found the accused not guilty of the offence before the Court. FACTS 7 . Around 9:00 p.m. on August 17, 2015 Kendell Abstreiter was driving along Sherwood Drive in the city of Regina. Ms. Abstreiter observed that an SUV driving behind her was swerving. She then observed this driver hit a parked car, spin around and hit another car parked in a driveway. Ms.

Abstreiter turned her vehicle around and waited at the scene of the accident for the police to arrive. During her wait for the police Ms. Abstreiter observed the accused get out of her vehicle. Ms. McWilliams began yelling and told all bystanders including Ms. Abstreiter that they were ignorant because they would not let her use a washroom as she had to pee. 8 . Constables Justason and Ramponi of the Regina Police Service were working together on patrol duties in a marked police car during the evening hours of August 17, 2015. Their vehicle was not equipped with an ASD device.

The officers were dispatched to 7207 Sherwood Drive at 8:59 p.m. regarding a vehicle striking two other vehicles. They were advised that the driver of the offending vehicle was believed to be impaired.

9 . The police officers arrived at 7207 Sherwood Drive around 9:08 p.m. They observed approximately eight people near that address. They also observed a motor vehicle had been pushed up onto the sidewalk. The back bumper of this vehicle was damaged and a window was smashed. They also noticed another vehicle was located on the front lawn of a house. After approximately one minute the officers got out of their patrol car and began speaking to the group of people. Some people pointed to the car located on the front lawn. Constable Justason heard someone say “She’s trying to get away”.

He observed the tail lights and backup lights turn on and off . He also heard the rev of engine of the vehicle. Constable Justason was concerned that the driver of this vehicle was trying to leave. He went to the passenger side of the vehicle on the lawn and opened the door. He then reached in and moved the stick shift of the vehicle into either neutral or park, turned off the engine and removed the keys from the ignition. Constable Justason exited the passenger side of the vehicle and joined his partner, Constable Ramponi who was situated at the driver’s side of the vehicle. The driver of this vehicle was Ms.

McWilliams. There was front end damage to her vehicle which was resting against another vehicle which was parked in a driveway. 10 . Constable Ramponi opened the driver’s door and asked Ms. McWilliams to get out of her vehicle. She complied. He then asked for her driver’s licence. Ms. McWilliams opened her purse and began searching for her driver’s licence. She passed over it a few times before Constable Ramponi took the driver’s licence out of her purse. Constable Ramponi asked Ms. McWilliams a few questions.

She told him that earlier that day she left work at 2:00 p.m and went to Rebellion Brewing where she had a few drinks with her daughter. She said her last drink was at 4:00 p.m. a short time later she said her last drink was at 2:00 p.m. While dealing with Ms. McWilliams at her vehicle Constable Ramponi noticed that she slurred her words while she was speaking. He asked her to come to his police vehicle. She agreed. He observed that she was wearing high heeled shoes and that as she walked she had problems with her balance and was unsteady on her feet. 11 . After Ms.

McWilliams was placed in the back of the police vehicle Constable Ramponi noticed the odour of alcohol coming from Ms. McWilliams. He asked her what happened. She told him that while she was driving she was cut off by a vehicle, lost control of her vehicle and caused an accident. She was unable to provide him with any details about the vehicle that cut her off. Constable Ramponi noticed that another officer, Constable Warner, had arrived on the scene. He got out of the police vehicle and spoke to Constable Warner about Ms. McWilliam’s’s version of how the accident occurred.

After a couple of minutes he returned to his police vehicle. 12 . Constable Warner arrived on the scene around 9:24 p.m. He has training as a collision analyst which allows him to determine the mechanism of collisions. Constable Warner spoke to Constable Ramponi. He thought the McWilliams vehicle hit an Acura RSX which had been parked on Sherwood Drive, subsequently hit a Monte Carlo vehicle parked in a driveway and then came to rest on the front lawn of a house. During their conversation Constable Ramponi told Constable Warner that he was planning on making an ASD demand of Ms.

McWilliams and asked him if he had one. He did. Constable Warner got an ASD from his patrol car. The two officers then went to Constable Ramponi’s police vehicle where Ms. McWilliams was being held. 13 . At 9:30 p.m. Constable Ramponi made an ASD demand of Ms. McWilliams. Ms. McWilliams became somewhat belligerent and indicated she wanted to speak to her friend. Constable Ramponi said she could not call her friend. This exchange between the two occurred a second time. Ms. McWilliams was upset and complained about not being able to go to the bathroom.

She then indicated she wanted to use her cell phone to speak to a lawyer. Constable Ramponi told her she could not call a lawyer. Ms. McWilliams became more agitated and raised her voice and began screaming. Constable Ramponi got out of the front seat of the police vehicle and spoke to Constable Warner. Constable Warner went to the back door of the police vehicle where Ms. McWilliams was. He presented Ms. McWilliams with the ASD and gave her instructions on how to blow into the device. Ms. McWilliams repeated that she wanted to call her lawyer. Constable Warner told Ms.

McWilliams that she could not call a lawyer and that if she failed to provide a sample of her breath into the ASD she would be charged with refusal. Ms. McWilliams continued to say that she wanted a lawyer. For several minutes Constable Warner attempted to get Ms. McWilliams to provide a breath sample. During this time she did not attempt to provide a sample of her breath. Constable Warner determined that Ms. McWilliams was refusing to provide a sample of her breath into the ASD. He told Constable Ramponi to charge Ms. McWilliams with refusal. 14 . Constable Ramponi advised Ms.

McWilliams she was being charged with refusal. He read her Charter rights and warnings to her at 9:33 p.m. She said she understood her rights and warning and indicated she wanted speak to a lawyer. Between 9:33 p.m. and 9:40 p.m. the officers dealt with the various matters regarding the scene of the accident. At 9:40 p.m. Ms. McWilliams was transported to the Regina Police Station. Upon arrival, she was booked into cells, escorted to a bathroom and then taken to a phone room to speak to a lawyer. Timeline 15 .

The essential timeline of events is as follows: 9:08 p.m. - Constables Justason and Ramponi arrive on scene of accident. 9:10 p.m. - Constable Ramponi arrives at the driver’s side of Ms. McWilliams vehicle. 9:11 p.m. - Constable Ramponi speaks to Ms. McWilliams, opens her door, asks for and obtains her driver’s licence. 9:12 p.m. - Constable Ramponi gets Ms. McWilliams to walk to and get into the back of his patrol car. - For 18 minutes between 9:12 and 9:30 Ms. McWilliams remained in the back of his parole car. 9:30 p.m. - Constable Ramponi made ASD demand of Ms.

McWilliams. 9:33 p.m. - Constable Ramponi arrests Ms. McWilliams for refusal and advises her of Charter rights and police warning. CHARTER ISSUES [16] Were the requirements of section 254(2) of the Criminal Code met? That is, has the Crown established that a lawful ASD demand was made? I will address this issue as follows:

a) Did the police delay in making the ASD demand of Ms. McWilliams?

b) If there was police delay surrounding the ASD, did this result in a violation of the accused’s

section 9 and 10(

b) Charter rights?

c) If the accused’s

section 9 and 10(

b) Charter rights were violated, should the refusal evidence be excluded pursuant to section 24(2) ? The Approved Screening Device, Section 254(2)(

b) of the Criminal Code [17] At the time of the offence, section 254(2) (

b) of the Criminal Code in part read as follows: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours operated a motor vehicle . . . or had care or control of a motor vehicle, . . . whether it is in motion or not, the peace officer may, by demand require the person to comply with . . . either or both of paragraphs (

a) and (b), in the case of alcohol:

(

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary accompany the peace officer forthat purpose ANALYSIS Whether the requirements of section 254(2)(

b) of the Criminal Code were met. That is, has the Crown established that a lawful ASD demand was made? [18] In R v Birnie, 2013 SKPC 50 at paras 9 - 11, Judge Kalmakoff (as he then was) provided a helpful explanation regarding the interplay between an ASD demand, the offence of refusal and the Charter: 9 In order for a demand of this nature to be lawful, it must comply with section 254(2)(

b) of the Criminal Code. That means the police officer who makes the demand must: (1) have reasonable grounds to suspect that the subject of the demand (

a) has been operating a vehicle within the preceding three hours, and (

b) has alcohol in his or her body; and (2) make a demand that the person provide the breath sample forthwith. 10 In a case of refusal, the Crown must prove the lawfulness of the demand beyond a reasonable doubt. A person who refuses to comply with a demand which does not itself comply with section 254(2)(

b) isentitled to an acquittal, because there is no obligation to comply with an unlawful demand: R. v. Grant, (SCC), [1991] 3 S.C.R. 139; R. v. Lytle, 2008 SKPC 156. In such a case, no Charterapplication is required: R. v. Luider-Grebnev, 2013 SKPC 22. 11 Furthermore, if the demand is not lawful, then (

I) a breath sample obtained in connection with it is an unlawful search and seizure, which violates

section 8 of the Charter; (ii) the detention necessary to obtainthe breath samples is arbitrary, and violates

section 9 of the Charter, and (iii) the accused's rights under

section 10(

b) are not suspended during the period of detention, and obtaining breath samples withoutinforming the accused of, and implementing, the right to counsel violates

section 10(

b) of the Charter: R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640; R. v. Grant, supra. The accused is required toestablish a Charter breach on a balance of probabilities.Erreur ! Référence de lien hypertexte non valide.Erreur ! Référence de lien hypertexte non valide.Erreur ! Référence de lien hypertexte nonvalide.Erreur ! Référence de lien hypertexte non valide. (

a) Did the police delay in making the ASD demand of Ms. McWilliams? [19] In R v Billette, 2001 SKQB 150 [Billette], Madam Justice Ryan-Froslie (as she then was) did an extensive review of the law relating to section 254(2) of the Criminal Code and held that an ASD demand by the officer must be made forthwith, not just administered forthwith. Justice Ryan- Frosliedetermined that there is an immediacy requirement in respect of the ASD demand. At paragraph 12, Justice Ryan-Froslie said: 12 It is obvious that the procedural scheme set out in s. 254 of the Criminal Code depends upon timing. Time is very important.

The reason for this is obvious. If the Crown is to prove an offence within thenecessary window, samples must be taken in a timely fashion. Thus, while s. 254(2) does not state that the demand must be made "forthwith", it is implicit that this is the case. Justice Arbour of the Ontario Courtof Appeal in R. v. Pierman (1994), (ON CA), 19 O.R. (3d) 704, speaking for the majority, held this view and stated at para. 5 as follows: ... [I]t is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. This is the only

interpretation which isconsistent with the judicial acceptance of an infringement on the right to counsel provided for in s. 10(

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

section to maintain its constitutional integrity we must assume it also contemplates that there be no opportunity for thesuspect to consult counsel before the demand is made. [20] In Billette, Justice Ryan-Froslie also held that “forthwith” meant as quickly as possible in the circumstances. At paragraph 19, she states as follows: It is obvious that “forthwith” means as quickly as possible in the circumstances. There should be no undue delay because in the normal operation of s. 254(2) an individual’s s. 10(

b) Charter rights are beinginfringed and because under the general scheme set out in s. 254, time is of the essence. [21] In R v Janzen, 2006 SKCA 111, 285 Sask R 296 at para 4, the Saskatchewan Court of Appeal interpreted "forthwith" as meaning "without unreasonable or unjustified delay".

The Court held it must consider the length of the delay and the reasons for it in the context of the circumstances of the case,while balancing Parliament's objective in combating the dangers of drinking and driving against the constitutional right to be free from unreasonable search or seizure and the fact that a person's right to consultcounsel is suspended upon a demand for a screening sample pursuant to section 254(2). [22] More recently, in R v Anderson, 2014 SKCA 32 at para 31, 433 Sask R 255 [Anderson], the Saskatchewan Court of Appeal held that the so-called “forthwith window”, being the time within which the police officer must require a driver to provide a breath sample begins when the police officer develops areasonable suspicion that the accused has alcohol in their body.

In Anderson, Mr. Justice Whitmore went on to find that the immediacy requirement in section 254(2) necessitates the courts consideration of fivecriteria as set out by the Ontario Court of Appeal in R v Quansah, 2012 ONCA 123 at paras 45-49, 286 CCC (3d) 307 [Quansah]: 45. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicatingdriver impairment and the need to safeguard individual Charter rights. 46.

Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore,commences at the stage of reasonable suspicion. 47. Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible

interpretation may be given. In the end, the time from the formation ofreasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his orher duty as contemplated by s. 254(2). 48. Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is notimmediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These areexamples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement. 49.

Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(

b) rights before requiring the sample. If so, the"forthwith" criterion is not met. [23] Counsel for the Crown submitted that when the two officers initially arrived at the scene of the accident it was not obvious that three vehicles were involved in a collision or what exactly happened. The Crown takes the position that Constable Ramponi initially detained Ms. McWilliams for the purposeof an accident investigation, pursuant to

section 253 of The Traffic Safety Act, SS 2004, c. T-18.1. The Crown contends that Constable Ramponi was focused almost entirely on an accident investigation and it wasonly after he spoke to Ms. McWilliams in the back of the patrol car and obtained her version of the accident and after he spoke to Constable Warner that his focus shifted to an impaired driver investigation. Shortlythereafter at 9:30 p.m. he formed a reasonable suspicion pursuant to

section 254 of the Criminal Code and made the ASD demand. I do not accept the Crown’s submissions on this point.

[24] In this case, the dispatch information at 8:59 p.m. indicated that a vehicle had struck two other vehicles. The officers were advised that the driver of the offending vehicle was believed to be impaired. Once the officers were at the scene of the accident, they both observed that the back end of a parked vehicle had sustained damage. A crowd of bystanders almost immediately drew the officer’s attention to the offending driver, Ms. McWilliams, who was thought to be “trying to get away”. A third vehicle which had also been damaged was a short distance away in a driveway.

The officers reacted quickly and went to Ms. McWilliam’s vehicle. Constable Justason put the gear shift in neutral or park, turned off the ignition and took possession of the keys to the vehicle. Constable Ramponi dealt with Ms. McWilliams. He had her get out of her vehicle. He obtained her driver’s licence and name. There is no evidence that at any time that Constable Ramponi asked for the certificate of registration for the vehicle or the particulars of any insurance affecting the vehicle.

Certainly, this would have been the very information he would have sought from her had there truly been an accident investigation pursuant to

section 253 of The Traffic Safety Act . [25] Throughout his examination-in-chief Constable Ramponi maintained that he asked Ms. McWilliams to accompany him to his patrol car for the purpose of investigating the accident and “getting her side of the story”. He also maintained in-chief only after; (1) he smelled the odour of alcohol coming from Ms. McWilliams, (2) speaking to her about how the accident happened, and (3) speaking to Constable Warner did he form the suspicion that Ms. McWilliams had alcohol in body.

As a result he made the ASD demand at 9:30 p.m. and not before that time. [26] However, on cross-examination Constable Ramponi was more forthcoming. He admitted that based on the scene of the accident, Ms. McWilliams’ admitted consumption of alcohol earlier that day, her confusion about when her last drink was, her slurred words and her unsteady walk/balance by 9:12 p.m. he suspected that Ms. McWilliams was possibly impaired. Given the dispatch information and Constable Ramponi’s testimony regarding the scene of the accident, the reaction of the bystanders and his detailed observations of Ms.

McWilliams, I am of the view that Constable Ramponi was in fact conducting an impaired driving investigation, not an accident investigation. Moreover, his partner, Constable Justason testified that at 9:12 p.m. he was dealing with the “accident and paperwork”. [27] Having regard to all circumstances I am of the view that by 9:12 p.m. Constable Ramponi had in fact formed a reasonable suspicion that Ms. McWilliams, being the driver of a motor vehicle, had alcohol in her body. The evidence reveals that he did not make an ASD demand of Ms. McWilliams until 9:30 p.m, eighteen minutes later.

Clearly this was not a prompt demand. Moreover, during this time Ms. McWilliams was not informed of the actual reason for her detention, in breach of

section 10(

a) of the Charter . (

b) Was the ASD demand made forthwith? [28] In my view this case turns on the fourth element in Quansah , which requires this Court to consider whether the immediacy requirement was met considering all the circumstances, and the fifth element, whether the detainee’s

section 10(

b) rights could have been implemented before the sample was taken. [29] The evidence reveals that Ms. McWilliams was placed in the back of the police vehicle at 9:12 p.m. Shortly thereafter Constable Ramponi noticed the odour of alcohol coming from Ms. McWilliams. This observation merely confirmed what Constable Ramponi already knew. Ms. McWilliams had consumed alcohol earlier that day. Between 9:12 p.m. and 9:24 p.m. Constable Ramponi asked Ms. McWilliams what happened. She told him that while she was driving she was cut off by a vehicle, lost control of her vehicle and caused an accident.

Such an inquiry was unnecessary given that Constable Justason was investigating the accident and did not justify delaying the ASD demand. Moreover, the evidence reveals that despite the fact that Constable Ramponi did not have an ASD, at no time did he make a request for an ASD to be brought to him. By good fortune, Constable Warner appeared on the scene with an ASD at 9:24 p.m. At that time Constable Ramponi got out of his vehicle and spoke to Constable Warner. He told Constable Warner he was going to make an ASD demand and discussed Ms. McWilliam’s version of the accident.

While his discussion with Constable Warner may have been helpful to Constable Ramponi in determining exactly how the accident occurred, it did not, in my view, take away from the immediacy requirement in these circumstances. Nor was a delay of 18 minutes required due to articulated and legitimate safety concerns. [30] Lastly, given the 18 minute delay and the fact that Ms. McWilliams had a cell phone, I am of the view that the police could realistically have fulfilled their obligation to implement the detainee's

section 10(

b) rights before requiring the sample. As a result, I am of the view that the ASD demand was not made forthwith. [31] As a result of this determination, I am of the further view that the ASD demand was not lawful. There was no obligation on Ms. McWilliams to comply with an unlawful ASD demand. [32] It follows that the detention of Ms. McWilliams was arbitrary and violates

section 9 of the Charter . I also find that as the ASD demand was not lawful, Ms. McWilliams rights under

section 10(

b) of the Charter were not suspended during the period of his detention. Rather, I find that Ms. McWilliams’ rights pursuant to

section 10(

b) of the Charter were breached during her detention in the police vehicle. I find it was during this critical time that Ms. McWilliams should have been advised of her

section 10(

b) rights. This did not take place until 9:33 p.m. after she was charged with refusal. If the accused’s

section 9 and 10(

a) and (

b) Charter rights were violated, should the refusal evidence be excluded pursuant to section 24(2) ? [33] It is well established that upon finding a violation of a person’s Charter rights, the proper avenue to address whether evidence should be excluded under section 24(2) is found in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 .

This test requires that the Court “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”: para 71. [34] With respect to the first avenue of the inquiry, I must consider the seriousness of the Charter - infringing state conduct. I am of the view that the police conduct was deficient in various ways.

In the first place, the ASD demand should have been made at 9:12 p.m. when Constable Ramponi had a reasonable suspicion that the driver, Ms. McWilliams had alcohol in her body. The ASD demand was not made until 18 minutes later at 9:30 p.m. The police had reason to foresee that they may require an ASD as early as 8:59 a.m. when they were first dispatched to investigate a complaint involving a multiple vehicle collision and a possible intoxicated driver. The potential need for an ASD increased as the investigation proceeded. At no time did Constable Ramponi call for an ASD.

By chance, Constable Warner came on the scene at 9:24 p.m. In this case, Ms. McWilliams was not advised why she was being detained, contrary to

section 10(a). In addition, she was arbitrarily detained for 18 minutes, contrary to

section 9. She was not advised of her

section 10(

b) Charter rights until 9:33 p.m. I find the conduct by the investigating officer shows a reckless disregard for the accused’s Charter rights which should not be encouraged by the courts. Therefore, I am of the view that the first Grant factor favours exclusion of the evidence.

[35] Regarding the impact of the breach on the Charter- protected interests of the accused, I find the impact was moderate to serious. Ms. McWilliams was not advised why she was being detained. She was arbitrarily detained for a period of 18 minutes. To be arbitrarily detained in a patrol car for 18 minutes is certainly a very uncomfortable experience for most people and more than a mere annoyance. Further, the officer’s misconduct not only breached the accused’s right not to be arbitrarily detained, but also her right to counsel, which she clearly expressed an interest in exercising.

Thus, also the second Grant factor favours exclusion of the evidence. [36] With respect to society’s interest in the adjudication of the case on its merits, I find that society’s interest is high. The offence is serious. The operation of a motor vehicle while intoxicated is a social problem in Saskatchewan, often resulting in significant injury or death. As well, the evidence sought to be excluded is critical to the prosecution of the case ( Grant , para 81 and 83).

All of this weighs in favour of inclusion. [37] Balancing these factors, I am of the view that the police misconduct and the impact on the accused’s Charter rights is serious enough to outweigh society’s interest in the case’s adjudication on its merits. The refusal evidence consequently has to be excluded in order to maintain public confidence in the administration of justice. CONCLUSION [38] Constable Ramponi did not administer the ASD on the accused “forthwith” as required by section 254(2) (

b) of the Criminal Code . The ASD demand was not lawful and as a result the refusal evidence should not be admitted into evidence. The accused was arbitrarily detained. She was also unlawfully denied her Charter right to counsel. Based on a Grant analysis, the Charter breaches lead to the exclusion of the evidence relating to the failure to provide a breath sample (s. 254(5)). As a result of these determinations I find the accused not guilty of the offence before the court. /ca/legal/search/runRemoteLink.do?

A=0.2596168711114769&bct=A&service=citation&risb=21_T22795530276&langcountry=CA&linkInfo=F%23CA%23MBQB%23sel1%252004%25year%252004%25decisiondate%252004%25onum%25252%25 _____________________________ M. Hinds, J