2020 NBPC 8, 2020 NBPC 8

2020NBPC08 Provincial Court Province of New Brunswick Date: September 3, 2020 Docket: 15447813 Her Majesty, The Queen - and - Jason Barnaby-Lambert Decision of the Honourable Judge Cameron Gunn of the Provincial Court of New Brunswick on an Application by Jason Barnaby- Lambert under the Canadian Charter of Rights and Freedoms Appearances: William Morrissy QC, for Her Majesty the Queen Emily Cochrane, for Jason Barnaby-Lambert ORIGINAL DECISION IS SUBJECT TO EDITING Introduction 1 . Sgt.

Maxime Babineau of the Royal Canadian Mounted Police (RCMP) was conducting what he described as an operation to execute warrants of arrest through a process of motor vehicle stops and traffic enforcement in the Neguac and Burnt Church, New Brunswick area when he encountered the accused. The accused was driving a motor vehicle and either exiting or about to exit a driveway of a residence. 2 . The subsequent stop and the interaction between Sgt.

Babineau and the driver of the vehicle led to a somewhat violent interaction, a breath demand, a putative refusal of that demand and ultimately charges under the Criminal Code of Canada . 3 . Jason Barnaby-Lambert alleges that Sgt. Babineau violated his rights under ss. 8 , 9 and 10(

b) of the Canadian Charter of Rights

and Freedoms (the Charter ). These violations, he asserts, justify an exclusion of evidence obtained subsequent to the alleged breaches. Issues 4 . The Charter application in this case raises four issues:

i) Did the detention of the accused by the police officer in the driveway of the accused’s residence constitute a violation of the right of the accused not to be arbitrarily detained contrary to s.9 of the Charter ; ii) Was the entrance upon the property of the accused an unlawful search and seizure contrary to s. 8 of the Charter ; iii) Did the police officer have the requisite grounds to make the breath demand in question or was that demand without grounds and thus a violation of and contrary to s. 8 of the Charter ; iv) Did the police in this case fail to comply with their obligation to inform the accused of his right to counsel contrary to s. 10(

b) of the Charter ; and

v) if there was a violation of the accused’s Charter rights, should the evidence obtained be excluded pursuant to s. 24(2) of the Charter . Evidence 5 . Immediately after the commencement of the trial, the court entered into a voir dire to address the issues described above. The Crown called 4 witnesses who testified about the circumstances surrounding the alleged offences. I will detail only those facts relevant to the issues before the court. 6 . Sgt. Babineau (who was a Corporal at the time) testified that he was, on April 12, 2018, the team leader in charge at Neguac detachment of the RCMP.

He testified that they (the RCMP) were conducting a proactive operation to “eradicate outstanding warrants of arrest” in the Acadian Peninsula. The objective was for all the officers to be on the road conducting motor vehicle stops in search of people wanted by the courts on warrants. The operation started on the 11 th , he was in charge and every officer on shift in the area was involved. In his words everyone on shift was to be on the roads doing these checks to the exclusion of working on open files. 7 .

During the operation he was in Burnt Church engaged in the above noted activity which included motor vehicle stops and checking addresses where people who had outstanding warrants resided. At approximately 138 am he was on Algonquin Road, in part because they were advised there was a drug dealer on that road. He was in a marked patrol vehicle and there were no other vehicles on the road at that time. He was patrolling very slowly to limit his “visibility”. In the distance he noted a vehicle in a driveway who back-up lights came on. The address, that of the accused, was one where Sgt.

Babineau noted that a person with outstanding warrants (not the accused) would attend from time to time. IN the previous year the police had encountered him once at that address. 8 . Sgt. Babineau approached the driveway very slowly as he wanted the vehicle to “get on the road obviously”. The vehicle stopped in the middle of the driveway, causing Sgt. Babineau to believe he had been spotted. The vehicle began to back up again until the vehicle passed a culvert and light post, bringing its rear wheels onto the roadway. Sgt.

Babineau describe the roadway at that location is essentially a curved 90° turn where the driveway in question intersects with the road. 9 . Sgt. Babineau activated his emergency equipment and closed the distance to the vehicle quickly to initiate a motor vehicle stop. His objective was to check for sobriety and motor vehicle issues but also to search for wanted individuals (in this case a man named Titus Lambert). The vehicle advanced into the driveway below the light post and stopped. There was snow but it was melting, with knee level snow banks. Sgt. Babineau pulled in behind the vehicle. 10 . As Sgt.

Babineau was talking to dispatch, the vehicle started advancing into driveway. Her activated his siren but the vehicle approximately 40 feet back toward the mini-home. The driver got out of his vehicle, his back to the police car, and not looking back and walked to his residence. Sgt. Babineau got out, yelled to get back in his vehicle and show me your license. He said I am getting it from my residence. Sgt. Babineau, who had run up to him, grabbed his hand as he was raising his hand and was yelling profanities (including “get off my fucking property”). He arrested him for obstruction.

Two females exited the residence. 11 . Sgt. Babineau placed one hand in handcuffs but could not get the second arm in the cuffs. The females began to film. During the ensuing struggle Sgt. Babineau both wrestled with and negotiated with the accused. The accused got back into the driver’s seat of the vehicle and was only extracted and placed in the rear of the police cruiser with the assistance of Cst. Richard and a knee to the groin delivered by Sgt. Babineau. Sgt. Babineau noted a strong smell of alcohol from the accused, which intensified upon him being placed in

the rear of the police cruiser. 12 . Sgt. Babineau drove the police cruiser 300 to 400 m from the driveway for security purposes and at that point read the accused’s rights under the Canadian Charter of Rights and Freedoms , the police caution and eventually the breath demand. The accused responded with profanity, silence and screaming. The accused then was transported to the Neguac detachment of the RCMP. Upon arrival the officer attempted to speak in layman’s terms about whether the accused was going to provide a sample of his breath and was greeted with more profanity. Sgt.

Babineau decided that the accused was not going to be taken from the vehicle as that detachment was not set up for overnight stays. They departed the detachment, drove to the Tracadie detachment where he was placed in cells. He was cooperative at that location. 13 . Cst Jacinthe Richard testified that came to the assistance of Sgt. Babineau and assisted in removing the accused from the vehicle he had re-entered and placing him in the rear of Sgt. Babineau’s vehicle. She supports his evidence with respect to the level of resistance and the accused’s conduct when Sgt. Babineau was making a breath demand.

On cross-examination she testified that when Sgt. Babineau called for assistance she had been at the Neguac detachment doing paperwork. She was specifically asked if she was participating in the operation Sgt. Babineau mentioned and responded “I was doing paperwork that night”. On examination by the court Cst. Richard indicated that there is a cell block in Neguac but there was no guard present. 14 . Cst. Troy Furlotte testified that he had been called in on the evening in question to perform the breath test that had been demanded by Sgt. Babineau. Cst.

Furlotte testified that he was at the office in Tracadie when he received the call. He watched the interaction in the garage bay of the Neguac detachment and heard the accused refuse to provide a breath sample. He also smelled an odour of alcohol from the vehicle but could not say it was coming from Mr. Barnaby-Lambert. 15 . The Crown also called Cst. Serge St Pierre who testified that he was working the day following the events and was asked to release the accused from custody. During that process the accused indicated that he had consumed 3 to 4 beers the night before. 16 .

The accused testified on the voir dire and indicated that on the night in question he had decided to consume some alcohol with his wife. The vehicle in their driveway was not theirs but rather from a local dealership and was to be returned the next day. The accused decided to turn the van around before he consumed too much to safely driver and so that it would be facing out the next morning.

He wanted to do this so that he or his girlfriend would not track mud from the driveway into the vehicle as he didn't want to spend an extra $50-$60 to have it cleaned and it would be easier to get the kids into the vehicle in the morning. 17 . As he was reversing out, he noted that he saw two headlights on the road, so he stopped to allow the vehicle to pass. Instead the police car pulled in behind him with the emergency lights activated. The accused pulled his vehicle back up to the step of the trailer. He testified he did not make it out of the driveway.

He stepped out of his vehicle and the police officer rushed up to him saying he was resisting arrest. 18 . He testified that he pulled the van forward to ensure it was safe due to the frequency of accidents at the turn. When asked for his ID, he said that his ID could be inside. When he turned to go get it that’s when the officer grabbed him by his right hand and put him over the hood of the van. 19 . The evidence of the accused and Sgt. Babineau are largely in concert with respect to the rest of the events, though there were differences with respect to who was being aggressive. He did describe Sgt.

Babineau as trying to extract him from the van by kneeing him in the groin and grabbing him by the throat and the hair. The accused does not dispute that he was disruptive when he was being read his rights, nor does he dispute that he refused to provide a breath sample. 20 . He testified that he was not provided the opportunity to call a lawyer but he never told them he did not want to speak to one. He also testified that tried to explain to him that he was the only one with a licence in his house and askd how his kids would get to school, to which Sgt. Babineau smirked and said “I guess they are not going.” 21 .

During the accused’s testimony he also indicated that there furthest his car came to the road was approximately 60 feet from the paved surface of Algonquin Road as he parked under a light standard beside a ditch. He produced a drawing of the configuration of the road and driveway which was marked as D-1. Position of the Parties

22 . Counsel for the accused asserts that the accused’s rights were violated in a number of ways that merit exclusion of the evidence against Mr.Barnaby-Lambert. The accused, through his counsel, maintained that his ss. 8 , 9 and 10 (

b) rights were violated in when Sgt. Babineau entered the property of the accused without lawful authority and gathered evidence there, that he lacked reasonable grounds to make a breath demand, and that he failed in his implementational duties with respect to s. 10 (b). 23 . The accused also asserts that breaches, individually or taken together, merit relief pursuant to s. 24(2) of the Charter , specifically the exclusion of evidence gathered against Mr. Barnaby-Lambert. 24 .

The Crown asserts that no breaches have been established but should I find a breach, the prosecution urges me to admit the evidence based upon the Grant analysis. Analysis 25 . Before descending into the particulars, it is important to make some comments on how this voir dire proceeded and the nature of the burdens throughout. 26 . The original Charter application filed by the accused related to breaches under ss. 8 , 9 and 10 .

The burden in a Charter voir dire is on the applicant on a balance of probabilities and “discharging that burden typically requires the claimant to present evidence.” [1] This burden is subject to exceptions, however, and in some cases the Crown has the burden, including with respect to warrantless searches. [2] 27 . Since the parties proceeded by way of a blended voir dire , it is important to ensure that I respect the respect differing burdens and standards of proof. 28 .

With respect to the allegations of an arbitrary detention, the accused bears both the ultimate and evidentiary burdens of establishing his claim, as he does with respect to his claims regarding the breach of his s. 10(

b) rights. The Crown bears the burden of establishing the reasonableness of the demands for breath samples. The Stop – Sections 8 and 9 29. The accused takes issue with the authority of the police officer to enter his driveway and stop his motor vehicle. He alleges that the actions of the police violated his rights under ss. 8 and 9 of the Charter . 30. The difference in evidence between the officer and the accused has a significant potential impact to the outcome here.

Section 8 of the Canadian Charter of Rights and Freedoms states that “Everyone has the right to be secure against unreasonable search or seizure.”

Section 9 guarantees that “Everyone has the right not to be arbitrarily detained or imprisoned”. This

section is meant to “to protect individual liberty from unjustified state interference.” [3] 31. I will deal first with the allegation of a breach contrary to s. 9. The analysis of whether s. 9 of the Charter has been breached is a two-stage process:

i) was the claimant detained; and ii) if so, was the detention arbitrary. [4] There is no question that the police actions here constitute a detention; the Crown takes no issue with this. [5] Stage two then requires an assessment of whether the detention was arbitrary. The arbitrariness of a detention may be examined by a three-part test: 1) was the detention authorized by law; ii) was the authorizing law itself arbitrary; and, iii) was the manner in which the detention is carried out reasonable. [6] 32. Was the detention here authorized by law?

There are several possibilities that could justify an entrance into the driveway of the accused. A private driveway of a residence represents an implied authorization given by the owner or occupant to others to enter his property. [7] That implied invitation extends to the police while they are carrying out their duties authorized by statute or at common law. [8]

33. This was not a circumstance where Sgt. Babineau was present subject to such an implied license. He was not called to the residenceof the accused, nor was he responding to a report of a disturbance. Nor was there a report of an impaired driver as in Lotozky. Nor did theexistence of a warrant of committal for a person who was not a resident of the property nor known to be there justify the entrance.Absent some statutory power, which I will turn to next, Sgt. Babineau had not entered the driveway pursuant to the implied licensedoctrine. 34. This then leads to the question of whether Sgt.

Babineau had the right to be on the property pursuant to a statutory power. Indeed,Sgt. Babineau testified that he waited to take any action until the wheels of the accused’s vehicle touched the highway. It is apparentfrom the evidence that Sgt. Babineau had been prior to this stop, and in this stop, using the powers granted to him by the Motor VehicleAct to affect the stop. The matter therefore hinges, in part, on where the vehicle of the accused was when Sgt. Babineau initiated theinteraction with the accused. Sgt.

Babineau, as noted, says that the back tires of the reversing vehicle touched the roadway and it wasthen that he activated his emergency equipment. Mr. Barnaby-Lambert says that he stopped his vehicle sixty feet from the edge of theroadway and never came close to the paved portion. 35. Section 15(1) of the Motor Vehicle Act empowers peace officers to enforce the provision of the Motor Vehicle Act and to requirevehicles to stop for purposes related to the powers of enforcement.

Section 105 obligates drivers to stop when requested to do so by apeace officer and remain stopped until directed to proceed. There are also specific provisions of the Act that empower peace officers tostop motor vehicles for investigative purposes related to impaired driving (see s. 310.002), though that was not the power the officer wasutilizing here.

These powers provide authority for a peace officer to check for highway safety infractions, the sobriety of motorists and toundertake certain measures to fulfill their concomitant duties.[9] They are, however, is restricted to the regulation of activities onhighways as defined in the Motor Vehicle Act. 36. In R. v. Caissie[10] the Court of Appeal considered a case where a police officer decided to randomly stop a motor vehicle. Thevehicle was not driving abnormally nor were there any other things that would ground a stop beyond the powers conferred by the MotorVehicle Act.

Before the police officer could do anything to affect the stop the vehicle pulled into a private driveway. The police officerpulled in behind, approached the driver and began an interaction that led to charges of under s. 253(

a) of the Criminal Code. At issue wasthe legitimacy of the stop. 37. At paragraphs 17-18, the Court wrote: 17 The random stopping of a motorist for the purposes of a routine check pursuant to s. 15(1)(

d) can be justified under s. 1 of the Charter(see Ladouceur, supra). However, the stopping and arbitrary detention of Mr. Caissie took place on his private property followingunlawful entry by the police officer. In this regard, I would refer to the comments of Dickson C.J. in R. v.

Kokesch, (SCC), [1990] 3 S.C.R. 3 at p. 17, 61 C.C.C. (3d) 207: This Court consistently has held that the common law rights of the property holder to be free of police intrusion can be restricted only bypowers granted in clear statutory language. 18 The stopping in the case at bar was not effected pursuant to authority found in a statute or at common law. For this sole reason, onemust conclude that the arbitrary detention of Mr. Caissie was not prescribed "by law" in accordance with s. 1 of the Charter. 38.

The question of whether the stop here was arbitrary turns on whether the stop took place on private property following an unlawfulentry by the police officer. In this regard I accept the evidence of Mr. Barnaby-Lambert that his vehicle did not enter the roadway. 39. This is, as a Charter voir dire, not a situation to which W.(D.) applies. Since the accused bears the burden of proof on a balance ofprobabilities it would be an error to apply the reasonable doubt standard or the W.(D.) method at this stage.

A useful staring point is toremember that a trier of fact can accept all of the evidence, some of the evidence, or none of the evidence of each witness. 40. Credibility is not simply the assessment of the truthfulness of a witness but also the reliability of the testimony of the witness. 41. In the case of Mr.Barnaby Lambert I find his evidence to be both credible and reliable. 42. Mr. Barnaby Lambert testified that he stopped some sixty feet from the edge of the roadway under a light pole upon seeing the lightsof a vehicle coming down the roadway.

He provided a drawing to represent the configuration of the roadway and his driveway; the

drawing was the only visual representation of the area and its accuracy was not seriously contested. It provides some context for the evidence of the accused. 43. The driveway was his and thus he had an intimate knowledge of the area. Though he acknowledged drinking on the evening in question he testified that he had not yet consumed very much alcohol. His memory of the events seemed strong and he was able to clearly describe the events. 44.

His testimony harmonizes with the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions, especially given the configuration of his driveway. 45. I noted no major inconsistencies in the account of the accused and he was forthcoming about some of his own behaviour that was disadvantageous to him. While he clearly has an interest in the outcome of the case, such is the situation of every accused person. 46. His evidence is, of course, in contrast with that of Sgt. Babineau with respect to where his vehicle stopped.

In that respect I note that it was dark and there was no indication of any significant light source that would make it easy for Sgt. Babineau to note the wheels of the accused vehicle touching the roadway. I also note that Sgt. Babineau testified that the vehicle stopped before it touched the roadway in response, he believed to his vehicle, but then continued to back up to the roadway. This seems not to harmonize with the probabilities at the time. Put simply I accept the evidence of Mr. Barnaby Lambert that his vehicle did not enter the highway. 47.

In so doing, I find that I am bound by the Court of Appeal’s decision in Caissie and that, as this stop was not carried out pursuant to the legislative powers, it was arbitrary and a violation of s. 9 . I find it unnecessary to consider if it was also a violation of s.8 . The Approved Instrument Demand 48. The accused asserts a violation of s. 8, asserting that the officer lacked the requisite reasonable grounds to make a demand for a sample of breath reasonable grounds to make a demand under s. 254(3) of the Criminal Code . 49.

The test for making the demand for a sample into the approved instrument is articulated in R. v. Shepherd [11] : s. 254(3) of the Criminal Code requires that the officer have reasonable grounds to believe that within the preceding three hours, the accused has committed, or is committing, an offence under s. 253 of the Criminal Code . The onus is on the Crown to prove that the officer had reasonable and probable grounds to make the demand because the Crown seeks to rely on breath samples obtained as a result of a warrantless search.

It would also be impractical to place the burden on the accused because evidence of the presence or absence of reasonable and probable grounds is within the "peculiar knowledge" of the Crown. [12] 50. Reasonable grounds have a subjective and objective component. This means that “the officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code , and there must be reasonable grounds for this belief.” [13] 51. It was apparent from Sgt. Babineau’s testimony that he had a subjective belief that the accused committed an offence under s. 253 of the Criminal Code .

The question is whether that belief was objectively reasonable. 52. The officer articulated that he smelled a strong odour of alcohol coming from the breath of the accused, the accused was combative and resisting the officer’s efforts to get him into the police vehicle and he had what the officer described as mood swings. The accused had flushed and red bloodshot eyes. It took the assistance of another officer and a knee to the groin to get the accused from the vehicle to which he had retreated to the police vehicle.

The testimony of the officer with respect to some of this was corroborated by another officer (and to some extent by the accused). 53. Many of the signs of impairment articulated by the officer could be explained by the nature of the encounter. The officer’s own actions may go some way to explain the combative and resistant nature of the accused on the day in question. That said it is the totality

of the circumstances that I must was consider and I am guided by Shepherd where the Court wrote: it is important to note that the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving "over 80" before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation. [14] 54.

In my view the officer had a subjective belief that the accused had committed an offence under s. 253 of the Criminal Code , that the grounds for such a belief were objectively reasonable, the demand was valid and the subsequent seizure of the breath of the accused was legally authorized and not a violation of s. 8 .

Section 10(b) 55. The accused asserts a violation of his s. 10(

b) right to counsel. There can be no question that the police were obligated to comply with s. 10 (b). 56. In R. v.

Taylor , the Supreme Court confirmed the three duties imposed on police who arrest or detain an individual: a. to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; b. 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 c. to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger). 57.

The accused does not contest that Sgt. Babineau complied with the informational duty. He alleges that he failed in his implementational duties and also in refraining from eliciting evidence until the accused has had a reasonable opportunity to exercise his right. 58. In this province the framework for the assessment of an alleged violation of the implementational duties on the police are set out in R. v. Brown [15] . There the Court quoted [16] the analysis in R. v. Luong , [17] . I have reproduced that guidance with the omission of the references included in the original passage: a.

The onus is upon the person asserting a violation of his or her Charter right to establish that the right as guaranteed by the Charter has been infringed or denied. b.

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. c. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel. d. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right to counsel. e. The first implementational duty is "to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances)". f.

The second implementational duty is "to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger)". g. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counsel was provided with a reasonable opportunity to exercise the right. h.

If the trial judge concludes that the first implementation duty was breached, an infringement is made out. i. If the trial judge is persuaded that the first implementation duty has been satisfied, only then will the trial judge consider whether the detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden of establishing that he was reasonably diligent in the exercise of his rights.

j. If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, the implementation duties either do not arise in the first place or will be suspended. In such circumstances, no infringement is made out. k. Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonable opportunity to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, the Crown is required to prove a valid waiver of the right to counsel.

In such a case, state authorities have an additional informational obligation to "tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity" (sometimes referred to as a "Prosper warning").. Absent such a warning, an infringement is made out. 59.

In Brown , however, Richard, J. indicated that the guidance needed “some clarification in respect to the delineation of the police's duty to provide a detainee with a reasonable opportunity and the detainee's own duty of reasonable diligence.” [18] Specifically he held that it was an error to conduct an analysis “that requires a determination of "reasonable opportunity" without regard to all the circumstances”. [19] The trier of fact must look to both the behaviour of the police and the detainee in assessing reasonableness. 60.

There are some aspects of this part of the interaction which are relevant and about which there is not significant disagreement: a. When read his right to counsel the accused was being vocally resistant by swearing, singing and screaming. In the words of Sgt. Babineau the accused would go silent and then try to talk over him; b. The accused’s response to the specific questions of understanding of the demands was “pansy fucker”, “fucking retard” and when asked what he wanted to do about his right to a lawyer he replied “tried to park-whatever”. When asked again, he was screaming, yelling profanity and singing; c.

The accused, when asked about the reading of his rights replied, “He tried to read me my rights, after that I was so angry I didn't really care to listen to him.” 61. This is not a circumstance where the accused has expressed a desire to speak to counsel, nor was he diligent in exercising his right. He was angry and combative and refused to respond to the officer. He may have had reasons, as he explained to the court, for his anger but the fact remains that he never expressed a desire to speak to a lawyer. There was no breach of his 10(

b) rights. 24(2) 62. Having found a breach of s. 9 of the Charter , I must next consider the consequences if any, of that breach. Specifically, I must consider the question of the exclusion of evidence under s. 24(2) of the Charter .

Section 24 reads: 24.

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

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings Sherwood bring the administration of justice into disrepute. 64. In R. v. Grant [20] the Supreme Court of Canada reconsidered the previous approach to s. 24(2) as formulated in R. v. Collins [21] , and subsequently in R. v. Stillman [22] .

They directed that trial judges must assess and balance the effect of admitting the impugned evidence on society’s confidence in the administration of justice system by considering the following three factors: a. The seriousness of the Charter infringing state conduct. b. The impact of the breach on the Charter protected interests of the accused. c. Society’s interests in the adjudication of the case on its merits . [23] 65. The Seriousness of the Charter infringing state conduct: As the Supreme Court said in Grant , the more serious the conduct of the

state officer, "the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law" [24] 66. In this case, I can draw some comparisons to a similar case, R. v. Sar [25] where Judge LeBlanc considered a breach involving a intrusion into a private driveway. He found the breach to not be serious for the following reasons: a.

This was a private driveway, an open area accessible to the public, and not a private residence, where the expectation of privacy would be much greater; b. The police signalled the defendant to stop his vehicle while he was on a public street. Mr. Sar was stopped on the street, and not in the private driveway to his residence; c. The signs of the defendant's alcohol consumption were all observed by Constable Allaire while Mr. Sar was on a public street. The defendant was, therefore, initially detained on the street rather than on his private property. 67.

Ultimately Judge LeBlanc made the following finding on this aspect of Grant : Constable Allaire did not show blatant disregard for the rights of the defendant in this matter. If he had parked his car on the street, there would have been no Charter breach. Constable Allaire did not park in that location because it was a more advantageous position from which to obtain incriminating evidence against the defendant. Constable Allaire did not hide in the chosen location in order to gather further evidence against the individual in question.

He simply made a bad choice when it came time to stop at the defendant's residence. In my opinion, he did not have any ulterior motive. This was, in my view, a minor, inadvertent violation. I am satisfied that Constable Allaire was acting in good faith. He made a mistake in the placement of his vehicle, but his intention was not to abuse his police powers. He did not deliberately choose to infringe the accused's rights. [26] 68. This case presents some significant differences: a.

While this was a private driveway and not a residence, it was late at night (as was Sar ) but the accused was not returning home to the residence (as was the case in Sar ) but had never left the driveway; a. The police did not signal the accused to stop on the public street. The accused was stopped in the private driveway to his residence; b. This is not a case like Sar where the police were seeking the accused in response to his driving prior to the stop. There was no basis for the detention; c. All of the evidence was gathered at the place of the arbitrary detention and as a result of that detention. 69.

I find the breach here to be serious. 70. The Impact of the Breach on The Charter Protected Interests of the Accused: The impact here, on the Charter protected interests of the accused, are significant. This is not a stop arising in the course of a highly regulated activity like driving on a highway as he had not, in my view, entered upon that highway. This was not a stop arising from some articulable indication of an investigation of a criminal behaviour. All of the evidence gathered here arose from the intrusion of the officer onto the property. 71.

The manner of the interaction between the accused and the police was volatile. The accused’s actions were combative but that arises, in my view, in part from the breach detailed here. Aside from the stop, none of the offences (save the alleged impaired operation in the driveway) would have arisen. The impact of the breach here was signifcant. 72.

Society’s Interests in the Adjudication of the Case on its Merits: In Grant , the Court said the trial judge must ask “whether the truth- seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion". [27] The evidence sought to be excluded here is not of a nature like a breath sample that is highly reliable and relevant. Rather it is evidence (at least in part) that arises from the breach. I am mindful that should it be excluded it would bring an effective stop to the prosecution.

This factor typically favors inclusion, but this again, is not a case where an alleged impaired driver was encountered on the highway endangering the lives of other motorists. 73. Considering all of the circumstances surrounding this case, and balancing the appropriate factors and principles, I am of the opinion that public confidence in the rule of law would be significantly impaired by the breach in this instance. The Charter breach resulted from deliberate conduct. Sgt.

Babineau was clearly aware of the significance, and limitations of his arbitrary stopping powers This was not a trivial and insignificant situation as was the case in Sar . Based upon my consideration of the Grant factors, I find that the evidence gathered as a result of the breach must be excluded pursuant to s. 24(2).

74. Finally, I sought and received the consent of the parties to provide an oral

summary of these reasons. I am filing a full written judgment, proving a copy to the parties and noting that an oral

summary of this judgment has been read into the record. __________________________________ Cameron Gunn, J.PC.