HER MAJESTY THE QUEEN, v. JESSE LEE HAYWARD., 2013 NBPC 11

2013 NBPC 11 CANADA File No.: 06809002 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN, -and- JESSE LEE HAYWARD. BEFORE: Judge Marco R. Cloutier TRIAL HELD: Saint John, New Brunswick DATE OF TRIAL: March 19, 2013 DATE OF DECISION: April 10, 2013 APPEARANCES: John Henheffer on behalf of Her Majesty the Queen Rodney MacDonald on behalf of the Accused

DECISION ON VOIR DIRE I Introduction [ 1 ] The defendant, Jesse Lee Hayward, stood trial on an Information alleging two counts: first with having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded the legal limit, an offence under s. 253(1) (

b) of the Criminal Code (“Count 1”) , and secondly, an offence of operating a motor vehicle while his ability to operate the said vehicle was impaired by alcohol or a drug, an offence under s. 253(1)(

a) of the Criminal Code (“Count 2”) . Both of these offences are alleged to have occurred at Saint John, New Brunswick, on June 16 th , 2012. [ 2 ] The trial proceeded by way of voir dire with agreement by counsel to apply admissible evidence from the voir dire to the trial to avoid duplication of the evidence. [ 3 ] The Defence called no evidence on the voir dire or the trial. [ 4 ] At the conclusion of trial, the Crown advised that it lacked the required evidence for a conviction under Count 2.

This decision is pertaining solely to Count 1; I will refrain from making any comments as to whether I share the Crown’s views. II Evidence [ 5 ] Cst. Roger Paris testified that on June 16 th , 2012, he was patrolling with a marked vehicle in Saint John, County of St. John and Province of New Brunswick. He observed a Dodge pickup travelling east bound on Rothesay Avenue. Although the speed limit was 50 km/h in this zone, he estimated that the operator of the pickup was doing at least 75 km/h. He also observed the pickup cross the center line and then back in its lane and then almost onto the curb. Cst.

Paris activated the emergency lights and at 2:08 a.m. he stopped the pickup to determine why the operator was driving erratically. The operator of the pickup was identified as Jesse Lee Hayward. [ 6 ] Upon approaching the accused’s vehicle Cst. Paris observed three occupants, one of which was the accused. There was also a quantity of open liquor found in the vehicle. Cst. Paris asked the operator of the motor vehicle the reasons for the erratic driving and further asked for routine documents including licence, registration and proof of insurance.

It became apparent that the accused had increasing difficulty in producing the documents sought. The difficulty was such that, at one point, even without being requested to do so by the officer, the accused stepped out of the vehicle on his own initiative to attempt to find his insurance card. [ 7 ] At that time Cst. Paris concluded that he had the required suspicion to request that Mr. Hayward provide a breath sample into the ASD which was located in the police vehicle. Cst. Paris testified that at 2:20 a.m. he read a s. 254(2) demand to the accused.

He testified that this ASD demand was based on a moderate smell of alcohol noted on the accused’s breath when he stepped out of the vehicle along with his observation of moderate blood shot eyes. [ 8 ] Mr. Hayward agreed to take the ASD test and registered a fail. Cst. Paris testified that this indicated to him that Mr. Hayward was driving a motor vehicle while his blood alcohol level was over the legal limit. Consequently, he concluded that he had reasonable and probable grounds to make a formal demand to Mr.

Hayward to provide further breath samples at the Eastern Police Station. [ 9 ] As a result, at 2:22 a.m., Mr. Hayward was advised of his constitutional rights, including the ones under s. 10(

b) of the Charter , was read the Breathalyzer demand, which he accepted, and indicated: “ I do not know about talking to a lawyer”. [ 10 ] At 2:26 a.m., Mr. Hayward was transported to the Eastern Police Station by Cst. Paris. They arrived at 2:32 a.m. Upon being asked again if he wanted to speak with a lawyer, Mr. Hayward responded: “I do not have my own lawyer”. Mr. Hayward did not communicate any information to Cst. Paris indicating that he wanted to consult a specific lawyer. Cst. Paris then asked him if he wanted to speak with duty counsel to which the accused answered “Yes” without voicing any reservations.

[ 11 ] At 2:35 a.m., Mr. Hayward spoke with duty counsel for approximately 6 minutes, in private, behind closed doors. When hanging up the phone, Mr. Hayward did not complain about his choice concerning counsel or the quality of the legal advice which he obtained. [ 12 ] At 2:43 a.m., the accused was turned over to Cst. Parsons, the Qualified Technician who conducted the test. The first test was taken at 3:09 a.m. and the second one at 3:31 a.m. The results were recorded in a Certificate of Qualified Technician which was submitted by the Crown as an exhibit to prove the level of alcohol of Mr. Hayward.

This Certificate, a Notice of Intention to Produce, a Notice of Greater Punishment and an Appearance Notice were served on the accused. [ 13 ] Cst. Parsons, the Qualified Technician, also testified. He stated that while at the Eastern Police Station, the accused was cooperative upon providing breath samples and he never complained about his choice concerning counsel or the quality of the legal advice which he obtained from duty counsel. [ 14 ] On cross examination, and on closing arguments, an issue arose as to whether Cst.

Paris testified in direct that when he made the ASD demand pursuant s. 254(2), he actually used the words “I formed the suspicion that the accused had consumed alcohol ” as opposed to the words “ I formed the suspicion that the accused had alcohol in his body ”. I II Issues [ 15 ] On August 17 th , 2012, the Defence filed a Notice of Application seeking an order for exclusion of evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedom (the “ Charter ”) relying on various grounds.

However, at the conclusion of trial, counsel for the accused advised that the only remaining issues to be determined are whether:

a) The evidence objectively supports the officer’s reasonable suspicion of alcohol in the body of the accused at the time of the approved screening device (“ASD”) demand pursuant to s. 254(2) of the Criminal Code ;

b) The demand for a breath sample into the ASD was made “forthwith”; and

c) The s. 10(

b) Charter rights of the accused have been violated such that the Breathalyzer Certificate must be excluded from the evidence. [ 16 ] I have also perused the voluminous caselaw provided by counsel and I thank them for their efforts and professionalism.

IV Law and Analysis Does the evidence objectively support the officer’s reasonable suspicion of alcohol in the body of the accused at the time of the ASD demand pursuant to s. 254(2) of the Criminal Code ? [ 17 ] Section 254(2) of the Criminal Code provides that " where a peace officer reasonably suspects that a person who is operating a motor vehicle ... has alcohol in the person's body , the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device ...” (Underline mine) [ 18 ] An officer must have a subjective reasonable suspicion that the accused had alcohol in his body and his subjective suspicion must be objectively reasonable. [ 19 ] The Defence argues that Cst.

Paris’ evidence at trial is unclear as to whether he had suspicion that the accused “ had alcohol in his body ” when he made the ASD demand pursuant to s. 254(2) . In particular, the Defence says that the officer’s evidence at trial suggests that he had suspicion that the accused " had consumed alcohol ", as opposed to “ had alcohol in his body ”, which does not provide sufficient grounds under s. 254(2) . According to the Defence, given this ambiguity in Cst.

Paris’ evidence at trial, the ASD demand he made to the accused was based on suspicion of “alcohol consumption” and is not lawful. [ 20 ] Although numerous cases were submitted in support of its position, for the most part, the Defence relies upon the

summary conviction appeal decision in R. v. Hendel [1997] O.J. No. 2849 and other decisions which have followed it.

[21] I pause to make a few comments. In my view, the facts in Hendel can be distinguished from the facts of this case and, in any event,I find that Hendel is no longer the leading authority on this point. Clearly, a number of cases, including those from

summary convictionappeal courts in other jurisdictions, have ruled differently than in Hendel. [22] In Hendel, the officer was asked about the significance of the odour of an alcoholic beverage on the accused's breath.

He repliedthat it showed "that he had been in possession of alcohol, whether he had put it in his mouth and spit it out, I don't know what he hasdone with it". [23] The court in Hendel concluded that: The officer made it clear that he really didn't care about his suspicion of the presence of alcohol in the body, reasonable or otherwise ...The smell of alcohol may very well lead to a reasonable suspicion of the presence of alcohol in the body, but in this case, this officer onthese unique facts, never engaged in that exercise. As he said, the appellant may have put alcohol in his mouth and spit it out.

He did notthink further on the subject and thereby, he denied himself the opportunity to form a reasonable suspicion of the presence of alcohol. [24] Again, Hendel has been considered in a number of

summary conviction appeal decisions of the Ontario Superior Court of Justice,including R. v. Daynes [2000] O.J. No. 1782; R. v. Correia [2000] O.J. No. 3100, and R. v. Martin, [2005] O.J. No. 670. [25] In Martin, the

summary conviction appeal court allowed the appeal and held that the trial judge, [2004] O.J.

No. 5754, "erred inlaw by applying s. 254(2) so as to essentially require [the arresting officer] to state his subjective state of mind in the words of thesection as the determinative proof of his reasonable suspicion that the respondent had alcohol in his body". [26] At paragraph 15, the court held: While it is well established ... that the requisite standard of belief in s. 254(2) is "alcohol in the body", I find that the trial judge erred inlaw by interpreting the relevant case law on this issue as establishing the principle that the requisite proof of this standard was for [thearresting officer] to articulate the words of s. 254(2) ("alcohol in the body"), and that anything less than an expression of these wordsfails to meet this standard of proof.

Based on my understanding of the case law, the proper determination of whether [the arrestingofficer's] subjective state of mind met the standard should have been based on the totality of the evidence presented and not solely onwhether he articulated the precise words of s. 254(2).

To find otherwise would result in an inappropriate and unjustified reliance on the"magic words". [27] In Martin, a number of cases were cited as examples in which courts have held that it was not necessary for the arresting officer toarticulate the specific words "alcohol in the body" in order to establish the requisite reasonable suspicion for the s. 254(2) demand. [28] By way of further example from the Martin decision, in R. v. Davis [2001] O.J.

No. 2984, Justice Libman "specifically relied onthe totality of circumstances ... regarding it from both an objective and subjective criteria, not simply on whether or not the specificwords 'alcohol in the body' were expressed by the officer." [29] In R. v. Correia, Justice Donnelly succinctly held at paragraph 15: On the basis of Lindsay, it is unnecessary to impose some artificial process relating to the manner in which the officer either arrives atthat subjective suspicion or describes it in the course of evidence.

To put such a gloss on that process is a form of sophistry and in light ofLindsay is wrong in law. [30] In R. v. Lindsay, (ON CA), [1999] O.J. No. 870, the Court of Appeal held that: The trial judge accepted the officer's evidence that she smelled alcohol on the respondent's breath. This observation led her to suspectthat the respondent had alcohol in his body and, she made the ALERT demand accordingly. ... There need only be a reasonable suspicionand that reasonable suspicion need only relate to the existence of alcohol in the body. ... We see no reason to put a gloss on the words ofs. 254(2).

The fact that there may be an explanation for the smell of alcohol does not take away from the fact that there exists areasonable suspicion within the meaning of the section. (Underline mine) [31] In the present case, Cst. Paris testified that he made the ASD demand based on his detection of a moderate smell of an alcoholicbeverage on the accused's breath and the accused's moderate blood shot eyes. [32] On the totality of the testimony given by Cst.

Paris, I am satisfied that the Crown has proven beyond a reasonable doubt that theofficer subjectively had the reasonable suspicion that the accused “had alcohol in his body” and that such subjective suspicion wasobjectively reasonable. [33] As argued by the Defence, Cst. Paris may not have used the exact words of s. 254(2) in expressing his suspicion during histestimony. However, the only reasonable inference that I nonetheless draw from it is that he properly turned his mind to the issue andsubjectively formed a reasonable suspicion that the accused had “alcohol in his body” and therefore made the ASD demand.

In all thecircumstances, I find that such subjective suspicion was objectively reasonable. There was not only a moderate smell of an alcoholicbeverage on Mr. Hayward’s breath, but also an observation of moderate blood shot eyes along with obvious erratic driving by theaccused. Was the demand for a breath sample into the ASD made “forthwith”? [34] The Defence argues that the accused's

section 8 rights were breached in that the ASD demand was not made "forthwith" as required

by section 254(2) of the Criminal Code. [35] In R. v. Orr,

(2010) A.J. no. 1536, at paragraphs 21 to 23, the Court said this: 21 it is well established by the authorities that the determination of whether a roadside test has been performed forthwith isdetermined having regard to whether the detainee would have had a reasonable opportunity during the delay period to consult withcounsel. All of the circumstances must be considered including such things as the time of day and the availability of a cell phone. Insupport of that I cite the The Queen and Martins, 2008 ABCA 283, CanLII.

The Queen and Tornsey, T-O-R-N-S-E-Y (2007), 2007ONCA 67 , 217 C.C.C. (3d) 571, Ontario Court of Appeal. In The Queen and Megahy, M-E-G-A-H-Y, 2008 ABCA 2007.Canada Law, the Alberta Court of Appeal considered the Supreme Court of Canada's decision in Woods, a case where a roadside demandhad been made an hour after the accused was charged with refusing to provide a sample.

Our Court of Appeal pointed out that the"forthwith" requirement in section 254(2) connotes a prompt demand but not an immediate demand. 22 At paragraph 18 and 19 of the judgment the Court said this: o Clearly, a police officer must be allowed time reasonably necessary to decide whether it is appropriate to make a demand for a breathsample under section 254(2): see R. v. Orbanski, R. v.

Elias, E-L-I-A-S, 2005 SCC 37, CanLII, and [2005] 2 S.C.R. 3 at paragraph 47.This may include questioning to determine whether the driver has alcohol in his or her system as a result of having taken wine atcommunion or having spent a day at a bar.

No laudable purpose is met by continuing to detain the former driver to require him or her tosubmit to a roadside screening test. 23 Paragraph 19: o In conclusion, the flexible approach advocated in Bernshaw, (SCC), [1995] 1 S.C.R. 254, and this court'sapplication of that decision in determining the validity of a roadside demand pursuant to section 254(2), as found in Oduneye, O-D-U-N-E-Y-E, 1995 ABCA 295 , [1995] A.J. No. 632, and Kachmarchyk, K-A-C-H-M-A-R-C-H-Y-K, 1995 ABCA 155 ,[1995] A.J.

No. 343, remains the law, notwithstanding some comments in Woods that might seem to suggest a more rigid approach. [36] Generally speaking, the longer the wait for a roadside screening device to arrive, the more likely the court will find that there was areasonable opportunity for the detainee to consult counsel and therefore the test was not administered forthwith. [37] For instance, waiting ten minutes has been found to be within constitutionally permissible limits while 30 minutes was held not tobe forthwith. See R. v. Bixby, [1998] O.J. No. 1860, Court of Appeal, R. v. Grant, (SCC), [1991] S.C.J.

No. 78. [38] In The Queen and Misasi, M-I-S-A-S-I, (ON CA), [1993] O.J. No. 150, the Ontario Court of Appeal held thatthe demand made after a five-minute delay while a screening device was brought to the scene was valid. [39] First, and foremost, it is worth noting that, in the instant case, Cst. Paris had the ASD with him at the scene. This was not a casewhere an officer had to wait for it to be brought to him. [40] The accused was stopped at 2:08 a.m. on Rothesay Avenue. There were three occupants in the vehicle including the accused. Allthree occupants appeared intoxicated to Cst. Paris.

Upon approaching the accused’s vehicle, he observed an important quantity of openliquor. Cst. Paris inquired with the accused the reasons for such erratic driving. He then asked the accused for routine documentsincluding license, registration and proof on insurance. [41] It became apparent to Cst. Paris, and I accept his evidence on this point, that the accused had increasing difficulty in producing thedocuments sought. The difficulty was such that, at one point, even without being requested to do so by the officer, the accused steppedout of the vehicle on his own initiative to attempt to find his insurance card.

Obviously, this caused increasing delay. [42] At 2:20 a.m., Cst. Paris made a section 254(2) demand, commonly known as an ASD demand. [43] The total period of detention between being stopped at 2:08 a.m. and the ASD demand of 2:20 a.m. was 12 minutes. I find that thisdelay, albeit minimal, was for the most part, caused by the accused’s increasing difficulty in producing documents. [44] In the instant case, unlike the case in R. v. Skarkey,

(2009) N.B.J. No. 432, there was no evidence introduced on the voir dire thatthe accused was in possession of a cell phone. Likewise, there was no evidence that he knew the name of any lawyers to contact even ifthe means to do so had been available. I also find that, in the instant case, there was no reasonable opportunity for Mr. Hayward toconsult counsel at the roadside. [45] In all the circumstances, the delay of 12 minutes between stopping the accused’s vehicle and making the ASD demand was wellexplained and justifiable in this case.

The roadside test was therefore taken “forthwith” as required by s. 254(2) of the Code. It followsthat, in my view, no breach of s. 8 of the Charter has been established on a balance of probabilities by the Defence. [46] Should my conclusion be wrong, in applying the three factors as outlined in R. v. Grant 2009 SCC 32 , being theseriousness of the Charter breach, the impact of the breach on the Charter protected interest of the accused, and society's interest in theadjudication of this case on its merits, in my view, any breach would be of a very minor nature.

Clearly, there would be no indication ofany bad faith or willfulness or recklessness on the part of Cst. Paris and certainly no indication of his disregard for Charter rights. [47] I am also satisfied that the impact would be minimal, as waiting some 12 minutes to provide a sample in an ASD of what theSupreme Court of Canada has described as a minimally intrusive test is not a significant impact on Charter protected interest.

[48] It is also in society's interest that both required and scientifically reliable evidence be admitted in order to permit this case to beadjudicated upon its merits. [49] In the long term sense of maintaining the integrity of the public’s confidence in the justice system, it is my view that admitting theevidence after weighing the three factors I outlined, would not bring the administration of justice into disrepute. To the contrary,exclusion would tend, in my view, to bring the administration of justice into disrepute in this instance case. Were the s. 10(

b) Charter rights of the accused violated such that the Breathalyzer Certificate must be excluded from theevidence? [50] In R. v. Brown, 2009 NBCA 27 the New Brunswick Court of Appeal, at paragraph 20, adopted the various duties arisingout of s. 10(

b) of the Charter and how they interact with one another as summarized in R. v. Luong (G.V.) 2000 ABCA 301 ,(2000), 271 A.R. 368, [2000] A.J. No. 1310 (QL), 2000 ABCA 301: For the assistance of trial judges charged with the onerous task of adjudicating such issues, we offer the following guidance: 1. 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 hasbeen infringed or denied.

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existenceand availability of Legal Aid and duty counsel. 4. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right to counsel. 5. The first implementational duty is "to provide the detainee with a reasonable opportunity to exercise the right (except in urgent anddangerous circumstances)". R. v.

Bartle (SCC), (1994), 92 C.C.C. (3d) 289 (S.C.C.) at 301. 6. The second implementational duty is "to refrain from eliciting evidence from the detainee until he or she has had that reasonableopportunity (again, except in cases of urgency or danger)". R. v. Bartle, supra, at 301. 7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonableopportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counselwas provided with a reasonable opportunity to exercise the right. 8.

If the trial judge concludes that the first implementation duty was breached, an infringement is made out. 9. If the trial judge is persuaded that the first implementation duty has been satisfied, only then will the trial judge consider whether thedetainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden of establishingthat he was reasonably diligent in the exercise of his rights. R. v. Smith, (SCC), (1989), 50 C.C.C. (3d) 308 (S.C.C.) at315-16 and 323. 10.

If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, theimplementation duties either do not arise in the first place or will be suspended. R. v. Tremblay (SCC), (1987), 37 C.C.C.(3d) 565 (S.C.C.) at 568; R. v. Ross (SCC), (1989), 46 C.C.C. (3d) 129 (S.C.C.) at 135; R. v. Black (SCC), (1989), 50 C.C.C. (3d) 1 (S.C.C.) at 13; R. v. Smith, supra, at 314; R. v. Bartle, supra, at 301 and R. v. Prosper (SCC), (1994), 92 C.C.C. (3d) 353 (S.C.C.) at 375-381 and 400-401. In such circumstances, no infringement is made out.

11. 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"). R. v. Prosper , supra, at 378-79. Absent such a warning, an infringement is made out. [para. 12] [Emphasis added.] [51] In delivering reasons for judgment, Mr.

Justice Richard added: [23] In my view, it is not realistic, in every case, to so neatly compartmentalize the obligations that arise out of the implementation component of the s. 10 (

b) right. This is so because the main governing principle, in determining questions of “reasonable opportunity” and “due diligence”, is the need to examine the totality of the circumstances. Thus, any analysis that requires a determination of “reasonable opportunity” without regard to all the circumstances is not the proper approach to the s. 10 (

b) analysis. The trier of fact must look at the facts globally and determine whether in “all of the circumstances” it can be said that the detainee was not provided with a reasonable opportunity to exercise the right to counsel. These circumstances include not only the behaviour of the police, but also that of the detainee. What might be reasonable in some cases might not be in others. (Underline mine) [24] A key fact in the determination of what is reasonable in the circumstances is the state of knowledge of the police.

A course of action that might be reasonable in some circumstances might be unreasonable if undertaken with knowledge of certain facts. For example, providing a telephone book to assist a detainee in locating a particular lawyer, in some cases, may be most relevant to the determination of “reasonable opportunity”, but providing a telephone book, without more, to a detainee the police know to be illiterate would not be of much benefit. Where officers know or should know certain facts, the reasonable course of action may be dictated by the state of their knowledge.

However, where the officers are not aware of certain facts that are within the exclusive knowledge of the detainee, and where the detainee does nothing to make the officers aware, a different course of action may be indicated. In such a case, regard to “all the circumstances” would include whether one would reasonably expect the detainee to inform the police of certain facts. This would depend on factors such as any circumstances that might impede or prevent the detainee from making the facts known to the police, including the overall atmosphere in which the events occurred. [52] In Blacquier ,

(2010) N.B.P.C. 26, the accused had requested to speak to a lawyer but was not specific. The officer immediately called duty counsel without any inquiries of the accused and notwithstanding the fact the accused had clearly advised he did not want to speak to duty counsel. Further, the officer could not recall if the accused had asked for a specific lawyer and, from the facts of that case, the Court opined that the officer failed in his implementational duty under s. 10(

b) of the Charter . The Breathalyzer Certificate was excluded after carrying out the Grant analysis under s. 24(2) of the Charter . [53] In my view, the facts in Blacquier are unique and distinguishable from the undisputed ones in the instant case. [54] Again, in Blacquier , the arresting officer, without having any conversation with the accused concerning whether he wished to speak to a specific lawyer, contacted duty counsel to speak with the accused. The accused refused to speak with duty counsel and the officer proceeded to take breath samples.

The officer had in effect chosen legal counsel for the accused, a choice which the Court empathically rejected. In streaming the accused towards Legal Aid, the officer failed in his implementational duty to provide counsel of choice. [55] By contrast, in this case, in the absence of any indication that Mr. Hayward had a specific lawyer he wished to contact, Cst. Paris made him aware of free legal services. However, the decision to speak with duty counsel was the accused’s alone. Unlike the case in Blacquier, Cst.

Paris did not contact duty counsel without first obtaining knowledge whether the accused had a specific lawyer in mind. In addition, Mr. Hayward actually received legal advice and, at no point, did he complain about his choice concerning counsel or the quality of the legal advice which he ultimately obtained. [56] In R. v. Bouffard ,

(2010) NBPC 33, the accused wanted to contact a French-speaking lawyer from Fredericton that “the guys from base use”. This had been communicated to the officer by the accused. However, the accused did not know the exact name of the lawyer in question. Yet, the officer never offered the accused a telephone book or a list of names of lawyers. Rather, he asked the accused if he wanted to speak with duty counsel. The accused agreed without voicing any reservations. The Court found that the officer acted too hastily in dialing the toll-free Legal Aid number right away. It was held that the officer did not give Mr. Bouffard a reasonable

opportunity to consult a lawyer of his choice and, therefore, violated his right to counsel as guaranteed by s. 10(

b) of the Charter. Afterconsidering all factors in Grant as per the s. 24(2) Charter analysis, the Court admitted the Breathalyzer Certificate into evidence. [57] In my view, the facts of this case also differ from those in Bouffard. [58] In Bouffard, the accused had indicated to the officer that he indeed wanted to call a specific lawyer, namely one “that the guys onbase use’”. The accused had also communicated to the officer that the lawyer in question was French-speaking.

On those facts, the Courtheld that, while the accused was unable to provide a specific name to the officer, under the circumstances, according to the principlesenunciated in Brown, the officer had to take reasonable measures to facilitate communication and, at the very least, give him a telephonebook to help him find the lawyer in question. [59] By contrast, the accused in this case indicated, while at the Eastern Police Station: “I do not have a lawyer of my own”. Unlike inBouffard, Mr. Hayward never communicated to Cst.

Paris or to the Qualified Technician any details which, viewed reasonably, wouldcause them to believe that he had a certain lawyer in mind although not knowing the exact name. [60] In my view, had Mr.

Hayward communicated to the officers that he wanted to speak with a certain lawyer, albeit his nameunknown, but from a specific area of the Greater Saint John Region, and who is generally retained by a certain group of people, in thosecircumstances, according to the principles enunciated in Brown, and in line with Bouffard, the officers would have had to takereasonable measures to facilitate communication and, at the very least, give the accused a telephone book to help him find the name ofthe lawyer in question. [61] More recently, in R. v. Caissie, 2012 NBQB 344 , Mr.

Justice Rideout, in the context of an appeal from a

summaryconviction, confirmed that there was no positive duty on the police to provide an accused with a telephone book in circumstances wherehe confirmed that he did not know any specific lawyers to call and accepted duty counsel without voicing any reservation. [62] At paragraph 15, Mr. Justice Rideout states: It may well be other circumstances which require the presentation of a phone book or a list of lawyers. When a person clearly indicateshe wants a lawyer or he has a particular person in mind or has an idea as to who that lawyer might be then a phone book or list may bewarranted.

It will depend on the individual circumstances. However, when the person indicates that he does not know a lawyer, wantsto call his father who also does not know a lawyer, is offered duty counsel if he wishes to talk to a lawyer and he gives an affirmativeresponse, this, in my view, satisfies his

section 10(

b) Charter Rights. [63] The first matter which must be considered is whether there was a police officer breach of duty to implement the accused’s right tocounsel of his choice. The evidence is clear that Mr. Hayward did not know of a lawyer to give him advice. While at the Eastern PoliceStation, he indicated that “I do not have my own lawyer”. At that juncture, the officer asked him if he wanted to talk with duty counsel. He responded in the affirmative and Cst. Paris initiated the call.

In these circumstances, I find that there was no obligation on the part ofthe officers to provide the accused with a phone book. [64] What is clear, in my view, is that Cst. Paris’ knowledge was that Mr. Hayward did not know a specific lawyer to be contacted. Ofcourse, it was then reasonable to ask if Mr. Hayward wanted to contact duty counsel. Mr. Hayward responded that he did and the callwas made. [65] Looked at globally, I find that the accused was given a reasonable opportunity to exercise his rights and he thought that dutycounsel was appropriate. It follows that, in my view, Cst.

Paris complied with both his informational and implementational duties. [66] There being no breach of Mr. Hayward’s s. 10(

b) Charter rights, there is no need, in my view, to carry out the Grant analysisunder s. 24(2) of the Charter. However, because the outcome of this analysis would be so clear had I ruled there was a breach, I willnonetheless do so. [67] As per the new framework in Grant, the proper analysis must take into account all of the circumstances and capture the following

factors: (1) the seriousness of the Charter -infringing state conduct (admission may send the message that 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. Seriousness of the Charter -infringing state conduct [68] The Court must at this stage examine the nature of the conduct on the part of the police that infringed the Charter -protected rights and led to the discovery of the evidence.

Was there misconduct from which the Court must dissociate itself? [69] The following three factors are relevant: 1) The violation, if any, was not major in degree and, in my view, even though the officer should have been more aware of the scope of his duties, there was no bad faith or abusive behavior on his part; 2) Rather, this was a situation where, arguably, Cst. Paris omitted to provide all necessary assistance to Mr. Hayward to contact a lawyer, namely by failing to provide him with a phone book. Of importance is the fact that Mr. Hayward, to use his words: “ did not have his own lawyer ”.

Thus, one questions how a telephone book could have possibly assisted him in finding the phone number for the lawyer he never had; 3) Mr. Hayward obviously had an opportunity to consult duty counsel and there was no argument presented that he was dissatisfied with the advice he received. Even though the infringement would have been relatively serious had I ruled there was a s. 10(

b) Charter breach, it would have not amounted to the most serious of breaches and to the accused being deprived of his right to counsel. It must be kept in mind that the right to counsel of one’s choice is not absolute at this initial stage of the proceedings. In my view, the degree of seriousness of Cst. Paris’ conduct, had I ruled there was a breach, would militate in favour of the inclusion of the disputed evidence.

Impact on the Charter -protected interests of the accused [70] As stated by the Supreme Court at paragraph 76 of Grant , “[t]his inquiry focuses on the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused.

It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.” [71] Obviously, the more serious the breach, the more important it is that the Court exclude the evidence so that the Charter -protected rights of an accused are given concrete expression. [72] In the instant case, a breath sample was taken and that process is lower on the seriousness scale than, for example, taking a blood sample or a body cavity search. It follows that, in my view, the impact of the breach of the s. 10(

b) Charter rights of the accused also militates in favour of the inclusion of the evidence in this case. Society’s interest in an adjudication on the merits [73] There is no doubt that the public has an interest in the adjudication of criminal allegations on their merits, especially when the offence is serious. It is equally undeniable that the public has a fundamental interest in an exemplary criminal justice system, particularly when the accused faces serious consequences if he or she is found guilty.

Accordingly, it is important to determine whether “the truth- seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.” ( Grant , para. 79) [74] The documented evidence of the accused’s blood alcohol level provided by the Breathalyzer Certificate which the accused seeks to exclude is highly relevant and essential to these proceedings. In fact, its exclusion would likely lead to a not-guilty verdict. Not only is it relevant, it is also very reliable. Conversely, its inclusion would very likely lead to a guilty verdict.

All in all, taking into account its reliability, I am of the view that society’s interest in the adjudication of the matter on its merits once again militates in favour of the inclusion of this evidence. Balancing the factors [75] It is now appropriate to weigh all of the factors considered. On the whole, Cst. Paris, had I ruled he committed a breach, would not

have acted in bad faith or in an abusive manner. The right to retain and instruct counsel of one’s choice is not absolute at the initial stage of proceedings. Mr. Hayward had an opportunity to speak with duty counsel. Again, there is no evidence nor is there any suggestion that he was dissatisfied with the conversation and the quality of the services he received from duty counsel. The evidence obtained is very reliable and its probative value is high and crucial. [76] On balance, and after carefully weighing all of these factors, I find that, had I ruled there was a s. 10(

b) Charter breach, the inclusion into evidence of Mr. Hayward’s blood-alcohol level would not have brought the administration of justice into disrepute. To the contrary, I find that its exclusion would have been a step towards undermining the public’s long-term confidence in the judicial system. Hence, had I ruled there was a s. 10(

b) Charter breach, which is not the case, the accused’s application for exclusion of evidence would therefore have been dismissed and the Breathalyzer Certificate would have been admitted into evidence. V Conclusion [77] In

summary, there is no requirement that an officer articulate the precise words of s. 254(2) while giving testimony at trial. The question is whether the officer turned his mind to the issue and subjectively formed a reasonable suspicion that the driver had alcohol in his body. [78] I find that, on the totality of the evidence, the Crown has proven that Cst. Paris subjectively had the requisite reasonable suspicion to make the ASD demand. I also find that his suspicion was objectively reasonable. Therefore, the ASD demand was lawful. [79] The demand for breath sample into the ASD was made forthwith. [80] There has been no infringement of Mr. Hayward’s s. 10(

b) Charter rights. [81] The Breathalyzer Certificate is admitted into evidence. Dated at Saint John, New Brunswick, this 10 th day of April 2013. Marco R. Cloutier Judge of the Provincial Court of New Brunswick