R. v. Lewko, 2015 MBPC 14

CITE# 2015 MBPC 14 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Valerie Hebert, for the Crown ) - and - ) ) Arthur Denis Girouard ) Saul B. Simmonds, for the Accused ) ) Judgment delivered: March 11, 2015 ) Corrin, P.J. [1] Arthur Girouard is charged with refusing to provide a suitable breath sample in reference to section 254(5) of the CriminalCode, a provision dealing with approved screening devices.

Section 254(2) of the Criminal Code authorizes an officer to make aroadside demand: "Where a peace officer reasonably suspects that a person who is operating a motor vehicle...or who has care or control of a motorvehicle..., whether it is in motion or not, has alcohol in the person's body, the peace officer may, by demand made to that person, requirethe person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis ofthe breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purposeof enabling such a sample of breath to be taken." [2] In R. v.

Lewko (2003) 2002 SKCA 121 , 2 W.W.R. 197 the Saskatchewan Court of Appeal noted that the elements ofa section 254(5) offence include: (

a) A proper demand; (

b) A failure or refusal by the accused person to produce the required sample; (

c) The intention of the accused to produce a failure or refusal; and (

d) Once raised by the evidence, the absence of a reasonable excuse. [3] There are two types of cases which present in respect to s. 254(5) allegations; "refusal" cases and "failure" cases. Failure casestend to be more complex from an evidential viewpoint i.e. unlike "refusal" cases, which are normally proven by direct evidence from theattending police officers, "failure" cases are quite often based on a combination of inferences as well as the direct observations of theattending officers.

In "failure' cases the inference from the failure to register an adequate sample by a device is difficult to overcome ifthe prosecution proves that the device was in good working order. Direct evidence from police officers that an accused suspect was notappearing to blow properly must be carefully evaluated, as same is inherently less reliable (see paras. 11 and 12 of R. v. Dolphin, 2004MBQB 252, Scurfield J.). [4] There is no evidence that Mr.

Girouard outright refused to provide a sample by word or action so this is a “failure” type case.The accused blew 13 times and according to the Crown’s only witness, Constable Gerald Thomas, failed to provide a suitable sample. [5] The Crown is entitled to rely on the opinion of the officer operating the device respecting the adequacy of the sample suppliedby the person being tested as such evidence of opinion is clearly admissible.

However, as was observed in Dolphin at paragraph 13: "...the weight to be afforded that opinion depends on the reliability of the foundation for that opinion." Needless to say, the determination of the credibility of such a witness is also still in play and must also be weighed and determined bythe trier of fact. [6] An insightful comment expressing the need for judicial caution made by Scurfield, J. in Dolphin is worth repetition at thistime. Such comment is as follows:

"In some respects, the opinion of the operator as to adequacy is similar to tainted identification evidence. The observations of the operator are influenced by the device. When the device suggests to the operator that an inadequate sample of breath has been provided, it generates a circumstance similar to showing a single photograph to an eyewitness in an identification case. In both situations, the suggestion constitutes a significant intrusion into the observation process. The natural instinct of the operator will be to look for and find fault with the blowing technique of the person who is being tested.

Honest witnesses can be unreliable in this environment. (paragraph 14) [ 7 ] It is important as well that the court examines all of the evidence, including contradictory evidence, before concluding that there has been a deliberate failure on the part of the accused to provide a sample. Was the ASD an approved device? [ 8 ] Other, narrower issues, also present in this case. In particular, whether the device employed by the police officer in this case was actually proven to be an approved screening device as required by

section 254 of the Code? Evidence was received on this subject from both the Crown's witness, R.C.M.P. Constable Thomas, as well as Dr. Archie Kraut, a witness tendered by the defence who was qualified as an expert in the area of roadside screening devices and their related operation and use. Dr.

Kraut informed the court that not all roadside screening devices manufactured by Dreger, the manufacturer of the device employed in our case are "approved screening devices" for the purpose of s.254, that only those proven after rigorous product testing, attain such certification by enactment of a federal government regulation. Cst. Thomas identified the device he employed as being a Dreger Alcotest Unit bearing a serial number ARHM0204. Dr.

Kraut told Court that three Dreger Alcotest models were approved for use at the date of the alleged offence and that they all bore different descriptive numbers than the one referred to by Cst. Thomas. He also stated that none of these approved devices gave the information signals that were described by the officer. [ 9 ] Crown counsel argued that the officer's testimony that he made a demand with an approved screening device was in and of itself sufficient to prove the issue. In her mind the issue was quite narrow, whether or not the officer personally believed the device was an approved screening device.

She firstly cited one case (R. v. Gundy , 2008 ONCA 284 ) where the police witness had not been challenged by defence as to whether the device he used was approved or not and then referred to another, R v. Kosa

(1992) O.J. No. 2594 , which was also distinguishable as no expert witness had testified at the trial. In our case there was no reference to a model number, something that Dr. Kraut said was necessary in order to determine whether the unit was properly approved for use. For this reason I conclude that Cst. Thomas' belief that he was employing an approved device did not meet the requisite standard i.e. his opinion was not based on actual information that was objectively premised on a reliable foundation.

As such his testimony was really only opinion evidence that was unfounded in sufficient factual detail to warrant belief in its reliability. Having regard for the totality of the evidence on this point, the Court concludes that it cannot rely on the officer's unfounded assertion that the device was approved. Accordingly, I conclude that the Crown has failed to prove an essential element of its allegation – that the accused was asked to provide a suitable breath sample in an approved screening device.

The court further observes that the absence of such a proof also essentially negates the legal presumption that the machine was operating reliably at the time of the incident. Did the accused fail to provide a sample? [ 10 ] Dr. Kraut also provided other evidence that the defence argued created a reasonable doubt respecting the allegation before the court. In this regard court was told that the feedback or signal message the officer claimed to have seen on the device's monitor was to the best of his professional knowledge simply non-existent. Specifically, Cst.

Thomas told court that the machine provided an "EO1" error message after each of the unsuccessful sampling attempts. However, Thomas conceded on cross-examination that he didn’t follow standard procedure and enter the code message he saw in his notes. Indeed, he even conceded that he failed to enter the actual time of the first sample request. It was Dr. Kraut's expert evidence that approved Dreger Alcotest devices only show two error messages..."EO" and "E1". The "EO", he said, related to samples that were insufficiently provided and the "E1" indicated a device malfunction. On this basis, Dr.

Kraut informed the court that it was not possible for him to determine whether the machine was malfunctioning or receiving too little breath to record a "pass" or "fail". [ 11 ] The Crown submitted that the officer's personal testing of the unit (he testified that at one point he blew into the device and recorded a "zero" alcohol result) should be found sufficient to satisfy the Court that the machine was operating properly and the sampling problem was attributable only to the failure of the accused to provide a suitable sample. As such, I was asked to disregard Dr. Kraut's concern.

The court perceives a problem with this approach, as a failure to provide an adequate sample can only be proven from the inference to be drawn from proof that the accused appeared to be blowing into a device that was in good working order not a device where there were also indications or evidence of a malfunction. The "EO1" reading seen and recorded by Cst. Thomas bespeaks a malfunction as such a reading is not, as Dr. Kraut testified, an error message that approved Dreger Alcotest units were programmed to generate. [ 12 ] Another concern in this respect arises from Dr.

Kraut’s evidence respecting the need to withhold breath sampling until the machine beeps. It was the accused’s evidence that Cst. Thomas had told him to “blow” and not stop until the unit beeped. Dr. Kraut, on the other hand, told court that the machine wasn’t ready to receive or take a sample until the unit beeped. Evidence that the officer may not have been conversant with the device.

In this respect it is also noteworthy that the officer conceded on cross-examination that he hadn’t participated in any refresher instruction respecting ASD operation in 28 years, a situation that might explain his apparent misinstruction in such respect. As a consequence there is plausible contradictory evidence of both machine and operator malfunction arising from Cst. Thomas' testimony. Accordingly the usual inference of failure does not pertain in this case since the evidence before the court on this point is essentially ambiguous.

For this reason the court is unable to accord the usual weight it would most probably have ascribed to the officer's personal testimony as there is an inherent conflict between the officer's and Dr. Kraut's testimony. [ 13 ] The court accordingly concludes that the Crown has failed to prove another essential element of the charge before the court – that the accused failed to provide the required sample.

On this point, while I acknowledge that there certainly was some evidence before the court that could positively pertain to the Crown's proof of mens rea , I feel conscientiously obliged to conclude that it would be unsafe on the evidence before me to come to the conclusion that the accused beyond a reasonable doubt intentionally failed to provide an adequate or suitable sample of his breath for analysis.

Was the ASD demand made forthwith? [14] Section 254(2) only allows a police officer, if he has reasonable grounds to suspect a motorist has alcohol in his/her body, todemand that person provide "forthwith" a sample of their breath into an approved device. "Forthwith" means "immediately" or "withoutdelay" (see R. v. Bernshaw, (1995) 1.S.C.R. 254; R. v. Woods, 2005 SCC 42, (2005) 2 S.C.R. 205). [15] Martin, J. in R. v. Bergen, 2014 MBQB 84 , 2014 MBQB84 concisely reviews the "forthwith" concept as enunciatedby the Supreme Court of Canada in the Bernshaw and Woods cases.

I herein incorporate and rely upon Martin, J.'s excellent synopsis ofthe relevant law as follows: "[13] ... the objective of obtaining a valid test result from the breath sample puts common sense into play in this immediacyconcept. So, an officer is entitled in certain circumstances to wait 15 minutes from the time he suspects the motorist has alcohol in hisbody until giving the ASD test, to ensure the motorist’s recent alcohol consumption does not cause a false ASD result.

This wasexplained by the Supreme Court of Canada in Bernshaw almost 20 years ago. [14] The majority of the justices adopted an approach that permitted an officer to wait 15 minutes before administering the ASD test“when this is in accordance with the exigencies of the use of the equipment” including “when an officer is aware of the potentialinaccuracy in the particular case” (para. 73). Thus the legal authority to wait up to 15 minutes for mouth alcohol to dissipate is anexception to the requirement that the ASD test be done forthwith.

Such a delay must be for a reason more than the motorist havingconsumed alcohol that evening. In other words, suspicion of having alcohol in the body is the grounds for making the ASD demand, notthe justification for delaying the ASD test. [15] Why have courts emphasized that the ASD test must be given forthwith or immediately? First, because that is what s. 254(2)plainly sets out, and second, because there is an important constitutional element embedded in the roadside ASD demand.

Notably, anofficer may randomly stop a motorist, make a roadside ASD demand, detain the person and search their breath, all without believing thatperson has committed any criminal or other offence or allowing that person to contact a lawyer. This is the second critical concept - theconstitutional aspect - that I referred to earlier. [16] The important and normal safeguard against unwarranted intrusion by government agents in a citizen’s life, of requiring theofficer to have reasonable and probable grounds to believe an offence has been committed, has been done away with for an ASDdemand.

To detain someone for a roadside ASD test, the officer need only reasonably suspect the person has alcohol in his body. Officers are granted this extraordinary power to infringe on a citizen’s normal rights and security, specifically to combat the scourge ofimpaired driving.

The trade-off is that the roadside ASD test must be done forthwith or immediately upon the officer having thesuspicion, unless there is a good reason to delay the test such as a broken ASD or waiting for an ASD to be delivered to the officer, or ifthere is reason to believe the test will not be accurate because of alcohol in the mouth from recent consumption (i.e. within the prior 15minutes). [17] The Supreme Court of Canada addressed this in Woods, supra, as follows: 14. ... Section 254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy.

This immediacyrequirement is implicit as regards the police demand for a breath sample, and explicit as to the mandatory response: the driver mustprovide a breath sample “forthwith”. 15. Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8, 9and 10 of the Canadian Charter of Rights and Freedoms. But for its requirement of immediacy, s. 254(2) would not pass constitutionalmuster. ... . . . 29. The “forthwith” requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity.

It addressesthe issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8, 9and 10 of the Charter. In interpreting the “forthwith” requirement, this Court must bear in mind not only Parliament’s choice oflanguage, but also Parliament’s intention to strike a balance in the Code between the public interest in eradicating driver impairment andthe need to safeguard individual Charter rights. [18] These are the long-standing rules, principles and law of roadside ASD processes.

From this, other practices and rules haveemerged. [19] Defence counsel relied in part on R. v. Penny, 2011 MBQB 237, 271 Man.R. (2d) 89, a decision I wrote. That case affirmedthat officers are not required to ask a motorist whether they have recently consumed alcohol unless there is good reason to do so. Thecourt noted the comments in R. v. Mastromartino (2004), (ON SC), 70 O.R. (3d) 540 (Ont. S.C.J.) which set out asummary of the rules or expectations surrounding roadside ASD testing.

Durno J. summarized the law regarding the reliability ofroadside screening test results vis-à-vis an investigating officer's discretion as follows: [23] In

summary, I take Bernshaw and Einarson to establish the following: 1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administeringthe test without a brief delay. 2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether

there are reasonable and probable grounds to arrest. 3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed. 4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device. 5.

Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief. 6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol. 7.

If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading. 8. If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay. [16] The court received evidence from only the accused and the arresting officer respecting the actual incident.

Both witnesses appeared to be forthright in their recollection of events. Much of their testimony coincided although not all of same. There were some noteworthy differences. [17] Cst. Thomas testified that at about 12:20 a.m. he had been on patrol on highway 59 when he saw a vehicle headlight in a business' parking lot (Wimpy's Gas Station). Wimpy's appeared closed so he turned off the highway to determine why the motorist was there. When asked, Mr. Girouard advised that he'd stopped there because of an urgent need to urinate. He then went a short distance away and relieved himself. Cst.

Thomas testified that when the accused returned at about 12:25 a.m. he smelled the odour of liquor. Cst. Thomas related that he'd then asked the accused if he'd been drinking and the accused told him he'd had two beers. Cst. Thomas never asked the accused when he'd consumed the two alcoholic beverages. Thomas told court that he'd then asked the accused to perform a balance test involving Girouard closing his eyes and putting his heels together. Such a test was conceded to be an unapproved test as opposed to a standard one authorized by R.C.M.P. protocol. Before making the ASD demand, Cst.

Thomas related that he'd also run a license/registration check on his vehicle's computer as well as spoken to the driver of a tow truck which had, according to him, coincidentally come to the incident scene. According to Cst. Thomas the truck's attendance was unsolicited. After conversing with the tow truck driver, a person referred to as Eric, Cst. Thomas made his demand.

It was by his recollection and as later documented by him some two to three hours later, 12:30 a.m. when the demand for a breath sample was actually made. [18] The parties' evidence concurred on this last point, the time the demand was made, but differed in many other respects. Mr. Girouard's testimony related a very different time frame. He recollected that he'd looked at his illuminated motorcycle clock when he'd first stopped at Wimpy's and that it was 11:58 p.m. It was his evidence that the police cruiser had arrived very soon afterwards, within a minute or two, around midnight.

He recollected doing his business and when he returned to speak to Cst. Thomas, being asked if he'd been drinking. According to him, the officer had then asked for his driver's licence and registration and had taken same back to his police cruiser for approximately five to ten minutes and then returned and requested that he perform the unapproved ad hoc sobriety test. He recollected the tow truck having come along and when questioned, that Cst. Thomas had told him that he hadn't requested its attendance. He recollected that Cst.

Thomas had approached the tow truck driver and spoken with him for two to three minutes before he had made the ASD demand. It was Cst. Thomas' testimony that such conversation had only been for "fifteen seconds or less". He gave no explanation of why he spoke to the tow truck driver or what they spoke about. Mr. Girouard estimated that twenty to twenty- five minutes had passed before Cst. Thomas had made the actual ASD demand. [19] Defence counsel argued that Mr. Girouard's account of the incident's time frame should be preferred as it possessed a greater air of reality.

This, he submitted, was because the officer's time estimate didn't comport with the related circumstances. On this basis, because the officer's approximate five minute time frame between 12:25 and 12:30 a.m. had included conversation between the parties respecting prior drinking, a licence/registration computer check, a sobriety test and a conversation with Eric, the tow truck driver, Mr. Simmonds suggested that the officer's testimony should be viewed as likely less reliable and/or credible than Mr. Girouard's. In this regard Mr. Simmonds reminded the court that Cst.

Thomas had admitted to making no incident notes until around 2:30 a.m. and that he'd even conceded on cross-examination to failing to document the time of the sample attempts or the precise description of the error readings he'd seen on the machine. [ 20 ] It is my view that Cst. Thomas' testimony would have been perceived by me as being more reliable and perhaps even preferable to the accused's testimony if he had taken the usual steps to promptly record his observations to the extent possible in the circumstances.

Obviously, this "situation" is not entirely his fault as he was working unpartnered and thus compelled to do more than is usually the case in such circumstances. And unlike other similar RCMP related single officer highway traffic enforcement situations I have been exposed to at trial, he did not have the benefit of an on-board vehicle video/audio camera to record and time the unfolding incident. Cst. Thomas obviously had a lot on his plate with respect to this incident.

He had, after all, initiated an investigation, spoken with the accused, administered a sobriety test of sorts, ran a document identification check and even, albeit for an unexplained reason, taken time to speak to a passerby tow truck driver as well as set up and start the ASD machine, and all this was followed by a lengthy series of thirteen sample attempts which led to the "fail" allegation and the post-arrest processing at the Grand Marais detachment office, which included what the officer perceived as proper "implementation" of counsel rights, and after that the transport of the accused to his cottage at Lester Beach.

As I understand the evidence it was after all this had been single-handedly accomplished, that Cst. Thomas found time to

reconstruct what had actually occurred during the timeframe of the incident – and make his notes. For this reason, given Cst. Thomas'reliance at trial on his notes made two years earlier, I cannot find any compelling and logical reason to conclude his evidence is anymore reliable than Mr. Girouard's. As such, given the seeming credibility of both witnesses, I cannot say that I have a true preference foreither party’s version of the incident’s details. However, that having been said, I am of the opinion that Cst.

Thomas' testimonyrespecting the provenance of the tow truck seems, to speak both respectfully and diplomatically, somewhat disingenuous in thepresenting circumstances. Defence counsel actually submitted that the truck's arrival might explain the officer's failure to immediatelyrun the usual licence/registration check after this initial interaction with the accused. In my view, given the overall circumstances, such aconclusion is not altogether unreasonable. [21] The Ontario Court of Appeal, in R. v. Quansah, 2012 ONCA 123 discussed the proper approach to the Bernshaw and Woodsdecision i.e. whether a strict

interpretation of the term "forthwith" or a more flexible one should pertain. The court made clear that"forthwith" had to be interpreted with some flexibility as it was to be done contextually – that the immediacy requirement commenced atthe stage of reasonable suspicion and "the time from the formation of reasonable suspicion to the making of the demand, to the detainee'sresponse... by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or herduty as contemplated by s. 254(2)” (see para. 47).

The appeal court also stated that consideration of the immediacy requirement alsorequired a trier of fact to take all the circumstances into account. Unjustifiable delays were not to be taken into account and "delay not sojustified exceeds the immediacy requirement" (at para. 48). A final circumstance for consideration is whether the police couldrealistically 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. [22] Having regard for the circumstances of this particular case and the arresting officer's belated attempt to reconstruct the timeframe a couple of hours after the fact, absent any of the usual on-scene incident notations as to chronology, the court is not satisfied thatthe officer’s testimony can be relied on with respect to the time frame or "forthwith" issue.

This is because the officer's five minuteestimation seems highly unlikely to be an accurate reflection of time in relation to what both witnesses related occurred during theincident. [23] Moreover, this wasn't the usual scenario that often presents when an officer is cautiously waiting for mouth alcohol to dissipate,a fairly conventional situation in these types of cases. And, quite frankly, absent any plausible explanation for the interruptioninvolving Cst. Thomas' conversation with the tow truck driver, I share defence counsel's skepticism respecting such conversation beingonly "15 seconds or less".

If the conversation could be kept to such a brief duration, then why would Cst. Thomas have even bothered toinitiate it? Absent a credible explanation it just doesn't seem to add up in the sense of having an air of reality. [24] In the circumstances of this case I am therefore inclined to believe that Mr. Girouard was detained, without being advised of hisright to counsel for at least 15 to 20 minutes. In this context, very little delay was attributable to the accused, save and except, for hisbrief interlude when he relieved himself.

There was nothing noteworthy about his driving, nothing in his appearance was related assuggestive of his inability to drive his motorcycle, his license and registration were in order, he was cooperative with the officer and infact admitted that he had consumed alcohol earlier that evening, thereby providing immediate grounds for Cst. Thomas to make the ASDdemand. Since the officer said that he'd smelled alcohol on Mr.

Girouard's person almost immediately upon his return from relievinghimself he could have made the ASD demand even before Girouard’s admission, in probably the first three or four minutes of theirinteraction and in so doing could have easily eliminated delaying factors such as the unapproved sobriety test and the unexplained chatwith the tow truck driver. These delaying factors were attributable to actions of the officer that were simply not reasonably necessary tothe process at hand.

In the presenting circumstances there was simply more delay than was reasonably necessary for the officer todischarge his duties. [25] This case factually resembles R. v. Billette, 2001 SKQB 150, where the court found that the officer had almost immediategrounds to make an ASD demand but chose to conduct a search of the accused's vehicle before making the ASD demand.

The office'sevidence didn't establish any time frames but the court nevertheless decided that the search had had nothing to do with the foundation ofreasonable suspicion and determined the demand to be an unreasonable delay. [26] The Supreme Court of Ontario case R. v. Schmidt (2000) 31 M.V. R. (4th) 261 is also factually quite similar to our case. Thecourt found that the officer had detected the odour of alcohol very soon after making the traffic stop.

Despite that, even though he hadthe requisite reasonable suspicion, the officer decided to conduct further investigation to determine if grounds existed to make a formalbreathalyser demand. The ten minute investigation procedure was ultimately held to be unreasonable investigative procedure in relationto the ASD demand and as such non-compliant with the "forthwith" requirement of s. 254(2). [27] I therefore conclude, having reviewed all the caselaw and related jurisprudence I have previously cited, that the ASD demandwas not made forthwith.

The court observes that it’s decision in such respect was guided by the principles of R. v. W(D) (1991) (SCC), 1SCR 742 wherein the Supreme Court of Canada held, to paraphrase, that an accused is entitled to the benefit ofreasonable doubt on credibility based on his own evidence or the evidence as a whole. In this case I am not prepared to dismiss Mr.Girouard’s evidence as being unworthy of weight.

Indeed, at minimum, I certainly view same to be as compelling and reliable as Cst.Thomas’ evidence for the reasons I have previously discussed. [28] The failure to perform the ASD test “forthwith” also results, as argued by defence, in an infringement of the accused’sconstitutional rights pursuant to

section 9 of the Charter – the right to be free of arbitrary detention. Section 24(2) Analysis [29] I now turn to whether the evidence of the so-called refusal ought to be excluded in this case. This requires an assessment of thequestion and factors established by the Supreme Court of Canada in R v.

Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71: A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must

assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousnessof the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) theimpact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count forlittle), 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 theassessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidencewould bring the administration of justice into disrepute… [30] Also, oft quoted in many cases having to do with breathalyzer certificates are the Supreme Court of Canada’s comments atpara. 111: While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity isdeliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded,notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe interms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted.

For example, thiswill often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [31] As might be expected, a review of jurisprudence of cases involving the application of s. 24(2) Grant factors to breathalysercertificate evidence, demonstrates that the unique facts and nuances in a particular case often tip the balance in favour of exclusion oradmission of the evidence on a case-by-case basis. As the Manitoba Court of Appeal noted in R. v.

Farrah, 2011 MBCA 49 ,268 Man.R. (2d) 112 at para. 7: The decision on whether to exclude under s. 24(2) of the Charter is an admissibility of evidence issue which is a question of law.However, because this determination requires the judge to exercise some discretion, "considerable deference" is owed to the judge's s.24(2) assessment when the appropriate factors have been considered (see Grant at para. 86, and R. v. Beaulieu, 2010 SCC 7 at para. 5,[2010] 1 S.C.R. 248).

The Seriousness of the Conduct [32] As noted in Woods, the constitutional validity of the ASD testing regime in s. 254(2) depends upon the test being doneforthwith or without delay. In the context of our case, conducting the test without delay was not really onerous from animplementational or operational viewpoint. The improper delay actually infringed Mr. Girouard's

Section 8 and 9 Charter rights. Thedelay in question appears to have arisen because the officer was trying to obtain unnecessary evidence in order to allow him to make abreathalyzer demand (the sobriety test) and also because of an unwarranted interruption made at the time he went to chat with the towtruck driver about an undisclosed subject.

The court perceives the officer's conduct to have been serious in the context of thejurisprudence not because of the relatively short delay attributable to the “chat” but because such delay was in the context of the officer’slegal obligations both unnecessary and unreasonable and as such not capable of being described as a minor or a technical breach. Thisarea of delay was clearly based to some extent on a misunderstanding of the scope of the officer's authority in relation to the performanceof his duties.

The officer’s apparent failure to follow proper protocol with respect to the resetting of the machine after each attempt(according to Dr. Kraut’s expert evidence on this point, the machine wasn’t ready to take a sample until it beeped) was also acontributing factor in such regard, a further aggravating feature of the protracted detention. The Impact of the Charter Infringing Activity [33] I find this to be at the lower end of the scale as the attempts to obtain a suitable ASD sample were minimally intrusive.

Itcertainly appears that the delay did not in any deliberated way compromise the accused in relation to the alleged refusal to provide asuitable sample. Society's Interest in the Adjudication of the Case on it's Merits [34] This is a case where the accused has challenged the allegation presented by the Crown's only witness, the arresting officer. It ishis position that the ASD device was malfunctioning at the time he took the tests. No real evidence, such as a breathalyser analysis orcertificate resulted from the flawed ASD demand.

Absent the evidence of the various attempts the prosecution will not be able prove itscase. The evidence in question is therefore necessary and essential if there is to be a determination of the case on its merits. The courtacknowledges that there is a strong societal interest in obtaining a determination or result incident to a screening demand as same entailsprevention of drunk driving accidents and the accompanying grief associated with same. The Balancing of the Three Assessments [35] In my view the officer made deliberate choices that departed from adherence to the law in question.

He also appears to havemade errors respecting his testing methodology. Ironically, it is the very ease of implementing the law which tilts the balance towardsexclusion of the testing evidence. After all, the check was completely random and unrelated to any improper or dangerous driving. There were no aggravating features such as defiant, uncooperative behaviour. However well meaning the officer's intentions may havebeen, his conduct, if condoned may be seen to be a minimization and trivialization of his Charter infringing behaviour by this Court.

It isthe court’s opinion that this could in turn bring the administration of justice into disrepute. Accordingly, the testing evidence provided bythe officer, Cst. Thomas, is ruled inadmissible in these proceedings. [36] In this respect, it is also of particular concern that an individual's right to counsel is permitted by law to be held in abeyance inorder to allow police to perform such testing which can lead to further intrusive search and seizure investigation.

The superior courtshave repeatedly expressed the importance of prompt ASD testing for this reason. [37] The Court wishes to thank both counsel for their able submissions and assistance in this matter.

“Original signed by” CORRIN ,P.J.