Her Majesty the Queen - v. -, 2012 SKPC 110

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 110 Date: July 17, 2012 Information: 44302317 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Trent MacArthur Appearing: Bryce Pashovitz For the Crown Michael Owens For the Accused DECISION ON VOIR DIRE and TRIAL M.L. GRAY , J BACKGROUND [ 1 ] Mr.

MacArthur was charged on October 12, 2010 with driving while his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood and with operating a motor vehicle while his ability to do so was impaired by alcohol. The trial of the matter commenced on September 19, 2011. Since counsel for the accused provided notice of his intention to raise s. 9 and s. 10(

b) Charter arguments, the evidence of the Crown was called on a voir dire with an agreement that the evidence could be applied to the trial proper. At the conclusion of the voir dire , both the Crown and defence evidence was applied to the trial proper. Decision was reserved. ISSUES 1. Is the officer ’s belief that he had reasonable grounds to make a breath demand objectively verified? 2. Was there a violation of s. 10(b)? 3. Was there an arbitrary detention and violation of s. 9? 4.

If there was a Charter violation, what is the appropriate remedy? 5.Does the evidence establish, beyond a reasonable doubt, that the accused ’s ability to operate a motor vehicle was impaired by alcohol? ANALYSIS 1. Is the officer ’s belief that he had reasonable grounds to make a breath demand objectively verified? [ 2 ] At 2:56 a.m. Cst. Erickson saw a vehicle, which he subsequently learned was driven by the accused, northbound on Idylwyld. The vehicle made a hard left movement which quickly was corrected. A short distance later a similar motion almost brought the vehicle into contact with the centre meridian.

Again the vehicle corrected to the right, moving to but not crossing the dotted line separating the lanes. The vehicle went into the left turn lane at 35 th Street, then almost immediately returned to the through lane and continued to 36 th Street where it made a proper left turn. The vehicle turned right on Avenue E North at which time the officer activated the emergency lights of the patrol car.

Shortly afterward, the vehicle pulled into a private driveway and parked. [ 3 ] Constable Erickson approached the accused and twice asked for his driver’s licence and registration before the accused began looking for his wallet. The accused eventually produced the registration, but rather than hand the driver’s licence to the officer, he either read or recited the identification number. There was a smell of beverage alcohol coming from the vehicle and Mr.

MacArthur acknowledged that he had three drinks, the last approximately one hour before being stopped. [ 4 ] The officer therefore suspected that the accused had alcohol in his body and asked that the accused go to the patrol car to perform a roadside test. When Mr. MacArthur began walking toward the police vehicle, he moved slightly to the right rather than in a straight line. When asked to turn toward the patrol car so that he could be searched, Mr. MacArthur turned and walked three feet past the patrol car. [ 5 ] At 2:58 a.m.

Constable Erickson abandoned his initial intention to conduct a roadside test as he believed that he had reasonable and probable grounds to make a demand for a breath test. He cited the driving described on Idylwyld Drive, the admission of alcohol consumption, the walk to the patrol car, which was not a straight line, and the failure to specifically comply with instructions as the grounds for that demand. In addition, he considered Mr. MacArthur’s attempts to remove his registration from his wallet and his glossy red eyes.

In making the demand, the officer advised the accused that he had reason to “suspect” that the accused had alcohol in his body, but then went on to make the demand pursuant to s. 254(3) of the Criminal Code . [ 6 ] The accused was placed under arrest at 3:05 a.m. and was taken directly to the police station. There, Constable Erickson noted that the accused had glossy red eyes, and that he continued to smell of beverage alcohol. The accused stumbled slightly in the hall as he moved between the rooms. Constable Erickson described the accused’s demeanour throughout as quite depressed, physically hunched

over and unable to make eye contact. Further he did not always speak in complete sentences. [ 7 ] In cross-examination, Constable Erickson acknowledged that there was nothing illegal in the manner in which the accused operated his vehicle and that it was parked appropriately. [ 8 ] Constable Erickson further acknowledged that just prior to 2:58 a.m, he was “suspicious” that the accused had been consuming alcohol. When asked to get out of his car, the accused used the car door as an aid. The officer acknowledged that this is not an unusual way for a tall individual to exit a small car.

Constable Erickson agreed that the accused had no difficulty understanding instructions which were given to him. Constable Erickson further acknowledged that the accused did not stumble, sway or stagger as he walked down the driveway to the patrol car. Over the distance of about 15 feet the accused deviated approximately 8 to 12 inches to the right of a straight line. He further admitted that as the accused did not make eye contact at the scene, he would not have seen his eyes. He did not conduct any roadside sobriety tests as he had not been trained to do so.

Constable Erickson agreed that he observed the accused for less than one minute before making the demand for breath samples. [ 9 ] It was at the police station that he first noted that the accused had glossy red eyes. Although he testified that the accused stumbled in the hall of the detention area, he conceded that his notes said that “the accused swayed slightly when he walked”. The officer acknowledged that the accused had no difficulty removing his shoes or navigating about the detention area. [ 10 ] Constable Fehr was partnered with and acting as a training officer to Constable Erickson on October 12, 2010.

Constable Fehr confirmed much of the driving described and also noted that the vehicle slowed dramatically as though it had braked heavily in order to make the turn at 36 th Street. [ 11 ] Constable Fehr watched the accused walk past the patrol car by six feet in response to the request that he walk to the police vehicle. Mr. MacArthur’s strides were long and his steps were six to eight inches above the ground as though he were “walking on the moon”. When the accused was asked to face the trunk of the patrol car, he turned back toward Constable Erickson.

In contrast, Constable Erickson said that the accused walked into the street in response to that request. There was no discussion between the officers about the adequacy of the grounds to make a demand. [ 12 ] En route to the police station, Constable Fehr noted that the accused had tired eyes and facial expression. The accused smelled moderately of alcohol and had bloodshot glossy eyes as well as slow lethargic movements.

Further, the accused had admitted to consuming alcohol. [ 13 ] In cross-examination, Constable Fehr, after watching a video of the accused in the detention area, described the accused’s gait as slow with toes pointed outward rather than toward the direction of travel. He agreed the steps were not elongated, but rather seemed shortened. Nor was the accused seen lifting his feet six to eight inches as he had described earlier. When asked to remove his shoes, the accused used his right hand to support himself by leaning on the booking desk.

Constable Fehr agreed that the accused did not have any dexterity problems in removing a number of articles from his pockets. He later described the accused as “lumbering back and forth on his heels” but could not say how the accused usually walks. [ 14 ] Mr. MacArthur testified that he had been at the Dakota Dunes Casino with his wife and mother-in-law and was driving his mother-in-law home when stopped by the police. He denied that his ability to operate a motor vehicle was impaired by alcohol.

Over the course of the evening, he had one drink before going out and two alcoholic beverages – one rye and Coke and one beer – at the casino. [ 15 ] The return trip took him up Idylwyld Drive and at 35 th Street he went into the left turn lane as that was the street on which he thought he should turn. Upon realizing that it was not, he corrected and continued on to 36th Street where he entered the left turn lane and completed a left turn. He explained the movement of his car to the left and then correcting to the right as a manoeuvre around a manhole cover.

He did not wish to drive over it as from experience he knew that the manhole cover itself was some three to four inches

below the surface of the road. He denied that he ever came close to hitting a meridian or that he ever left his proper lane of travel. In his opinion his ability to drive was not affected by alcohol. He saw the patrol car when he turned onto Avenue E, but parked in his mother- in-law’s driveway before getting out of his car to see what the officer wanted. He was told to remain in his vehicle and a police officer approached and asked for his driver’s licence and registration; he produced his driver’s licence.

He admitted to the officer that he had consumed alcohol. [ 16 ] He is 6’2” and has some difficulty getting out of the small car as he normally drives a quarter ton truck. When the officer told him that he was being held for a roadside test, Mr. MacArthur believed this to mean some common sobriety test and walked down a narrow strip of the driveway and out to the street for that purpose. The accused believed that his usual manner of walk was accurately depicted on the video from detention. [ 17 ] There were no roadside tests conducted before he was taken to the police station.

He had no trouble getting out of the patrol car nor did anyone have to repeat any instructions to him. He had no difficulty removing his shoes or his possessions from his person and merely had his hands on the booking counter as he has bad posture. [ 18 ] Ms. Deptuck is the 71 year old mother-in-law of the accused and has known him for 28 years. In October 2010, she accompanied her daughter and the accused to the Dakota Dunes Casino where she had one bottle of beer; she did not have any other alcoholic beverage that day. She saw the accused with one beer but was not with him the whole evening.

The accused drove on the return journey and she had no concern about his ability to drive. He did not appear any different than he did when he had no alcohol to drink. [ 19 ] With respect to his driving, she only noticed a swerve as though he were about to turn onto 35 th but did not recall him ever coming close to hitting a median. She acknowledged that there were traffic lights at 36 th Street and Idylwyld, but not at 35th.

In her view, the accused drove perfectly normally. [ 20 ] After a careful consideration of the evidence, this Court is of the view that the grounds upon which the officer relied cannot be objectively verified. I note the discrepancies in the evidence of Constables Erickson and Fehr, particularly in relation to the symptoms observed prior to the making of the demand. More significantly, the video taken of the accused at the police station does not support any of the officers’ observations nor does it depict any of the symptoms they described.

Although the accused did place his hand on the booking counter as he slipped off his shoes, he does not appear to be leaning to maintain an uncertain balance. He had no difficulty with the other tasks requested of him at the charge desk. Although he was described as “stumbling” in the hall, the video did not confirm that. Indeed, the video evidence is more in keeping with the evidence of Constable Ong who did not note anything untoward about the accused’s speech, balance or dexterity and who could not “confirm or deny” that there were indications of impairment.

Given these discrepancies, the Court has some reservations about the accuracy and reliability of the evidence of Constable Erickson and therefore, the basis for the demand. [ 21 ] An assessment of the objective validity of a demand by necessity requires a review of all the relevant information in the possession of the officer at the time the demand was made: see R. v. Vandal , 2009 SKQB 32 at para. 11 . When formulating reasonable grounds, it is not necessary that the investigating officer’s belief be accurate, only that it be reasonable in the circumstances: see R. v.

Bush , 2010 ONCA 554 . [ 22 ] In this case, the demand was based on two abrupt moves in the driving, and an admission of the consumption of alcohol. There were no physical symptoms but for the accused deviating a few inches from a straight line as he walked away from his car. I find that this would not be sufficient to cause a reasonable person to believe that the ability to drive had been compromised by the consumption of alcohol.

Rather, the grounds relied upon give rise only to a suspicion that the accused had alcohol in his body which would have provided the basis for a demand pursuant to s. 254(2) of the Criminal Code . Indeed, Constable Erickson acknowledged that it was his original intention to make such a demand but changed his mind upon seeing the accused walk toward the patrol car. He acknowledged that there was nothing particularly untoward about the manner in which the accused walked but for the fact that he deviated some 8 to 12 inches to the right over a distance of some 15 feet.

By framing the demand which he did make in terms of “suspicion”, I am not satisfied that even Constable Erickson was firmly of the belief that he had the requisite grounds for more than a roadside demand.

[ 23 ] On the whole of the evidence, I find that Constable Erickson did not have reasonable grounds to effect an arrest for impaired driving and that the grounds to make the demand are not objectively sustainable. Accordingly, a breach of s. 8 and s. 9 of the Charter has been made out on a balance of probabilities. 2. Was there a violation of s. 10(b)? [ 24 ] Constable Erickson placed the accused under arrest at 3:05 a.m. at which time he read the rights to counsel, the warning and the demand. When asked if he understood, the accused replied, “yes”.

When asked if he wished to call a lawyer he responded “yes, I would, Legal Aid right now”. [ 25 ] At 3:07 the officers left the Avenue E address and drove directly to the police station arriving at 3:14 a.m. At the station, he was booked into the detention area, then placed in a room with a telephone. Mr. MacArthur chose to speak to duty counsel whereupon Constable Erickson dialled the phone, spoke to duty counsel, and then advised the accused to pick up the phone. The accused picked up the receiver at 3:20 a.m. while Constable Erickson closed and locked the door to the room.

A short time later the accused knocked on the door to signal the completion of that call. When asked if he was satisfied, he responded “I guess so”. He was escorted to an interview room where an investigator check sheet was commenced; at 3:39 the technician entered and advised that he would be ready to receive the first sample in one minute. [ 26 ] When it was suggested to Constable Fehr that the investigator check sheet began prior to the accused being given the use of a telephone, the officer did not have any independent recollection of the sequence of those events.

He described his role as simply being present to ensure that things went smoothly as Constable Erickson was the primary investigator. [ 27 ] After the second sample was provided, Mr. MacArthur was advised of the results of the tests and was formally arrested for driving while over the legal limit. He was again advised of his right to counsel and given another opportunity to call a lawyer. He was taken to the same telephone room, given his options with respect to use of a phone book or a call to duty counsel. Mr. MacArthur, on this occasion, chose to select a private lawyer.

Given the time of day, he was told that there likely would not be anyone in the legal office and was asked whether a message should be left. Mr. MacArthur asked Constable Erickson to leave a message. The accused was satisfied with the message left and did not want to call the lawyer’s residence or anyone else. [ 28 ] In cross-examination, Constable Erickson could not explain why in response to the question of whether the accused had an opportunity to call a lawyer he had marked both ‘yes’ and ‘no’ on the investigator check sheet. He did not recall the accused drawing a distinction between a lawyer and Legal Aid.

He further acknowledged that when the accused was asked whether he was satisfied with his call to the lawyer the officer noted ‘no’ as the response. He believed that the accused was satisfied with his call and could not explain the contrary notation on the check sheet. [ 29 ] Once in the phone room, the accused did not look at a phone book which was pointed out to him nor was he referred to a list of lawyers on the wall outside the phone room.

The officer did not recall the accused expressing any particular dissatisfaction with his call to duty counsel and would have recorded any complaint in his notes. [ 30 ] Constable Ong was called at 3:18 a.m. to conduct breath tests. He introduced himself to the accused, provided the secondary police warning and asked the accused if he had spoken to a lawyer. The accused said that he had; when asked if he was satisfied with that call, responded “relatively”. Constable Ong asked if he wished to speak to another lawyer and the accused replied “not at this time”.

In cross-examination, Constable Ong did not recall whether he used the term “lawyer”. [ 31 ] Two suitable samples were provided and a Certificate of Analyses was prepared and filed as Exhibit P-1 on the voir dire . It reveals that at 3:42 a.m. the first test resulted in a reading of 140 milligrams of alcohol in 100 millilitres of blood and that the second test, at 4:07 a.m, resulted in a reading of 130 milligrams of alcohol in 100 millilitres of blood. [ 32 ] In cross-examination, Constable Ong acknowledged that he did not speak to either Constable Erickson or Constable Fehr about

any steps taken to contact a lawyer nor did those officers advise him that the accused was not satisfied with his call to a lawyer. [33] The accused testified that he was read his rights to counsel in the patrol car at the time of the stop but believed that there was adifference between Legal Aid and a lawyer. He understood Legal Aid to be lawyers in training who provided free legal advice but werenot fully qualified. [34] Once he was booked, Constable Erickson took him to a room with a table and a phone. He was asked if he wanted to speak toLegal Aid and he agreed that he did.

The officer dialled the phone and when Mr. MacArthur picked up the receiver to speak to thelawyer the door to the room remained open. The officer later came in and asked if he was satisfied with his call. He said he was but stillwanted to speak to a lawyer. Constable Erickson did not reply but rather took him to a room where a questionnaire was completed. [35] When he met with Constable Ong, he was asked whether he had spoken to Legal Aid and specifically recalled Legal Aid beingmentioned. His response to that was “relatively”. After that brief conversation he provided a breath sample.

He denied tellingConstable Ong that he did not wish to call a lawyer at this time. [36] He was certain that the door to the room in which he made his telephone call was open because he could see Constable Erickson’sarm through the doorway. The call to Legal Aid lasted about a minute and a half and one minute later the officer walked in and asked ifhe was satisfied with his call to Legal Aid. He said that he was but would now like his right to speak to a lawyer. He did not receive areply to that request.

When asked if he recalled saying “I guess so” in response to that question the accused indicated “he asked aboutmy call to Legal Aid. I said relatively satisfied but now I want a lawyer.” He used the term “relatively” with both Constable Ericksonand Constable Ong. When it was suggested that he knocked on the door of the room to signal the end of his phone call to Legal Aid, hedenied that such a thing happened. [37] After he provided the two breath samples, he was again told of his right to counsel and said that he wanted to exercise thoserights.

As a result, Constable Erickson took him to a room, gave him a phone book, and closed the door. He spent five minutes lookingfor a name and told Constable Erickson that he wanted to call Drew Plaxton. Constable Erickson dialled the phone in the same phoneroom which was used earlier, received a message manager and left a message at approximately 4:00 a.m. [38] Counsel for the accused argues that the accused’s s. 10(

b) rights were violated as the accused was not given privacy for his call toLegal Aid and as he was not given a further opportunity to use the phone when he expressed a wish to speak to a “lawyer” afterconsulting duty counsel. The onus is on the accused to establish this violation on a balance of probabilities. [39] The evidence is clear from the testimony of Constable Erickson and confirmed by the accused that he was given an opportunity tocall duty counsel. Where the evidence differs is whether the accused was given privacy while speaking to duty counsel and whether heexpressed a wish to call another lawyer.

In assessing the evidence as a whole, I do not accept that the accused was not granted privacyfor his initial call. Although the video tendered depicts an open door to the room in which the accused was located, I am not persuadedthat it was at the time that he was speaking to duty counsel. I accept the evidence of the officer that the door was closed and that theaccused knocked to signal the end of his call. I note, and the accused agreed, that the door was closed while he used the phone book tofind the name of a private lawyer which suggests that closing the phone room door is routine.

That Constable Erickson noted both “yes”and “no” on the check sheet in response to whether he had an opportunity to call a lawyer is immaterial in light of the fact that, by allaccounts, he had spoken to one. The question is not whether the accused was “satisfied” with that call, but rather whether he had areasonable opportunity for a legal consultation. Further, if he wished to consult with a different lawyer, he must clearly communicatethat need.

Although the accused testified as to the confusion in his own mind about the qualifications of duty counsel versus those ofprivate counsel, I find that was not clearly communicated to any officer and did not trigger any further obligation on the part of thepolice. See R. v. Sinclair, 2010 SCC 35 , [2010] S.C.J. No. 35 at para. 43. [40] A violation of the right to counsel has not been established. 3.

Did the continued detention of the accused on completion of the investigation amount to an arbitrary detention and a violation of s.9? [41] Once the tests were complete, Constable Erickson spoke to the accused to determine whether there was a sober person availableto collect him from the police station and to care for him. It was Constable Erickson’s view that the accused could not care for himself.

Mr. MacArthur wished to return to the home on Avenue E where his vehicle had been left and where his wife and mother-in-law werestaying. Constable Fehr reported that those two women were also intoxicated and would not be suitable supervision for Mr. MacArthur.The accused could not provide any other options and chose to stay at the police station until he was sober. This conversation occurred at4:25 a.m. [42] The accused said that he wanted to go to his mother-in-law’s home but Constable Erickson refused, saying “they’re drunk too”. Mr.

MacArthur did not agree with that assessment as his mother-in-law only had one drink and his wife’s condition was “over the limitbut not drunk”; he believed that his mother-in-law could have collected him at the police station. He was not asked if anyone else couldpick him up and was told that he could not leave in a cab as he was intoxicated. [43] He was placed in a cell and was not there long before he was taken back to the booking counter and told he was being released. At 7:07 a.m. his wife called him and this was after he had been told he was being released.

He was home by 7:30 a.m. [44] In cross-examination, he was “positive” that the officer did not ask whether there was anyone to whom he might be released,other than his mother-in-law or his wife. He denied that he told the officer that he would just stay in cells but did ask what his optionswere. Ultimately, he took a cab home. [45] Ms. Deptuck said that she did not speak to the officers during the vehicle stop and was not asked about her alcohol consumption. She did not get out of the vehicle until the police officers left, at which time she and her daughter entered the home.

She could havedriven to the police station to collect Mr. MacArthur. [46] Counsel for the accused argues that the continued detention of Mr. MacArthur after the investigation was complete amounts toan arbitrary detention and asks that this Court either exclude the Certificate of Analyses or direct a judicial stay. In this case, the last testwas completed at 4:07 a.m. The possible release of the accused was discussed at 4:25 a.m. A reasoned decision to detain was made andthe accused was held until approximately 7:00 a.m. His detention was not as a matter of routine, or of policy.

The officers clearly turnedtheir mind to the issue of his safe release and held him for a minimal period of time. These circumstances do not amount to an arbitrarydetention. 4. If there was a Charter violation, what is the appropriate remedy? [47] Having found that there did not exist reasonable grounds upon which to make a demand and detain the accused for the purpose ofproviding breath samples and that a violation of s. 8 and 9 of the Charter has been made out, I turn to the question of whether theCertificate of Analyses ought to be excluded by way of remedy. As set out in R. v. Grant, 2009 SCC 32 , 2009 S.C.J.

No. 32,such a determination requires an inquiry along the following three lines: (

i) the seriousness of the state conduct which infringed theCharter; (ii) the impact on the Charter-protected interests of the accused; and (iii) the interests of society in having the matteradjudicated on the merits. [48] With respect to the issue of the seriousness of the Charter-infringing state conduct, Grant, supra at para. 74 defined the range ofseriousness in the following way: At one end of the spectrum, admission of the evidence obtained through inadvertent or minor violations of the Charter may minimallyundermine public confidence in the rule of law.

At the other end of the spectrum, admitting evidence obtained through a wilful orreckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringingthe administration of justice into disrepute. [49] Therefore, the more serious or deliberate the state conduct, the more likely the courts should be to disassociate from that conductby weighing in favour of exclusion. In my view, any potential violation of the rights of this accused would fall toward the more seriousend of the spectrum.

The grounds for the demand fell far short on an objective analysis. The accused displayed minimal, if any,

symptoms of impairment and drove properly but for two abrupt movements. There is little, if anything, to substantiate the subjective belief held by the officer that he could make a demand; indeed, based on Constable Erickson’s evidence, there is reason to conclude that even he subjectively believed that there was only a suspicion that the accused had alcohol in his body.

It is highly likely that the officer’s conduct was the result of inexperience rather than a wilful or reckless disregard of the rights of the accused but nonetheless the balance would weigh in favour of exclusion of the evidence on this line of inquiry. [ 50 ] The second line of inquiry concerns the impact on the accused of any breach of a Charter- protected interest. At para. 76 of Grant , supra , the Supreme Court of Canada gave this guidance: The impact of the Charter breach on the Charter -protected interests of the accused may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. And later at para. 78: Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity.

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. Providing a breath sample is a relatively unobtrusive procedure which does not demean dignity or invade privacy; thus an inquiry on this arm will generally militate in favour of admission of the results of the analysis of the sample . In this instance, however, the accused was detained significantly longer than would have been necessary for a roadside sample for which the grounds did exist.

An analysis on this arm would militate toward exclusion. [ 51 ] With respect to the third line of inquiry, society’s interest in the adjudication of the case on its merits, the Supreme Court in Grant explained at para. 79 : Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.

This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to law...” Thus the Court suggested in Collins that a judge on a 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. [ 52 ] The reliability of the evidence and its importance to the prosecution are very relevant to the truth seeking function of the trial process and as was pointed out in Grant , supra , the results of breath sample analyses are generally considered reliable and their exclusion would end any prosecution for the offence of driving while over the legal limit : see Grant , supra, para. 99-110 incl.

The Supreme Court concluded at para. 111: While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately 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 in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted.

For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. Accordingly, an assessment based on this criteria, would favour the admission of the evidence. [ 53 ] In making a determination of whether evidence ought to be excluded, the Court must consider the long-term potential effects of a breach to the repute of the justice system and the administration of justice.

After balancing the three lines of evaluation directed in Grant , and for the reasons given I conclude that the admission of the certificate would bring the administration of justice into disrepute and it is excluded from the evidence pursuant to s. 24(2) of the Charter .

5. Does the evidence establish, beyond a reasonable doubt, that the accused’s ability to operate a motor vehicle was impaired byalcohol? [54] R. v. Stellato, (ON CA), [1993] O.J. No. 18 (C.A.), affd. (SCC), [1994] 2 S.C.R. 478 (SCC),provides the test to be applied in determining whether the offence of impaired driving has been established; that is: if the Crown hasproven beyond a reasonable doubt that the ability of an accused to operate a motor vehicle is even slightly impaired by drug or alcohol,there is sufficient proof of the offence. This does not mean that only slight evidence will be adequate.

Rather, the evidence as a wholemust establish that such an inference can reasonably be drawn from conduct which is a departure from the norm. That departure may fallupon a continuum from slight to great, but it must lead to no other reasonable conclusion but that the accused’s ability to operate a motorvehicle was impaired to some degree by the consumption of alcohol and/or drugs. [55] I am mindful of the principles enunciated in R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (SCC) and R. v.McKenzie (1996), (SK CA), 141 Sask. R. 221 (Sask.

C.A.) and after considering the evidence as a whole, includingthe video, I find myself left with a reasonable doubt as to what symptoms of impairment, if any, that the accused demonstrated. Inviewing the video, I could not detect any of the indicia described in the viva voce evidence. Further, Constable Ong, the Intoxilyzeroperator did not notice that the accused had any problems with speech, dexterity or balance. There are significant discrepancies in theevidence of Constables Erickson and Fehr.

In the end result, I am left with a reasonable doubt as to what, if any, symptoms of impairmentthe accused demonstrated and how, if at all, his consumption of alcohol impacted on his ability to drive. CONCLUSION [56] Given my findings with respect to the charge of impaired driving, I find that the elements of the offence have not been provenbeyond a reasonable doubt and I find the accused not guilty.

Having excluded the Certificate of Analyses, the elements of the offence ofdriving while his blood alcohol content exceeded 80 mg. of alcohol in 100 ml of blood have not been made out and the accused is foundnot guilty with respect to that offence as well. _________________ M.L. Gray, J