R. v. Wiebe, 2014 MBPC 50

R. v. Wiebe Citation No. 2014 MBPC 50 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) M. Moorthy, for the Crown ) - and – ) ) Lynne Louise Wiebe ) M. Cook, for the Accused ) ) Judgment delivered: ) CORRIN, P.J. Introduction [1] Lynne Louise Wiebe, the accused, is charged under section 253(1)(

a) of the Criminal Code with operating a motor vehiclewhile her ability to do so was impaired by alcohol. [2] The central issue in this case is twofold: whether the police officer who made the demand for breath samples had thenecessary reasonable and probable cause to make the demand and whether the arresting officer’s warrantless and uninvited entry into theaccused’s residence constituted a breach of

section 8 of the Charter that warrants exclusion of evidence of impairment that was observedby police witnesses after the arrest. Because the admissibility of the bulk of the police evidence is in issue, counsel agreed to proceed byway of a global voir dire. [3] Section 254(3) of the Criminal Code provides as follows: If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the proceeding 3 hours hascommitted, an offence under s. 253 as a result of the consumption of alcohol, the peace officer may, by demand, made as soon aspracticable, require the person:

a) to provide as soon as practicable: (i)samples of breath that, in a qualified technicians opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood...and, if necessary, to accompany the peace officer for that purpose. [4] In R. v. Bernshaw (1995) (SCC), 1 S.C.R. 254, Sopinka, J. for the majority, at paragraph 65 indicated thatthe requirement in s. 254 (3) that reasonable and probable grounds exist is not only statutory but also a constitutional requirement as apre-condition to a lawful search and seizure under s. 8 of the Charter.

He described what is required for reasonable and probablegrounds in paragraph 62 as follows: “The existence of reasonable and probable grounds entails both an objective and a subjective component. That is, s. 254(3) of the Coderequires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there mustexist reasonable grounds for this belief.” [5] A police officer making a demand for breathe samples under s. 254(3) must have reasonable and probable grounds to believe: (

i) that the accused was operating a motor vehicle, and (ii) that his ability to operate a motor vehicle was impaired by alcohol. [6] The subjective aspect of the task relates to the police officers honestly held belief and the objective component is based onwhat a reasonable person standing in the shoes of the police officer would have believed.

The court must determine the circumstances asthe officer understood them to be and determine whether his belief was reasonable. [7] The facts upon which the objective and subjective components are evaluated must be those facts known to the police officer atthe time he formed his belief and made the demand. Accordingly, information learned later is not relevant to the question of whethersubjectively or objectively the police officer had reasonable and probable grounds at the time that the demand was made. In R. v.

McClelland

(1995) ABCA 199, McFadyen, J.A. of the Alberta Court of Appeal, writing for the majority, after reviewing the authorities stated the question as follows at paragraph 21: “...does the totality of the evidence available to the police officer at the time he formed the belief support an objective finding that he had reasonable and probable grounds to believe that the ability of the driver was impaired by alcohol? It is neither necessary nor desirable to hold an impaired driving trial as a threshold exercise in determining whether the officer’s belief was reasonable.” [ 8 ] In R. v.

Huddle , a 1989 decision of the Alberta Court of Appeal (see 21 M.V.R.) 2(d) 150, the court held that it is an error to test individual pieces of evidence which are offered to establish the existence of reasonable and probable grounds. The court, at page 152, stated as follows: “True, the smell of alcohol does not show impairment; slurred speech alone does not show impairment by alcohol; glassy eyes may be associated with crying; but the question is whether the total of the evidence offered provided reasonable and proper grounds on an objective standard”.

The grounds cited by the officer as a basis for his belief are to be considered cumulatively not individually. The totality of the circumstances must be considered to determine whether reasonable and probable grounds for the demand have been established. [ 9 ] It is emphasized that since the presence of reasonable and probable grounds is both a statutory and constitutional pre-condition for a lawful breathalizer demand (see R. v.

Arsenault, 2005 NBCA 110 ) if the prerequisites for a valid and lawful demand are not met the accused is under no obligation to comply with the demand. [ 10 ] Justice Sopinka in Bernshaw held that the decision with respect to whether a police officer had reasonable and probable grounds to make a demand must be based on the circumstances of the case and was therefore essentially a question of fact and not one of pure law. THE FACTS [ 11 ] The facts in the present case are fairly straight forward. The Court heard from three witnesses, one civilian and two police officers.

At approximately 6:00 p.m. the witness Darren Bayluk was driving in the vicinity of Sandy Hook with his wife and son when he saw a vehicle being driven in what he described as an erratic manner. It was his observation that it “hit the shoulder” and was “crossing the centre line”. To the best of his recollection the vehicle ran onto the shoulder as many as ten times. He told court that there were two people in the other vehicle, the driver who was an adult female and her passenger who was an adult male. Mr.

Bayluk also testified that the vehicle had passed his vehicle at a high rate of speed, more than was permissible in the speed zone it was travelling in. It was also his testimony that at one point such vehicle almost drove into the rear of a truck travelling in the same direction. Mr. Bayluk followed the vehicle into the community of Winnipeg Beach where he observed the vehicle nose into the ditch on trying to make a right turn. The vehicle was then described as being backed into an oncoming traffic lane in order make the right turn. The vehicle was observed by Mr.

Bayluk to turn into a cottage property off this laneway where it was, according to Bayluk’s testimony, observed to come into contact with the deck of the cottage. It was Mr. Bayluk’s testimony that the female driver then emerged from the vehicle with a gait that he described as not being normal. It was his view that she had difficulty walking. [ 12 ] Mr. Bayluk further testified that he had called police at some point during his observation of the vehicle because he felt the erratic driving was a risk to other motorists using the highway. Mr. Bayluk estimated that RCMP Constable St.

Pierre had arrived at the cottage and spoken to him regarding his concerns within approximately 2 minutes after his (Bayluk’

s) arrival at the cottage. Mr. Bayluk told court that since he assumed that Constable St. Pierre knew that he thought the accused had been driving impaired because that opinion had been shared with the 911 operator who took his call, he did not raise that subject with St. Pierre. On cross-examination Mr. Bayluk confirmed that he had “felt there was an impairment” in relation to the erratic driving but then acknowledged that the dangerous driving could have been caused by many things other than alcohol. He agreed with Mr.

Cook that he could not definitively say that the accused’s apparent impairment was caused by alcohol. In this regard he conceded that the bad driving could have been attributed to a cause such as texting or some other distracting situation such as driver illness or an argument between the occupants of the vehicle. [ 13 ] Mr. Bayluk made other observations of the accused when he next saw her after Constable St. Pierre had entered the cottage and arrested her and was leading her to his cruiser. [ 14 ] Constable St.

Pierre testified that he had been on his way home after his shift had ended at 6:00 p.m. when he received a dispatch call advising him of Mr. Bayluk’s complaint regarding erratic, high speed driving and the possibility of an impaired driver. Constable St. Pierre testified that immediately upon arriving at the cottage he had spoken to the complainant who gave him a description of the female driver and had advised him that she had gone inside the residence. He recollected that Mr. Bayluk had also told him that the vehicle had collided with the back deck on arrival at the cottage. Constable St.

Pierre could not recollect Mr. Bayluk giving him any details of the driving or the drivers manner of walking. Constable St. Pierre acknowledged that he had essentially relied on what his dispatcher had told him and on this basis he had formed the opinion that the accused’s ability to drive a motor vehicle was impaired by alcohol or a drug. He agreed with defence counsel that his intention was to affect an arrest when he arrived at the cottage. [ 15 ] Constable St.

Pierre told court that immediately after receiving particulars regarding the driver’s gender and dress and that she had entered the cottage, that he walked to the back screen door of the cottage and shouted “Lynne” to which the accused replied “yes”. St. Pierre told court that he had then opened the outer screen door and walked in and found the accused seated at a table in the kitchen. When questioned on this point during cross-examination, Constable St. Pierre told court that “I wasn’t looking for an invitation to come in”, that he was going in to affect an arrest.

After the arrest and conferral of counsel rights and the usual police caution, Constable St. Pierre had observed Ms. Wiebe’s eyes to be bloodshot and noted that she was very unstable on her feet and swinging side to side and needed assistance walking down the stairs upon her removal from the residence. It was at this time that Constable St. Pierre also observed Ms. Wiebe’s speech to be “very slurred”. He further noted that he could smell the odor of alcohol inside his vehicle after placing her in the rear seat. When asked by the Crown about the extent of her perceived intoxication, Constable St.

Pierre indicated that as far as he was considered, she was an “8” on the scale of impairment where 10 would be the maximum.

[16] The second police witness, Corporal Vincent, spent approximately an hour in the presence of the accused after she arrived at thedetachment office. It was his opinion that Ms. Wiebe was quite intoxicated at such time. Corporal Vincent also placed Ms. Wiebe on an8 out of 10 on a personal impairment scale. He described her as being grossly intoxicated. He also related the usual indicia ofimpairment. ANALYSIS [17] There was really no serious contesting of Constable St. Pierre’s personal belief that Ms. Wiebe’s ability to operate a motorvehicle was impaired by alcohol.

The issue before the court is essentially whether that subjective belief was based on objectivelyreasonable grounds. [18] The question is therefore whether Constable St. Pierre’s opinion is supportable on an objective basis at the time he made hisdecision to arrest and whether the officer’s warrantless and uninvited entry into the dwelling house offends

section 8 of the Charter. [19] The information that was known to Constable St. Pierre at the time of the arrest, considered in its totality, is not sufficient toobjectively establish that there were reasonable and probable grounds to believe that Ms. Wiebe was impaired. All that he had been toldsimply supported his suspicion in that regard. Based on such suspicion, the officer might properly have required a screening test if hehad detained Ms. Wiebe at the roadside. However, by entering her house without a warrant in less than exigent circumstances andplacing Ms.

Wiebe under arrest, and proceeding directly to a breathalyzer demand without appropriate assessment the officer took alegally impermissible shortcut. In making her submission on this point, the Crown relied on the decision of the Manitoba Court ofAppeal in R. v.

Jacob 2013 MBCA 29 wherein Justice Beard, speaking for the court, observed at paragraphs 33 and 34 that: “...a police officer can draw the facts on which he relies to form his reasonable grounds from any sources, including informants, otherpolice officers and citizens who call the police to report an offence, because reasonable grounds can be based on information receivedfrom third parties without infringing the hearsay rule (see R. v. Collins, (1987) (SCC), 1 S.C.R. 265 at 279).

Further, thepolice officer is entitled to reject or discard information that he has good reason to believe is unreliable ... and to draw inferences fromthe facts that he accepts (see, for example, Gundy at paras. 44, 48)...

While the officer needs to show more than a suspicion, thereasonable grounds standard is less than that of a prima facie case or proof on the balance of probabilities or proof beyond a reasonabledoubt. (see Censoni at paras. 43, 59.)” Justice Beard then goes on to quote from the text, Criminal Procedure in Canada, (at paras. 2.161-2.162) as follows: “The Supreme Court (of Canada) has elaborated on the meaning of the reasonable and probable grounds standard by placing it along aspectrum.

According to the Court, it imports a standard of reasonable probability, which entails something less than proof beyond areasonable doubt or a prima facie case but something more substantial than reasonable suspicion, and much further along the spectrumthan mere possibility of suspicion. Based on this approach, the standard is set to be met at “the point where credibly-based probabilityreplaces suspicion.” [20] In the case at bar, Constable St. Pierre drew the facts on which he relied to form his reasonable grounds, not from Mr.

Baylukwho had called the police to report erratic and dangerous driving, but rather from a dispatch operator who had connected the dots so tospeak, and concluded by way of inferential deduction that Mr. Bayluk had observed a driver under the influence of alcohol. That was thefull extent of the information presenting to Constable St. Pierre at the time when he affected the arrest of Ms. Wiebe. He had notpersonally observed or spoken to Ms. Wiebe at this point. Indeed he hadn’t spoken to the eye witness complainant about Ms. Wiebe’sdriving or possible observations he’d made respecting indicia of impairment.

The extent of his interaction with the accused was limitedto his shouting her first name and her replying “yes?” in response. At such time, she was as previously mentioned, seated at a kitchentable at a considerable distance from the officer who was standing outside the screen door of her cottage. [21] It is the position of defence counsel, a position I concur in, that the dispatcher’s third party information was not reliable andshould not be considered an objective basis for establishing Constable St. Pierre’s reasonable and probable grounds. Mr.

Cook arguedthat the information that the officer had from the dispatcher was hearsay upon hearsay because Mr. Bayluk had no real basis for aconclusion that the accused was an impaired driver and hadn’t provided the dispatcher with actual information related to observedindicia of impairment. While Mr. Cook conceded that hearsay evidence can be a proper basis for reasonable and probable grounds (seeR. v. Strongquill (1978) (SK CA), 43 C.C.C. (2d) 232 Saskatchewan Court of Appeal), he submitted that becausebelief in impairment is only an opinion, and Constable St.

Pierre did not do any investigation to confirm such opinion when provided theopportunity at his arrival at the cottage, i.e. specifically that he hardly spoke to Mr. Bayluk about the driving incident or his beliefrespecting the possible impairment of the accused, notwithstanding Bayluk’s presence. [22] It was Mr. Cook’s submission that Constable St.

Pierre objectively did not have reasonable and probable grounds for thedemand because he essentially rushed to judgment without a proper investigation, leading to an unwarranted arrest on the basis ofnothing more than a suspicion of possible impairment. [23] The issue before the court is whether, looked at objectively, Constable St. Pierre had reasonable and probable grounds for hisbelief that the accused was impaired, a decision he had essentially made prior to his arrival at the accused’s residence.

The totality of theevidence available to the officer at the time he formed his belief in this regard was very thin indeed. He had made no personal physicalobservations, nor received any direct information from Mr. Bayluk respecting the usual indicia of impairment. He had not smelledliquor on the accused’s breath. He had not seen bloodshot and watery or glassy eyes. He had not observed anything that would normallyraise a suspicion that Ms. Wiebe had consumed alcohol. And, if he had, it would only have been a basis for suspicion, entitling him tomake a demand for a roadside screening device breathe sample.

Based on the Strongquill decision, the hearsay information provided bythe dispatcher was admissible for a very limited specific purpose – to establish the state of mind of the police officer, namely, that hesubjectively believed that he had reasonable grounds to believe that the accused was impaired. [24] In these circumstances it is the court’s view that the officer was not entitled to rely on the dispatcher’s information to assist himin formulating his reasonable grounds for a breathalyzer test. This is because in such circumstances he was obliged to investigatefurther.

And while I am satisfied that Constable St. Pierre subjectively believed that he had reasonable and probable grounds to believe

that the accused was impaired, I am not in the circumstances of this case satisfied that the dispatchers information should be consideredsufficient to determine, objectively speaking, that there were indeed reasonable grounds. [25] In my view, in the particular circumstances of this case, the evidence relied on by Constable St. Pierre does not establish areasonable basis for his opinion that Ms. Wiebe’s ability to operate a motor vehicle was impaired by alcohol or a drug.

The informationthat was known to the officer at the time of the arrest, considered in its totality, is simply not sufficient to objectively establish that therewere reasonable and probable grounds to believe that Ms. Wiebe was impaired. Again, I express the view that there were probablyreasonable grounds for a screening test. [26] Defence counsel also contended that the two officers’ observations of impairment after the warrantless entry search arose incontravention of

section 8 of the Charter. The position of counsel was that all such evidence was consequently tainted as it wasconscriptive in nature and should be excluded pursuant to section 24(2). [27] Defence counsel submits that the uninvited entry into the dwelling house exceeded the so-called police “license to knock” longrecognized by the common law and discussed by the Supreme Court in R. v. Evans (1996) (SCC), 1 S.C.R. 8.

In thisregard, the comments of Sopinka, J. at page 6 are instructive: In my view, the implied invitation to knock extends no further than is required to permit convenient communication with the occupant ofthe dwelling. The “waiver” of privacy rights embodied in the implied invitation extends no further than is required to effect thispurpose. As a result, only those activities that are reasonably associated with the purpose of communicating with the occupant areauthorized by the “implied licence to knock”.

Where the conduct of the police (or any member of the public) goes beyond that which ispermitted by the implied license to knock, the implied “conditions” of that license have effectively been breached, and the personcarrying out the unauthorized activity approaches the dwelling as an intruder.” [28] In Evans, Sopinka J. concluded that “the police approached the Evans home not merely out of a desire to communicate with theoccupants, but also in the hope of securing evidence against them”, thus exceeding “any authority that is implied by the invitation toknock”.

The evidence in this case also supports such a conclusion. The arresting officer firmly believed that the person he was arrestingwas an impaired driver, notwithstanding that there were other rational explanations for the manner of driving observed and related to himby the police dispatcher. With this in mind he made no effort whatsoever to determine whether Ms. Wiebe would come to the closedscreen door to talk to him relative to his investigation. He simply opened the door and walked into the residence without invitation orconsent of any sort, implied or otherwise.

What occurred was simply a trespass incident to arrest. Absent hot pursuit of a criminalsuspect, police cannot usually enter a dwelling house to effect an arrest without an appropriate warrant (see R. v.

Feeney (1997) (SCC), 2 S.C.R. 13. (section 529.3 of the Criminal Code provides police with the right to enter a dwelling house for thepurpose of arresting or apprehending a person without warrant authorizing the entry if the peace officer has reasonable grounds tobelieve that the person is present in the dwelling and the conditions for obtaining a warrant exist but by reason of exigent circumstancesit would be impractical to obtain same.) For the purposes of this subsection, exigent circumstances include circumstances in which thepolice office (

a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm ordeath to any person; or (

b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is presentin the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of theevidence. Neither of these exceptions present in our case. As such defence counsel argues that Constable St. Pierre’s conduct involved anabuse of the police power to arrest since he was actually only on an investigative assignment when he entered the accused’s residenceand not in personal hot pursuit of the accused. [29] In R. v.

Feeney, the Supreme Court effectively signalled a change in the law of arrest which prevented execution of arrestwarrants in dwelling-houses unless a number of pre-conditions were satisfied; one such pre-condition had existed in common law longbefore the advent of the Charter – that a proper announcement must be made before entering (i.e. by knocking at the door or ringing ofthe doorbell, followed by identification as police officers, followed by notice of purpose by stating a lawful reason for entry beforeactually entering or forcibly entering the premises. [30] Absent hot pursuit or exigent circumstances scenarios such a requirement pertains to all dwelling-house arrests.

In the case atbar Ms. Wiebe was clearly arrested in circumstances where the arresting officer had completely failed to meet the requiredannouncement requirements prior to forcibly entering her residence. And of course, to further aggravate matters the officer also enteredthe house without objective reasonable grounds for arrest. Such an arrest was therefore unlawful and in violation of

section 8 of theCharter. SECTION 24(2) ANALYSIS [31] I must now turn my mind to a consideration of whether the evidence that flowed from the breach should be excluded pursuantto s. 24(2) of the Charter. In the context of this case, the pertinent evidence was the observations of impairment made by officers St.Pierre and Vincent. The accused has also asked for a stay of proceedings, the most drastic remedy a criminal court can order. As such, itfollows that I need only consider the provision of such relief if I decide not to exclude the officers observations made after the arrest. [32] In R. v.

Grant (2009) 2009 SCC 32 , 2 S.C.R. 353, the Supreme Court of Canada re-visited the test for exclusion ofevidence pursuant to s. 24(2) of the Charter. [33] In Grant, the Supreme Court held that in determining whether the admission of evidence obtained by a Charter breach wouldbring the administration of justice into disrepute, the court should have regard to: (

a) the seriousness of Charter-infringing state conduct; (

b) the impact of the breach on the Charter-protected interests of the accused, and

(

c) society’s interest in the adjudication of the case on its merits [34] A judge’s decision on whether to exclude evidence under s. 24(2) is entitled to considerable deference where the judge hasconsidered the proper factors and not made any unreasonable findings (see Grant and R. v. Cote 2011 SCC 46 , 2011 S.C.C. 46). [35] It is important to remember that the Grant approach requires consideration of whether overall repute of the justice system,viewed long-term, will be adversely affected by admission of the evidence.

SERIOUSNESS OF THE CHARTER-INFRINGING STATE CONDUCT [36] I am required at this point to assess whether the admission of the evidence would bring the administration of justice intodisrepute by sending a message to the public that the courts, as an institution responsible for the administration of justice, effectivelycondones state deviation from the rule of law by failing to disassociate itself from the fruits of that unlawful conduct.

In Grant the courtobserved in paragraph 72 that “the more severe or deliberate the state conduct that led to the Charter violation, the greater the need forthe courts to dissociate themselves from that conduct by excluding evidence linked to that conduct in order to preserve public confidenceand ensure state adherence to the rule of law”. The concern of this inquiry is not to punish the police or to deter Charter breaches. Themain concern is to preserve public confidence in the rule of law and its processes.

One must remember in this context that seriousness ofthe violation must be viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to upholdthe rights guaranteed by the Charter. [37] State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, such evidence has been obtainedthrough inadvertent or minor violations and at the other extreme end, through willful or reckless disregard of Charter rights.

The latterend of the spectrum will inevitably have a negative effect on public confidence in the rule of law and therefore bring the administrationof justice into disrepute. [38] In this case the accused was inside a residence when a police officer walked through her closed door, without even attempting todischarge his announcement obligations, in order to affect an arrest in association with a breathalyzer demand. The informationConstable St.

Pierre had was, as previously observed, insufficient to rise to the level of reasonable grounds to believe that the accusedhad committed an offence pursuant to s. 254(3) of the Criminal Code. Nevertheless, a demand was made and the accused wasconsequently transported to the Gimli R.C.M.P. detachment for the purpose of taking breath samples.

Observations of impairment weremade in the course of the detention subsequent to the arrest. [39] S. 254(3) affords police important powers and the public must have confidence that officers discharging their responsibilitieshave the necessary skills and training to do so in compliance with the Criminal Code and Charter of Rights (see R. v. Avila, 2010O.N.C.J. 512 at para. 51). There were no extenuating circumstances, such as the need to prevent the disappearance of evidence,associated with the breach in this regard. This is a case where Constable St.

Pierre was essentially unaware of Charter standards, asituation which the Supreme Court, in Grant, stated “must not be rewarded or encouraged”. IMPACT ON THE CHARTER-PROTECTED INTERESTS OF THE ACCUSED [40] The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact onthe accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, howeverhigh-sounding, are of little actual avail to the citizen.

Such a situation will obviously give rise to public cynicism and consequently bringthe administration of justice into disrepute. The breach in question undermined the accused’s fair trial interests. As mentioned before,there is no evidence that Constable St. Pierre attended at the residence for the purpose of investigation. If that were the case, he wouldhave knocked on the door, announced why he was there and asked Ms. Wiebe to either join him outside or permit him to enter theresidence to talk to her.

If this failed, the officer could have requested a tele-warrant authorizing him to enter the dwelling house for thepurpose of arresting Ms. Wiebe. This would have been necessary in my view because grounds simply did not exist to arrest or apprehendMs. Wiebe without warrant at such time. As such, the breathalyzer related arrest served to assist the police gather evidence in reaction toa second offence – impaired driving simpliciter; the charge before the court. [41] In R. v.

Grant, which has been previously cited, at the Ontario Court of Appeal level, Laskin, J.A. noted that conscriptiveevidence need not be excluded simply because it negatively impacts on the fairness of the accused’s trial. He conceded that allconscriptive evidence will have some impact on trial fairness but nevertheless concluded that the admission of such evidence will notalways bring the administration of justice into disrepute.

He observed that conscriptive evidence admission should depend both on theresulting degree of trial unfairness as well as the other two Collins factors; the seriousness of the breach and the effect of excluding theevidence on the administration of justice. [42] In assessing the impact on trial fairness, he referred to two factors that he felt to be paramount, namely: “the potential effect ofthe state’s misconduct under the liability of the evidence, and the nature of the police’s conduct that led to the accused’s participation inthe production of obtaining of the evidence”, at para. 53 (2006) (ON CA), 209 C.C.C. (3d) 250. [43] In the present case, since there were no reasonable grounds for the breath sample demand, the admission of the evidence of theresults of breathe tests, if same were available, would definitely have had significant impact on the fairness of the trial because suchwould clearly be conscriptive evidence.

And in the context of this case one must also consider the high expectation of privacy that aperson has in her residence. The conduct of the police officer in obtaining the ex-post facto evidence of impairment was not onlyunreasonable but also in flagrant disregard of the accused’s privacy rights within her home. I therefore conclude that the impact of thesearch on the accused’s Charter-protected rights was relatively high. SOCIETY’S INTEREST IN THE ADJUDICATION OF THE CASE ON ITS MERITS [44] In Grant, the Supreme Court indicated that such concern will almost always weigh in favour of admitting evidence.

Of course,given Constable St. Pierre’s prejudication with respect to Ms. Wiebe’s impairment and his vested interest in justifying his arrest, onedoes have to consider the reliability of both his and Corporal Vincent’s testimony. The Supreme Court reminded the lower courts that

such evidence obtained by virtue of a Charter breach should not be lightly admitted in relation to this particular factor. To quote from paragraph 134 from Grant, which in turn quoted Binnie, J. in R. v.

Kang-Brown : The administration of justice would be brought into disrepute if the police, possessing an exceptional power to conduct a search on the condition of the existence of reasonable suspicion and having acted in this case without having met the condition precedent, were in any event to succeed in adducing the evidence. [ 45 ] In my view, in this case, the seriousness of the state conduct supports exclusion.

The impact of the breach also favours exclusion, albeit to a lesser degree, because the reliability of the evidence is, as I have related, somewhat questionable in the circumstances notwithstanding that its importance to the Crown’s case certainly weighs in favour of admission.

The following comment of Sopinka, J. in Feeney , also weigh heavily on my decision in this respect: “The purpose of the Charter is to prevent unreasonable intrusion on privacy, not to sort them out from reasonable intrusions on an ex- post facto analysis” [ 46 ] In balancing these factors I conclude that the admission of the evidence of impairment provided by the two officers would bring the administration of justice into disrepute. As such, I exclude the officers’ testimony of impairment. “ORIGINAL SIGNED BY:” CORRIN, P.J.