Her Majesty the Queen - v. -, 2013 SKPC 185

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 185 Date: November 5, 2013 Information: 24461311 Location: Humboldt _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kelsey Dawn Buckle Appearing: Paul Goldstein For the Crown Ryan Claxton For the Accused JUDGMENT D.E. LABACH , J [ 1 ] The accused, Kelsey Buckle, is charged with impaired driving and driving while over .08. She pled not guilty to these offences and came before me for trial on August 26, 2013 in Humboldt Provincial Court. At the outset of trial, Defence counsel advised that he would be arguing that the accused’s sections 8, 9 and 10(

b) Charter rights were violated in this case and that he would be asking for a section 24(2) exclusion order if any of those Charter breaches were proven. Lastly it was his position that the evidence did not substantiate a charge of impaired driving. The Crown, not surprisingly, had a contrary view. [ 2 ] The incident that brought the accused to court occurred in the early morning hours of June 3, 2012. On that date, Constable

Lanoie was on duty, in uniform and operating a marked patrol car. He was travelling south of the town of Bruno, Saskatchewan, when he came upon a vehicle travelling in the same direction.

As he followed this vehicle, he noticed that it touched the shoulder line of the highway and then moved over to the centre line, that at one point the vehicle touched its brakes to slow down, then accelerated and finally, as it crested a hill, it applied its brakes as if to turn onto a side road but then it kept going. [ 3 ] Given this driving behaviour, he decided to stop the vehicle and check the driver’s licence, the vehicle registration and the sobriety of the driver. At 12:55 a.m., Constable Lanoie put on his emergency lights and the vehicle pulled over right away.

He went to the driver’s door and found the accused behind the wheel. [ 4 ] Constable Lanoie asked the accused for her driver’s licence and registration. She provided them and apologized for her driving, saying that she thought he had been following her too closely. As they spoke, he could smell an odour of beverage alcohol coming from the vehicle so he asked her how much she had had to drink. She replied that she had not had anything to drink. He asked her again how much she had to drink. Again she said that she had not had anything to drink and that the smell of alcohol must be coming from her passenger.

At this stage, Constable Lanoie heard a groan coming from the backseat of the vehicle. He looked over and saw a person lying down. Suddenly, the rear door to the vehicle opened up, there was a tinkling noise and the passenger began to vomit. [ 5 ] There was something about the accused’s body language that made the officer think she was not telling him the truth so he continued to question her about her drinking. She told him that she was the designated driver and continued to deny that she had been drinking.

He still did not believe her so he asked the accused to come back to his police vehicle so he could determine if she had alcohol on her breath. She got out of her vehicle, walked back to the police car and got in the backseat. According to the officer, at this point she was detained. [ 6 ] While she was in the back of the police vehicle, Constable Lanoie shone his flashlight into her face and noted that her eyes were bloodshot and watery and her face was slightly flushed. She told him that she wore contact lenses.

He noted a smell of alcohol on her breath and told the accused that she was not being truthful with him. [ 7 ] In response, the accused admitted that she had had one paralyzer that evening. As a result of this admission, the odour of alcohol on the accused’s breath, her bloodshot, watery eyes, her flushed face and the driving he had observed, he formed the suspicion that the accused had alcohol in her body.

Constable Lanoie said that based on this suspicion, he made an “informal” approved screening device demand on the accused. [ 8 ] The officer checked the accused’s driver’s licence and registration and it came back as valid. He then made some notes in his police notebook. He did not know how long this took but at 1:11 a.m. he read the accused a formal approved screening device demand from his notebook. [ 9 ] Constable Lanoie had an approved screening device with him and was a qualified operator. He warmed up the roadside instrument and administered the test.

The accused provided a proper sample and the approved screening device indicated a fail reading. At 1:15 a.m., based on this fail reading, Constable Lanoie arrested the accused for driving while over .08. [ 10 ] Constable Lanoie called another officer to attend to the scene and deal with the accused’s car and the passenger and then he read the accused a breath demand, right to counsel and the police warning. In response to being asked if she understood her right to counsel, the accused said “Yes”.

She told the officer that she would like to speak to a lawyer and when he asked her who she would like to speak to, she said “Jay”. He asked her if that was Jay Watson and she said “Yes”. The accused then asked the officer if he would get some things from her car for her, including her cell phone. He went to her vehicle and got the requested items. [ 11 ] Constable Olson arrived on scene at 1:35 a.m. and at 1:38 a.m., Constable Lanoie left with the accused to attend to the Humboldt RCMP Detachment. He arrived there at 2:00 a.m. having gone straight from the scene.

Once at the detachment, Constable Lanoie asked the accused if she wanted to call a lawyer. She replied that she had changed her mind and did not wish to call one now. He told her that it was her right to contact counsel but she said “No”. He then read her a waiver from his notebook to which she responded that she understood and confirmed that she did not want to call a lawyer.

[12] Constable Lanoie was a qualified Intoxilyzer operator. He warmed up the breath instrument and observed the accused for 15minutes before administering the breath tests. At 2:30 a.m. the accused’s reading was .12 and at 2:51 a.m., her reading was .11. [13] According to the officer, the accused was cooperative and friendly throughout his dealings with her. She got emotional afterhe read her her rights but he had no difficulty dealing with her. After serving her with the appropriate paperwork, he drove her to herparents’ home.

Did Constable Lanoie fail to make the approved screening device demand forthwith or fail to perform the approved screening devicetest forthwith thereby violating the accused’s sections 8 and/or 9 Charter rights? [14] In

summary, section 254(2) of the Criminal Code states that if a police officer has a reasonable suspicion that a person hasalcohol in their body and is satisfied that they were operating or in care and control of a motor vehicle within the preceding three hours,then the officer can demand that that person provide a sample of their breath into an approved screening device. The demand must bemade by the police officer as soon as he or she forms the reasonable suspicion the person has alcohol in their body and the sample mustbe provided forthwith. See R. v. Anderson, 2011 SKCA 13 at paragraph 18; R. v.

Billette, [2001] S.J. No. 227 (Sask. Q.B.) at paragraph12; R. v. Woods, 2005 SCC 42 , [2005] 2 S.C.R. 205 (S.C.C.) at paragraph 44. [15] In order to meet the forthwith requirement, the evidence must establish beyond a reasonable doubt that the officer made thedemand and administered the roadside test without unreasonable or unjustified delay. In other words, the Court must look at thecircumstances of the case and if there has been a lapse of time, examine the reasons for it to determine if it was reasonable. See R. v.Janzen, 2006 SKCA 111 , [2006] S.J. No. 629 (Sask. C.A.) at paragraph 4; R. v.

Harvey, 2010 SKPC 27 at paragraph 19; R. v.Mertins, 2012 SKPC 183 at paragraphs 23-24. [16] The actual demand need not be in any particular form as long as it is made clear to the driver that he or she is required toprovide a sample of their breath forthwith. This can be accomplished through words or conduct including the tenor of the officer’sdiscussion with the accused as long as it conveys to the driver the nature of the demand. See R. v. Ackerman, (SKCA), [1972] S.J. No. 275 (Sask. C.A.) at paragraphs 6-9; R. v. Flegel, [1972] S.J. No. 276 (Sask. C.A.) at paragraphs 5-9; R. v.

Torsney,2007 ONCA 67 , [2007] O.J. No. 355 (Ont. C.A.) at paragraph 6. [17] In the present case, Constable Lanoie observed some driving behaviour that was out of the ordinary and decided to stop theaccused pursuant to his powers under

section 209.1 of The Traffic Safety Act, S.S. 2004, c. T-18.1. He specifically wanted to check theaccused’s drivers licence, vehicle registration and sobriety. Upon pulling the accused’s vehicle over, he smelled beverage alcoholcoming from the vehicle. The accused told the officer she had not been drinking but that she had a drunk passenger. This was confirmedwhen the passenger opened the door and vomited. [18] Despite observing the drunk passenger, Constable Lanoie did not believe the accused when she said she had not had anythingto drink.

The officer was not able to articulate why he did not believe the accused except to say that there was something about her bodylanguage that led him to conclude she was lying to him. There was no explanation as to what in her body language made him reach thisconclusion or why he had interpreted it in the way that he did. [19] The officer continued to question the accused about her drinking that evening and she continued denying that she had hadanything to drink. He still did not believe her and decided to have her attend back to his police vehicle to see if he could smell alcohol onher breath.

The officer was very candid that at this point the accused was detained. [20] I digress to comment on something Constable Lanoie said later in his testimony. Towards the latter stages of his evidence, hesaid that he had the accused come back to his police vehicle because it was an officer safety issue. I do not accept this explanation as itis inconsistent with the bulk of his testimony. He was obviously of the view that the accused was drinking and driving and at the time heasked the accused to attend to his police vehicle, he was engaged in an impaired driving investigation.

Despite what he had noted to thatpoint in time, he did not have the grounds to make an approved screening device demand or a breath demand. He did not believe theaccused and wanted to isolate her in his police vehicle to determine if there was an odour of alcohol on her breath. If there was an odour,this would confirm his suspicions that she was lying to him and would give him the grounds for an approved screening device demand. If there was no smell of alcohol on her breath then it would confirm her denials. This was the only reason he detained the accused and

put her in the back of his police vehicle. [ 21 ] Once in the back of the police vehicle, Constable Lanoie observed that the accused had bloodshot, watery eyes, a slightly flushed face and a smell of alcohol coming from her breath. He confronted her with this and she admitted she had had one drink. This information and these observations, coupled with the driving he had witnessed earlier, gave him the basis for a roadside screening demand.

I am satisfied on this evidence that the officer subjectively had a reasonable suspicion that the accused had alcohol in her body and that suspicion was objectively reasonable. [ 22 ] Instead of reading the accused the formal approved screening device demand that he had in his notebook, Constable Lanoie said that he made an informal approved screening device demand on her. However he did not tell the Court what this informal demand entailed. There is no evidence before me about what he said to the accused at this time except that it was an informal demand.

He took some time to run the accused’s driver’s licence and registration and they came back valid. Then he made some notes. It was only once he finished making his notes that he read the accused a formal approved screening device demand from his police notebook.

He read this demand into the record and it was clear from the demand that the accused would be required to provide a sample of her breath into a roadside screening device forthwith. [ 23 ] When Constable Lanoie formed the reasonable suspicion that the accused had alcohol in her body, he should have made a formal approved screening device demand on her at that time. He did not. He said that he made an informal demand but I have no evidence as to what words he used or if these words made it clear that she was required to provide a sample of her breath forthwith.

There is also nothing I can glean from his actions that would allow me to conclude that it was obvious to the accused that she was being detained to provide a breath sample into a roadside screening device. I am unable to determine if this informal demand met the requirements of a proper demand, ergo it does not satisfy the forthwith component. [ 24 ] Constable Lanoie did not make note of either the time he placed the accused in his police car, the time he formed his reasonable suspicion or the time he gave the accused the informal approved screening device demand.

He testified that he stopped the accused at 12:55 a.m. and at 1:11 a.m. he made a formal approved screening device demand on her. He estimated that within a couple of minutes of putting the accused in his police vehicle he had formed his reasonable suspicion. Unfortunately this estimate is of little use to the Court without testimony as to what time he put the accused in his police car. [ 25 ] In R. v. Anderson , supra, police stopped the accused at 1:11 a.m. They had the accused exit his vehicle and take a seat in the back of the patrol vehicle without being told why.

At 1:14 a.m. the officer made an approved screening device demand on the accused. Mr. Justice Lane, speaking for the majority of the Court of Appeal, said that a police officer must make an approved screening device demand as soon as he or she forms a reasonable suspicion that the person has alcohol in their body. Failure to do so makes the detention unlawful. He found that the three minute delay before the demand was made in this case was unlawful and a breach of the accused’s

section 9 Charter right to be free from arbitrary detention. At paragraph 20 of the judgment he said: [20] . . . As the Supreme Court of Canada has affirmed, the “Charter must not be seen as something to be swept away in the interests of expediency” ( R. v. M(A.) , 2008 SCC 19 , [2008] 1 S.C.R. 569 (S.C.C.) at para. 97 ). The requirement that a demand be made does not impose an onerous obligation on the officer. The failure to make the demand makes the detention unlawful, arbitrary and therefore contrary to

section 9 of the Charter . [ 26 ] In the present case, while the formal approved screening device demand read by the officer met the requirements of a proper demand, it was not made at the time the officer formed his reasonable suspicion but only after he made the informal demand and after he checked the accused’s documents and made some notes.

I do not know how much time went by from the time he formed his reasonable suspicion until he made this formal demand but irrespective of that, there was a delay and it was not justified. [ 27 ] On all of the circumstances, I am not satisfied that Constable Lanoie’s informal demand was a proper demand within the meaning of section 254(2) of the Criminal Code . As such, I cannot find that he made a demand on the accused forthwith upon forming a reasonable suspicion that the accused had alcohol in her body.

He eventually made a proper demand on the accused and following that, the accused provided a breath sample into the roadside screening device and failed. However, the delay in making the proper demand was not justified on the evidence. He should have made this demand right away. Unfortunately he did not do that. Instead, the officer was checking documents and making notes. Since this demand was not made forthwith, it follows that the test was not administered forthwith either.

Therefore, the detention of the accused was arbitrary and there was an unlawful seizure of her breath into the approved screening device in breach of her sections 8 and 9 Charter rights.

Was there a violation of the accused’s

section 10(

b) Charter right to counsel? [28] The accused testified that she understood what Constable Lanoie told her and specifically, that she could call a lawyer. Shesaid that after he advised her of her right to counsel at the roadside, she told the officer that she would like to speak to Jay Watson, theirfamily lawyer. After receiving her right to counsel but before they left for the detachment, she asked Constable Lanoie to retrieve somethings for her from her vehicle including her cell phone. He complied.

Once he returned with these items though she did not ask him ifshe could use her cell phone to call a lawyer. [29] The accused agreed that at the RCMP detachment the officer again asked her what lawyer she would like to call. Accordingto her, she had two lawyers who she wanted to call - Jay Watson and a lawyer her brother had just used on his own drinking and drivingcharges. However, she did not tell Constable Lanoie this. Instead she asked him for her cell phone.

She thought she could call or texther brother and get the phone number for one of these two lawyers from him but again, she did not tell Constable Lanoie this.

Sheexplained that she did not want to tell the officer she needed to call her brother to get the lawyer’s contact information because it wouldnot have helped her case if the officer had known that her brother had just been through his own drinking and driving case. [30] I pause at this point to say that the accused also testified that when first asked who she wanted to call at the detachment shesaid her brother but that Constable Lanoie said he could not let her call her brother, only legal counsel. I do not accept that thisconversation took place.

It is inconsistent with her assertions that she did not tell the officer that she wanted to call her brother to get thelawyer contact information because it would not help her case. It is also not corroborated by the officer’s testimony as to what tookplace at the detachment. As a result, I find that at no time did the accused ask the officer if she could call her brother. She may havethought about calling her brother, but at no time did she convey to the officer that she wanted to call him. [31] The accused agreed that she told the officer that she did not want to call a lawyer because it was not worth it.

She had no wayto call who she wanted to call and she felt that things were hopeless but she did not tell Constable Lanoie this. She did not want to callLegal Aid or another lawyer because she did not want to speak to someone she did not know. Finally, she said that even if she had had aphone book, she would not have used it to contact another lawyer. [32] Defence argues that based on these facts, Constable Lanoie violated the accused’s Charter right to counsel. In his view, theofficer should have given the accused her cell phone and let her call or text her brother or a lawyer at the detachment.

He says that shewas not given a phone book or advised that she could have privacy for this lawyer call and as such, she just gave up pursuing her right tocall counsel. [33] In R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429 (S.C.C.), the Supreme Court was faced with an appeal from anaccused from a finding that the police did not deprive him of his right to counsel. In dismissing the appeal the Court said: [32] . . . When a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact witha lawyer, s. 10(

b) mandates that the police explicitly inform the detainee of his or her right to a reasonable opportunity to contact counseland of the police obligation to hold off in their questioning until then. This additional informational obligation, referred to in this appealas the duty to give a “Prosper warning”, is warranted in such circumstances so as to ensure that a detainee is informed that theirunsuccessful attempts to reach counsel did not exhaust the s. 10(

b) right, to ensure that any choice to speak with the police does notderive from such a misconception, and to ensure that a decision to waive the right to counsel is fully informed. [33] Detainees who choose to exercise their s. 10(

b) right by contacting a lawyer trigger the implementational duties of the police. Theseduties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning thedetainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee’s reasonable diligencein attempting to contact counsel: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; R. v. Black, (SCC),[1989] 2 S.C.R. 138; R. v. Smith, (SCC), [1989] 2 S.C.R. 368.

What constitutes reasonable diligence in the exercise ofthe right to contact counsel will depend on the context of the particular circumstances as a whole. As Wilson, J. stated in Black, at pp.154-55: A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if he

wishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain fromquestioning the accused are suspended: see R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435. [34] Applying the principles set forth in Willier, supra, to the facts of the present case, I am not satisfied the accused’s right tocounsel was compromised. Constable Lanoie advised the accused at the roadside that she had a right to speak to legal counsel and sheunderstood this.

She told him she wanted to speak to Jay Watson but she did not tell the officer that she wanted to use her cell phone tocall him or anyone else from the police car or that she wanted to use her cell phone to find his number or the number for anyone else. Hewas not able to provide her privacy in the police car in any event as the video and audio equipment in his vehicle were operating. [35] On the 22 minute trip to the Humboldt RCMP detachment, Constable Lanoie did not elicit any evidence from the accused. Once at the detachment, he again asked her if she wanted to call a lawyer, and if so, who she wanted to call.

She only wanted to speak toJay Watson or her brother’s lawyer but she did not tell Constable Lanoie this. She asked for her cell phone but did not tell the officer thatshe wanted to use her phone to get the numbers of the lawyers that she wanted to call from her brother. Nor did she tell Constable Lanoiethat she wanted to call Legal Aid or look in a phone book for other counsel because she did not want to talk to anyone besides Mr.Watson or her brother’s lawyer. [36] What the accused did tell Constable Lanoie was that she did not want to call a lawyer.

He told her it was her right to call alawyer, but again she told him that she did not want to speak to counsel. Despite what was going through her mind, she was not diligentin pursuing her right to counsel. She may have wanted to call a lawyer but she never expressed that to the officer at the detachmentwhen given the opportunity. [37] Since the accused was not diligent in pursuing her right to counsel, Constable Lanoie was not required to do anything further. Yet he did go further and read the accused a Prosper warning to make sure she understood her right to counsel and was indeed, waivingit.

She confirmed that she understood the warning and again advised that she did not want to speak to a lawyer. [38] I do not know what more could be expected of Constable Lanoie in these circumstances. Three times he asked the accused ifshe wanted to call counsel and three times she clearly and unequivocally refused. She never once mentioned to him why she was givingup her right or that she wanted to call one of two particular lawyers but did not have their contact numbers or that she wanted to contacther brother to get these numbers.

She simply made the decision to waive her right to counsel and advised the officer of same. As such, Iam not satisfied that the accused’s

section 10(

b) right to counsel was violated. If the accused’s sections 8, 9 and/or 10(

b) Charter rights were violated, should the evidence obtained as a result of these breaches beexcluded pursuant to section 24(2) of the Charter? [39] Having found a breach of the accused’s sections 8 and 9 Charter rights, I must consider whether the evidence obtained as aresult of the breaches should be excluded in this case. The test for exclusion of evidence under section 24(2) of the Charter was set forthby the Supreme Court of Canada in R. v Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 (S.C.C.).

This oft quoted test directs a judgeto balance the seriousness of the breach, the impact of the breach on the Charter protected interests of the accused and society’s interestin the adjudication of the case on its merits in deciding whether admission of the evidence would bring the administration of justice intodisrepute. [40] In this case, the breaches of the accused’s Charter rights were minimal. Once Constable Lanoie formed his reasonablesuspicion he should have read the accused the roadside screening demand that he had on the inside of his police issued notebook.

Instead, he gave the accused an informal roadside screening demand. This is not a case where the officer did not try to comply with hisobligation. He obviously gave it some consideration. There is just no evidence as to what he said in this informal demand so I cannotdetermine if it complies with section 254(2) of the Criminal Code. [41] After making the informal demand, he should have administered the approved screening device test to the accused instead ofchecking documents and making notes. But even so, the delay until the test was actually administered could not have been all that long.

Given everything else the officer did, I estimate that delay to be around five minutes. The seizure of the accused’s breath was a relativelyunintrusive procedure and would have occurred in the same fashion had it been taken five minutes earlier than it actually was. Theaccused was detained, but the officer had been talking to her about her drinking and driving, had told her she was not being truthful about

whether she had been drinking and had made what he described as an informal screening demand on her. It could not have been asurprise to her as to why she was detained in the back of the police vehicle. [42] The impact of the breach on the Charter protected interests of the accused was more significant. As I found in R. v.

Mertins,supra, section 254(2) of the Criminal Code contains the power to arbitrarily detain someone, to demand that that person provideevidence that can be used against them to demand further evidence which could form the basis of a prosecution against them and resultsin the suspension of a person’s constitutional right to counsel while all of this is occurring. These breaches are only justified if thecriteria set forth in section 254(2) is strictly met. If they are not, the police are acting without lawful authority.

Although the breach inthis case was technical in nature, it had significant consequences for the accused. [43] Finally, society has a strong interest in criminal cases being adjudicated on their merits. The breach in this case did not go tothe reliability of the approved screening device result and the result was critical to the Crown’s case. The accused’s fail reading on theapproved screening device was the basis upon which the officer was able to make a breath demand on the accused. Without it, therewas no legal justification for the accused’s breath tests.

This factor favors inclusion of the evidence. [44] Balancing these three factors, I am of the view that the evidence should be admitted as its admission would not bring theadministration of justice into disrepute. These were technical breaches and although society expects police officers to follow the rules,the circumstances of the breaches in this particular case were not egregious. There were some significant consequences for the accusedbut the evidence was crucial to the Crown’s case and excluding it based on these facts would undermine the truth seeking function of thejustice system.

The accused’s section 24(2) Charter application to have the evidence excluded is dismissed. Is the evidence sufficient to prove that the accused’s ability to operate a motor vehicle was impaired by alcohol? [45] The only indicia of impairment noted by Constable Lanoie was some questionable driving, bloodshot and watery eyes, aslightly flushed face and a smell of alcohol on the accused’s breath. He did not observe any problems with the accused’s dexterity orbalance, no slurred speech, no lack of comprehension and no inappropriate behaviour.

The accused was cooperative and friendly in herdealings with him. [46] The accused explained that the highway she was travelling on south of Bruno is a horribly maintained highway. She agreedthat she could very well have been moving from the shoulder line to the centre line but in so doing, she was just trying to avoid potholes. It was very dark out that evening and at some point she realized that a car was very close behind her. She did not realize that this car wasConstable Lanoie’s police cruiser until he turned on his emergency lights. This car was so close behind her that she felt uncomfortable.

She braked, thinking the car would pass her but it did not, so she resumed her speed. The car was still close behind her so she signalledand pulled over so they would pass. The car did not pass her so she sped up again. [47] The accused said that she was wearing contacts that evening. I got the impression that she meant that this was the cause ofher bloodshot or watery eyes. She admitted that she had one paralyzer which would account for the smell of alcohol on her breath. [48] These indicia of impairment noted by the officer coupled with the accused’s explanations do not satisfy me on the test setforth in R. v.

Stellato, (ON CA), [1993] O.J. No. 18 (Ont. C.A.) (affirmed by the Supreme Court of Canada at (SCC), [1994] S.C.J. No. 51), that the accused’s ability to operate a motor vehicle was impaired. The officer himself was notsatisfied that the things he noticed gave him the necessary basis to arrest the accused for impaired driving. He admitted that based onwhat he observed, all he had was a suspicion that the accused had alcohol in her body and nothing more.

The whole of the evidenceleaves me with a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired on the night in question. [49] In conclusion, there was no breach of the accused’s

section 10(

b) right to counsel, but the accused’s sections 8 and 9 Charterrights were violated in that Constable Lanoie did not make an approved screening device demand forthwith and did not administer theapproved screening device test forthwith. However, I am not satisfied that the admission of the evidence derived from these breacheswould bring the administration of justice into disrepute and therefore there will be no section 24(2) exclusion order.

On the evidencebefore me, I am satisfied beyond a reasonable doubt that the accused was driving while her blood alcohol content was over .08 and assuch, I find her guilty of count #2 on Information 24461311. I am not however convinced beyond a reasonable doubt that her ability tooperate a motor vehicle was impaired by alcohol on the facts and as such, I acquit her of count #1. __________________

D.E. Labach, J.