Her Majesty the Queen - v. -, 2014 SKPC 045

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 045 Date: March 5, 2014 Information: 24439097 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Albert Alex Anderson Appearing: E. Addabor For the Crown C. Bowie For the Accused DECISION H. M. HARRADENCE , J INTRODUCTION: [ 1 ] On July 14, 2011, at approximately 4:45 p.m., Albert Anderson was driving a white GMC pickup truck east of Big River on Highway 55. The R.C.M.P. had set up a check stop on Highway 55 with seven to ten police vehicles.

The purpose of this check stop was a show of force to help quell potential problems arising from the Ness Creek Music Festival, an annual outdoor music festival which attracts participants from across the country [1] . The purpose of the check stop was to stop vehicles coming from and going to both Big River and Ness Creek. Cst. Andrew Drennan, an officer with approximately two years’ experience, detained Mr. Anderson as part of the check stop. As a result of this detention, Cst. Drennan demanded a breath sample and Mr. Anderson was taken to the Big River

Detachment of the Royal Canadian Mounted Police where he provided samples. He was then charged with drive while over .08 andimpaired driving. [2] The first issue to be decided by me is whether the evidence presented at trial establishes that Cst. Drennan had reasonablegrounds to demand a breath sample. Mr. Bowie, counsel for the accused, filed a notice alleging a violation of the accused’s right to befree from unreasonable search and seizure. By agreement, the evidence was heard in a voir dire.

If I find the search to be unlawful, Mr.Bowie requests that I exclude the Certificate of Analyses pursuant to s. 24(2). [3] On November 14, 2013, this voir dire proceeded. Cst. Drennan was the only witness. Written arguments were filed by bothcounsel, along with replies, together with several cases. ONUS OF PROOF: [4] In this instance, as in most investigations of this type, the obtaining of the accused’s breath sample was pursuant to ademand. A warrant was not utilized. A breath test is a search. When it is done without a warrant it is a warrantless search.

Awarrantless search is deemed to be unreasonable (Hunter v. Southam Inc., (SCC)). The onus of proof in a Charterapplication involving a warrantless search is succinctly stated by Justice Lamer in the quintessential Charter search and seizure decisionof the Supreme Court in R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at paragraph 22: As a result, once the appellant has demonstrated that the search was a warrantless one, the Crown has the burden of showing that thesearch was, on a balance of probabilities, reasonable. [5] Specifically in R. v.

Shepard, 2009 SCC 35 , [2009] 2 S.C.R. 527, the Supreme Court reiterated this onus in the context of a breath demand[2]: [16] As noted above, s. 254(3) of the Criminal Code requires that the officer have reasonable grounds to believe that within thepreceding three hours, the accused has committed, or is committing, an offence under s. 253 of the Criminal Code. The onus is on theCrown to prove that the officer had reasonable and probable grounds to make the demand because the Crown seeks to rely on breathsamples obtained as a result of a warrantless search.

It would also be impractical to place the burden on the accused because evidence ofthe presence or absence of reasonable and probable grounds is within the “peculiar knowledge” of the Crown (R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, at p. 2). THE TEST FOR REASONABLE GROUNDS: [6] The term reasonable grounds is used in a variety of statutes, as a basis for an arrest or a search.[3] [7] The classic definition of reasonable grounds, utilized as one of the safeguards against arbitrary arrest, applies a reasonableperson test and is summarized by Justice Cory in R. v. Storrey, (SCC), [1990] 1 S.C.R. 241: In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand, the police need not demonstrate anything more than reasonable and probable grounds. [8] This two part objective/subjective test was adopted in the breath sample context by the Supreme Court in R. v.

Bernshaw, (SCC), [1995] 1 SCR 254, at paragraph 48: The Criminal Code provides that where a police officer believes on reasonable and probable grounds that a person has committed an

offence pursuant to s. 253 of the Code, the police officer may demand a breathalyzer. The existence of reasonable and probable groundsentails both an objective and a subjective component. That is, s. 254(3) of the Code requires that the police officer subjectively have anhonest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief. [9] Mr. Justice Doherty in R. v. Golub, 1997 O.J. (3d) 743, stresses the importance of context in the application of this inquiry.

He draws a distinction between a justice of the peace hearing a search warrant application with the benefit of judicial reflection and anofficer in the field: In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercisedmust be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a searchwarrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not aluxury the officer can afford.

The officer must make his or her decision based on available information which is often less than exact orcomplete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of ajustice faced with an application for a search warrant. [10] Justice Doherty does not define the inquiry which is required in each context rather he indicates that the inquiry will bedefined by the circumstances.

Justice Doherty does indicate the mandatory nature of such an inquiry and the requirement that the officermust consider all of the information which is available to him: In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. Theofficer must take into account all information available to him and is entitled to disregard only information which he has good reason tobelieve is unreliable. [11] Although Golub was decided in 1997, it is relied upon and confirmed by the Ontario Court of Appeal in R. v. Bush, 2010ONCA 554.

The Bush decision is in turn referred to by the Saskatchewan Court of Appeal in R. v. Gunn, 2012 SKCA 80. [12] In Bush, Justice Durno, sitting ad hoc, as a member of the Ontario Court of Appeal, relies on Golub. Justice Durno offers some guidelines to police officers and also to reviewing courts.[4] He confirms the objective/subjective nature of the reasonable groundstest and indicates that these grounds must be honestly held by the officer, although, the officer’s belief does not need to be provenaccurate. As is discussed below, the officer’s belief at the time of the demand is critical.

The belief of the officer can be based onhearsay or incomplete sources of information. [13] Justice Durno, in Bush stresses that the length of the inquiry is dependent on the factual situation. The fact that an officer canform an opinion regarding reasonable grounds in less than a minute is neither surprising nor determinative as the issue is not whether amore thorough investigation could or should have been conducted. Rather, the issue is whether on the particular facts the officer’s beliefwas both subjectively and objectively reasonable. Justice Durno relies on R. v. Censoni and R. v.

Wang in stating that reasonablegrounds for a breath demand should not be considered an onerous test for the police to perform: [46] In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010 ONCA435 , [2010] O.J. No. 2490, 2010 ONCA 435, at para. 17. It must not be inflated to the context of testing trial evidence. Neithermust it be so diluted as to threaten individual freedom: Censoni, at para. 43. [14] Madam Justice Wilkinson in R. v.

Kopperud, 2011 SKQB 192, expressed it this way, “Each case has its own particular inflections and accents, with some features more pronounced than others.”[5] Of particular importance, when reviewing an officer’sbelief as noted by Justice Wilkinson, relying on R. v. Restau, 2008 SKCA 147, 314 Sask. R. 224, is that all of the circumstances beconsidered: 51) The Court of Appeal rejected the argument, saying the appellant was focusing on one element in isolation and failing to look at thetotality of circumstances.

All of the circumstances had to be considered, and it was wrong to dissect the indicia of impairment andexamine them in isolation. The issue, it said, was whether a reasonable person would reasonably believe that the appellant’s ability tooperate a motor vehicle was impaired on the proven facts, namely, a combination of the smell of alcohol, the unsteady walking, and theappellant’s slurred speech. On the evidence, a reasonable observer could have concluded the officer had reasonable and probablegrounds to believe the appellant was driving the ATV while impaired by alcohol.

[ 15 ] In an arrest context, Justice Caldwell sets out five observations in Shinkewski at paragraph 13 which I have reviewed. Justice Caldwell refers to the important distinction between reasonable suspicion and reasonable grounds to believe. The Supreme Court of Canada in R. v. McKenzie, 2013 SCC 50 , concisely states this distinction: [74] Parenthetically, I note that there are several ways of describing what amounts to the same thing.

Reasonable suspicion means “reasonable grounds to suspect” as distinguished from “reasonable grounds to believe” ( Kang-Brown , at paras. 21 and 25, per Binnie J., and at para. 164, per Deschamps J.). To the extent one speaks of a “reasonable belief” in the context of reasonable suspicion, it is a reasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual is connected to the offence.

As Karakatsanis J. observes in Chehil , the bottom line is that while both concepts must be grounded in objective facts that stand up to independent scrutiny, “reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime” (para. 27). THE TIMING OF THE OFFICER’S BELIEF: [ 16 ] In R. v. McDonald , 2013 SKPC 481, at paragraph 28 , His Honour Judge Lavoie confirms that the time of the demand is the relevant time for determining whether the officer possessed reasonable grounds. Importantly in R. v.

Gunn , Justice Caldwell indicates that the absence of evidence post-demand cannot be relied upon to detract from the grounds for the demand. [6] THE FACTS: [ 17 ] Critical to this Charter inquiry is the facts which I find as a result of observing Cst. Drennan testify and having reviewed his evidence in its entirety. In this review, I have been assisted by the capable written arguments of counsel and by reference to a transcript of the evidence which has been prepared. My findings are as follow: 1. The R.C.M.P. was conducting a check stop on Highway 55 on July 14, 2011.

This check stop was as a result of the Ness Creek Music Festival. The check stop was in the vicinity of the Town of Big River, Saskatchewan. The check stop involved stopping all vehicles coming from or going to Ness Creek or Big River. At this check stop there were approximately seven to ten police vehicles and approximately 15 to twenty officers. 2. As part of this check stop, there was at the site, a roadside screening device that could have been utilized. [7] 3. Cst. Drennan had been a member of the Royal Canadian Mounted Police since May 2009.

At the time of the incident he had been involved in approximately ten impaired driving investigations. [8] 4. On July 14, 2011 at 4:48 p.m., the accused pulled up to the check stop driving a white GMC truck. [9] There is nothing in the evidence to indicate unusual, erratic or illegal driving. Cst. Drennan asked the accused to pull his vehicle to the side of the road to let other traffic proceed. [10] Cst. Drennan indicated that there were no indications of any difficulty in the operation of the white truck. [11] 5. The accused was 64 years old on July 14, 2011. [12] Cst.

Drennan agreed that at both this and the previous trial, the accused had a ruddy complexion. 6. Immediately upon stopping the vehicle driven by the accused, Cst. Drennan noted a flushed face and glossy eyes. [13] 7. Cst. Drennan testified the accused’s speech seemed somewhat slurred. [14] Although in cross-examination Cst. Drennan agreed that he could not tell which words the accused slurred, he had never heard the accused speak before and this could be his normal speech pattern. [15] 8. Cst.

Drennan observed, at the roadside, that in providing his driver’s licence the accused’s movements were “very deliberate”. [16] 9. Cst. Drennan could smell mouth alcohol coming from the truck cab. He asked the accused to step out of the truck cab and confirmed that the smell of alcohol was coming from the accused. [17] 10. When the accused stepped from the vehicle, Cst. Drennan noted a single can of Budweiser beer in a cup holder in the driver’s door. The can was open and it was cold to the touch. [18] 11. Cst.

Drennan asked the accused when he had had his last drink and the accused told him that his last drink was about one hour

prior. [19] Cst. Drennan did not ask the accused what he was drinking or how many drinks he had consumed. 12. Cst. Drennan noted that the accused had a bit of a staggering gait and continued swaying when standing still. [20] In cross- examination Cst. Drennan admits that he did not make a note of the swaying in his notebook. [21] Further in cross-examination Cst. Drennan agrees that the accused did not have any difficulty getting out of the vehicle. [22] Nor does he remember or have any note of any unsteadiness by the accused at this time. [23] ANALYSES: [ 18 ] In this case I must review the testimony of Cst.

Drennan to determine whether his belief was subjectively held and objectively reasonable. By necessity, this analysis will be contextual and approached from a qualitative as opposed to a quantitative perspective. [ 19 ] At the time of the incident, Cst. Drennan was a relatively inexperienced officer. He was surrounded by other officers but there is no evidence that he turned to them for any assistance. He alone made the decision to both arrest and demand a breath sample from this accused. There is no evidence of any urgency in making this decision. Cst.

Drennan described the events leading up to the arrest and demand in examination-in-chief as follows: Basically it was right around 4:48 in the afternoon, a white GMC truck driven by the accused, Mr. Anderson, had pulled up to the check stop. It was indicated that was my vehicle to check. The driver of the vehicle pulled up to the check stop. When I spoke with the driver I noticed he had a very flushed face and glossy eyes. I spoke with him briefly. He had said that -- oh, I asked him for his driver’s license and registration for the vehicle.

He responded that he was from Alberta and it was going to take him a while. I noticed at that point that his speech seemed somewhat slurred, so I asked him to pull over to the side of the road, we had quite a bit of traffic behind us, so to allow for them to get through. When I pulled -- sorry, when I walked up next to the driver’s side he was looking through his cards and his driver’s license. He kept pulling out each individually, looking at them. They were very deliberate movements, but there didn’t seem to be much thought behind them, he’d stare at each card for a few seconds before he’d put it back.

He finally had gotten his driver’s license. I remember he had said that he was in the area looking to buy a house. I could smell some mouth alcohol coming from the vehicle, but the passenger of the vehicle was also quite intoxicated. I was unsure exactly where that mouth alcohol was coming from, so I asked the driver to exit the vehicle and go to the rear. He went to the rear of the vehicle. When I went back he was swaying back and forth. I spoke with him briefly. I don’t recall exact conversation, but I remember noticing that he -- that mouth alcohol was definitely coming from him.

I arrested him at that point for impaired operation of a motor vehicle and brought him back to my police vehicle where I chartered him, read him his breath demand verbatim from a card that we typically carry. [24] [ 20 ] Later in his examination-in-chief, Cst. Drennan remembers some of the conversation he had with the accused prior to making the breath demand: Q Okay. Okay. Did you have any conversation with Mr. Anderson about consumption of alcohol at all? A About what, sorry? Q About consumption of alcohol? A I had asked him when his last drink was.

He had said that it was about one hour prior at a community that he couldn’t remember. Q Okay. Was this before or after you arrested him? A This would have been before. [25] [ 21 ] I suspect that Cst. Drennan had other conversation with the accused which he cannot recall or which he did not record in his notebook. It is not for me to fill in these gaps in his evidence. [ 22 ] Cst. Drennan either did not ask, or cannot recall whether he asked the accused what type of alcohol he had drank or what quantity.

The conversation he does recall appears consistent with a demand for a roadside screening device as opposed to a demand that the accused be detained for a breath sample. [26]

[ 23 ] In written argument, the Crown says that Cst. Drennan had a subjective belief which is objectively reasonable due to the factors observed: Cst.

Drennan’s grounds for belief that the accused was driving with a blood alcohol level over the legal limit are from the following facts: slurred speech, odour of mouth alcohol on accused’s breath, flushed face, glossy eyes, staggering, swaying, slow and deliberate movements in producing his licence and registration, open can of Budweiser in driver’s door panel which was cool to the touch, and the accused’s answer to the officer’s question that his last drink was about an hour ago in a community he could not recollect.

The road block was to check, inter alia , sobriety of drivers in relation to the festival in the area which usually created issues for the police. [27] [ 24 ] The defence takes a different approach and questions the objectiveness of the grounds in its written argument: There must at a minimum be some evidence of an impaired ability to drive coupled with some evidence of consumption of alcohol.

A bloodshot, glassy eyed, deliberate and slow moving man smelling of alcohol with somewhat slurred speech whose coordination in driving are just fine may not meet the objective test for reasonable and probable grounds of impaired driving. There is evidence of alcohol consumption but no evidence of impaired driving skills in this instance. [28] [ 25 ] This decision is dependent on the weight I am able to place on the various factors testified to by Cst. Drennan. In this regard, I have considered Cst. Drennan’s evidence carefully. I am unable to find that Cst.

Drennan was untruthful in his testimony. [29] However his inexperience, his lack of recollection and his incomplete notes cause me to conclude that his evidence is not reliable particularly in relation to his observations of the accused’s motor coordination and speech. In this regard I refer to Madam Justice Wilkinson’s reasons in R. v. Stephens , 2011 SKQB 342 .

Madam Justice Wilkinson states at paragraph 40: I would simply observe that, notwithstanding the low threshold in terms of establishing reasonable grounds to believe impaired driving has occurred, and notwithstanding that it is unnecessary for an arresting officer to demonstrate a prima facie case for conviction before pursuing an investigation, the evidence offered in support of the objective grounds cannot be considered material if it is inherently unreliable or unclear. [ 26 ] On the basis of his observations, Cst. Drennan made a breath demand.

He does not explicitly state in his testimony his belief or the wording of the demand. Despite my concern regarding the reliability of his evidence, it is reasonable to infer, based on the subsequent detention of the accused for the purpose of breath testing, that Cst. Drennan subjectively believed that the accused’s ability to operate a motor vehicle was impaired at the time of the demand. [ 27 ] The second aspect of reasonable grounds which I must consider is whether Cst. Drennan’s belief was objectively reasonable. In this regard there is evidence of the accused’s drinking. Cst.

Drennan notes an odour of alcohol, a flushed face, an open beer can in the driver’s door of the vehicle, some slurred speech, a slight stagger and swaying. I do find that the evidence of lack of coordination and slurred speech is imprecise, vague and not reliable. In my view, the remaining observations made by Cst. Drennan, without further inquiry, amount to no more than a checklist of the usual signs of drinking. [ 28 ] Given the equivocal nature of Cst. Drennan’s observations it is my view that an inquiry was warranted.

To reiterate, Justice Doherty in Golub , supra , states that, “the officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable”. [30] This set of facts called for an inquiry particularly in light of the driving of the accused. An inquiry, in these circumstances, would not have been difficult or onerous for Cst. Drennan. The additional information obtained by Cst. Drennan as a result of this inquiry would not need to ultimately be proven accurate. Cst.

Drennan could have relied upon information obtained based on hearsay or secondary sources, including information from other officers at the scene or the accused’s passenger. This inquiry could have been brief and focused but should not have been perfunctory. [ 29 ] As a reviewing court, I must be satisfied that Cst. Drennan’s belief was objectively reasonable. Mr. Justice Caldwell in Gunn , supra , at paragraph 10 indicates the officer’s responsibility as follows: ...

Where the reasonableness of the officer’s belief is challenged in court, the officer must be in a position to clearly articulate sufficient observations and to point to other evidence which would rationally and reliably sustain the officer’s belief of impairment on an objective basis.

[ 30 ] Given my concerns regarding the reliability of Cst. Drennan’s testimony, it is my finding that he was unable to articulate sufficient observations to sustain his belief on an objective basis. There is no evidence of the type or quantity of alcohol the accused consumed. There is no evidence of a continuous slurred speech or unsteadiness. These observations are isolated and inconclusive at best. There is evidence of unremarkable driving. Having considered all of the evidence and following R. v. Gunn , at paragraph 23 , I am not satisfied that the inference of impairment drawn by Cst.

Drennan was, without more, either reasonable or sound. In my view, Cst. Drennan’s testimony provides grounds only to suspect that the accused had been drinking and operating a motor vehicle. In these circumstances, Cst. Drennan could have demanded a roadside screening test as an aid to his investigation. Either a lack of knowledge, lack of training, routine practice or convenience led Cst. Drennan to proceed with a breath demand. [ 31 ] In this case I am not satisfied that the grounds testified to by Cst.

Drennan are sufficient to meet an objective standard. [ 32 ] In conclusion the Crown has failed to satisfy me on a balance of probabilities that the breath demand was a reasonable search. I therefore find a violation of s. 8 of the Charter . SECTION 24(2) OF THE CHARTER : [ 33 ] Having found a violation of s. 8, I must proceed to consider whether the results of the warrantless search, the breath analysis, will be admitted into or excluded from evidence at this trial.

The Grant [31] analysis involves a consideration of three factors: 1) The seriousness of the Charter- infringing state conduct which led to the discovery of the evidence; 2) The impact on the Charter- protected interests of the accused; and 3) Society’s interest in an adjudication of the case on its merits. [ 34 ] I am of the view that Cst. Drennan acted in a precipitous manner. There was no urgency. Although he was inexperienced, he was surrounded by other officers.

The evidence indicates he had reasonable grounds to suspect criminal activity however not reasonable grounds to believe that criminal activity had taken place. He agrees that a roadside screening device was available to him. [ 35 ] The touchstone of any police detention, is an independent inquiry conducted by a police officer. I have found that this inquiry was not done in this case. In these circumstances I am in agreement with Justice Danyliuk in R. v. Watchel , 2012 SKQB 273 , at paragraphs 55 to 58 , [32] where he states: [55] It is worth noting that the trial judge found Cst.

Focht would have had a valid reasonable suspicion that the respondent had alcohol in his body. At that point, alternate and additional screening mechanisms became available to the officer. He did not avail himself of same, instead proceeding to obtain conscriptive evidence after breaching the respondent’s Charter rights. Accordingly, on these facts, there was a sufficient basis for the trial judge to conclude that exclusion of evidence was appropriate. [56] Unlike the cases cited by the Crown, the breach here was not technical or trifling. It was significant.

The officer had (at best) equivocal evidence of impairment. He did have enough evidence to use further screening tools the law makes available, but he opted not to do so. Instead, he chose to breach the respondent’s Charter rights. [57] He did so in a particular factual and temporal context, which the trial judge appears to have properly considered. As said, he found himself in an investigation where the facts were equivocal. There was no need for undue haste. The respondent was not fleeing, and was fully cooperative. There was no danger to anyone. Alternate screening measures could have been employed.

Evidence was not disappearing. No other witnesses were being lost. [58] Instead of acting precipitously and proceeding with an investigation that breached the respondent’s Charter rights, the officer could have embarked on a different course. That course was not onerous. It would have preserved the respondent’s Charter rights and obtained evidence necessary to the investigation.

[36] In relation to the impact of the Charter breach on the accused’s rights, Mr. Bowie on behalf of the accused, submits atparagraph 84 of his written brief as follows: Anderson was stopped at 16:48. Anderson was detained. Anderson was released at 18:22. Anderson was handcuffed (page 23, line 1-24). This is not non-intrusive. Rather it is serious. Drennan ought to have performed a 254(2) demand given the circumstances, the results of his not doing so is a serious matter and intrudes upon Anderson’s Charter rights.[33] [37] I agree. In R. v.

Knaus, supra, His Honour Judge Morgan in a similar context concludes that to admit the breath samples would significantly undermine the very interests which are sought to be protected.[34] I have found in this instance that the processresulting in the accused’s detention was incomplete and seriously flawed and I am satisfied that the impact on the accused’s right wassignificant. In R. v. Rezansoff, 2013 SKQB 384, Justice Danyliuk concludes his consideration of this factor with the followingobservation: [36] In this case, this criterion is not difficult to assess.

To detain a citizen for a significant period of time, during which that citizen iscompelled to provide the state with evidence against himself, is surely a serious intrusion into that citizen’s civil rights. Parliament hasrecognized this by creating rules, or prerequisites, to the police obtaining such evidence. The fact that the evidence of refusal wasgathered in clear breach of these rules renders significant the impact of this breach on the appellant. This breach directly impacted thesubstantive civil rights of the appellant.

This, too, militates against the admission of evidence of the refusal of the appellant to providebreath samples. [38] The final factor to be considered in the Grant analysis is society’s interest in the adjudication of the matter on its merits. While I acknowledge that there are compelling interests in adjudicating cases of this type on their merits as indicated by my colleagueHis Honour Judge Labach in R. v. Wiebe, supra, this must be balanced with society’s overall interest in compliance with the Charter andthe Criminal Code. His Honour Judge Hinds states it this way in R. v.

Nernberg at paragraph 33: [33] While society does have an interest in having drinking and driving charges adjudicated on their merits, I am of the view that societyalso has an interest in ensuring that provisions of the Criminal Code respecting the breathalyzer, such as section 254(3) are compliedwith and further that an accused’s rights under

section 8 of the Charter are not overridden. [39] In balancing these three factors, I appreciate that this is not to be construed as an exercise in mathematical precision. In R. v.Harrison, 2009 SCC 34 , 2009 S.C.C. 34, the Supreme Court of Canada stated the following: [36] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a questionof whether the majority of the relevant factors favour exclusion in a particular case.

The evidence on each line of inquiry must beweighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring theadministration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump thetruth-seeking interests of the criminal justice system. Nor is the converse true.

In all cases, it is the long-term repute of the administration of justice that must be assessed.[35] [40] In Stephens, supra, at paragraph 53, Justice Wilkinson interprets the Supreme Court’s comments in Harrison as follows: The majority of the Supreme Court of Canada in R. v. Harrison, 2009 SCC 34, [2009] S.C.J.

No. 34 (QL), a companion case to Grant,suggested at para. 22 that courts should exclude evidence “... where the departure from Charter standards was major in degree, or wherethe police knew (or should have known) that their conduct was not Charter-compliant....” Accordingly, to warrant the remedy ofexclusion, a case does not necessarily require a major infraction. It suffices if eyes were shut to the obvious. [41] I am mindful of the overarching comments of Justice Fish in R. v.

Morelli, 2010 SCC 8, at paragraph 110: [110] Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives ablack eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.

[ 42 ] In this instance I have found that Cst. Drennan’s conduct while not dishonest was certainly unacceptable police conduct. [ 43 ] Having applied the Grant analysis to the evidence in this case, I am satisfied that to admit the results of the breath demand into evidence would bring the administration of justice into disrepute. The evidence is excluded. [ 44 ] Dated this 5 th day of March, 2014 at Prince Albert, Saskatchewan. ______________________________ H.M. Harradence, J [2] Justice Caldwell in R. v. Gunn , 2012 SKCA 80 , at paragraph 19 , applies this onus and relies upon R. v.

Besharah , 2010 SKCA 2 , where Madam Justice Smith indicates at paragraph 35, fairness requires that the burden of proving reasonable grounds is on the Crown.