HER MAJESTY THE QUEEN, - v. -, 2011 MBPC 30

2011-MBPC 30 IN THE PROVINCIAL COURT OF MANITOBA CRIMINAL DIVISION THE PAS, MANITOBA BETWEEN: HER MAJESTY THE QUEEN, - and - STUART RUTHERFORD, ____________________________________________________________ Reasons For Decision Delivered By His Honor Judge Malcolm McDonald on March 21, 2011 ____________________________________________________________ APPEARANCES: For the Crown: Mr. K. Hutchinson For the Accused: Mr. G. Bauman

The accused is charged under s. 253(1) (

a) and s. 253(1)(

b) of the Criminal Code arising from his operation of a motor vehicle in the early morning hours of July 11 th , 2009 in the town of Flin Flon, Manitoba . The trial in this matter commenced on August 5 th , 2010 at which time the Court was notified that the accused intended to challenge the admissibility of the Certificate of Analysis on the basis of alleged violation of the accused rights under s. 8, 9 and 10 of the Charter. Submissions of counsel were heard by the Court on November 29 th , 2010. On August 5 th , 2010 the Court heard from three Crown witnesses on the Voir Dire. The Accused, Mr.

Rutherford, did not give testimony. Two of the Police Officers, Cst. Plaetinck and Cst. Rachul, were involved in the initial investigation, detention and arrest of the accused, and his eventual transport to the RCMP detachment for his Breathalyzer test. A third police officer Cst. Guest was primarily involved in administering the Breathalyzer test. Facts Cst. Plaetinck and Rachul were on duty in Flin Flin in the early morning hours of July 11, 2009 when they attended at the local McDonald’s restaurant “drive-thru” for some refreshments during their shift. At the time Cst.

Plaetinck had two months experience and Cst. Rachul had just less than a year of experience with RCMP. The accused, Mr. Rutherford, was also making his way through the McDonald’s drive-thru ahead of the police officers in a Red Tundra automobile. At this point, the officers noticed nothing suspicious about the operation of the accused’s vehicle despite the fact that Cst. Plaetinck testified the drive-thru is winding and conceded that a good deal is of skill is required to navigate it.

When the police officers approached the drive-thru window, they spoke to a McDonald’s restaurant employee who advised the officers he or she had a suspicion that the accused was impaired by alcohol. Based on this information, the officers decided to approach Mr. Rutherford’s car and investigate the McDonald’s employee’s suspicion. The time of initial contact with Mr. Rutherford was at 1:43 AM. When the officers approached Mr. Rutherford, he was in the driver’s seat of his vehicle in the “order waiting area” to the side of the drive thru area proper.

There was one other passenger in the car with the accused, later identified as Cody Hersburn. In direct examination Cst. Plaetinck said he noted a strong odour of alcohol coming from the accused, that the accused was having difficulty finding his license in his wallet, slurring his words, and once out of the vehicle exhibited poor balance moving from his vehicle to the police vehicle. Based on these observations Cst. Plaetinck made an ASD demand of the accused. The accused attempted five times to provide a sample. On each occasion the sample came back “E” which means there is an error.

The accused indicated at this point he had tried enough and wanted to speak to a lawyer, and wanted to provide a breathalyzer sample. At 1:51 AM an ASD refusal was read to the accused by Cst. Rachul and at 1:59 AM Cst. Plaetinck arrested Mr. Rutherford for impaired driving. Shortly after the arrest of the accused a vehicle driven by a female entered the drive-thru, hitting another vehicle. Cst. Plaetinck estimated that this happened at about 2:00 AM. According to the officers’ evidence sometime between 2:00 AM and 2:30 AM Cst.

Weeda of the Flin Flon RCMP attended, arrested the female driver, and transported her to the Flin Flon RCMP detachment. During this time, both Cst. Plaetinck and Cst. Rachul remained at the site of the arrest with Mr. Rutherford. Both officers gave evidence of some difficulties experienced with Mr. Hersburn, the accused passenger, while awaiting a tow truck to move both Mr. Rutherford’s car and the female accused’s car. The officers left with Mr. Rutherford for the Detachment at 2:30 AM and arrived there at 2:35 AM. On arrival at the Detachment, Mr.

Rutherford was required to wait while the female accused, who had been arrested at the McDonald’s drive-thru subsequent to Mr. Rutherford’s arrest, had an opportunity to speak to her counsel. The court heard that an interview room outside the secure area in the Detachment was vacant at the time but was not used to allow the accused to contact counsel. The reason was that it is not normally used for that purpose as it does not have a window in the door from which to observe the accused.

Under cross examination and examination by the Court it was confirmed that the accused could have been monitored by audio visual equipment with the sound muted and that indeed persons under arrest are frequently questioned in that room. Eventually Mr. Rutherford was taken to the telephone room at which time he, with the assistance of Cst. Plaetinck, attempted to contact Lawyer Greg Bauman twice. On both occasions he was unsuccessful. According to officer Plaetinck, Rutherford then elected to phone Legal Aid. At 3:04 AM he was finally able to contact counsel, the phone call ended at 3:18 AM.

This was his first contact with counsel and was more than and hour after his arrest, and approximately an hour and twenty minutes after his initial contact with police. In the meantime, a Breath Technician, Cst. Guest had been summonsed from the Cranberry Portage Detachment, as no Breath Tech was

on duty in Flin Flon. Cranberry Portage is approximately 60 kilometres south the Town of Flin Flon . Cst. Guest testified that he received a call to attend Flin Flon at approximately 2:20 AM and arrived at the Flin Flon Detachment at approximately 3:00 AM. The first breath test conducted by Cst. Guest was on the female accused at 3:23 AM, the sample came back invalid. At 3:33 Cst. Guest was advised that Mr. Rutherford had spoken to his lawyer and agreed to provide a sample. At 3:40 the female accused was tested a second time, this time with a valid result. The first sample from Mr.

Rutherford was finally taken at 3:57AM some 2 hours and 14 minutes after his initial detention. The initial sample was valid. Two further samples were taken from Mr. Rutherford at 4:15 AM, (an invalid sample), and 4:46, (a valid sample), to complete the Breath Analysis. The Issues: 1 . Was there a violation of the accused rights under s.10(

b) by failing to allow him to consult with his choice of counsel, Greg Bauman? 2 . Were there reasonable and probable grounds for the arresting officer to demand the accused provide a breath sample and, if not, is this a violation of s. 8? 3 . Was there a violation of s.10(

b) by not allowing the accused an opportunity to “instruct counsel without delay”? 4 . Was there a failure to have the breath sample taken “as soon as practicable after the time when the offence was alleged to have been committed”, as contemplated by s. 258(1) (c) (ii) and if so does this failure constitute an unreasonable search and seizure under s. 8 of the Charter? 5 . If there has been a violation of one or more of the provisions of the Charter of Rights as alleged should the evidence contained in the Certificate of Analysis in this case be excluded pursuant to 24(2) of the Charter? Analysis 1. Was there a violation of the accused rights under s.10(

b) by failing to allow him consult with his choice of counsel, Greg Bauman? Cst. Plaetinck was the officer who arrested the accused and also escorted him, eventually, to the telephone room at the Detachment to speak to his lawyer. He gave evidence that the accused had requested to speak to Mr. Bauman on at least one occasion. The accused had phone numbers for Mr. Bauman and Cst. Plaetinck placed two separate calls sometime between 2:54 AM and 3:04 AM. There was no answer either time.

Although it not entirely clear from the evidence, it does appear that a suggestion was put to the accused that he might wish to try contact on-call Legal Aid counsel when the calls to Mr. Bauman were not answered. At 3:04 that telephone call was placed to Legal Aid on- call duty counsel; Mr. Rutherford spoke to counsel for about 14 minutes. There is no evidence that the accused expressed any dissatisfaction with the advice he received. There is no evidence, however, that any question was put to him by the Cst. Plaetinck or anyone else about his satisfaction prior to his supplying a breath sample.

Section 10(

b) of the Charter has informational and implementational requirements which must be met. In this case the question relates to the implementation of this right. Did the officer impinge upon the right of the accused to consult his counsel of choice? The Supreme Court has recently provided direction on the scope of the implementational requirements of s 10(

b) in the trio of cases of R. v. Sinclair

2010 SCC 35, R v. McCrimmon 2010 SCC 36 and R v. Willier. These cases were released after evidence was heard but prior toargument from counsel. Of these three leading cases, the one touching most directly on the issue of right to counsel of choice is R. v. Willier 2010 SCC 37. Despite a number of cases cited by counsel for Mr. Rutherford mainly from trial courts in Saskatchewan, which predated Willier ,suggesting the procedure followed by the Police in this case violates s10(b), I conclude that the evidence here does not constitute such aviolation. In Willier, the accused was arrested for murder.

The police informed him of his right to counsel and put him in touch with dutycounsel. He then subsequently indicated he wished to speak to a specific lawyer, Peter Royal. When the accused was unable to contactMr. Royal, he was given the option of contacting duty counsel once again. He did so and expressed satisfaction with the advice. He wassubsequently questioned by Police.

At trial and on appeal the accused argued that his right to consult with counsel of his choice hadbeen infringed and that the Police should have warned him of his continuing right to counsel (Prosper warning) and have refrained fromquestioning him further pending his contacting counsel of his choice. In declining to find a s. 10(

b) the court found, paragraph 39, thesituation that existed was not analogous to the situation in R v. Prosper (S.C.C.): “The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specificlawyer and simply opts to speak with another. In no way did Mr. Willier attempt to relinquish his right to counsel and thus anyopportunity to mitigate his legal disadvantage. He made no attempt to waive his s. 10 (

b) right. Instead, unsuccessful in contacting Mr.Royal, he exercised his right to counsel by opting to speak to Legal Aid. As such police were under no obligation to provide him with aProsper warning, and its absence fails to establish a Charter breach.” The case at bar is similar although not identical. Mr. Rutherford attempted, with the assistance of the police, to contact his choice ofcounsel. When that counsel was not available he willingly accepted the suggestion of the Police that he might want to try to speak toLegal Aid on call counsel.

There is nothing in the evidence to suggest that he was dissatisfied with the advice he received, indeed thelength of the call, some 14 minutes, would suggest a meaningful conversation took place. At the heart of it, the implementation protections are constructed to ensure that an accused person will not be at a disadvantage in theirdealings with investigational and prosecutorial arms of the state by ensuring they have the right to assistance of a lawyer they haveconfidence in; that right may not be easily waived.

There is nothing in the facts of this case to suggest that the accused was at adisadvantage and his contacting duty counsel at 3:04 AM on the day in question was not a reasonable exercise of his discretion. Although the waiver of his initial counsel of choice was not explicit, I am satisfied the implicit waiver was clear, reasonable andinformed. The burden of proof of a s. 10(

b) violation, rests with the applicant (accused). The accused did not give evidence at the Voir Dire. Having regard to all the circumstances I do not find a s.10(

b) violation has been proven. 2. Was there reasonable probable grounds for the arresting officer to demand the accused provide a breath sample and,if not, is this a violation of s. 8? The town of Flin Flon, Manitoba is a town of approximately 5,500 people. The town straddles the border with Saskatchewan in thenorthwestern part of the province. Indeed approximately 300 inhabitants of the town live on the Saskatchewan side of the border. Noplace in Flin Flon is very far from another within the town boundaries.

The McDonald’s restaurant and “drive-thru” facility lies at the eastern edge of the city nearby the PTH #10 entrance into Flin Flon. It ispart of a complex of “big box” stores at the eastern end of town that include a Wal Mart store, an Extra Foods store and a Canadian Tirestore. The “drive thru” is a series of curved approaches with intersecting entrance and exit lanes that lead to an order window allocatedto McDonald’s in the west side of the Wal-Mart store. I have already reviewed the relevant evidence. It was conceded by the officers they took no notice of the driving of the accused.

Thesignificance of this is revealed in the evidence of Cst. Plaetinck at page 23 of the transcript of evidence line 2 – 32. “THE WITNESS: -- Your Honour, can I say something?

THE COURT: You can answer the question that was put and elaborate as you see fit. THE WITNESS: At that point, for the driving evidence, I don’t know whether you’ve ever been through the McDonald’s drive- thru but it’s, its quite unique, I guess you could say. I guess you could – the element of doubt, whether or not somebody is impaired through there. It is very windy so at that point I – that’s – did not have any driving evidence. BY MR. BAUMAN: Q. Thank you, Officer. So my – I’ve never – well I shouldn’t say that.

I think I drove there – through by mistake once but my recollection of that is it is a windy drive-isn’t it? And there’s, there’s cement curbs on each side of the driveway? A. Yes. Q. Okay. And how high would those curbs be? Would you say about eight inches or so? A. I would say, yeah, probably half a foot, eight inches. Q. Yeah. Okay. Six to eight inches? All right. And so it takes a bit of skill to navigate through the windy, narrow drive- thru, doesn’t it? A. I think that is fair to say. Q. Yeah. Okay. And you didn’t see any problems with the vehicle that you – that Mr.

Rutherford was operating through that windy driveway, did you? A. No. “ The testimony of the officer Plaetinck leads to the conclusion that the fact that they followed the accused through the drive- thru and did not notice any difficulties is significant. The drive-thru represents a significant test of driving and co-ordination skills, by all accounts. Cst. Rachul evidence is somewhat more circumspect on this point. He recalls the accused already being at the order window when Police entered the drive-thru and then only proceeding 25 meters to the waiting area. I accept Cst.

Plaetinck’s evidence respecting the opportunity the Police had to observe the driving of the accused as it is considerably more detailed than that of Cst. Rachul. The officer’s were advised by an employee of McDonald’s that he or she believed the accused was impaired. Little detail was offered about what specific observations where made, but certainly the information supported the Police conducting an investigation. When they did approach Mr. Rutherford and questioned him, Cst. Plaetinck concluded he had grounds, based on a reasonable suspicion to believe, Mr.

Rutherford had consumed alcohol to have him attend back to the Police vehicle to provide a breath sample in the ASD device. Observations of the accused made by Cst. Plaetinck at the time of initial contact with Mr. Rutherford were as follows: - a strong odour of liquor on his breath; - fumbling with his license,

- slurred or unclear speech; - poor balance (wide stance) After Mr. Rutherford was in the Police car, Cst. Plaetinck said he noted dilated pupils. Cst. Rachul only noted unclear speech and a strong odour of alcohol. Both officers opined he was intoxicated. Five unsuccessful attempts to provide a sample suitable for the ASD by the accused were followed by a demand to provide a sample ofbreath into a breathalyzer. In considering whether there were reasonable grounds to make the demand, the totality of the circumstances must be taken into account.

The observations of inexperienced officers as to the physical indicia constitute the entirety of the grounds. Both officers agree that therewas a strong odour of liquor. Cst. Plaetinck observed fumbling by the accused with his license, but agreed on cross examination that theinterior of the accused’s car was dark illuminated by the officer’s flashlight and that accused exhibited no difficulty getting hisregistration from the car’s glove compartment. Although both officer’s claimed the accused slurred his words, or in Cst. Rachul’s casespoke unclearly, no such observation was made by Cst. Guest. Cst.

Guest is a police officer with six years experience, who conversedwith the accused in preparation for the Breathalyzer test. His observations were only that the accused had glossy eyes and was polite. Cst. Plaetinck’s observation that the accused had poor balance in making his way back to the police car, and had a “wide stance”, isblunted by the fact that Cst.

Plaetinck made no note of the accused having any difficulties making his way from the police car into thedetachment for the eventual breath test a distance that one would expect to be considerably greater than the distance from the accused carto the police car. As to the assertion of both officers that the accused was intoxicated although that observation deserves some weight,that weight is lessened by the relative inexperience of both officers. In R v.Wyryha, 252 Man.

R. (2(d) 190 Giesbrecht PJ after noting a list of indicia cited by the investigating officer addressed the issuerelevant factors to considered in assessing reasonable and probable grounds. “ [37] The evidence that was known to Constable Lariviere prior to his arrest of the accused that can be considered indetermining whether his grounds were justifiable from an objective point of view is the following: • Glossy or watery eyes that were a bit bloodshot; • Wobbling and stumbling a bit while walking about 10 feet to the front of the truck; • A smell of liquor on his breath; • Asking the police officer to give him a break and let him call a cab and go home. [38] While each of these observations may be explained by something other than impairment, nevertheless, Constable Lariviere wasentitled to consider the cumulative impact of these circumstances in forming his opinion of the accused’s condition.

Moreover, I alsotake into account that Constable Lariviere is a very experienced police officer who has over the course of his lengthy career no doubtdealt with hundreds if not thousands of impaired drivers. [39] There are, however, other relevant factors that should also be considered. When looking at the totality of the circumstancesknown to the officer, those factors that are inconsistent with impairment cannot be disregarded but must also be taken into account.

Inassessing reasonable and probable grounds all information known by the police officer must be considered; an officer is only entitled todisregard that which he has good reason to believe is unreliable: Chartier v. A.G. Quebec reflex, (1979), (SCC), 48C.C.C. (2d) 34 (S.C.C.). [40] While the officers did not indicate how long they observed the vehicle before it was flagged over, it is clear that there wasnothing unusual or inappropriate about the manner of driving by the accused prior to stopping. There is no suggestion of any speeding,swerving, or any other type of erratic driving.

In fact, both officers testified that the vehicle stopped without any problem. Clearly there

is no requirement that there must be some erratic driving in order to conclude that there are reasonable grounds to believe that a driver isimpaired. However, the presence or absence of such driving evidence will usually be a significant factor to consider in this regard. Itis fair to conclude that where there is no evidence of any unusual driving, the other observations relied on in support of the opinionbecome much more important.” (Emphasis is mine). Cst.

Plaetinck’s testimony was that there was no evidence of questionable driving indeed, and on the contrary, there is evidence ofdriving by the accused that would require considerable skill. This evidence weighs strongly against a finding that an objective analysisof the evidence supports the officer’s subjective believe there were reasonable and probable grounds to make the demand in this case. A breath demand and, more particularly, a breathalyzer test are warrantless searches. The onus of establishing reasonable grounds restswith the Crown.

On the totality of the evidence I am not satisfied that reasonable grounds existed to make a breathalyzer demand in thecircumstances. I find that the s.8 Charter right of the accused was violated. 3. Was there a violation of s 10(

b) of the Charter by not allowing the accused an opportunity to “instruct counsel withoutdelay”? In R v. Bartle , (1994) (SCC), 92 C.C.C. (3d)353 (S.C.C.) the Supreme Court set out the three fundamental s. 10(b)duties of state authorities when dealing with detainees: 1. Inform him or her of their right to counsel; 2. give them a reasonable opportunity to exercise that right; and 3. curtail questioning until the reasonable opportunity has ceased. In this case it is clear that the officer’s advised the accused of his right to consult counsel, in a timely fashion.

The issue is the timelinessof the actual opportunity to consult counsel. There are legitimate concerns with actions taken by the officers in getting the accused to thedetachment, where he could contact a lawyer. As noted, the location where the accused was arrested was no more than five minutesfrom the RCMP Detachment. A female who was arrested at the McDonald drive-thru after the accused, was given telephone access to alawyer prior to Mr. Rutherford being given such access. A number of reasons for delay were cited including (

a) the delay in administering the unsuccessful ASD tests, (

b) difficulties with theaccused’s passenger Mr. Hersman (

c) that the officers were waiting for a tow truck, and (

d) the subsequent incident involving the femaleat the McDonald’s drive-thru. The unsuccessful ASD tests were completed, and the accused arrested and given the breath demand by 1:59 AM this accounted for only16 minutes of delay from the initial contact. As to the difficulties with Mr. Hersman, the accused’s passenger, those difficulties werehandled by Cst. Rachul and Mr. Hersman eventually went his own way without significant difficulty.

With respect to the tow truck, no explanation was given why one of the officers could not have remained behind to await its arrival whilethe other officer transported the accused to the Detachment. It is noteworthy that Cst. Weeda had transported the female accused fromthe McDonald’s drive thru to the detachment without assistance and prior to any tow truck arriving. Lastly, the incident with the female driver was largely handled by Cst. Weeda and she was transported prior to Mr. Rutherford althoughhe had been detained by police well before she was detained.

To compound matters, after the RCMP officers transported Mr. Rutherford to the Detachment he was required to wait while the femaleaccused spoke to her counsel in the one telephone room at the detachment. This is despite the fact that an interview room whichcontained a telephone was available. The accused could have been monitored by police through a camera contained in the room withsound function muted. The reasons given for not making it available to the accused are not reasonable or acceptable. The Court is concerned that so little urgency was shown in getting the accused to a phone to consult with counsel.

Indeed although hewas arrested at 1:59 AM the accused was not transported from the scene until 2:35 AM and then he waited a further 29 minutes at theDetachment until he was able to get to a phone to attempt to contact counsel. No evidence was obtained during the time that the accused was awaiting the opportunity to speak to counsel, however I find that hisright under s. 10(

b) of the Charter to “instruct counsel without delay” was violated. The seriousness of the breach and the impact of thebreach on the accused will be addressed in the 24(2) analysis. 4. Was there a failure to have the breath sample taken “as soon as practicable after the time when the offence was alleged tohave been committed” as contemplated by s. 258(1)(c)(ii) and if so does this failure constitute an unreasonable search and seizureunder s. 8 of the Charter?

The nature of and the reasons for the delay from the time of the initial detention until the accused was given an opportunity to consultwith counsel have already been addressed. Mr. Rutherford was attempting to contact counsel or was in the process of speaking to counselfrom 2:54 AM until he completed speaking to counsel at 3:18 AM. For some reason, the breathalyzer technician, Cst. Guest was notadvised that the accused had spoken to his lawyer and was prepared to provide a sample until 3:33 AM. By this time, Cst. Guest wasconducting breath tests with the female accused arrested after Mr. Rutherford.

By the time Cst. Guest dealt with the female accused andexplained how to provide a test to Mr. Rutherford, it was 3:57 AM before the first breath sample was taken from Mr. Rutherford. Thiswas some 2 hours and 14 minutes after he was first detained by Police and 1hour and 58 minutes after his arrest. Counsel for the defence argues that the breath sample was not taken as soon as practicable. In analyzing the delay up until the time Mr.Rutherford spoke to counsel, I have already made clear that there was a lack of urgency and delay that does not have a satisfactoryexplanation. Nothing that happened after Mr.

Rutherford had a chance to speak to counsel ameliorates the situation for the Crown. Mr.Rutherford did not take an unreasonable period of time to speak to his counsel. There is no explanation of why Cst. Guest was not toldthat Mr. Rutherford was now prepared to provide a sample of his breath directly after he spoke to his lawyer and indeed why there was a15 minute delay in doing so. Although details respecting the effluxion of time are important it is not proper for the Court to decide the issue on the basis of ex postfacto micro-examination. Justice Rosenberg of the Ontario Court of Appeal in R v.

Vanderbruggen (2006), (ON CA),206 C.C.C. (3d) 489 put it as follows: “In deciding whether the samples were taken as soon as practicable, the trial judge should look at the whole chain of events bearing inmind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “as soonas practicable” requirement must be applied with reason.

In particular, while the Crown is obliged to demonstrate that – in all thecircumstances- the samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailedexplanation of every minute the accused is in custody” In R v. McCorriston 2009 MBQB 7 , 235 Man R. (2d) 141 Scurfield J. dealt with a similar set of circumstances and addressedthe issue of what “as soon as practicable” means. In that case there was an overall delay of 89 minutes. 41 minutes of the delay wasattributable to the police officer’s decision to wait for a tow truck for the accused‘s car.

The evidence indicated that the vehicle had beenpulled off the roadway and did not constitute a danger to other vehicles and that there was no substantial concern for theft or vandalism. The primary reason for the wait was police policy. Justice Scurfield concluded his analysis: “There is no evidence that the delay was generated by specific circumstances, or that the delay flows from the exercise of reasonablejudgment by the police officer. Consequently, it was not reasonable to sit at the scene for 41 minutes. That conclusion is supported bythe further unexplained delay of 14 minutes at the RCMP Detachment.

Taken as a whole, I have concluded that the breathalyzer test was not administered “forthwith or as soon as practicable”.

Justice Scurfield ruled the Crown was not entitled to rely on the certificate of analysis in its prosecution of McCorriston and entered anacquittal. The decision in McCorriston predated the decision of the Manitoba Court of Appeal in R v. Forsythe (J.R.), 2009 MBCA 123 .In Forsythe the Court of Appeal made clear that a finding that a breath test that was not taken as soon as practicable did not result inautomatic exclusion of that evidence in a prosecution for operation a motor vehicle over .08. The only proper approach is for anapplication to be made to exclude the evidence pursuant to the Charter.

In the case at Bar an application has been made under s. 8 and s.24(2) of the Charter. Here the Police awaited the arrival of a tow truck for some 31 minutes after the arrest of Mr. Rutherford when he could have been takendirectly to the Detachment. The accused was then subjected, needlessly, to further delay at the RCMP detachment in giving him anopportunity to speak to a lawyer. There was then more delay in getting him to the breathalyzer room for testing.

Although the arrest ofthe female accused at the scene and his processing at the detachment provides some explanation for delay, the fact that there were twoPolice officers waiting along with Mr. Rutherford at the McDonald’s drive thru when one officer could have easily stayed behind toawait the tow truck while the other transported the accused, as was done with the female accused, is inexplicable.

The fact that theaccused had to wait 19 minutes to phone a lawyer while the “phone room” was being used by the female accused when in fact aperfectly serviceable interview room with a phone was available is likewise inexplicable. The delay of 15 minutes in advising thebreathalyzer technician that the accused was ready to take his breath test remains unexplained. The first breath test was taken more that two hours after the last time Mr. Rutherford operated or controlled any motor vehicle.

Hencethe Crown is not able to rely on the evidentiary presumption concerning the information in the certificate of analysis allowed for in s.258 of the Criminal Code. Having regard to all the circumstances I find that the at the breath sample was not taken “as soon as practicable” and that the taking of asample in such delayed circumstances constitutes an unreasonable search and seizure and violates s. 8 of the Charter of Rights andfreedoms.

If there has been a violation of one or more of the provisions of the Charter of Rights, as alleged, should the evidence contained inthe certificate of analysis be excluded pursuant to s. 24(2) of the Charter? In assessing whether evidence should be excluded under s. 24(2) the Court must apply the three step test set down by the Supreme Courtin R v. Grant 2009 SCC 245 C.C.C. (3d) 1. First, how serious is the state’s Charter infringing conduct?

In answering this question the Court has to bear in mind that the more serious the conduct the more likely it is to undermine theconfidence of the public in the system as a whole. Although extenuating circumstances and “good faith” on the part of the police willreduce the need for the Court to disassociate itself from police conduct.

The Supreme Court went onto make it clear in Grant that ”ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with goodfaith” (Paragraph 75) In the present case the Police did not act maliciously but they did not act diligently in ensuring that the necessary grounds existed tomake a demand for a breath sample and showed a distinct lack of urgency or diligence in ensuring the accused had an opportunity tospeak to a lawyer in a reasonable period of time or that his breath sample was taken as soon as practicable.

The multifaceted nature ofthe breaches also goes to the serious of the Charter infringing state conduct and I find that the breaches, as a whole, are of a seriousnature. The court then must determine what the impact of the breaches is on the Charter protected rights of the accused. Although a denial of theright to consult with counsel without delay is by its nature considered serious by the court, in the case at Bar the impact on the Charterprotected interests of the accused was not great.

Prior to his contacting counsel, the officers did not seek to elicit any information fromhim which would have prejudiced his right to silence under s. 7 Charter. Also no searches or seizures were conducted prior to hisconsultation with counsel On the other hand being required to provide a breath sample in the absence reasonable and probable grounds for the demand has asignificant impact on the Charter protected rights of the accused. Although it is true that the nature of the seizure of breath is minimally

intrusive, compared to other forms of search, there is an expectation of privacy and certain loss of dignity accompanies the procedure. The same observations apply when the seizure of breath samples do not occur as soon as practicable. The fairness of the proceedings is brought into question when breaches of this nature occur. The court must then assess the breaches in the light of society’s interest in an adjudication of the case on its merits. One issue that must be addressed under this heading is the reliability of the evidence that was obtained as a result of the breach.

In this case, the evidence is a Certificate of Analysis setting out the blood alcohol level of the accused at the time his breath samples were taken. Normally such evidence is seen as very reliable. The Criminal Code allows for the evidence to be admitted by way of a Certificate without requiring further evidence to be called by the Crown on the issue of blood alcohol concentration. In the case at Bar however, the reliability of the evidence is diminished by delay in having the accused provide his sample.

Unlike most cases of this ilk, the Crown here is not entitled to rely on the presumption contained in s. 258(1) (

c) of the Criminal Code due to the fact that more than two hours went by between the time of the alleged offence and the first breath sample being taken. The very fact that such time limits are contained in the Criminal Code reflect the fact that Parliament recognized that the reliability of such sampling is diminished with the undue passage of time. An assessment of the reliability of the evidence must, as a result, take account of that legislative reality. In addition to reliability, the Court must take account of the importance of the evidence to the Crown’s case.

In the case at Bar the exclusion of the evidence contained in the Certificate would be very damaging to the Crown’s case respecting the charge of operating a motor vehicle with a blood alcohol level over 80 milligrams in 100 milliliters of blood. However, it would have no effect on the related charge of impaired driving arising out of the same set of facts. Hence society’s interest, in a practical way, is substantially satisfied by the continued prosecution of the charge under s. 253 (

a) of the Criminal Code . Another consideration for the Court to ponder is the seriousness of the charge. There is no doubt that operating a motor vehicle over.08 is a serious charge with serious implications for the safety of citizens throughout the country. In this case the Crown has proceeded summarily and there is no evidence of erratic driving, personal injury or property damage.

As is emphasized by the Supreme Court in Grant , the Court has to be careful in not placing too much emphasis on seriousness of the charge for fear that the court losses sight of the focus of s. 24(2) which is preserving the long term repute of the administration of Justice.

The seriousness of the accumulated breaches and their impact on the accused require, despite the interest society may have on adjudication on the merits, that I find, after balancing the enumerated factors, the evidence contained in the Certificate of Analysis filed as Exhibit “A” in these proceedings should be excluded from evidence pursuant to s. 24(2) of the Charter of Rights and Freedoms. ________________________ PJ