R. v. Lee Date:, 2011 BCPC 88

Citation: R. v. Lee Date: 20110331 2011 BCPC 0088 File No: 56318 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID HOWARD LEE RULING ON APPLICATION OF THE HONOURABLE JUDGE MACKAY Counsel for the Crown: A.M. Tosso Counsel for the Defendant: G.J. Harris, Q.C. Place of Hearing: Chilliwack , B.C. Date of Hearing: March 31, 2011 Date of Judgment: March 31, 2011 [ 1 ] THE COURT: This is an application by defence to have the breath test results in this case excluded from evidence.

The test that I must consider is that one that is outlined in a trilogy of cases from the Supreme Court of Canada in 2009. The case that is most commonly referred to is R. v. Grant , 2009 SCC 32 [ Grant ] . That case and its companions postulate a threefold test: one, I should consider the seriousness of the breach; two, consider what impact the breach of the Charter had on the accused; and three, what is the societal interest in exclusion versus inclusion. I am summarizing the test significantly. [ 2 ] Mr. Harris has put forward the case of R. v.

Siemens (18 January 2010), Vancouver 194651-1 (P.C.) [ Siemens ] where my brother Judge MacLean dealt with a roughly similar situation; that is, it had to do with an ASD test. In that case, as I understand it, the accused was administered an ASD but it was found to have been objectively unreasonable for the officer to rely on the results for procedural reasons.

Specifically, he did not go through the proper steps to ensure that it was functional. [ 3 ] Here we have a slightly different situation in that the officer testified that he thought that, in his opinion, the unit was functioning properly, but I have expressed and already ruled that I have a reasonable doubt that the test was even administered, based on the testimony of the accused. I, again, underline that I am not making a specific finding that the officer was being untruthful.

It may be that he was mistaken or it may be that his evidence, as best he can remember from that evening, was correct, but the accused has testified to the contrary and I am not in a position to reject his evidence. That is where we are at in terms of distinguishing the Siemens case.

[ 4 ] Ms. Tosso now asks me to look back and consider that the steps that were taken by this officer nevertheless were in good faith and therefore that addresses some of the three steps set out in Grant . [ 5 ] I find I cannot now go back, after I have made my ruling, and find that something I have doubts about even having occurred can be used to establish good faith on the part of an officer. In my view, that would be to pervert the use of the evidence. I cannot accede to that submission with all due respect to Ms. Tosso's able argument. [ 6 ] In my view, the Siemens case is a correct statement of law.

Judge MacLean reviews through the three steps in Grant and applies them to the circumstances in that case. I cannot see any significant difference in the circumstances in that case that would cause me to come to a different conclusion. [ 7 ] First, both in the Siemens case, and in this case respecting Mr. Lee, this amounts to a serious breach. To subject a citizen to a seizure without proper legal grounds existing is an exercise in despotic behaviour. We do not operate our country in that fashion. The police have to abide by the ultimate laws of the land, as we all do.

Liberty is a cherished value in our society that is enshrined and given voice in the Charter , in this case, s. 8. [ 8 ] So it is a serious breach. I agree with Judge MacLean's comments in that regard. [ 9 ] Second, I agree with Judge MacLean's comments that this type of intrusion has a serious or significant impact on an accused person. It is something that is more than fleeting and more than simply a non-intrusive delay visited upon somebody. In this case it caused Mr. Lee to be taken back to the police station and held in custody, albeit not in particularly torturous or sinister circumstances.

In that fashion, his liberty was interfered with. That, in my view, is something more than fleeting, non-intrusive and minor, to use the language that Judge MacLean uses. It amounts to a significant impact. [ 10 ] Third, the societal interest, as pointed out by Judge MacLean and echoed by Mr. Harris here today. Society really has two interests that are somewhat at odds of one another. One is, as Crown has pointed out and typically relies on in s. 24(2) applications: there is a valid societal interest in seeing criminal allegations determined on their merits.

That proposition is undoubtedly true, as true in this case as it is in any other that comes before the court. [ 11 ] But, against this, there is also a valid societal interest in seeing the Charter standards are upheld, that the law is observed in all cases. In this case, I find that the latter societal interest outweighs the former, and therefore, I conclude that, having regard to all the circumstances and consideration of the Grant criteria, that exclusion of the evidence is warranted. _______________________ R.C. MacKay Provincial Court Judge