R. v. Robertson, 2012 MBPC 8

CITATION: R. v. Robertson , 2012 MBPC 8 Date: 20120113 IN THE PROVINCIAL COURT OF MANITOBA IN THE MATTER OF: The Criminal Code of Canada BETWEEN Her Majesty the Queen ) Keri Anderson, ) for the Crown ) and ) ) ) Carolyn Mae Robertson ) Saul Simmonds, (Accused) Applicant ) for the (Accused) Applicant ) ) ) Reasons for Decision delivered ) January 13, 2012 ) Guy P.J. DECISION ON VOIR DIRE [ 1 ] Two issues were presented to the Court for adjudication, the first being how R. v. Woods affects an application under s. 24(2) of the Charter and the application of R. v.

Grant , and secondly, after deciding the applicable review, the application of that review to the factual circumstances of this case – whether a breach of s. 8, an admitted delay of 14½ minutes before the administration of the roadside screening device was “forthwith” pursuant to s. 254(2) of the Code . [ 2 ] The issue before the Court on how R. v. Woods affects an application under s. 24(2) of the Charter and the application of R. v. Grant has been dealt with in R. v. Forsythe (J.R.) , 2009 MBCA 123 .

And although the case dealt with s. 254(3) and the issue of “as soon as practicable” in regards to breath samples, the reasoning of Justice Beard of the Manitoba Court of Appeal, in my view, is applicable in this case. [ 3 ] I quote from R. v. Forsythe (paras 21-24): 21 There is another reason to reject the accused's position that the evidence in this case should be excluded without a Charter analysis under s. 24(2). If that position is accepted, there would be different procedures and different principles governing the exclusion of

breathalyzer evidence obtained under s. 254(3) depending on whether the defence motion to exclude related to a lack of reasonable and probable grounds for the demand or the failure to comply with the other requirements of s. 254(3). This would require the defence to make a motion for exclusion under the Charter in the first case, but not in the second, and would result in an analysis under s. 24(2) of the Charter regarding the admissibility of the evidence in the first case, but not in the second.

This would lead to unnecessary confusion and complexity in the law. 22 The question of the effect of differential treatment to determine admissibility for different parts of the breathalyzer scheme was considered and rejected by the Ontario Court of Appeal in Gundy (see para. 29) and Charette . While the court in those cases was dealing with differential treatment between s. 254(3) and the presumptions in ss. 258(1)(

c) and ( g ), the same concerns regarding the avoidance of unnecessary complexity should apply to differential treatment between the various requirements within s. 254(3). As Moldaver J.A. stated in Charette (at para. 45): I am further satisfied that as a matter of policy and sound criminal procedure, the Rilling principle should apply equally to s. 258(1)(

c) as it does to s. 258(1)(g). When one considers the carnage and destruction caused by impaired drivers, I do not think we should be promoting "trial by ambush" in "over 80" trials. .... 23 He also commented as follows regarding the decision that Rilling remains good law, that evidence gathered in contravention of s. 254(3) is not automatically excluded and that the Charter should be the mechanism used to challenge the admissibility of the evidence (at paras. 49-51): In my view, the Charter/non-Charter dichotomy represents a fair and equitable approach.

It achieves a proper balance between the rights of the accused and the interests of society. Under such a regime, accused persons are better off than they were in the immediate aftermath of Rilling , i.e., before the advent of the Charter . In the period from 1975 to 1982, accused persons who acceded to a demand in circumstances where the arresting officer did not have reasonable and probable grounds were left without a remedy. But that changed with the arrival of the Charter . Now accused persons can challenge the admissibility of the test results under s. 8 and seek to exclude those results under s. 24(2).

As for the interests of society, under the proposed regime, the Crown will be alerted to the s. 8 breach and can prepare for it. With the guesswork removed, the trial can then proceed in a more efficient, orderly and less costly fashion. .... 24 General support for the use of the Charter to determine the admissibility of evidence in preference to automatic exclusion is also found in the Supreme Court's recent decision in R. v. Grant , 2009 SCC 32 , 245 C.C.C. (3d) 1 , albeit in that case, the Court was dealing only with a challenge to the admissibility of evidence under the Charter .

In Grant , the court reviewed the

interpretation and application of s. 24(2) of the Charter , and McLachlin C.J.C. and Charron J., for the majority, underlined the importance of undertaking a principled review of all of the relevant facts and factors before determining the admissibility or exclusion of evidence rather than having an automatic exclusion for some types of evidence, in particular conscripted evidence - see, for example, paras. 65, 106-07. They also stated that, even if there has been a breach of the Charter in the taking of a breath sample, that may not result in the exclusion of the evidence.

This further supports the argument that there should not be an automatic exclusion of that evidence in all cases where the requirements of s. 254(3) have not been met. [ 4 ] On this reasoning the 24(2) exclusion of evidence procedure on the basis of the Grant decision will govern. FACTS [ 5 ] On March 21, 2009, Constable Masi of the R.C.M.P., Headingley Traffic Services, was conducting traffic enforcement at the Red River Bridge at 1700 hours. He was monitoring the westbound traffic. There was construction at this location and the speed limit was reduced from 100 kilometres to 70 kilometres per hour.

He was using a speed timing device and at 1905 he observed a westbound vehicle and clocked the vehicle at 94 and 98 kilometres per hour. He gestured for the vehicle to pull over to the shoulder but the vehicle continued westward. He followed the vehicle and the offending vehicle pulled over to the shoulder approximately 500 metres after he tried to flag it down. [ 6 ] A sole female driver was driving the white Chevrolet Cavalier.

The officer informed the driver the reason for stopping her, speeding 98 in a 70 zone, asked her for her driver’s licence and the photo portion confirmed the identity as that of the accused. [ 7 ] The officer returned to his vehicle, wrote up an offence notice for speeding and returned to the accused’s vehicle. When returning to the accused’s vehicle he observed a case of Budweiser beer in the car. The case had been opened and the cans had fallen partially out of the box. So at that point the officer asked the driver if she had consumed any alcohol today and at that time she responded she had had two drinks.

The officer told her she would have to be detained as he wanted to obtain a sample of her breath with an approved screening device (ASD). At 1910 hours the officer brought her back to the police vehicle. Once in the police vehicle the officer noted her name, birthdate, and that there was liquor in the car. He commented that she had two beers and she told him she had four beers. [ 8 ] While in the car the officer observed gum in her mouth which he asked her to discard. He noticed a very dry tongue and an odour of liquor on her breath.

He further inquired about any medical condition and she informed him of a blood condition. The officer asked if she had taken any medication that day and she replied she had taken a baby Aspirin. She advised she did not have asthma and does not require an inhaler. [ 9 ] The demand was made at 1914 hours. She was willing to provide a sample into the ASD. The officer demonstrated how to provide the sample and a sample was provided at 1916 hours and a fail was registered. [ 10 ] These facts were given by the officer from his notes and recollection.

According to his testimony the elapsed time would be from 1905 hours (saw the vehicle) to 1914 hours (demand for ASD made) – nine minutes. However, the officer did not consider a demand was necessary until he observed the case of beer and the accused informed him of having consumed two beers. At 1910 he

requested her to attend his vehicle for the purpose of providing the sample – 1910 hours to 1914 hours – four minutes. [11] As indicated, the

interpretation of “forthwith” involves the time from the officer forming his “reasonable suspicion” which is atthe time that he received the response from the accused as to having had two beers. The prior time is not relevant to the “forthwith”question as demonstrated in the wording of s. 254(2) of the Criminal Code because he did not have a “reasonable suspicion”, withoutwhich he could not make the demand. [12] During cross-examination the officer acknowledged inconsistencies between his evidence and that of the video recorder withrespect to how much time elapsed.

Taking into account the discrepancy the Crown conceded a breach on the basis of the 14-minute delayfrom the point of the demand to the provision of the sample. [13] Counsel for the accused in their argument acknowledge that once in the vehicle two to four minutes elapsed until the recorderwas switched on and the recorder demonstrates 10½ minutes until the breath demand was made – for the purposes of the “forthwith”examination, 14½ minutes will be used. (Part 1 – Statement of Facts, Point 3) SECTION 254(2) [14] Mr. Justice Cory in the case of R. v.

Bernshaw (1994), (SCC), [1995] 1 S.C.R. 254 S.C.C., at paragraphs 20and 21 states as follows: 20 3. Did the Court of Appeal err in law in ruling, contrary to the decision in R. v.

Rilling (1975), (SCC), [1976] 2S.C.R. 183 [[1975] 6 W.W.R. 626], that the results of an analysis of breath samples performed with an approved breathalyzer instrumentare automatically inadmissible in evidence if the Crown has not proved that the officer who made the demand for breath samples hadreasonable and probable grounds as set out in s. 254(3) of the Criminal Code? 21 Section 254(2) of the Criminal Code provides that when a police officer suspects that a driver has alcohol in the body, the officermay demand that the driver provide “forthwith” a sample of breath for a roadside ALERT test.

The question is whether "forthwith"means immediately or whether it may, in certain circumstances, encompass a 15-minute delay. In order to answer this question, it isnecessary to consider both the gravity of the problem caused by drinking and driving and the Criminal Code provisions enacted to meetthat problem. “FORTHWITH” [15] The Saskatchewan Court of Appeal in R. v.

Janzen (2006), 2006 SKCA 111 , 285 Sask.R. 296 (Sask C.A.), stated atparagraph 4: 4 Turning to the first, we note that the leading cases on the issues raised by this ground of appeal stand for the proposition that“forthwith” means without delay, or its equivalent, and demonstrate that the expression without delay is to be taken as meaning withoutunreasonable or unjustified delay": R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640; R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254; R. v. Dewald, (SCC), [1996] 1 S.C.R. 68; and R. v. Woods, 2005 SCC 42 ,[2005] 2 S.C.R. 205. (See, too, R. v.

Ritchie, 2004 SKCA 9 , [2005] 11 W.W.R. 593 (Sask. C.A.). We also note that the casesstand for the additional proposition that, in determining whether a particular roadside screening test has been administered forthwith, it isnecessary to have regard for the circumstances of the case, including the extent of the lapse of time and the reason for it, and to assessthe matter with the following considerations in mind: (

i) the balance between Parliament's objective in combating the evils of drinkingand driving, on the one hand, and the person's constitutional right to be free of unreasonable search or seizure, on the other; and (ii) thefact that a person's constitutional right to consult counsel is suspended upon demand to provide a sample of breath pursuant to section254(4). [16] In the case of R. v. Brittain, 2000 SKQB 242 (Sask. Q.B.), the accused was stopped by police for speeding. She was placed inthe back of the police cruiser and given a ticket for speeding.

While she was in the back of the police cruiser, the police officer detecteda smell of alcohol, and the accused then admitted that she had consumed alcohol. They made an ASD demand, and the test wasadministered approximately 12 minutes after she was stopped. The argument was made that the demand and test were not administeredforthwith. [17] Mr. Justice Gerein, as he then was, stated at paragraph 7: It is argued on behalf of the accused that the demand was unlawful because it was not made when the accused was actually operating thevehicle or had it in her care and control. The

section is drafted in the present tense and it is argued that this mandates that the demand bemore or less contemporaneous with the operation of the vehicle. I am in general agreement with the submission with the proviso thatthere must be some flexibility in its application so as to take into account situations which may arise in the real world. This accords withwhat has been said in several cases. From my reading of the

section and the jurisprudence I consider the correct approach to be this. The

section contemplates the demand tosubmit to a roadside screening test being contemporaneous with the driving or the care and control. However, contemporaneous must beread to include the concept of recent. What is recent will depend on the particular circumstances, but it will be of relatively shortduration. [18] In the Brittain case, the investigation was a continuous one from the time the vehicle was stopped until the accused supplied abreath sample, 12 minutes later.

As a result, the Court had no difficulty in determining that the demand and the test were properlyadministered inside the police vehicle, some 12 minutes after the stop was made. [19] As noted by the number of cases interpreting “forthwith”, the facts of each and every case will be crucial to the

interpretation. [20] I only note Janzen and Brittain to illustrate the proposition that “forthwith” means without delay and without delay is to be

taken as without unreasonable or unjustified delay. The reason for that is clearly explained in R. v. Woods and other cases noting lack ofopportunity for contact with counsel. [21] However, each case will depend on the circumstances of the case, including the extent of the lapse of time and the reason for it. GRANT ANALYSIS [22] The Crown has conceded that a breach under s. 8 of the Charter of Rights and Freedoms in that the evidence did not show thatthe approved screening device was administered forthwith.

The breach was conceded in relation to the approximate 14 minutes whichelapsed inside the police vehicle before the ASD sample was provided. [23] The defence’s statement of facts refers to between two and four minutes before the video was turned on and 10½ minutespassed before the ASD breath demand was made – 14½ minutes. [24] Therefore the Grant analysis will be undertaken as to whether or not a delay of 14½ minutes is sufficient to exclude theevidence under s. 24(2) of the Charter. [25] See R. v. Du, 2009 CarswellOnt 4504 at paragraph 18: 18 In R. v. Grant, [2009] S.C.J. No. 32, [2009] A.C.S.

No. 32, 2009 SCC 32, the Supreme Court of Canada stated at paragraph 71: When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence onsociety's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission maysend the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interestsof the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of thecase on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determinewhether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [26] In R. v. Bryce, 2009 CarswellOnt 5167, Justice Hill states at paragraph 54: 54 The tripartite test respecting s. 24(2) of the Charter, the Collins/Stillman paradigm, (R. v.

Collins, (SCC), [1987] 1S.C.R. 265), has been revised by a more flexible, multi-factored approach described in Grant at para. 67-71 and 86-6: ...To review, the three lines of inquiry identified above - the seriousness of the Charter-infringing state conduct, the impact of the breachon the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits - reflect what the s. 24(2)judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice.

Having made theseinquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, theadmission of the evidence obtained by Charter breach would bring the administration of justice into disrepute. In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck.Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than theStillman self-incrimination test.

We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patternsemerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in futurecases. In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts shouldaccord considerable deference to his or her ultimate determination.

THE SERIOUSNESS OF THE CHARTER-INFRINGING STATE CONDUCT [27] As stated in numerous cases, in assessing the seriousness of the Charter-infringing government conduct, there is a continuumof unconstitutional departures from blameless conduct, through negligent to conduct blatantly disregarding Charter rights.

The moresevere or deliberate the unconstitutional departure the greater the need for the court to disassociate itself from the unlawful conduct so asnot to undermine ongoing public confidence in the administration of justice. [28] Would the actions of Constable Masi in the circumstances of this case undermine the public confidence? What was ConstableMasi doing during the elapsed time of 14½ minutes? According to his evidence he recorded her name, birthdate, that there was liquor inthe car and that she now disclosed four beers.

The officer asked her to discard her gum, noticed there was nothing else inside her mouth,she had a dry tongue and an odour of liquor on her breath. Constable Masi inquired if she had any medical condition and when she saidshe had a blood condition he asked if she had taken her medication that day. The accused replied she took a baby Aspirin, she did nothave asthma and did not require an inhaler.

At 1914 the demand was made and after explaining how to provide the sample, it wasreceived at 1916. [29] I cannot describe the officer’s conduct as egregious or undertaken with deliberate or reckless disregard of the accused’s rights. In my view, there was no bad faith. [30] I certainly reject the suggestion that he was deliberately misleading in his evidence. The officer relied on his notes andendeavoured to explain the video timing discrepancy which, as the evidence indicates, is confusing and unclear. Nevertheless, in myview the 14½ minutes has been explained by his evidence.

On this line of inquiry the admission of the evidence would have little adverseeffect on the repute of the administration of justice held by the public. IMPACT ON THE CHARTER-PROTECTED INTERESTS OF THE ACCUSED [31] The impact, of course, is a fact-specific determination. The more serious the incursion, the greater need for exclusion to avoidthe public concluding that the Charter-related interests of the accused are not important.

[ 32 ] The case law has noted that no significant privacy interest is violated in the circumstances of the detention or breath testing. While not trivial, such ASD testing is minimally intrusive, not demeaning or objectionable. There is a qualified nature of liberty interfered with when a motor vehicle is involved.

SOCIETY’S INTERESTS IN AN ADJUDICATION ON THE MERITS [ 33 ] The Court is obliged to determine what would better serve the truth-seeking function of the criminal trial process – admission or exclusion of the unconstitutionally obtained evidence. [ 34 ] Paragraph 64 of the Bryce case states: 64 The reliability of the unconstitutionally obtained evidence is an important factor in this line of inquiry.

At para. 110-1 of the Grant decision, the court observed: The third line of inquiry - the effect of admitting the evidence on the public interest in having a case adjudicated on its merits - will usually favour admission in cases involving bodily samples. Unlike compelled statements, evidence obtained from the accused's body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission.

While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted.

For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [ 35 ] ASD tests are generally considered reliable evidence and are essential to the prosecutor proving the case. [ 36 ] I note the case law refers to impaired operation of a motor vehicle is a notorious threat to public safety but that the seriousness of the charge should not take on disproportionate significance.

BALANCING THE FACTORS [ 37 ] A proper analysis of s. 24(2) requires a qualitative approach in balancing the factual conclusions reached through the three lines of inquiry identified in Grant . [ 38 ] In my view the breach did not fall in the more serious end of the spectrum. There was no markedly intrusive impact on the accused.

The adjudication of the case on its merits would be impacted by failing to admit the evidence. [ 39 ] On balance, having regard to all the evidence, and the long-term repute of the administration of justice, the accused has failed to demonstrate that the admission of the evidence would bring the administration of justice into disrepute. [ 40 ] The evidence will be admitted. Original signed by Judge J. P. Guy P.J.