Her Majesty the Queen - v. -, 2011 SKPC 98

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 098 Date: August 17 , 2011 Information: 24358369 Location: Carlyle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Russell Lees Appearing: Bill Burge For the Crown Merv Nidesh, Q.C. For the Accused RULING ON CHARTER APPLICATION J. KALMAKOFF , J [ 1 ] Russell Lees is charged with impaired driving and driving while over .08. [ 2 ] Shortly after 2:00 a.m. on October 5, 2008, Cpl.

Cathy Walter of the Carlyle RCMP was dispatched to the local bar in the town of Arcola, to investigate a theft complaint. [ 3 ] While Cpl. Walter was outside the bar, speaking to two women in relation to that theft complaint, Russell Lees walked out of

[ 3 ] While Cpl. Walter was outside the bar, speaking to two women in relation to that theft complaint, Russell Lees walked out of the bar and past her, showing signs of alcohol consumption which were significant enough to attract Cpl. Walter’s attention. She watched Mr. Lees get into his vehicle, start it up, and drive away. Concerned by what she had observed, Cpl. Walter got into her police car and followed Mr. Lees. A short time later, Cpl. Walter caught up to Mr. Lees as he pulled into his driveway. A breath test demand followed, and Mr.

Lees was arrested and transported to the Carlyle RCMP Detachment, where he provided breath samples with readings in excess of the legal limit. [ 4 ] Following the breath testing, Mr. Lees was detained in custody at the Carlyle RCMP Detachment for approximately six hours before being released. [ 5 ] Mr. Lees argues that there have been violations of his rights under sections 7, 8, 9, 10(

b) and 11(

d) of the Charter , and seeks corresponding remedies, including exclusion of evidence and/or a judicial stay of proceedings. ISSUES [ 6 ] The issues raised in this case are as follows:

(1) Was there a violation of Mr. Lees’ right to counsel, as guaranteed by

section 10(

b) of the Charter ;

(2) Did Cpl. Walter lack the requisite reasonable grounds to make a demand for breath samples pursuant to section 254(3) of the Criminal Code , thereby violating Mr. Lees’ rights under

section 8 of the Charter ;

(3) Did Cpl. Walter’s decision to detain Mr. Lees after completing the breath tests violate Mr. Lees’ rights under sections 7, 9 and 11(

d) of the Charter ;

(4) Has the Crown failed to meet its disclosure obligations, thereby violating Mr. Lees’ rights under sections 7 and 11(

d) of the Charter; and

(5) If there has been a violation of Mr. Lees’ rights under the Charter , what is the appropriate remedy? [ 7 ] For reasons that follow, I am not satisfied that any breaches of Mr. Lees’ rights under the Charter have been established. Accordingly, no remedy is warranted, and the results of the breath tests will be admitted as evidence. ANALYSIS

(1) Was there a violation of Mr. Lees ’ right to counsel, as guaranteed by

section 10(

b) of the Charter? [ 8 ] This issue was not addressed in argument. However, since it was raised in the Charter notice, I will rule on it. [ 9 ] I am not satisfied that there has been any breach of Mr. Lees’ right to counsel under

section 10(

b) of the Charter . The only evidence before me on the point is that of Cpl. Walter, and I accept her evidence. I found her to be a credible witness with a good memory of the incident. She was able to recall and relate the important details. She testified that she read the right to counsel information to Mr. Lees from a standard issued card, immediately upon arresting him for impaired driving. That card conveyed all the necessary information, including information relating to the availability of Legal Aid Duty Counsel. [ 10 ] According to her testimony, Mr.

Lees understood the information she read to him at the time of his arrest, and told her he did not want to call a lawyer. When they returned to the Carlyle RCMP Detachment, Mr. Lees was given another opportunity to call a lawyer, this time while in close proximity to a telephone. Again, he declined to do so. [ 11 ] I am satisfied that Mr. Lees waived his right to counsel. No breach of

section 10(

b) of the Charter has been established.

(2) Did Cpl. Walter lack the requisite reasonable grounds to make a demand for breath samples pursuant to section 254(3) of theCriminal Code, thereby violating Mr. Lees’ rights under

section 8 of the Charter? [12]

Section 8 of the Charter protects people from unreasonable search or seizure. [13] A compelled breath sample is a search or seizure within the meaning of

section 8. In this case, it was a warrantless search, soit is prima facie unreasonable, unless the Crown establishes on a balance of probabilities that the search was (

i) authorized by law; (ii)the law is reasonable; and (iii) the manner in which the search was carried out was reasonable. [14] In this case, the reasonableness of the law and the manner of the search are not disputed. The only issue is whether the searchwas authorized by law, or more to the point, whether Cpl. Walter had the requisite reasonable grounds to make a lawful breath demandunder section 254(3) of the Criminal Code. [15] Cpl. Walter initially made a demand for an approved screening device (“ASD”) test pursuant to section 254(2) of theCriminal Code.

Section 254(2) requires only that the officer have a reasonable suspicion regarding the presence of alcohol in thedriver’s body. However, before administering that test, Cpl.

Walter abandoned the ASD demand in favour of the evidentiary breath testdemand pursuant to section 254(3), which requires reasonable grounds to believe that the subject’s ability to drive is impaired. [16] In order to meet the standard for “reasonable grounds” set out in section 254(3), the officer making the demand must honestlybelieve that the accused has recently committed an impaired driving-related offence, and that belief must be objectively reasonable. (SeeR. v. Shepherd, 2009 SCC 35 , [2009] 2 S.C.R 527; R. v. Bernshaw, [1995] 1 S.C.R. 259.) [17] The fact that Cpl.

Walter initially made an ASD demand does not determine whether she had reasonable grounds at the timeof the breath test demand. Cpl. Walter observed Mr. Lees walk out of the bar, past her, and directly to his vehicle, while she wasspeaking to two women and investigating the theft complaint. She noticed that Mr. Lees had glassy eyes, smelled strongly of alcohol,and had difficulty walking. Based on these observations, she was immediately concerned about his ability to drive. As a result, shepromptly cut short the theft investigation and pursued Mr. Lees. [18] Cpl.

Walter clearly had the grounds to make an ASD demand as soon as Mr. Lees got into his vehicle and began to drive. Infact, it is arguable that she may even have had reasonable grounds to make an evidentiary breath test demand under section 254(3) atthat point. However, in the short distance she followed Mr. Lees - five blocks or so - Cpl. Walter did not notice anything unusual abouthis driving actions. Therefore, when she caught up to him, she decided to make an ASD demand instead of an evidentiary breath testdemand. However, immediately after doing that, she made further observations of Mr.

Lees, including the fact that he continued to havedifficulty walking, and that his speech was very slurred. That led Cpl. Walter to believe not only that Mr. Lees had alcohol in his body,but that his ability to drive was impaired by alcohol, and therefore she had grounds for an evidentiary breath test demand pursuant tosection 254(3). [19] I accept Cpl. Walter’s evidence, and I am satisfied that when she decided to make an evidentiary breath test demand on Mr.Lees, she held an honest belief that his ability to drive was impaired by alcohol.

The question is whether that belief was objectivelyreasonable, based on the evidence available to her at that time. [20] Whether reasonable grounds exist is a fact-based exercise dependent on the circumstances of the case. The totality of thecircumstances must be considered. In drinking and driving investigations, police officers must make quick but informed decisions aboutwhether there are reasonable grounds (R. v. Smith (1996), (ON CA), 28 O.R. (3d) 75 (C.A.)). The reasonable groundsstandard, in the context of a breath demand, is not an onerous test (R. v. Wang, 2010 ONCA 435).

[21] The Ontario Court of Appeal’s recent decision in R. v. Bush, 2010 ONCA 554, contains instructive comments in consideringthe reasonable grounds requirement in section 254(3). The decision in Bush distills and organizes the principles laid out in a number ofimportant cases relating to the reasonable grounds issue. Bush was quoted with approval in the recent decision of R. v. Kopperud, 2011SKQB 192.

To paraphrase from paragraphs 36 to 39 of Bush: • Reasonable grounds lies somewhere between reasonable suspicion and proof beyond a reasonable doubt. • Reasonable grounds does not amount to proof beyond a reasonable doubt or even a prima facie case. • Reasonable grounds has both a subjective and an objective component. The subjective component requires the officer to have anhonest belief the suspect committed the offence. This belief must be supported by objective facts.

The objective component is satisfiedwhen a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable grounds forthe arrest or breath test demand. • In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test. It must not be inflated to thecontext of testing trial evidence. Neither must it be so diluted as to threaten individual freedom. • There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds toarrest.

Impairment may be established where the prosecution proves any degree of impairment from slight to great. • Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting onperception or field of vision, reaction or response time, judgment, and regard for the rules of the road. • The test for a lawful breath demand is whether, objectively, there were reasonable grounds to believe the suspect's ability to drive waseven slightly impaired by the consumption of alcohol. [22] In this case, although there was no evidence of erratic driving, Mr.

Lees smelled of alcohol, had difficulty walking, his eyeswere glassy, and he had very slurred speech. As Chief Justice MacPherson noted in R. v. Hopkie (1994), (SK KB),126 Sask. R. 44 (Sask. Q.B.) at paragraph 16: Neither the smell of alcohol nor redness of eyes, together or by themselves, can indicate impairment in the ability to operate a vehicle.

But in combination with a staggering walk, slurring of speech, knowledge of erratic driving, inability to reasonably answer questions, orperhaps any of these things, could give rise to a belief of impairment on reasonable and probable grounds. [23] Furthermore, in R. v. Restau, 2008 SKCA 147, the circumstances and the evidence supporting the officer’s reasonablegrounds for a breath demand were similar to this case. Restau involved no erratic driving. The police observed a person driving awayfrom a drinking establishment, and stopped him.

The accused in Restau was observed to be unsteady on his feet and smelled of alcohol. The officer initially made an ASD demand, but switched to a breath test demand upon noticing slurring of speech and a delayed responseto the ASD demand. The Court of Appeal upheld the trial judge’s finding that there were reasonable grounds for the breath demand,supporting the notion that slurred speech and unsteady walking, taken together with the officer’s other observations, amounted toreasonable grounds. [24] Driving a motor vehicle is a complex task. It requires mental alertness, visual acuity, and physical dexterity.

It demands thata driver be sufficiently attentive to recognize continuously changing conditions and situations, and make appropriate adjustments. Impairment of any mental or physical faculties diminishes a person’s ability to drive. [25] Cpl. Walter observed deficits in Mr. Lees’ coordination when he left the bar; he was having difficulty walking. He smelled ofalcohol. When Mr. Lees left the bar, he walked directly past Cpl.

Walter, a uniformed police officer, and either did not notice her or,having noticed her, made the decision to get into his vehicle in that condition and drive a distance that he could easily have walked (lessthan five blocks). Moments later, he was observed to display very slurred speech. Taking all of those observations into account, I amsatisfied that it was reasonable for Cpl. Walter to conclude that Mr. Lees’ slurred speech was a sign that he was significantly affected byalcohol. It was reasonable for her to believe, based on those observations, that alcohol was hindering Mr. Lees’ ability to drive.

Thesymptoms Cpl. Walter observed in Mr. Lees evinced a loss of physical dexterity, reduced visual acuity, reduced mental alertness andreduced attentiveness. The combination of those factors would impair his ability to drive. It was not the only possible belief that Cpl.Walter could have formed based on the set of observations she made, but in the circumstances, it was a reasonable belief.

[26] Putting all of that together, I am satisfied that, at the time she made the breath demand, Cpl. Walter honestly believed that Mr.Lees’ ability to operate a motor vehicle was impaired by alcohol, and that her belief was objectively reasonable. [27] No violation of Mr. Lees’ rights under

section 8 has been established.

(3) Did Cpl. Walter’s decision to detain Mr. Lees after completing the breath tests violate Mr. Lees’ rights under sections 7, 9 and 11(d)of the Charter? [28] After the breath testing procedure had been completed, Mr. Lees remained in custody at the Carlyle RCMP Detachment forapproximately six hours before being released. Mr. Lees’ wife, Cheryl, testified that their eldest daughter, Jessica, who is a licenceddriver, was home at the time Mr. Lees was arrested, and if called upon, would have been able to pick up Mr. Lees from the CarlyleDetachment that morning and take him home. [29] Mr.

Lees argues that his detention in custody following the breath testing procedure was unlawful, and therefore arbitrary,contrary to

section 9 of the Charter. He also argues that the post-breath test detention violated his right to make full answer and defence,contained within

section 7 of the Charter, and the presumption of innocence, contained in

section 11(

d) of the Charter, by depriving himof the opportunity to have persons other than RCMP officers observe him and thus be in a position to provide evidence about hisphysical condition and whether or not his ability to drive was impaired. [30] Mr.

Lees was arrested without warrant, and in such cases, sections 497 and 498 of the Criminal Code require that anindividual be released as soon as practicable upon being issued an appropriate release document. [31] Continued detention of an individual after arrest is justified only if the peace officer dealing with the person believes onreasonable grounds that detention is necessary in the public interest. [32] The public interest includes those factors specifically listed in sections 497 and 498 (i.e. establishing identity, securing orpreserving evidence, preventing the continuation or repetition of the offence or the commission of another offence, ensuring safety ofvictims or witnesses, or ensuring the accused will attend Court), but is not limited to those factors.

The public interest may include, forinstance, continued detention of an individual who is arrested for impaired driving, until that individual is sober or can be picked up by asober person. Such a detention is authorized by

section 497, and does not violate

section 9 of the Charter if the police officer’s actionsin so detaining have a reasoned basis and are not capricious (R. v. Pashovitz (1987), (SK CA), 59 Sask. R. 165 (C.A.);R. v. Williamson (1986), (AB KB), 25 C.C.C. (3d) 139 (Alta. Q.B.)). When detention is necessary in the publicinterest, but not on one of the listed grounds in

section 497 or 498, it is justified if it can be shown that the police acted reasonably in thecircumstances (R. v. Wilcox (12 June 2008), Prince Albert Information #31591420 (Sask. Prov. Ct.); R. v. Pashovitz, supra; R. v. Poletz,2009 SKPC 121 at para. 77). [33] Cpl. Walter testified that she decided to detain Mr.

Lees in cells following the breath tests, as opposed to releasing him, for anumber of reasons. [34] First, his blood alcohol readings were fairly high, and she was concerned about his level of sobriety. [35] Second, he had been argumentative throughout the procedure. [36] Third, and perhaps most significant, she felt that his detention was necessary to prevent continuation or repetition of theoffence. Mr. Lees had been arrested in front of his home. There were a number of vehicles present to which he appeared to have access.Through conversation with Mr. Lees, Cpl.

Walter was aware that he was supposed to be at work later that morning, perhaps as early as7:00 a.m. Mr. Lees had provided a blood alcohol reading of 140 mg/% at 3:02 a.m. Cpl. Walter was concerned that, if released, Mr.

Lees may attempt to drive his vehicle to work while still impaired or while his blood alcohol concentration exceeded the legal limit. [37] Police may be justified in detaining a person who is so intoxicated as to be a danger to him or herself, or to the public, untilthat person is sober, under either sections 497 and 498 or applicable provincial legislation (R. v. Johnstone, 2009 SKPC 133). Thisrequires a critical assessment of the person’s condition by the officer.

While blood alcohol level is certainly a relevant consideration, andin some cases can be the primary consideration, it cannot be the sole determinant of whether someone gets detained; that is too narrow afocus (R. v. Iseler (2004), (ON CA), 190 C.C.C. (3d) 11 (Ont. C.A.)). The officer making the assessment as towhether a person is lodged in cells after breath testing should also consider other things, including whether there was a responsibleperson available to pick up the accused, the accused’s attitude, and the fact that by drinking and driving the accused has recentlyexhibited poor judgment (R. v.

Price, 2010 ONSC 1898). [38] In considering Cpl. Walter’s reasons for detaining Mr. Lees, I accept that she was concerned about Mr. Lees’ level ofsobriety, given his blood alcohol readings and the fact that he was argumentative, however, I am not satisfied that he was so intoxicatedas to justify his detention pursuant to the provisions of The

Summary Offences Procedure Act, S.S. 1990-91, c. S-63.1. Furthermore, hisblood alcohol readings and argumentativeness would not, on their own, justify his detention, especially in light of the fact that there wasa sober adult available - his daughter - to whom Mr. Lees could be released. [39] However, I am satisfied that Cpl. Walter had a legitimate concern that, if released, Mr. Lees may repeat or continue theoffence. Cpl. Walter arrested Mr. Lees in front of his residence. It was apparent to her that there were other vehicles there to which hehad access. I accept that, during the time Cpl.

Walter was dealing with Mr. Lees, he told her that he needed to be at work in themorning. It was reasonable for her to infer that, if released, Mr. Lees may decide to drive to work. It was also reasonable for her to beconcerned that he may well decide to do so at a time when he was still impaired or while his blood alcohol concentration exceeded thelegal limit. [40] It has been argued that Cpl. Walter could have addressed her concerns regarding Mr. Lees driving to work while still underthe influence of alcohol by serving him with a 24-hour licence suspension, rather than detaining him in cells until he was sober.

Thatargument must be assessed in light of the fact that moments prior to being arrested, Mr. Lees chose to drive, rather than walk, the short distance from the bar to his residence, after consuming a significant amount of alcohol. That was an extremely poor decision on his part. In my view, it was reasonable for Cpl. Walter to be concerned that Mr. Lees may make a similar poor decision a few hours later when itwas time for him to go to work, and that a 24 hour licence suspension would not be sufficient to prevent him from driving while underthe influence of alcohol.

I am satisfied that there was a sufficient evidentiary basis supporting Cpl. Walter’s reasonable belief that Mr.Lees’ detention was necessary to prevent the repetition or continuation of this offence or the commission of another offence. [41] Accordingly, I am satisfied that Mr. Lees’ detention in custody after the breath tests was lawful and justified under section497(1.1)(a)(iii) of the Criminal Code. As such, no violation of Mr. Lees’ rights under sections 7, 9 or 11(

d) of the Charter has beenestablished in relation to his post-breath test detention.

(4) Has the Crown failed to meet its disclosure obligations, thereby violating Mr. Lees’ rights under sections 7 and 11(

d) of the Charter? [42] The right to disclosure is a component of the right to make full answer and defence, contained in

section 7 of the Charter. In acriminal prosecution, the Crown has an obligation to disclose all relevant non-privileged material in its possession. Material is relevant,giving rise to the Crown’s disclosure obligation, whenever there is a reasonable possibility that the information it contains will be usefulto the accused in making full answer and defence. This also gives rise to a corresponding constitutional right of the accused person toreceive disclosure. (See R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326; R. v. Chaplin, (SCC), [1995]1 S.C.R. 727; R. v.

Upshaw, 2006 SKCA 124.) The duty to disclose includes the duty to preserve relevant evidence (R. v. Egger, (SCC), [1993] 2 S.C.R. 451; R. v. La, (SCC), [1997] 2 S.C.R. 680). [43] In R. v. Bjelland, 2009 SCC 38 , [2009] 2 S.C.R. 651, Rothstein J. noted, at paragraph 21, that the Crown’s failure todisclose evidence does not, in and of itself, constitute a violation of

section 7. In order to be entitled to a remedy under section 24(1) ofthe Charter, the accused must generally show actual prejudice to his or her right to make full answer and defence. [44] At issue in this case is a videotape recording from the RCMP Detachment in Carlyle which was not disclosed, because it had

been destroyed prior to being specifically requested by the defence. [45] The video recording in question was part of what was described as a “primitive” surveillance system inside the CarlyleDetachment. [46] According to the evidence of Cpl. Walter, which I accept, at the time relevant to this case, video cameras were installed inthree areas of the Carlyle Detachment. Those cameras only took still photos, on a rotating basis, approximately once every two to threeseconds. The images were in black and white, and there was no sound. The images were recorded to a VHS tape, which was recycled orre-used every 60 days.

By the time the videos were requested by the defence in this case, they had already been reused, and theinformation relevant to Mr. Lees’ case had been recorded over. In response to the disclosure request, the RCMP simply advised defencecounsel that no videos existed. There was no mention made that videos had previously existed, but had been recorded over, as perexisting policy. [47] Where relevant evidence which was once in the Crown’s possession is lost or destroyed, and thus no longer available fordisclosure, the Crown is required to explain its absence.

Where the Crown’s explanation satisfies the trial judge that the evidence has notbeen destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. Where the Crown is unable tosatisfy the judge in this regard, it has failed to meet its disclosure obligations, and there is a breach of

section 7 of the Charter. (See R. v.La, supra, paragraph 20.) The remedy for such a breach will depend on a number of factors, including whether the failure to disclose theevidence has an effect on the ability of the accused to make full answer and defence, and whether the conduct of the Crown in failing todisclose violated fundamental principles underlying the community’s sense of decency and fair play and caused prejudice to the integrityof the judicial system. [48] Even where the Crown has satisfactorily explained the circumstances surrounding the loss of missing evidence, in theextraordinary situation where the loss of that evidence is so prejudicial to the right to make full answer and defence that it impairs theability of the accused to receive a fair trial, a stay may be the appropriate remedy (R. v.

La, supra; R. v. Banford, 2010 SKPC 110; R. v.Sheng (2010), 2010 ONCA 296 , 254 C.C.C. (3d) 153 (Ont. C.A.)). [49] In considering whether loss or destruction of evidence has been adequately explained, the Court should analyse thecircumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) tookreasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevancethat the evidence had, or was perceived to have, at the time.

The police cannot be expected to preserve everything that comes into theirhands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach ofthe duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of carefor its preservation that is expected of the police. (See R. v.

La, paragraph 21.) [50] From the description of the videotape in question, I fail to see how the recordings would have assisted the accused in makingfull answer and defence, especially in the circumstances of this case. The video recordings capture only a series of still images, withgaps in between the images, and no sound. They would be of no assistance in assessing the strength or weakness of Cpl. Walter’sevidence relating to the signs of impairment that led her to demand a breath sample from Mr. Lees, or whether his ability to drive wasimpaired.

They would be of no assistance in considering what weight to give to Cpl. Walter’s assessment of whether or not Mr. Leesshould have been detained in custody following the breath tests. They would be of no assistance with respect to the issue of right tocounsel. [51] In my view, R. v. Banford, supra, in which Judge Toth found a disclosure breach and granted a stay of proceedings for failureto preserve and disclose a video recording from a police detachment, is distinguishable. Banford was a case where the video in questionwas a DVD-quality recording, in real time, recording full motion.

It was highly relevant and highly probative. That is not the situationwith the recordings in this case. The video recordings in Mr. Lees’ case were, at best, of marginal relevance and minimal probativevalue. [52] Also distinguishable are the decisions in R. v. Mok, 2000 SKQB 246; R. v. Walker, 2002 SKQB 291; R. v. Forster, 2005SKCA 107; and R. v. Charron, 2011 SKPC 13.

Each of those cases dealt with non-disclosure, loss, or destruction of highly relevantevidence, or disclosure of relevant evidence at a time during the course of the trial, after irrevocable decisions about the conduct of thedefence had already been made. None of those scenarios apply here.

[ 53 ] I also find that the decision in R. v. Fenton , 2011 BCPC 134 is distinguishable on its facts. That case involved the destruction of continuous streaming video evidence, by a police detachment with a policy of retaining such evidence for only 14 days. [ 54 ] There are a number of decisions which support the proposition that failure to disclose video surveillance evidence of the quality in this case (i.e. poor quality or disjointed still photographs) is not a breach of the accused’s

section 7 rights, as the relevance and/or probative value of the evidence is minimal. (See R. v. Fisher, 2009 SKQB 296 ; R. v. McFadden , [2004] O.J. No. 1306 (Ont. C.J.) ) [ 55 ] In the circumstances of this case, I am not satisfied that the failure of the police to preserve the recording in question for more than 60 days constitutes a breach of the Crown’s disclosure obligation.

While the 60 day retention period is arbitrary and questionable, I am satisfied that, in the circumstances of this case, the loss of the evidence has been adequately explained, given the nature of the evidence and its lack of probative value. I am not satisfied that the non-disclosure has prejudiced Mr. Lees ability to make full answer and defence.

(5) If there has been a violation of Mr. Lees ’ rights under the Charter, what is the appropriate remedy? [ 56 ] Having concluded that there were no breaches of Mr. Lees’ rights under sections 7, 8, 9, 10(b), or 11(

d) of the Charter , it is not necessary that I consider the issue of remedy. CONCLUSION [ 57 ] The results of the breath tests are admitted as evidence. The application for a stay of proceedings is dismissed. J. Kalmakoff, J