Her Majesty the Queen - v. -, 2014 SKPC 209

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 209 Date: December 15, 2014 Information: 90004472 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Rodney Vernon Stafford Appearing: Mr. C. Fehr For the Crown Mr. J. Korpan For the Accused DECISION ON CHARTER VOIR DIRE & TRIAL M. HINDS , J

INTRODUCTION [ 1 ] Rodney Stafford is charged with driving while his blood alcohol concentration exceeded the legal limit, contrary to section 253(1) (

b) of the Criminal Code . The charge arises out of a vehicle stop conducted in the city of Regina by Constable Curtis Warnar of the Regina Police Service on November 8, 2013. [ 2 ] The Crown ’ s case against Mr. Stafford relies upon the results of breath samples obtained by the police. Mr. Stafford takes the position that during the investigation police violated his rights under sections 8, 9 and 10(

b) of the Charter and that as a result, the Court should exclude the Certificate of a Qualified Technician from evidence. [ 3 ] At the onset of the trial, the Court entered into a voir dire in order to determine whether the Certificate of a Qualified Technician should be entered into evidence. There were two witnesses: Constable Warnar and the accused, Mr. Stafford. At the conclusion of the Charter voir dire counsel for the Crown and for Mr. Stafford indicated no further evidence would be called at the trial, regardless of my ruling on the Charter issues.

Counsel also agreed that any admissible evidence from the voir dire could be applied to the trial. [ 4 ] In this case I have determined that there was a breach of Mr. Stafford’s

section 9 Charter right. I did not find a breach of Mr. Stafford’s

section 8 or 10(

b) Charter rights. I embarked upon the section 24(2) analysis set out by the Supreme Court of Canada in R v Grant , 2009 SCC 32 , [2009] SCJ No 32 and found that the Certificate of Qualified Technician should be admitted into evidence at the trial. As a result, I find the accused guilty of the offence before the Court. FACTS [ 5 ] At 9:29 p.m. on November 8, 2013, Constable Warnar overheard a police dispatch regarding a possible impaired driver proceeding eastbound on Victoria Avenue in Regina.

The suspect vehicle was said to be a white Lexus which was being driven somewhat erratically and did not have its lights on. Constable Warnar located this vehicle and stopped it near the intersection of Victoria Avenue and Prince of Wales Drive at 9:37:40 p.m. [ 6 ] Constable Warnar approached Mr. Stafford, who was the driver. No one else was in the vehicle. At 9:37:53 Constable Warnar asked for Mr. Stafford’s vehicle registration. Mr. Stafford indicated he was driving a rental vehicle. Constable Stafford also asked Mr. Stafford why he didn’t have any lights on. Mr.

Stafford responded “Oh, I don’t know.” Constable Warnar testified that he smelled the odour of alcohol coming from the vehicle. He asked Mr. Stafford if he had been drinking, to which Mr. Stafford replied that he had consumed one beer about an hour prior. At 9:38:25 Constable Warnar said “we’re just gonna come back to the car and do a quick roadside test, and as long as you’re being honest we’re good to go.” [ 7 ] Constable Warnar escorted Mr. Stafford to the front of his unmarked patrol car, and performed a quick pat-down search of Mr. Stafford. He then placed Mr.

Stafford in the back of the vehicle at 9:38:52 p.m. Between 9:39:24 and 9:41:35 (2 minutes and 11 seconds) Constable Warnar spoke to Mr. Stafford and made some notes. During this time he asked Mr. Stafford where he was from, where he was headed, where he was staying and who he rented his vehicle from. At 9:41:36 Constable Warnar asked Mr. Stafford whether he had ever blown into a roadside screening device. He said he had not. [ 8 ] At 9:42:04 p.m., Constable Warnar made a “formal” demand for Mr. Stafford to provide a sample of his breath into the approved screening device (ASD).

This was read from his police-issued card. He then provided instructions on how to blow into the ASD. At 9:42:45 Mr. Stafford revised the amount of alcohol he had consumed. He told Constable Stafford that he had a beer and a glass of wine. [ 9 ] Shortly after reading the formal demand, Constable Warnar inserted a mouthpiece into the ASD (Alcotest 7410 GLC) which turns the device on. Constable Warnar explained that the ASD then does a “cycle” or self test to ensure it is operating within its normal parameters and is capable of accepting a proper breath sample. A cycle usually takes 15 to 30 seconds.

Constable Warnar testified that

over the next two minutes he observed that the ASD would power on, but it would keep cycling. Eventually the ASD turned off and he observed a low battery warning which meant the unit is not fit for service. Once Constable Warnar realized that he needed a new ASD, he sent out a computer message to other police officers. At 9:45:09 he also radioed for a new ASD machine.

Corporal Verbeek replied at 9:45:15 and said he was close by and was on his way to Constable Warner. [ 10 ] Constable Warnar testified that it is the usual practice at Regina Police Services to test ASD’s at the beginning of the shift when officers receive them from an equipment man. He testified that he had followed this practice that evening, and that the ASD assigned to him was working at the police station. He further testified that he had not used the ASD assigned to him earlier that evening. [ 11 ] Constable Warnar believed that Corporal Verbeek would arrive on scene with another ASD shortly.

Indeed, Corporal Verbeek arrived at 9:50:53 p.m., a little over five minutes after the two officers talked on the radio. Once on scene, the two officers spoke for just under a minute about what had occurred. Constable Warnar told Corporal Verbeek that this never happened to him before and that he had no explanation why his ASD was not working properly. Mr. Stafford blew into the second ASD at 9:52:07 p.m., which resulted in a “fail” reading.

A “fail” reading signifies that the individual providing the breath sample has a blood alcohol concentration which exceeds 100 milligrams in 100 millilitres of blood. [ 12 ] After the fail result on the ASD, Mr. Stafford was arrested, read his Charter rights, and provided with a police caution. Mr. Stafford told Constable Warnar that he understood his Charter rights, he did not want to speak to a lawyer and that he understood the police warning. [ 13 ] Constable Warnar arranged for Mr. Stafford ’ s vehicle to be towed, gathered some basic information about Mr.

Stafford, and departed towards the police station shortly after 10:00 p.m. They arrived at 10:12 p.m. Prior to providing a first breath sample into the Intoxilyzer EC/IR II (breath instrument) , Mr. Stafford was observed for a period of ten minutes beginning at 10:13 p.m. [ 14 ] The first breath sample was obtained from Mr. Stafford at 10:33 p.m. The second breath sample was obtained at 10:53 p.m. Mr. Stafford was arrested and charged under s. 253(1) (

b) of the Criminal Code . [ 15 ] Overall I found Constable Warnar to be a reliable and credible witness. The only point of fact which is seriously disputed is whether Constable Warnar actually checked the ASD at the beginning of his shift. I find that he did check the ASD at the beginning of his shift and he found it to be working. I am of the view that Exhibit P-2, the in-car video, reveals that when Constable Warnar was speaking to Corporal Verbeek he appeared to be genuinely surprised that his ASD was not working.

Additionally I am of the view that the practice of testing the ASD at the beginning of a shift is a reasonable practice to ensure that it is operational. [ 16 ] Mr. Stafford also testified on the Charter voir dire . Mr. Stafford resides in Edmonton, Alberta. Mr. Stafford loves his grandmother who was his primary caregiver as a young child. His grandmother now has dementia. On November 8, 2013, he visited his grandmother at a nursing home in Lumsden, Saskatchewan. Mr.

Stafford testified the visit with his grandmother was a very trying experience for him as he observed that his grandmother was behaving much differently than the woman he once knew. Mr. Stafford subsequently went to see an aunt who lives in Regina Beach. During the visit with his aunt, Mr. Stafford had two drinks of Kraken (a black rum) which were not measured. He subsequently drove his rental car to Regina. He had a business cell phone and a personal cell phone with him in his rental car when he was stopped by Constable Warnar. Both were in working condition that night.

Neither of his cell phones were made available to him in the back of the police vehicle. Mr. Stafford testified that he did not recall being read or advised of his right to a lawyer while in the police car. He says this occurred at the police station. Mr. Stafford testified that if he had been given a chance to phone someone from the back of the police vehicle, he would have contacted Vince Ashmeade who is said to be a police officer with the Saskatoon City Police. [ 17 ] Mr. Stafford presented as a very sincere man, who was quite shaken from his visit with his grandmother.

He testified that when he was stopped by Constable Warnar he was quite nervous and down-played what he had to drink earlier that day. While I believe much of what Mr. Stafford had to say, I prefer the evidence of Constable Warnar over his regarding receiving his Charter rights in the back of the police car.

ISSUES 1. There are several issues that have been raised by the Crown and defence. Essentially, the question comes down to whether therequirements of s. 254(2) were met. I will address the issues as follows:

a) Did the officer fail to make the breath demand promptly, leading to a violation of the accused’s Charter rights?

b) Did the officer fail to take the breath samples forthwith, leading to a violation of the accused’s Charter rights?

c) If there was a violation of the accused’s Charter rights, should the evidence of the Certificate of Qualified Technician be excluded asper s. 24(2)? LAW [18] Section 254(2) of the Criminal Code allows a peace officer to make an ASD breath demand in circumstances where s/he has reasonable grounds to suspect that the subject of the demand has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle.

Section 254(2)indicates that the ASD demand must be made as soon as the police officer has reasonable grounds to suspect that the driver has alcoholin his or her body: R v Makelki, 2014 SKPC 177 at para 35 [Makelki]. Once the breath demand is made the subject is required to providea breath sample into an ASD forthwith. When the requirements of section 254(2) are met, a lawful ASD demand has been made.

Whenan ASD results in a failure reading, this inevitably leads to a demand under section 254(3) of the Criminal Code. [19] Section 254(3) of the Criminal Code allows a peace officer to make an approved instrument or evidentiary breath demand in circumstances where he/she has reasonable grounds to believe the subject of the demand has committed a driving-related offence within the preceding three hours. The demand must be made as soon aspracticable, and must require the subject to provide breath samples into an approved instrument as soon as practicable.

When therequirements of section 254(3) are met, a lawful approved instrument demand has been made. [20] In Makelki at paras. 23 and 25, my brother Judge Kalmakoff explains the ramifications of unlawful demands under sections 254(2)and (3): [23] If the ASD demand is not lawful, then (

i) a breath sample obtained in connection with it is an unlawful search and seizure, whichviolates

section 8 of the Charter; (ii) the detention necessary to obtain the breath samples is arbitrary, and violates

section 9 of theCharter, and (iii) the accused’s rights under

section 10(

b) are not suspended during the period of detention, and obtaining breath sampleswithout informing the accused of, and implementing, the right to counsel violates

section 10(

b) of the Charter: R v Thomsen, (SCC), [1988] 1 SCR 640; R v Grant, (SCC), [1991] 3 SCR 139. . . . [25] For the same reasons mentioned above, if the demand for evidentiary breath samples did not comply with section 254(3) of theCriminal Code, then Ms.

Makelki’s rights under sections 8 and 9 of the Charter would be violated. [21] The meaning of the phrase “reasonable grounds to suspect” and “reasonable grounds to believe” has been considered in a number of cases. [22] In R v Kang-Brown, 2008 SCC 18 , [2008] 1 SCR 456 at para 75, the Supreme Court of Canada held that reasonablesuspicion means, “something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds”. [23] In R v Chehil, 2013 SCC 49, the Supreme Court of Canada held as follows: (1) “Reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in

objective facts” but “reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime” (para. 27).

(2) According to the Court the standard, “ derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny ” (para. 26).

(3) In assessing whether or not this threshold is m et, a reviewing court must have regard to the “ totality of the circumstances ” . The assessment, “ must be fact-based, flexible, and grounded in common sense and practical, everyday experience ” (para. 29). ANALYSIS 1) When did the officer make the ASD demand of the accused? [ 24 ] There is some issue as to whether Constable Warnar made the ASD demand of Mr.

Stafford shortly after stopping him at 9:38:25 p.m. or about four minutes later at 9:42:04 p.m., Constable Warnar read a demand from a police-issued card. [ 25 ] In R v Torsney, 2007 ONCA 67 at para 6 , 217 CCC (3d) 571 , the Ontario Court of Appeal held that an ASD demand “ need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample of his or her breath forthwith.

This can be accomplished through words or conduct, including the ‘ tenor [of the officer ’ s] discussion with the accused. ’ ” [ 26 ] This decision was quoted with favour by the Saskatchewan Queen ’ s Bench in Meyer , 2007 SKQB 428 , 68 MVR (5 th ) 33 . In that case, the arresting officer said “ you ’ ll have to come back to make a screening device test. ” [ 27 ] In this case, I am of the view that Constable Warnar made an ASD demand of Mr. Stafford at 9:38:25 p.m. when Constable Warnar testified that he told Mr.

Stafford “ we ’ re just gonna come back to the car and do a quick roadside test, and as long as you ’ re being honest we ’ re good to go ” . I find that was a sufficient and valid ASD demand. Constable Warnar did not give Mr. Stafford any indication that the roadside test was optional, and it was clear from the circumstances that the test would be done right away. 2) At the time of making the ASD demand did the officer have reasonable grounds to suspect that the accused had alcohol in his body? [ 28 ] At 9:38:25 p.m. Constable Warnar had gathered the following information:

(1) Police Communications advised him that a possible impaired driver was driving eastbound on Victoria Avenue in a white Lexus motor vehicle. The vehicle was reported to be driving erratically and the headlights on this vehicle were not turned on.

(2) He saw a vehicle matching this description proceeding eastbound on Victoria Avenue. He stopped this vehicle. The sole occupant of this vehicle was the driver Mr. Stafford.

(3) He smelled the odour of alcohol coming from the vehicle. He asked Mr. Stafford i f he had been drinking, to which Mr. Stafford replied that he had consumed one beer about an hour prior. [ 29 ] Given the totality of the circumstances as described above, I am of the view that at 9:38:25 pm Constable Warnar had reasonable grounds to suspec t that the driver of the white Lexus, Mr. Stafford, had alcohol in his body. I find there is no violation of

section 8 of the Charter. 3) Was the ASD breath sample taken forthwith?

[ 30 ] I have determined that the ASD demand was made at 9:38:25 p.m. Over seven minutes later, at 9:45:20 p.m., Constable Warnar realized that his ASD device was not working and radioed for another. Nearly an additional seven minutes passed before a second ASD arrived on scene and was put to use. Mr. Stafford blew into the second ASD at 9:52:07 p.m., which resulted in a “ fail ” reading. Constable Warnar advised Mr. Stafford of his Char ter rights (to legal counsel) commencing at 9:55:44. [ 31 ] The length of time between the ASD breath demand and the time when the breath sample from Mr.

Stafford was taken is approximately 14 minutes. The time between the ASD breath demand and the time when Mr. Stafford was informed of his right to counsel is 17 minutes and 44 seconds. [ 32 ] Mr. Stafford has argued that these time peri ods are excessive. In particular, Mr. Stafford takes the position that the length of time between the ASD breath demand and the taking of the ASD breath sample was a violation of his s. 9 Charter rights, and the length of time between the ASD breath dema nd and his right to counsel was a violation of his s. 10(

b) Charter rights. As to the s. 10(

b) argument, Mr. Stafford emphasizes that there were two working cell phones in his vehicle, and suggests that these could have been used to contact counsel had Mr . Stafford been given his s. 10(

b) rights sooner. [ 33 ] In Anderson , 2014 SKCA 32 at para 31 , 433 Sask R 255 [ Anderson ] , the Court of Appeal held that the so-called “ forthwith window ” , being the time within which the police officer must require a driver to provide a breath sample begins when the police officer develops a reasonable suspicion that the accused has alcohol in their body. In Anderson , Mr.

Justice Whitmore went on to f ind that the immediacy requirement in s. 254(2) necessitates the courts to consider five criteria as set out by the Ontario Court of Appeal in R v Quansah , 2012 ONCA 123 at paras 45-49 , 286 CCC (3d) 307 : 45. First, the analysis of the forthwith or immedi acy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights. 46.

Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion. 47. Third, "forthwith" connotes a prompt demand and an immediate response, a lthough in unusual circumstances a more flexible

interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to dis charge his or her duty as contemplated by s. 254(2). 48. Fourth, the immediacy requirement must take into account all the circu mstances.

These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably neces sary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement. 49.

Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(

b) rights before requiring the sample. If so, the "forthwith" criterion is not met. [emp hasis added] [ 34 ] In my view this case turns on the fourth element, which requires this Court to consider whether the immediacy requirement was met considering all the circumstances, and the fifth element, whether the detainee ’ s s. 10(

b) rights could have been implemented before the sample was taken. Taking Into Account all the Circumstances, was the Immediacy Requirement Met? [ 35 ] In Anderson , the ASD device took a significant amount of time to warm up. This resulted in a delay of approximately 16 minutes. The Court found that the delay was reasonable because there was no evidence as to how much time would normally be required to warm up the ASD, and the trial judge had found that it was reasonable. This demonstrates that it is not so much the length of time that is in issue but the reason for the delay.

[36] In this case, the officer formed his reasonable suspicion at 9:38:25. I am of the view that there were no unreasonable delays fromthe time when Constable Warnar formed the suspicion and the time that Mr. Stafford entered the police vehicle. The only event thatcould constitute a delay was a period of a few seconds in which Constable Warnar performed a quick search of Mr. Stafford and asked ifhe had any guns or knives on him.

While Constable Warnar did not specifically articulate that this was for officer safety, this was clearlythe reason for this slight delay. [37] The defence has pointed to an unreasonable delay related to unnecessary questions asked of Mr. Stafford by Constable Warnar afterhe got into the police vehicle with Mr. Stafford. These include questions as to where he’s living, where he’s staying, where he rented hisvehicle from, and so on. In addition, the defence points to an unreasonable delay being a silent period shortly after Mr. Stafford entersthe police vehicle.

During this time, Constable Warnar testified that he was making some notes. The defence argues that this did notneed to be done at this stage and no harm could have come from waiting a few minutes to make his notes. [38] I find that Constable Warnar spent approximately 2 minutes and 11 seconds asking questions of Mr. Stafford and making notesprior to making a formal ASD demand of him. These questions were mainly unnecessary at that stage.

Their relevance to theinvestigation is questionable, and to the extent that they are relevant, there is no reason why Constable Warnar could not have askedthem a few minutes later. I find this delay was not necessary. [39] The defence has also argued that the conversation that Constable Warnar and Corporal Verbeek had upon Corporal Verbeek’sarrival breached the immediacy requirement. [40] When Corporal Verbeek arrives, he discusses what occurred with Constable Warnar for about a minute, also asking whetherConstable Warnar thinks that there will be an issue with delay.

Constable Warnar begins the ASD test after this conversation. This isnot a particularly long delay. Nonetheless, the test is not how long the delay is but whether the delay was necessary or not. There wasno need to discuss the malfunctioning ASD device at that particular time. I find this delay was also not necessary. [41] I am of the view that these two delays of 2 minutes, 11 second and 1 minute were breaches of the immediacy requirement. Itfollows that I find that Mr.

Stafford was arbitrarily detained and that his Charter rights under s. 9 were violated. [42] For clarity, I do not take issue with the technical problems related to the ASD device. As I have found that Constable Warnar didcheck it at the beginning of his shift, I am satisfied that all that could have been reasonably done was indeed done. Could Mr. Stafford’s s. 10(

b) rights be implemented before the sample was taken? [43] In most circumstances, an individual who is arrested or detained will have the right to counsel, and the right to be informed of thatright under s. 10(

a) and s. 10(b). This does apply to investigative detentions (Suberu, 2009 SCC 33, [2009] 2 SCR 460) but the rule has been modified in the context of investigations into impairment fors. 253 offences.

In Orbanski, 2005 SCC 37, [2005] 2 SCR 3, Charron J., writing for the majority, held that: [52] If a limit on the right to counsel is prescribed during compliance with a s. 254(2) demand for a sample for analysis in the roadsidescreening device, then the limit must necessarily be prescribed during the screening measures preceding the demand, conducted with thevery objective of determining whether there is a reasonable suspicion justifying the demand. [44] The limit on the right to counsel clearly exists even when there is a cell phone immediately available, so long as the ASD device isalso immediately available (R v Bilawey, 2009 SKCA 9, 72 MVR (5th) 47 [Bilawey]). [45] R v George (2004), (ON CA), 187 CCC (3d) 289 (Ont CA), involved an officer who did not have an ASD withhim when he made the demand, and was informed by dispatch that it would take 15-20 minutes for one to arrive.

The officer knew thatthere was a police station very close to where the vehicle had been stopped, but did not inform the accused of his right to counsel. The

Ontario Court of Appeal held that the accused ’ s right to counsel under s. 10(

b) was violated. This decision has been discussed favourably by the Saskatchewan Court of Queen ’ s Bench as recently as 2013 in R v Gulka, 2013 SKQB 363 , 430 Sask R 260 . [ 46 ] R v Villecourt , 2007 ONCJ 162 , 50 MVR (5 th ) 79 , is similar to the case at bar. In that case, an officer made an ASD demand and then discovered that her ASD device had a low battery. She radioed for another one, which arrived relatively quickly. A sample was provided within 15-16 minutes of the original ASD demand.

The Court held that it was unlikely that the right to counsel could have been meaningfully exercised in this time period. [ 47 ] I also note the discussion of the right to counsel by my brother, Kalmakoff J. of this Court in Reid , 2013 SKPC 62 , 419 Sask R 164 . Citing Taylor, 2011 ABQB 534 , 527 AR 173 , he held that the right to counsel requires privacy, which is not necessarily compatible with the use of a cell phone in the back of a police cruiser.

In paragraph 18, he also cites Nelson , 2010 ABCA 349 , 222 CRR (2d) 76 for the fact that the immediacy requirement in s. 10(b) “ does not require that access to counsel be instantaneous. ” [ 48 ] The defence has also argued that there would be no real prejudice to the accused if the police arrived with a proper ASD machine, and had to wait a minute or two for Mr. Stafford to finish his phone call. Simply put, this is not in line with the decision of the Supreme Court of Canada in Woods , 2005 SCC 42 , [2005] 2 SCR 205 .

Here, in para 44, the Court held that the forthwith requirement connotates “ a prompt demand by the peace officer, and an immediate response by the person to whom that demand is addressed. ” [ 49 ] Woods was slightly reworded by the Saskatchewan Court of Appeal in Bilawey , at para 8 , as requiring “ a prompt demand by the peace officer and an immediate response by the detainee, not later, at a time of the detainee ’ s choosing. ” It is clear that the law in Saskatchewan does not allow for the detainee to delay the test of their own volition.

I would also note that this rule is consistent with the third consideration in determining whether a sample is taken forthwith as described in Anderson . [ 50 ] Given the circumstances of this case, I find that it has not been demonstrated that the police could have realistically fulfilled their obligation to implement the detainee ’ s s. 10(

b) rights to contact counsel before obtaining the ASD breath sample. 4) If there was violation of the accused ’ s Charter rights, should the evidence of the Certificate of Qualified Technician be excluded as per s. 24(2)? [ 51 ] As I have found that the ASD demand was performed promptly, the only Charter question under s. 24(2) is whether or not the evidence should be excluded because the demand was not performed forthwith in breach of Mr.

Stafford ’ s right not to be arbitrarily detained. [ 52 ] It is well established that upon finding a violation of a person ’ s Charter rights, the proper avenue to address whether evidence should be excluded under s. 24(2) is found in Grant , 2009 SCC 32 , [2009] 2 SCR 353 .

This test requires that the Court “ assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct... (2) the impact of the breach on the Charter protected interests of the accused...and (3) society's interest in the adjudication of the case on its merits ” : para. 71. [ 53 ] With respect to the first avenue of the inquiry, I must consider the seriousness of the Charter- infringing state conduct.

I am of the view that the seriousness of the Charter breach was neither trivial nor was it serious. [ 54 ] The first delay, when Constable Warnar was asking the accused irrelevant questions, may be seen as showing disregard for Mr. Stafford ’ s Charter rights. However, part of this delay can be attributed to Constable Warnar making some notes. I am sympathetic to the defence ’ s perspective on this, which is that there wouldn ’ t be any harm in waiting a couple of minutes to make those notes.

However, for the purpose of a Grant analysis, a desire to have contemporaneous and accurate notes hardly shows disregard for the rule of law, bad faith on the part of Constable Warnar, or any other serious misconduct.

[ 55 ] The second delay is somewhat less serious. The officers discussed the fact that the machine was not working and made comments to the effect of “ that ’ s never happened to me before. ” In addition, Constable Warnar used part of this time to question whether delay would be an issue, demonstrating awareness of and concern for Mr. Stafford ’ s Charter rights. [ 56 ] With respect to the impact of the breach on the Charter protected interests of the accused, I find the impact was minor.

I have held that the right to counsel was not a feasible option during this delay, so all that remains is a few minutes delay in making small talk with Mr. Stafford, and a delay of under a minute in making small talk with Corporal Verbeek. The breach of Mr. Stafford ’ s rights was not flagrant, and did not seriously undermine Mr. Stafford ’ s interests. [ 57 ] With respect to society ’ s interest in the adjudication of the case on its merits, I find that society ’ s interest is high. The offence is serious.

It does not need to be stated that the operation of a motor vehicle while intoxicated is a social problem in Saskatchewan, often resulting in significant injury or death. As well, the evidence sought to be excluded is highly reliable, although it can be challenged in the trial itself. It is also important to the prosecution of the case ( Grant, para 81 and 83). All of this weighs in favour of inclusion. [ 58 ] Balancing these factors, my view is that the exclusion of this evidence would bring the administration of justice into disrepute. Consequently, the Certificate of Qualified Technician will be admitted.

CONCLUSION [ 59 ] I have determined that there was not a breach of Mr. Stafford ’ s

section 8 Charter rights in that the ASD demand was made when the officer had reasonable grounds to suspect that Mr. Stafford had alcohol in his body and had operated a motor vehicle with the preceding three hours. In addition, I found that there was not a breach of Mr. Stafford ’ s

section 10(

b) Charter right to contact counsel before obtaining the ASD sample. Lastly, I determined that while there was a breach of Mr. Stafford ’ s s. 9 Charter rights in that the ASD test was not performed forthwith, the evidence should not be excluded as per Grant . As such, the Certificate of Qualified Technician will be entered into the trial as evidence. The Certificate reveals that at 10:33 p.m. Mr. Stafford had 130 milligrams of alcohol in 100 millilitres of his blood. An identical blood alcohol reading of 130 was obtained from Mr. Stafford at 10:53 p.m.

On the basis of this evidence coupled with my factual findings set out above, I find the Crown has proved the offence of driving while over .08 beyond a reasonable doubt. ____________________________________ M. Hinds, J