R. v. Rempel, 2010 MBPC 27

CITATION: R. v. Rempel , 2010 MBPC 27 Date: 20100422 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) S. Seesahai, ) for the Crown ) and ) ) ) Jeffrey Gordon Rempel ) T. J. Killeen, Accused ) for the Accused ) ) ) Reasons for Decision delivered: ) April 22, 2010 ) ) Corrin, P.J. THE ISSUE [ 1 ] Jeffrey Rempel is charged with impaired driving and driving over .08.

At trial the Crown tendered a Certificate of Analysis as Exhibit A for identification in these proceedings. [ 2 ] The accused submits that the Certificate of Analysis should not be admitted into evidence as his right under s. 8 of the Canadian Charter of Rights and Freedoms to be secure against unreasonable search and seizure was infringed when he was required by police to provide an ASD breath sample in circumstances where there was no reasonable and probable grounds to make such a demand.

In a nutshell, the defence contention is that the product of the ASD demand, a “fail” reading, being taken without reasonable and probable grounds, was in the nature of conscriptive evidence and that such resulting evidence should therefore be excluded as inadmissible. In such circumstances, on the facts of the case, it was argued that the consequent breathalyzer evidence should also be excluded on the basis of a s. 24(2) Charter analysis. THE FACTS [ 3 ] A voir dire was held to determine whether any Charter breach occurred in this case. The Court heard evidence from R.C.M.P.

Officer Joseph Simard on the voir dire . On March 28, 2009 the police witness was patrolling on Highway No. 3 near Oak Bluff, Manitoba. Officer Simard’s vehicle was equipped with a video recorder. Consequently, a DVD of the interaction between Officer Simard and the accused was available as evidence for the purpose of this voir dire . [ 4 ] Constable Simard testified that he pulled the accused’s vehicle over because it had failed to stop when entering the highway from the Oak Bluff Arena parking lot. In reference to the arena, he also indicated that “It was a social occasion and lots of people

drinking at night.” The accused’s vehicle is seen to stop on the shoulder of the road. The video shows that Constable Simard arrived at the driver’s door of the accused’s vehicle at 1:33:03. Almost immediately after that, he asks for the accused’s licence and registration. Literally several seconds later, at 1:33:07, he says words to the effect “You’ll have to come and blow.” He goes on to elaborate that he has noted the smell of alcohol coming from the vehicle and is unable to determine who it is coming from (there were five people in the vehicle).

At this point he states “I’m not a beagle.” Right after the “beagle” remark, Officer Simard asks the accused if he had been drinking that evening. The accused replies that he has consumed two beers. Officer Simard then states words to the effect that the accused is very “deliberate in your actions” in reference to the accused’s retrieval of his registration and licence documentation.

Officer Simard conceded in the course of cross-examination that he had decided that he would make the ASD demand almost immediately after requesting the accused to provide his driver’s licence and registration. [ 5 ] Officer Simard advised the Court that he formulated more grounds for the ASD demand based on a possible indicia of impairment he observed after the accused emerged from his vehicle in response to his instruction to come back to the cruiser and provide an ASD sample. In this regard he advised the Court that he noted that the accused walked with a very straight back.

He further indicated that he could smell alcohol emanating from the person of the accused when he was alone with him in the police car. REASONABLE AND PROBABLE GROUNDS [ 6 ] Section 254(2) (

b) of the Criminal Code provides as follows: If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (

a) and (b), in the case of alcohol:… (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [ 7 ] The threshold test for making such a demand is any evidence of consumption of alcohol alone. There does not have to be anything more, i.e., a police officer only needs reasonable suspicion that the person operating the vehicle has alcohol in their body.

The only legal requirement for the making of an ASD request is that objectively there must exist reasonable grounds for the officer’s belief in this regard. [ 8 ] In the case at bar the only ground cited by the officer as a basis for his early demand was the smell of alcohol emanating from the driver’s window. There were five people in the vehicle. [ 9 ] In R. v.

Bernshaw (1994), 1995 CanLII 150 (SCC) , 95 C.C.C. (3d) 193 (S.C.C.), Sopinka J. for the majority indicated that the breath sample requirement in s. 254(3) that reasonable and probable grounds exist is not only statutory but also a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Charter . This Court is of the view that such reasoning must also pertain to s. 254(2) (b).

As a consequence, noting that the ASD demand was made before Officer Simard actually learned that the accused had been drinking, and at a time when he conceded that he had no idea whether the smell of alcohol was coming from the accused or his passengers, I conclude that the officer’s ASD demand did constitute a s. 8 infringement. SECTION 24(2) CHARTER ANALYSIS RE ADMISSIBILITY OF ASD TEST RESULT [ 10 ] The Manitoba Court of Appeal in R. v. Banman 2008 MBCA 103 (CanLII) , [2008] M.J.

No. 312 observed that Charter analysis involving s. 24(2) of the Charter was required prior to exclusion of breath sample evidence where an investigating officer lacked reasonable and probable grounds for such a demand. This decision makes it very clear that evidence obtained as a result of a Charter breach in this context was not to be excluded automatically and without a s. 24(2) analysis. [ 11 ] In R. v. Grant 2009 SCC 32 (CanLII) , [2009] S.C.J. No. 32; 2009 SCC 32, the Supreme Court of Canada redefines the criteria relevant to admission or exclusion of evidence obtained by a Charter breach.

In so doing the Court reviewed the

interpretation and application of s. 24(2) of the Charter , underlining the importance of undertaking a principled review of all 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.

They clearly state that even if there has been a breach of the Charter in the taking of a breath sample, that may not necessarily result in the exclusion of such evidence. [ 12 ] The test described in Grant requires that a court must assess and balance the effect of admitting the impugned evidence having regard to the following factors: (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. [ 13 ] At the first stage the court must consider the nature of the police conduct that infringed the Charter and led to the discovery of the evidence.

The more severe or deliberate the conduct that led to the Charter violation, the greater the need for the court to disassociate itself from that conduct, by excluding evidence linked to that conduct. This is necessary in order to preserve public confidence in, and ensure state adherence to, the rule of law. [ 14 ] The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right.

The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. [ 15 ] At the third stage, a court must ask whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown’s case are to be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge on a case-by-case basis.

Seriousness of the Violation [ 16 ] In R. v. Buhay (2003), 2003 SCC 30 (CanLII) , 1 S.C.R. 631, Arbour J., writing for the Supreme Court, indicated that the analysis of the seriousness of a Charter violation involves a consideration of several factors.

She wrote in paragraph 52: The seriousness of the police’s conduct depends on “whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, willful or flagrant”….It is also relevant to consider whether the violation was motivated by urgency or necessity…Also pertinent is whether the police officer could have obtained the evidence by other means, thus rendering her or his disregard for the Charter gratuitous and blatant…The court may also look at some or all of the following factors: the obtrusiveness of the search, the individual’s expectation of privacy in the area searched and the existence of reasonable and probable grounds… [ 17 ] The Charter violation in this case was, in my view, relatively minor in nature.

It is the case that the officer should have observed the accused for a longer period of time in order to form his grounds for the ASD demand. However, there is no evidence that the officer violated the accused’s Charter rights in a willful, deliberate or flagrant manner. [ 18 ] I believe that Officer Simard acted in good faith in this case. I am satisfied that he honestly but erroneously believed that the smell of alcohol emanating from the vehicle gave him legal grounds to make the ASD demand of the accused.

Put simply, he was unaware of the applicable law. [ 19 ] Having regard to the minimal intrusiveness of the ASD breath test and taking into account the reduced expectation of privacy motorists have in their vehicles in the context of drinking and driving investigations, I am of the view that the Charter violation in this case is relatively minor in nature. In this regard I make general reference to R. v. Thomsen (1988), 1988 CanLII 73 (SCC) , 1 S.C.R. 640, a case where the Supreme Court expanded police powers with respect to investigative detention in the context of drinking and driving investigations.

Impact on the Charter -Protected Interests of the Accused [ 20 ] This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from merely technical to profoundly intrusive.

The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute (see paragraph 76 of Grant , 2009 SCC 32 ). [ 21 ] To determine the seriousness of the infringement from this perspective, the court must look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests.

The more serious the incursion on involved interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. [ 22 ] It is obvious that in some circumstances an unreasonable search contrary to s. 8 of the Charter may profoundly impact an individual with respect to his or her privacy interests, including affecting their right to human dignity.

An unreasonable search that intrudes on such an area, i.e., one in which an individual reasonably should enjoy a high expectation of privacy, is more serious than one that does not. [ 23 ] Courts have held that the exclusion of breath sample evidence is more, rather than less, likely to bring the administration of justice into disrepute – see R. v. Belnavis (1996), 1996 CanLII 4007 (ON CA) , 107 C.C.C. (3d) 195 (ON CA) at pages 225-226 and 1997 CanLII 320 (SCC) , 118 C.C.C. (3d) 405 (S.C.C.).

The dicta of the majority in Grant at paragraph 111 of the decision is significant in this regard: 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. (emphasis mine) [ 24 ] Although we are dealing with bodily physical evidence in the context of this case, I am unable to conclude that the accused’s reasonable expectation of privacy was seriously infringed. We are talking about a roadside breath sample, not an unjustified strip search or body cavity search. The sample in question could not be used to incriminate the accused with respect to the charges that are before the Court.

They simply provide an objective and scientific basis for further inquiry, i.e., a breathalyzer demand. Even if the ASD breath sample result was inaccurate and/or unreliable, such evidence could not prejudice the accused with respect to the reliability of the breathalyzer evidence. In my view, this consideration weights in favour of admission of the ASD breath sample evidence. [ 25 ] I observe that my analysis in this regard would have differed if there had not been any smell of alcohol coming from the vehicle and the vehicle had not been exiting a social event where alcohol was being consumed.

Society’s Interest in an Adjudication on the Merits [ 26 ] Fair-minded members of society assumably generally expect that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion.

This inquiry reflects society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law (see paragraph 79 in Grant , 2009 SCC 32 ). [ 27 ] My reading of Grant leads me to the conclusion that the fact that evidence is obtained in breach of the Charter may facilitate the discovery of truth and the adjudication of the case on its merits must be weighed against factors pointing to exclusion in order to

“balance the interests of truth with the integrity of the justice system”. The court must therefore ask whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial (see paragraph 82 of Grant , 2009 SCC 32 ). [ 28 ] The importance of evidence to the prosecution’s case is another factor to be considered in this line of inquiry.

The Supreme Court in Grant also warns that the exclusion of highly reliable evidence may have a negative impact on the repute of the administration of justice “where the remedy effectively guts the prosecution” (see paragraph 83 in Grant , 2009 SCC 32 ). [ 29 ] Taking all these factors into consideration, I am of the view that on balance the admission of this evidence is consistent with society’s interest in an adjudication on the merits.

Summary of Factors [ 30 ] This Court has determined that the ASD breath sample obtained in contravention of the Criminal Code is admissible. In review, I am of the view that notwithstanding that the evidence is conscriptive, the admissibility of this type of breath bodily sample is not highly invasive or prejudicial to the interests of the accused. I have also concluded that no significant concerns arise with respect to the accused’s interests of personal privacy, bodily integrity and/or human dignity. I note that the method of “collection” was relatively non-intrusive.

I am also of the view that, having regard for the public policy interest as well as the reduced expectation of privacy that motorists have in their vehicles in the context of drinking and driving investigations, the Charter violation in this case is relatively minor in nature in the context of the bigger picture – public safety. I further observe that the breach appears to have been committed in good faith and that the admission of the evidence in the context of the overall trial appears to have little potential for adverse effect on the repute of the court process.

I do not perceive the violation in question as particularly egregious, nor do I perceive the evidence obtained therefrom to be potentially unreliable. [ 31 ] For the foregoing reasons I admit the results of the ASD demand and the consequent Certificate of Analysis made after the taking of the two breathalyzer samples. The accused has not met the onus of establishing that the admission of the evidence would bring the administration of justice into disrepute. DISPOSITION [ 32 ] Accordingly, the Certificate of Analysis, Exhibit A, will become Exhibit 1 in the trial. Original signed by Judge B. M. Corrin P.J.