R. v. Desjardins, 2012 MBPC 6

CITATION: R. v. Desjardins, 2012 MBPC 6 Date: 20120123 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Neil Steen ) for the Crown ) and ) ) ) Shane Desjardins ) Mark Wasyliw, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) January 23, 2012 ) Elliott, P.J. DECISION ON VOIR DIRE [1] Mr. Shane Desjardins is charged that on October 3, 2010 he operated a motor vehicle while his ability to do so was impairedby alcohol and while his blood alcohol level was over the legal limit. [2] The Crown called two witnesses on the voir dire – the arresting officer and the breath test technician.

The defence did notcall evidence. THE ISSUES: [3] Defence had given notice of two Charter issues: 1)

Section 10(a) - that the accused was not “informed promptly of the reasons” for his detention and therefore that theobservations made afterwards - that there was an odour of alcohol emanating from him and that his face was flushed while in the policevehicle - should be excluded under s. 24(2) of the Charter. 2)

Section 8 – that the arresting officer did not possess the reasonable suspicion necessary to make a demand under a s. 254 (2)of the Criminal Code – that she did not have “reasonable grounds to suspect that a person has alcohol or a drug in their body”. As thiswas a warrantless seizure the Crown bears the onus on an evidentiary basis. If there is a breach of s. 8, defence argues that the eventuallyobtained breath alcohol readings should be excluded under s. 24 (2) of the Charter. CASES RELIED ON BY DEFENCE: R. v. Mann, 2004 SCC 52 , [2004] S.C.J. No. 49 (S.C.C.) R. v. Evans, (SCC), [1991] S.C.J. No. 31 (S.C.C.)

R. v. Orbanski, 2005 SCC 37 , [2005] S.C.J. No. 37 (S.C.C.) R. v. Nguyen, 2008 ONCA 49 , [2008] 231 C.C.C. (3d) 541 (ONCA) R. v. Nelson, 2007 ABPC 30 , [2007] A. J. No. 146 (ABPC) R. v. Ibbotson, 2007 ABPC 248 , [2007] A.J. No. 1032 (ABPC) R. v. Clark, [1992] A.J. No. 656 (ABPC) R. v. Koppang, [2007] A.J. No. 288 (ABPC) R. v. Klontz, [2007] ABPC 311 (ABPC) R. v. Andrews, 1996 ABCA 23 , [1996] 104 C.C.C. (3d) 392 (ABCA) R. v. Landes, (SK KB), [1997] S.J. No. 785 (SKQB) R. v. Czarnecki, [2000] M.J. No. 215 (MBQB) R. v. Rasheed, [2009] CarswellOnt 777 (OCJ) R. v. Thompson, [2003] SKPC 56 (SKPC) R. v.

Fetterley, [2004] BCPC 321 (BCPC) R. v. Hemery, [2008] ABPC 209 (ABPC) R. v. Sood, [2005] ABPC 201 (ABPC) R. v. Rodriques, [2005] O.J. No. 1551 (OCJ) R. v. Thulin, [2006] BCPC 261 (BCPC) R. v. Grant, [2009] SCC 32 (SCC) R. v. Haas, (ON CA), [2005] 200 C.C.C. (3d) 81 (OCA) R. v. McCorriston, [2009] MBQB 7 (MBQB) CASES RELIED ON BY CROWN: R. v. Herter, 2007 ABQB 756 , [2008] 7 W.W.R. 751 (Alta. Q.B.) R. v. Lund, 2008 ABCA 373 R. v. Martin, (1998), (BC CA), 52 C.R.R. (2d) 362 R. v. Johnson, 2009 MBQB 281 R. v. Gilroy, (1987), 1987 ABCA 185 , 79 A.R. 318 (Alta. C.A.) R. v. Carson, 2009 ONCA 157 R. v.

Nahorniak, 2010 SKCA 68 , [2010] 11 W.W.R. 210 (Sask. C.A.) R. v. Monteyne, (2008), 2008 SKPC 20 , 312 Sask. R. 242 (Sask. P.C.) R. v. Sawchuk, 2006 ABQB 392 R. v. Daniel, 2004 CarswellAlta 1356 R. v. Kingdon, 2004 ABPC 144 R. v. Sabourin, (1984) (MB CA), 29 Man. R. (2d) 101 (Man. C.A.) R. v. Du, 2009 CarswellOnt 4504 (ONSJ) R. v. Bryce, 2009 CarswellOnt 5167 (ONSJ) R. v. Anderson, 2009 SKQB 378 R. v. Stellato, (SCC), [1994] 2 S.C.R. 478 R. v. Dhaliwal, [2007] B.C.W.L.D. 3995 (B.C.C.A.)

R. v. Bush, 2010 ONCA 554 R. v. MacAulay (1975), (NB CA), 25 C.C.C. (2d) 1 (NBCA) R. v. Bartello, [1997] O.J. No. 2226 (Ont. C.A.) R. v. Deruelle, (SCC), [1992] 2 S.C.R. 663 R. v. Censoni 2001 CarswellOnt 4590 R. v. Tennant, 2009 MBPC 20 R. v. Bernshaw, (SCC), [1995] 3 W.W.R. 457 (S.C.C.) R. v. Squires (2002), (ON CA), 59 O.R. (3d) 765 (Ont. C.A.) R. v. Sullivan, [2009] B.C.W.L.D. 5861 (B.C.S.C.) R. v. Wadden, 2004 CarswellOnt 5197 R. v. Vanderbruggen (2006), (ON CA), 206 C.C.C. (3d) 489 (Ont. C.A.) R. v. Van Der Veen (1988), 1988 ABCA 277 , 44 C.C.C. (3d) 38 (Alta. C.A.) R. v. Letford, (ON CA), [2000] O.J.

No. 4841 (Ont. C.A.) R. v. Harizanov, 2010 ONCJ 422 R. v. King, (SCC), [1962] S.C.R. 746 R. v. Toews, (SCC), [1985] 2 S.C.R. 119 R. v. Rushton, (NS SC), [1964] 1 C.C.C. 382 (N.S.S.C.) R. v. Donald (2010), 2010 SKPC 123 , 363 Sask. R. 195 (SKPC) THE EVIDENCE: [4] On October 3, 2010, Constable C. MacArthur was working as an RCMP officer with the Headingly Traffic Services,patrolling the Perimeter Highway surrounding Winnipeg, Manitoba. At approximately 00:54 hours she had her radar apparatus operatingwhen she clocked a vehicle heading west.

It was traveling at 135 kilometers per hour in a 100 kilometer per hour zone. She activated heremergency lights and pulled over Mr. Desjardins, “the accused”. He had a female passenger. Mr. Desjardins pulled down his windowand Constable MacArthur smelled alcohol in his vehicle, noted that his pupils were enlarged and that his eyes were glassy. She askedhim if he knew why he was stopped and he responded that he knew he was going “too fast”. At 00:56 hours, the officer asked theaccused to come back to her vehicle.

She did not advise him then that she was now embarking on an impaired driving investigation or thereason for his being asked to come back to the vehicle, which was for her to isolate the odour of alcohol. He agreed. On the way to herpolice vehicle Constable MacArthur asked the accused where he was coming from and he told her he was “picking up a friend at thebar”. She asked him if he had had anything to drink. He said “no”. However, once in the police vehicle she noted that she could stillsmell alcohol and that his face was flushed.

Although there had been a previous suspect in an impaired driving case in her vehicle earlierin the evening, Constable MacArthur indicated that that smell had dissipated prior to Mr. Desjardins entering her vehicle. She testifiedthat she “formed a suspicion that alcohol was consumed.” The Crown asked her a question which appeared to be directed at timing. Sheresponded that Mr. Desjardins had said that he was coming from a bar and that she was “positive that he had consumed alcohol”. Shelater testified that when she made the Screening Test demand she would have told Mr.

Desjardins “that I believed that he had alcohol inhis blood”. She indicated that she had been an officer for 21 years and that it was her practice to use those words. (Transcript, p. 11) Shewas not cross-examined on that point. Although somewhat deficient, I conclude that this satisfied the requirement that she believed thatMr. Desjardins presently had alcohol in his blood. [5] At 0059 hours, Constable MacArthur made an ASD demand. The accused agreed to provide a sample. The sample generatedan “F” indicating which led her to believe that he had alcohol in his blood - “an F indicates 100 milligrams”.

She then arrested him forimpaired driving, “because the ASD gives me grounds” and later, because of his “glassy eyes, the smell of alcohol, the enlarged pupils,saying that he was going to the bar, and the ASD fail”. She explained his rights and made a breath demand. At 01:02 hours she read hisCharter right to counsel from her card as well as the police caution and the breath demand. [6] They then waited until just prior to 01:25 for Constable Masi to attend. While waiting, Constable MacArthur completed hernotes and the paperwork for the vehicle tow.

Her evidence was that they would not have left the vehicle on the road for safety or liabilityreasons, as well as the fact that there was a passenger who could not be left alone. After Constable Masi arrived they left the scene. At0137 they arrived at the detachment. The accused had a private call to legal counsel. At 0152 his call was finished and at 0206 or 0207,according to Constable MacArthur, Constable Masi arrived. At 0208 Constable Masi demonstrated the breathalyzer and commenced theobservation period. Readings were received – 110 and 100. The accused was rearrested for drive over .08 at 0251.

He was served withthe certificate and notice of intention to produce. [7] Constable Masi also testified. He had no notes prior to 2:00 a.m. but remembered attending to the accused’s vehicle anddriving the passenger home. He had no memory of waiting for a tow truck. He believed that he arrived back at the detachment at2:00 a.m. His notes start then. He testified that it was his practice to do his own observation and that Constable MacArthur would haveknown that, having worked with him previously.

THE LEGISLATION : The Charter :

Section 10 (a) - “Everyone has the right on arrest or detention…to be informed promptly of the reasons therefor;”

Section 8 – “Everyone has the right to be secure against unreasonable search or seizure.” The Highway Traffic Act (Manitoba) : Peace officer’s authority — driver information 76.1(4) Without limiting the generality of subsection (1), a peace officer may, at any time when a driver is stopped, (

a) require the driver to give his or her name, date of birth and address to the officer; (

b) require the driver to produce his or her licence, and the vehicle’s insurance certificate and registration card and any other document respecting the vehicle that the peace officer considers necessary; (

c) inspect any item produced under clause (b); (

d) request information from the driver about whether and to what extent the driver consumed alcohol or drugs before or while driving; (

e) require the driver to go through a field sobriety test under

section 76.2; (

f) request information from the driver about whether and to what extent the driver is experiencing a physical or mental condition that may affect his or her driving ability; and (

g) inspect the vehicle’s mechanical condition and request information from the driver about it. Peace officer’s authority — passenger information 76.1(5) For the purpose of enforcing any provision of this Act or the regulations, a peace officer may require a vehicle’s passenger to give his or her name, date of birth and address to the officer. No right to counsel 76.1(6) A peace officer is not required to inform a driver or passenger of his or her right to counsel, or to give the driver or passenger the opportunity to consult counsel, before doing anything subsection (4) or (5) authorizes. Peace officer’s authority unaffected 76.1(7) Nothing in this

section limits or negates a peace officer’s authority to request information from a driver or passenger or to make any observations of a driver or passenger that are necessary for the purposes of road safety enforcement. (emphasis mine) S.M. 1989-90, c. 4, s. 3; S.M. 2002, c. 40, s. 6; S.M. 2004, c. 11, s. 3. Peace officer may conduct field sobriety test 76.2(1) On demand, a peace officer may require the driver of a vehicle to go through a field sobriety test if the peace officer reasonably suspects that the driver (

a) has alcohol in his or her body; or (

b) has in his or her body a drug or other substance of a kind or in a quantity that interferes or may interfere with his or her ability to drive. [ 8 ] It is noteworthy that The Highway Traffic Act allows the officer to not only ask about alcohol consumption, but also to make a “observations she deems necessary” for “road safety enforcement”. [ 9 ] Defence provided 22 cases and Crown 37. Other than those from the Supreme Court, most of the decisions filed are from other jurisdictions and, though perhaps persuasive, are not binding.

The only Manitoba Court of Appeal decision provided was Sabourin , a 1984 decision which was factually similar, in that the driver was stopped for speeding and asked to come back to the police vehicle for a screening device test. It does not appear that s. 10(

a) was raised in that case, nor did the Court of Appeal comment on it. Defence argument on s. 10(a) : [ 10 ] Defence cited Mann where (at para. 21 ) the Supreme Court stated,

Section 10 (

a) of the Charter provides that “[e]veryone has a right on arrest or detention to be informed promptly of the reasons therefor”. At a minimum, individuals who are detained for investigative purposes must therefore be advised, and clear and simple language, of the reasons for the detention. [ 11 ] He cited the decision of the Supreme Court in Evans where (at para. 30 ) the Court wrote, When considering whether there has been a breach of s. 10(

a) of the Charter, it is the substance of what the accused can reasonably be

supposed to have understood, rather than the formalism of that precise words used, which must govern. That question is whether whatthe accused was told, viewed reasonably in all circumstances of the case, was sufficient to permit him to make a reasonable decision todecline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b). [12] He cited Nguyen, a decision of the Ontario Court of Appeal, (at paras. 20 and 21) which explained the purpose of the right. Hepointed out that s. 76.1 of The Highway Traffic Act precludes the right to counsel under s. 10(b), but not 10(

a) and thus the policeofficer’s duty to tell the accused, for example, “I smell liquor” and give the driver the opportunity to respond, for example, that someonehad spilled alcohol on him. [13] Defence pointed out paragraph 31 of Orbanski which reads in part, The Crown conceded that Orbanski and Elias were each detained within the meaning of s. 10(

b) of the Charter when pulled over by thepolice. In my view, this concession was well-founded…It may be more readily apparent how being stopped and pulled over by policeamounts to a detention for s. 10 purposes when s. 10(

a) of the Charter is considered. I suspect every motorist would fully expect “to beinformed promptly of the reasons” why he or she is being stopped. [14] Based on Mann and Orbanski, I believe it is therefore clear that the accused was “detained” within the meaning of the Charterwhen he was pulled over. He was, however, pulled over for speeding and that is what he understood. [15] Defence cited Nelson (Tab 5 at para. 65), a decision of the Alberta Provincial Court, “there was a

section 10(

a) violation in thiscase because at no time was the accused informed why he was being asked to step from his vehicle and go back to the police vehicle.Unlike

section 10(

b) there is no lawful suspension of

section 10 (

a) of the Charter”. This case was decided prior to the Alberta Court ofQueen’s Bench decision overturning the Provincial Court decision in Herter. [16] Defence also cited a number of other decisions: Clark, Kopang, and a decision by my sister Judge Stannard in Weik(unreported). In Weik, Judge Stannard found a s. 10(

a) breach. However, in that case, the accused had not been notified of another reasonfor his detention. Also, the evidence of his stumbling was in fact admitted under s. 24(2), albeit only for the purpose of establishing theofficer’s reasonable and probable grounds to arrest for impaired driving. Judge Stannard commented that the officer would have hadsufficient grounds for the ASD without asking the driver to exit the vehicle. There was an acquittal on the impaired.

Observations ofstumbling were ultimately excluded in Nelson. [17] Defence argued that the Herter appellate decision from Alberta fundamentally misinterprets Evans and argues that otherdecisions have done the same. He pointed out that in Evans the suspect knew what jeopardy he was in (paras. 26-31) in a case where theoriginal arrest was for trafficking but there was suspicion of murder. He says that Evans stands only for the proposition that there are nomagic words which must be used by the police as long as the suspect knows why he is being detained.

It is necessary to go back to thewording of s. 10(a), that is, the suspect must be informed promptly of the reasons for his detention. [18] In this case there was no mention of alcohol consumption until after the accused was asked to come back to the police vehicle.As far as he knew the accused was only under investigation for speeding and was not given the opportunity to address the alcohol issue. Crown argument on s. 10(a): [19] The Crown’s position is that there was no breach because the accused can be taken to have known why he was detained.Initially he was pulled over for speeding and he knew that.

He admitted he was going too fast. There was the smell of alcohol in hisvehicle and he should be taken to have known that. When he was walking back to the police vehicle he was asked where he was comingfrom, to which he replied that he had picked up someone at a bar, and was asked whether he had had anything to drink, to which heresponded “no”. Therefore the accused would have or should have known that the detention now had a different purpose. [20] The Crown also argued that a purposive

interpretation of s. 10(

a) would mean that rights are to be provided a time when theycan serve a purpose. He cited McGinnis (1994 Carswell), and Herter, a 2007 case from the Alberta Court Queen’s Bench at paragraphs12–27, where it was deemed appropriate to isolate the driver and the passenger from each other and where the justice decided theaccused could be taken to understand for what he was being investigated. The Crown also cited Nagy from that Court. Since whetherHerter rightly or wrongly interpreted the Supreme Court’s decision in Evans is at the heart of the issue before me, I will quote some ofthe Herter decision: 1. Has the accused’s right under

section 10(

a) to be informed promptly of the reasons for his detention been infringed? a. A Contextual Approach [11] The case before me is one of a number of recent Alberta Provincial Court cases which have adopted a strict, black-letterapproach to the application of

section 10(

a) of the Charter. These cases, dealing exclusively with the investigation of impaired drivers,have held that “unlike

Section 10(

b) there is no lawful suspension of

Section 10(

a) of the Charter” R. v. Nelson 2007 ABPC 30 , (2007), 71 Alta. L. R. (4th) 380, 2007 ABPC 30, para 65. See also R. v. Ibbotson, 2007 ABPC 248 , 2007 ABPC 248; and R. v. Dyer 2007 ABPC 116 , (2007), 74 Alta. L.R. (4th) 383, 2007 ABPC 116. [12] Such a technical

interpretation of

section 10(

a) is at odds with the decision of the Supreme Court of Canada respecting theapplication of

section 10(

b) of the Charter. In R. v. Orbanski, 2005 SCC 37 , [2005] 2 S.C.R. 3, 2005 SCC 37, the SupremeCourt of Canada recognized that the enforcement of prohibitions on drunk driving is difficult because, at para 25: [D]rinking and driving is not in and of itself illegal. It is only driving with an impermissible amount of alcohol in one’s body, or drivingwhen one’s faculties are impaired, that is criminalized.

The line between the permissible and the impermissible is not always easy todiscern, and the necessary screening can only be achieved through “field” enforcement by police officers... [13] Because of the difficulty in screening for impaired drivers, the Supreme Court of Canada recognized that an enforcement

scheme needs to be flexible, at para 47: In more obvious cases of drinking and driving, observation of the driver alone may suffice for effective screening. But one can think ofmany examples in which observation of the driver through the open car window will not be sufficient to enable the officers to draw theline between those drivers with a permissible amount of alcohol in their body and those who have reached the impermissible level. [14] In my view, the Supreme Court of Canada in Orbanski called on the judiciary to be cognizant of the practical difficulties inpolice enforcement of impaired drivers.

Though impaired drivers have the same Charter protection as all other members of Canadiansociety, the

interpretation of their

section 10(

a) right cannot be divorced from the reality of their situation. b. Application of the Law [15] The substance of the right protected under

section 10(

a) of the Charter was considered by the Supreme Court of Canada in thecase of R. v. Evans, (S.C.C.), [1991] 1 S.C.R. 869. Writing for the majority Madam Justice McLachlin, at para. 26, heldthat: The right to be promptly advised of the reason for one’s detention embodied in s.10(

a) of the Charter is founded most fundamentally onthe notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R. v. Kelly reflex, (1985), (ON CA), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424. As Wilson J. stated for the Court in R. v. Black, (S.C.C.),[1989] 2 S.C.R. 138, at pp. 152-3, “[a]n individual can only exercise his s.10(

b) right in a meaningful way if he knows the extent of hisjeopardy”. In interpreting s.10(

a) in a purposive manner, regard must be had to the double rationale underlying the right. And at para 30: When considering whether there has been a breach of s. 10(

a) of the Charter, it is the substance of what the accused can reasonably besupposed to have understood rather than the formalism of the precise words used which must govern. The question is whether what theaccused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision todecline to submit to arrest, or alternatively, to undermine his right to counsel under s.10(b). [21] The Herter decision has been criticized by legal commentator Steve Coughlan who wrote an annotation to the case: With respect, the appeal judge has adopted the wrong approach to interpreting s. 10(

a) in this case. He has consciously asked, inparagraph 14, what s. 10(

a) rights impaired drivers should have. The real question ought to be what rights people who are presumedinnocent have if they are suspected of impaired driving by officers who do not yet have reasonable grounds for that belief. The reasoninghere seems to amounts to “we don’t need to tell you what you’ve done, because you already know”. Applied in other contexts, that seemsobviously wrong. Avoiding it here requires no more of the police than that they in some way indicate that the accused’s possibleimpaired driving is what motivates the request that the accused get out of the car.

Particularly as the purpose of the request was to try toobtain evidence concerning that very offence, meaningful compliance with

section 10(

a) would be preferable. [22] I prefer Mr. Coughlan’s analysis. The Herter decision does not appear to be widely followed, other than in Alberta. [23] I find that the accused was detained from the moment he was pulled over by Constable MacArthur. She initially pulled himover for speeding, and he knew that. Upon smelling an odour of alcohol coming from his vehicle and observing that the accused’s pupilswere enlarged and his eyes were glassy, the officer became suspicious and entered into an impaired driving investigation.

In order toattempt to isolate the odour of alcohol, she asked the accused to accompany her back to her vehicle. She did not “promptly” advise theaccused that the reason for his detention had changed. When she detected that odour the officer should have indicated then that she wasnow suspicious about impaired driving. He could then have told her if he had had alcohol spilled on him recently. She then could haveasked if he would attend to her vehicle to isolate the smell of alcohol.

Given that they were on the busy Perimeter Highway and it wasdark, it was not unreasonable to take him to her vehicle to either further question him about his drinking or “make any observations” ofhim that she deemed “necessary for the purposes of road safety enforcement” (s. 76.1(7) HTA). Therefore I see a s. 10(

a) violation.However, it lasted only seconds. At the time on the way back to his vehicle when she asked him whether he had consumed alcohol hecan be taken to have known that this was now an impaired driving investigation. [24] Having found that there was a breach of s. 10 (a), should the observations subsequently made be excluded under s. 24(2)? Defence argument on s. 24(2) and s. 10(a): [25] Defence quoted Grant at paragraphs 15 to 22 and argues that the Court should take a “generous purposive and contextualapproach” and should rebalance a power imbalance.

He argues that giving less information to a detainee does not address the powerimbalance. He also quoted paragraph 75, where the Supreme Court stated that: “Good faith” on the part of the police will also reduce the need for that court to disassociate itself from the police conduct.

However,ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with goodfaith… it should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified andunredressed because they did not turn out relevant evidence leading to a criminal charge.

In recognition of the need for courts to distancethemselves from this behavior, therefore evidence that the Charter-infringing conduct was part of a pattern of abuse tends to supportexclusion. [26] He argued that the Crown is taking a narrow legislative approach that is too narrow and legalistic. He therefore soughtexclusion of the observation evidence “minor as it is”. Crown argument on s. 24(2) and s. 10: [27] The Crown argued that even if there were a breach of s. 10 it was a very minor one and of very short duration. Then the ASD

demand was given, providing notice under s. 10. Upon failing the ASD, arrest and full Charter rights were immediately provided. This was not serious misconduct from which the Court has to dissociate itself. Analysis under s. 24(2 ): [28] In Grant at paragraph 71 the Supreme Court stated, A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must 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 (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case 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 determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

These concerns, while not precisely tracking the categories of considerations set out in Collins , capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. [29] In looking at the Grant criteria, I find that the Charter -infringing conduct was not serious, its impact on the accused’s interests was not large and that society’s interest in the adjudication of the case on its merits all favour admission of the observation evidence. The observation evidence is therefore admitted.

Defence argument on s. 8 [30] Defence cited the Ontario Court of Appeal decision in Haas , leave to appeal to the Supreme Court of Canada denied. He pointed out that the Crown has the onus to call evidence in regards to the reasonable grounds possessed by the officer. He argued that Constable MacArthur did not smell alcohol coming from the accused personally until he was in the back of the police vehicle, one that had held a previous impaired driving detainee. The officer did not smell liquor on the breath of the accused.

He argued that alcohol could have been spilled on the clothing of the accused and because the accused was never notified that there was an impaired driving investigation going on, would not have been able to explain this to the officer. He cited Sood from the Alberta Provincial Court, at Tab17 of his casebook, paragraph 27 - an Alberta case where the smell of the alcohol coming from the accused’s vehicle was not enough.

In the case before me, the female passenger had been picked up at a bar, and thus may well have smelled of alcohol. [31] He cited Thulin at Tab 19, a situation where the officer was not sure if the smell is coming from the breath or clothing of the accused. This was held not to be enough. At Tabs 16 and 18, Hemery and Rodriques are cases where the smell was not localized to the breath, something which was held to be insufficient. [32] Secondly, the officer must subjectively and objectively believe that alcohol is presently in the body - that is contemporaneous with the demand.

Thompson and Fettterley deal with the contemporaneous that issue. He argued that the officer’s quotes - “suspicion alcohol was consumed”, and “positive in my mind -- he had consumed alcohol” are not sufficient and they do not state a belief that the accused had alcohol in his body at the time of operation of the motor vehicle or no contemporaneous belief. Crown argument on s. 8 : [33] Crown argued that Constable MacArthur had reasonable grounds to suspect the accused had alcohol in his body – he said he was coming from a bar, had flushed face and glassy eyes.

The requisite grounds are less than reasonable and probable grounds to arrest for impaired driving. It is not necessary to smell alcohol on the driver’s breath. Here there was excessive speed, and an odour of alcohol coming from the accused in the police vehicle, where there had been no smell just previously. He cited Nahorniak from the Saskatchewan Court of Appeal which clearly states (at para. 26) that where it is clear that the odour is emanating from the accused the officer was not obliged to sniff various parts of the accused body. He also cited Carson from the Ontario Court of Appeal on that point.

He cited Sawchuk where similar indicia were deemed to be enough by the Alberta Court of Queen’s Bench. He argued that the purpose of the ASD is to be a quick screening device that can be administered at roadside - therefore it would be wrong to require officers to have first sniff each driver’s breath. [34] He argued that the officer’s testimony indicated a contemporaneous belief. Sections 8 and 24(2) : [35] If there is a breach of s. 8, the evidence should be admitted because of the officer’s good faith and the fact that the ultimate breath resu lts are reliable.

Evidence was allowed in, in Anderson , a decision of the Saskatchewan Court of Queen’s Bench, despite a lack of reasonable and probable grounds. Analysis of s. 8 : [36] I believe that the officer did have grounds to make an ASD demand, both subjectively and objectively. She had stopped someone proceeding 35 kilometers an hour over the speed limit in the early morning hours. He had glassy eyes, enlarged pupils and a flushed face. There was an odour of alcohol coming from him. He mentioned coming from a bar, albeit he said he had picked his girlfriend up from there.

Following Nahornaik and Usher ( 2011 BCCA 271 ) I do not believe it was necessary for the officer to smell the accused’s breath. I also do not believe that the officer should have been required to ask the accused if someone had spilled alcohol on him - that he had been drinking. It was, in my view, a permissible inference to have drawn.

As indicated earlier, although somewhat deficient, I believe the officer’s testimony covered the issue of whether she believed he presently had alcohol in his body or, as she testified, “blood”. [37] Having found that the officer had the requisite grounds to make the ASD demand, I find there was no s. 8 breach.

[38] I dismiss the accused’s Charter application. Original signed by Judge J.A. Elliott P.J.