Her Majesty the Queen - v. -, 2011 SKPC 1

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 001 Date: January 6, 2011 Information: 24347539 Location: Carnduff _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jeffrey Anderson Appearing: Bill Burge For the Crown David Kreklewich For the Accused JUDGMENT J. KALMAKOFF , J INTRODUCTION [ 1 ] Jeffrey Anderson is charged with driving while over .08. The charge arises out of a vehicle stop conducted by Cst. Gramlich of the Carnduff RCMP on April 17, 2010. Mr. Anderson seeks exclusion of the Certificate of Analyses, alleging violations of his rights under sections 8, 9 and 10(

b) of the Charter . [ 2 ] In addition to the Charter issues raised, Mr. Anderson also argues that the Crown has failed to prove that he was operating a

motor vehicle at the relevant time. I will deal with that argument first. [ 3 ] Cst. Gramlich was the only witness to testify, and was unable to identify Mr. Anderson in Court. In spite of that, I am satisfied beyond a reasonable doubt that Jeffrey Anderson was the driver of the vehicle in question at the relevant time. The evidence is clear that Cst. Gramlich stopped a vehicle and interacted with a driver, who produced a valid Saskatchewan driver’s licence in the name of Jeffrey Anderson. The photo I.D. portion of the licence matched the person in the driver’s seat, who Cst.

Gramlich eventually arrested and remained with through the breath testing procedure. Cst. Gramlich then prepared a Promise to Appear in the name Jeffrey Anderson, and served it on this same person. The Promise to Appear is attached to the Information before the Court, and Jeffrey Anderson has appeared in Court in connection with that Promise to Appear. I am satisfied beyond a reasonable doubt that he is the same person Cst. Gramlich saw in the driver’s seat of the subject vehicle on the night in question. [ 4 ] That being the case, the facts give rise to three issues, which are as follows:

(1) Was Mr. Anderson arbitrarily detained, in violation of his rights under

section 9 of the Charter;

(2) Was there a violation of Mr. Anderson’s rights under sections 8 and 10(

b) of the Charter in relation to the Approved Screening Device demand and test; and

(3) If there were violations of Mr. Anderson’s rights under sections 8, 9 or 10(b), is the remedy of exclusion of evidence warranted? [ 5 ] For reasons that follow, I have concluded that Mr. Anderson’s rights under sections 8, 9 and 10(

b) of the Charter were violated, and that the appropriate remedy is exclusion of the Certificate of Analyses. FACTS [ 6 ] On April 17, 2010, Cst. Gramlich was on duty, conducting routine patrols and traffic safety enforcement in and around the Town of Carnduff. At approximately 12:45 a.m., he observed a westbound vehicle on Highway 18, passing through Carnduff, and decided to follow it. His intention was to stop the vehicle to check for licence, registration, and driver sobriety. Cst. Gramlich observed the vehicle travel west for a short distance along Highway 18, then turn south onto a road known as Fast Lane.

After travelling a short distance along Fast Lane, the vehicle turned west into the yard of a business known as Fast Trucking. Highway 18 and Fast Lane are public highways; the yard of Fast Trucking is private property. Mr. Anderson had a residence in the yard of Fast Trucking as well. [ 7 ] Once the vehicle left Fast Lane and entered the yard of Fast Trucking, Cst. Gramlich activated his emergency lights to bring it to a stop. The vehicle continued west, driving in behind, and pulling around the front of a large building on the lot, before coming to a stop. This all occurred within a minute or two of Cst.

Gramlich initially observing the vehicle and deciding to stop it. [ 8 ] Prior to bringing the vehicle to a stop, Cst. Gramlich observed no driving infractions or any other offences being committed by the vehicle or its occupants. In fact, there was nothing noteworthy at all about the manner in which the vehicle was being driven. Before the stop, Cst. Gramlich had no reason to suspect that the driver may be under the influence of alcohol. There was also nothing which suggested any problem relating to the mechanical fitness of the vehicle. [ 9 ] Once the vehicle stopped, Cst.

Gramlich “queried” the licence plate, and learned that the vehicle was registered to Jeffrey Anderson. Cst. Gramlich then got out of his police car and approached the vehicle. He observed Mr. Anderson in the driver’s seat, smoking a cigarette, and looking somewhat nervous. Cst. Gramlich asked Mr. Anderson for his licence and registration; Mr. Anderson complied. Cst. Gramlich then asked Mr. Anderson if he’d had anything to drink, and received the reply “a couple of beers”. [ 10 ] Cst. Gramlich testified, and I accept, that upon hearing that response, he had a reasonable suspicion that Mr.

Anderson had alcohol in his body, so he instructed Mr. Anderson to accompany him to the police vehicle for the purpose of providing a sample in an Approved Screening Device (“ASD”). Apart from the admission of having consumed beer, Mr. Anderson showed no signs of alcohol

consumption or impairment. [11] Mr. Anderson went with Cst. Gramlich to the police vehicle. Cst. Gramlich searched Mr. Anderson, for safety reasons, thenplaced him in the back seat. Once inside the police car, Cst. Gramlich read the ASD demand at 1:02 a.m. Mr. Anderson indicated thathe understood. At this point, Cst. Gramlich turned on the ASD, and engaged Mr. Anderson in conversation while the ASD warmed up tothe point of being ready to use. [12] Once the ASD was ready for use, Cst. Gramlich instructed Mr. Anderson on how to provide a sample. Mr. Andersoncomplied, and blew a “fail”.

Immediately after this, at 1:18 a.m., Cst. Gramlich made a breath test demand, pursuant to section 254(3) ofthe Criminal Code. He then read Mr. Anderson information regarding rights to counsel and the police warning. Mr. Andersonunderstood, and indicated that he did not wish to call a lawyer. [13] Because there was no breath technician available at the Carnduff Detachment, Mr. Anderson was taken to the Carlyle RCMPDetachment. Once there, Mr. Anderson was again offered the opportunity to call a lawyer, and again declined to do so.

He compliedwith the breath test demand, and provided breath samples at 2:31 a.m. and 2:49 a.m., with readings in excess of the legal limit. ANALYSIS

(1) Was Mr. Anderson arbitrarily detained, in violation of his rights under

section 9 of the Charter? [14]

Section 9 of the Charter guarantees the right of individuals to be free from arbitrary detention or imprisonment. [15] Police do not have authority to stop a vehicle on the basis of a mere possibility that its driver might have offended the law insome fashion unknown to the officer making the stop. Such a stop would clearly violate

section 9 of the Charter, as it would bearbitrary (R. v. Schaeffer, 2005 SKCA 33). In order to comply with the Charter, there must be a basis for the stop, either in the form oflegislative authority, or in the form of articulable cause or reasonable grounds. [16] Random vehicle stops, even when conducted pursuant to traffic safety legislation, violate the principles of

section 9 of theCharter. However, in those cases, they are saved by

section 1 as being reasonably and demonstrably justified, as long as they areconducted for a purpose which relates to driving a car, such as checking for licence and registration, sobriety of the driver, andmechanical fitness of the vehicle (R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257; R. v. Hufsky, (SCC),[1988] 1 S.C.R. 621; R. v. Houben, 2006 SKCA 129; R. v. Schaeffer, supra). Such stops must also be limited in time and scope to thepurpose for which they are permitted (R. v.

Schrenk, 2010 MBCA 38). [17] Random stops for reasons unrelated to highway safety, or conducted outside the scope of legislative authority are not saved bysection 1 of the Charter (R. v. Robichaud, 2002 NBCA 46; R. v. Schaeffer, supra; R. v. Stickney, 2009 SKQB 282). [18]

Section 209.1 of The Traffic Safety Act, S.S. 2004, c. T-18.1, gives police officers the power to stop vehicles at random,request information from the drivers, and investigate driver sobriety. It reads as follows: 209.1(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer: (

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities.

(2) A peace officer may, at any time when a driver is stopped pursuant to subsection (1): (

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

(

b) request information from the driver about whether and to what extent the driver consumed, before or while driving, alcohol or anydrug or other substance that causes the driver to be unable to safely operate a vehicle; and (

c) if the peace officer has reasonable grounds to believe that the driver has consumed alcohol or a drug or another substance that causesthe driver to be unable to safely operate a vehicle, require the driver to undergo a field sobriety test.

(3) No person in charge of or operating a motor vehicle shall, when signalled or requested to stop by a peace officer pursuant tosubsection (1), fail to immediately bring the vehicle to a safe stop.

(4) No person in charge of or operating a motor vehicle shall fail, when requested by a peace officer, to comply with the requests of apeace officer pursuant to subsection (2). [19] In Houben, supra, the Saskatchewan Court of Appeal noted that the predecessor to

section 209.1 of The Traffic Safety Act(section 40(8) of The Highway Traffic Act), while saving otherwise arbitrary detention under

section 1 of the Charter, did not create ageneral power for police to detain motorists. [65] While the police officer acting under s. 40(8) need not have “reasonable grounds to detain,” it must be the police officer’s intentionto be proceeding to satisfy the aims of that statute as articulated in such authorities as Mellenthin.

The police officer need not sayexpressly to himself or herself that he or she is proceeding to exercise the authority under s. 40(8), or testify to this express effect, but thetrier of fact must be able to conclude on the basis of the evidence that the police officer was checking for "sobriety, licences, ownership,insurance and the mechanical fitness of cars." In sum, s. 40(8) cannot be used to create a general power of detention for investigativepurposes. [66] The Supreme Court in Ladouceur and Mellenthin did not justify the equivalent of s. 40(8) as a reasonable limit under s. 1 of theCharter on the basis of creating a general power of detention.

We have not been presented with any reason to expand the power of policestops beyond that articulated in those cases. [67] If a police officer has a suspicion that a driver is involved in criminal activity, unrelated to traffic enforcement, such that he or shewould like to stop a motor vehicle, the suspicion must meet the test in Mann. [68] If the law were otherwise and a police officer could stop a motor vehicle for a mere suspicion short of "reasonable grounds todetain," and then say that he or she had been exercising the power under s. 40(8) simply because that power exists, all stops couldbecome those to check out suspicious activity.

The police officer could stop anyone at any time on the basis of suspicion. At least in thecontext of motor vehicle stops, there would be no reason to have created a power to stop related to "reasonable grounds to detain." [20] Having observed no driving infractions, and having no reason to suspect that Mr. Anderson was involved in criminal activity,or that the mechanical fitness of Mr. Anderson’s vehicle was in issue, Cst. Gramlich’s stop of Mr. Anderson in this case was lawful onlyif it was conducted within the scope of

section 209.1 of The Traffic Safety Act, i.e. checking for licence, registration, or driver sobriety. Iaccept that Cst. Gramlich intended to stop Mr. Anderson’s vehicle for those reasons, and that he formed that intention while Mr.Anderson’s vehicle was travelling on a public highway. However, despite having formed that intention almost immediately upon seeingMr. Anderson’s vehicle, Cst. Gramlich did not take any steps, such as activating his emergency lights, to actually effect the stop until Mr.Anderson left the public highway and began driving in the yard of Fast Trucking. [21]

Section 2(

k) of The Traffic Safety Act defines “highway”, as follows: (k) “highway” means a road, parkway, driveway, square or place designed and intended for or used by the general public for the passageof vehicles, but does not include any area, whether privately or publicly owned, that is primarily intended to be used for the parking ofvehicles and the necessary passageways on that area. [22] Once Mr. Anderson pulled into the lot of Fast Trucking, he was no longer on a highway; he was on private property. Mr.Anderson argues that, as such, Cst. Gramlich could no longer rely on

section 209.1 of The Traffic Safety Act as authority for stoppinghim. He argues that

section 209.1 applies only to vehicles being driven on highways, and not to those being driven on private property. [23] It is clear that police have authority to enter onto private property to make an arrest in situations of hot pursuit (R. v. Macooh, (SCC), [1993] 2 S.C.R. 802). Hot pursuit requires continuous pursuit conducted with reasonable diligence, so thatcommission of the offence, pursuit and capture may be considered as part of a single transaction (R. v. Macooh, supra; R. v. Wadman,

2004 NSPC 15; R. v. Deforest, 2009 SKPC 22). Clearly hot pursuit did not exist in this case. [24] Police officers also have authority to stop drivers on private property, in situations not amounting to hot pursuit, where a trafficinfraction has been observed on the highway, and the officer follows the driver onto private property to continue or complete theinvestigation of that offence (R. v. Restau, 2008 SKQB 17, affirmed on other grounds 2008 SKCA 147; R. v. Arnett, 2005 ABPC 246; R.v. Boughen (2002), 166 O.A.C. 37 (Ont. C.A.); R. v. Vandal, 2009 SKQB 32).

A police officer may also follow a driver onto privateproperty to complete a stop authorized under provincial traffic safety legislation where the stop has been initiated on the highway, andthe vehicle leaves the highway before being stopped (R. v.

Pelletier, 2001 NBBR 180 , 2001 N.B.B.R. 180 (N.B.Q.B.)). [25] I have also reviewed a number of decisions which hold that police do not have authority to enforce statutes similar to TheTraffic Safety Act on private property, absent having observed driving infractions occurring on a public highway, or having some otherreason to suspect the driver of committing an offence requiring investigation prior to the vehicle leaving the highway (R. v. Peel, 2003 NSPC 66; R. v. George, 2004 ONCJ 316; R. v. Eldridge, [1999] N.S.J. No. 513 (P.C.); R. v. Sergalis (2009), 90 M.V.R. (5th) 116 (Ont.S.C.); R. v.

Tresham (1998), (ON SC), 52 C.R.R. (2d) 367 (Ont. S.C.); R. v. Caissie (1999), (NBCA), 138 C.C.C. (3d) 205 (N.B.C.A.)). While each of those cases dealt with slightly different facts and different legislation, theconsistent underlying rationale is that random stops conducted pursuant to such provincial legislation are justified only for purposesdirectly related to highway safety, and are not permissible in relation to unremarkable driving which did not take place on a highway. [26]

Section 209.1 of The Traffic Safety Act does not expressly limit police powers to stopping only those vehicles travelling onhighways. Further, no express provision in The Traffic Safety Act restricts the applicability of the Act, in general, to vehicles travellingon highways. In fact, certain offences can be committed by, or in relation to, vehicles which are not on highways (See ShinkarukEnterprises Ltd. v. The Queen, 2007 SKQB 340; R. v. McCallum (2001), (SK PC), 206 Sask.

R. 11 (P.C.)). [27] That said, the purposes for which random stops are authorized (i.e. checking for licence, registration, and mechanical fitness)generally relate to matters which are of concern only if vehicles are being operated on highways. The Traffic Safety Act makes it anoffence to drive a motor vehicle without a licence or while disqualified (see sections 32 and 140) only if the driving takes place on ahighway.

Vehicle registration and licence plates are only required for lawful operation of vehicles on highways (sections 57 and 192),and vehicles are required to be properly equipped in accordance with regulations only if being operated on a highway (section 113). [28] Checking for driver sobriety is somewhat different. The Criminal Code makes it illegal to drive while impaired by alcohol orwith an impermissible blood alcohol concentration regardless of whether or not the driving takes place on a highway. The Traffic SafetyAct does not expressly restrict police powers to make inquiries regarding alcohol consumption under

section 209.1 to situations of driversoperating vehicles on a highway. The question is whether, despite the absence of such an express restriction,

section 209.1 should belimited to situations involving vehicles which are on a highway at the time they are stopped by the officer. [29] In R. v. Orbanski; R. v. Elias, 2005 SCC 37 , [2005] 2 S.C.R. 3, Chief Justice McLachlin noted that, although policehave authority to check the sobriety of drivers at common law, that power is not without limits. At paragraph 45 she wrote: The scope of justifiable police conduct will not always be defined by express wording found in a statute but, rather, according to thepurpose of the police power in question and by the particular circumstances in which it is exercised.

Hence, it is inevitable that commonlaw principles will need to be invoked to determine the scope of permissible police action under any statute. In this context, it becomesparticularly important to keep in mind that any enforcement scheme must allow sufficient flexibility to be effective.

The police power tocheck for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedmanby that which is “necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of theliberty interfered with and the importance of the public purpose served by the interference.” [30] The authority granted by

section 209.1 of The Traffic Safety Act to stop vehicles and ask questions regarding alcoholconsumption must, in my view, be circumscribed in that way. This is not to say that a driver becomes untouchable and immune frominvestigation and police inquiries by simply breaking the plane of the goal line, so to speak, and crossing onto private property. However, in a situation like the case before me, where no driving offence or traffic infraction has been observed, is being investigated, oreven suspected, and no action is taken by the officer to effect a stop pursuant to

section 209.1 before the vehicle leaves the highway, theofficer cannot continue to pursue the vehicle off the highway onto private property for the purpose of exercising the authority granted bysection 209.1. In such a case, the officer is no longer conducting the stop for purposes relating to traffic safety, and that, in my view,goes beyond the scope of

section 209.1.

[31] I accept that Cst. Gramlich initially formed an intention to stop Mr. Anderson’s vehicle for reasons permitted by

section 209.1of The Traffic Safety Act. However, once Mr. Anderson left the highway and travelled onto private property where his residence waslocated, and Cst. Gramlich had not taken steps to effect the stop despite having the opportunity to do so, it could no longer be said thatCst. Gramlich was acting within the scope of the authority granted by

section 209.1 of The Traffic Safety Act when he stopped Mr.Anderson’s vehicle. I am satisfied on a balance of probabilities that there was a violation of Mr. Anderson’s rights under

section 9 of theCharter. [32] If this were a case where Cst. Gramlich had observed a traffic infraction, a problem with the mechanical fitness of Mr.Anderson’s vehicle, erratic driving, had any reason to suspect Mr. Anderson may have been drinking, or Mr. Anderson had tried to elude,evade, or avoid being stopped by Cst. Gramlich, my conclusion would be different. Similarly, if Cst. Gramlich had taken steps to effectthe traffic stop before Mr. Anderson left the highway, my conclusion would most likely be different. But that is not the case.

(2) Was there a violation of Mr. Anderson’s rights under sections 8 and 10(

b) of the Charter in relation to the Approved ScreeningDevice demand and test? [33]

Section 8 of the Charter protects individuals against unreasonable search or seizure.

Section 10(

b) guarantees that, uponarrest or detention, everyone has the right to retain and instruct counsel without delay, and to be informed of that right.

Section 254(2) ofthe Criminal Code authorizes police officers to demand samples of breath for screening analysis in certain circumstances, while section254(3) authorizes police officers to demand samples of breath for evidentiary analysis in situations where there are reasonable grounds tobelieve a person has committed a drinking and driving related offence. [34] Where a police officer makes a demand for the provision of samples into an Approved Screening Device (“ASD”) undersection 254(2) of the Criminal Code, there is detention. Normally, that triggers the operation of a person’s rights under

section 10(

b) ofthe Charter; however, detention for roadside screening constitutes a reasonable limit on right to counsel, justified under

section 1 of theCharter if the demand meets the requirements of section 254(2) (R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640; R. v.Grant, (SCC), [1991] 3 S.C.R. 139). [35] The provision of breath samples pursuant to demands made under sections 254(2) and (3) of the Criminal Code involvesearch and seizure within the meaning of

section 8 of the Charter. A breath sample is a warrantless search. Warrantless searches areprima facie unreasonable, and are only justified if authorized by law, the law itself is reasonable, and the manner in which the search isconducted is reasonable. [36] It is clear from the evidence that, in the absence of the “fail” reading on the ASD test, Cst. Gramlich would not have had thenecessary grounds under section 254(3) of the Criminal Code to make a demand for evidentiary breath samples. Therefore, the issue inthis case is whether Cst.

Gramlich administered the ASD test in a manner that was authorized by law; i.e., in accordance with therequirements of section 254(2) of the Criminal Code. [37] In order for a demand to meet the requirements of section 254(2), the officer making the demand must have reasonablegrounds to suspect that the subject of the demand has recently been operating or in care or control of a motor vehicle, and has alcohol inhis or her body. Section 254(2) also requires that a sample of breath be taken “forthwith” after the demand is made.

It does not requirethat the demand itself be made forthwith, but it must be made as soon as the police officer has reasonable grounds to suspect that thedriver has alcohol in his or her body. Because of the limit on the right to counsel, time is of the essence where a demand is madepursuant to section 254(2). As Madame Justice Arbour of the Ontario Court of Appeal (as she then was) said in R. v. Pierman, (R. v.Dewald) (1994), (SCC), 19 O.R. (3d) 704 (affirmed by S.C.C. (1996), 103 C.C.C. (3d) 382): This

section contemplates an immediate testing, and therefore it cannot accommodate the exercise of the constitutional right to counsel... [38] “Forthwith” means “immediately” or “without delay”, and connotes a prompt demand by the police and an immediateresponse by the accused. But for this requirement of immediacy, section 254(2) would not pass constitutional muster (R. v. Woods, 2005SCC 42 , [2005] 2 S.C.R. 205).

[39] This does not mean that any delay, no matter how slight, fails the “forthwith” test (See R. v. Giesbrecht (2005), 2005 SKQB314 , 267 Sask. R. 158 (Q.B.)). The Saskatchewan Court of Appeal has interpreted “forthwith” as meaning “withoutunreasonable or unjustified delay” (R. v. Janzen (2006), 2006 SKCA 111 , 285 Sask. R. 296 (C.A.) at para. 4), or “as soon aspossible and before there is any realistic possibility that the subject could successfully contact counsel and get legal advice” (R. v. Ritchie(2004), 2004 SKCA 9 , 241 Sask.

R. 155 (C.A.) at para. 17). [40] “Forthwith” is not defined by a fixed period of time. Determining whether the “forthwith” requirement in section 254(2) hasbeen met is not simply a matter of calculating the number of minutes that have elapsed from the time the accused is stopped until the testis administered. The length of the delay and the reasons for it must be considered in the context of the circumstances of the case.

TheCourt must take into account the need to balance Parliament’s objective in combating the dangers of drinking and driving against theconstitutional right to be free from unreasonable search or seizure and the fact that a person’s right to consult counsel is suspended upona demand for a screening sample pursuant to section 254(2) (See R. v. Janzen, supra, at para. 4). [41] In this case, Cst. Gramlich stopped Mr. Anderson at approximately 12:47 a.m. From that point on, Mr. Anderson wasdetained. The ASD demand was made at 1:02 a.m. Mr.

Anderson blew into the ASD at 1:18 a.m., some 31 minutes after he was firststopped. [42] Between 12:47 a.m. and 1:02 a.m., Cst. Gramlich queried Mr. Anderson’s plate, then attended Mr. Anderson’s vehicle andrequested his licence and registration. He also spoke to Mr. Anderson, and was told that Mr. Anderson had consumed a couple of beers. He then asked Mr. Anderson to come to the police car, searched him, placed him in the back seat of the car, and finally read the ASDdemand. In and of itself, this 15 minute interval may not violate the “forthwith” requirement, as it appears that Cst.

Gramlich wasengaged in the pursuit of legitimate investigative measures. Police officers must act diligently, but it would be improper to require themto act so quickly as to not be able to properly discharge their duties (R. v. Megahy (2008), 2008 ABCA 207 , 233 C.C.C. (3d)142 (Alta. C.A.); See also R. v. Orbanski; R. v. Elias, supra), or put themselves at undue risk of harm. [43] After reading the ASD demand, Cst. Gramlich had to turn on the ASD and allow it to warm up. This meant a further delay of16 minutes, until 1:18 a.m., before Mr. Anderson could blow into the device.

While there is no statutory requirement that a policeofficer have the ASD warmed up and ready for use at the time of making the demand (R. v. Danychuk (2004), (ONCA), 183 C.C.C. (3d) 337 (Ont. C.A.)), any delay created by waiting for the machine to warm up must be considered in the overallanalysis. Standing alone, this delay may not be problematic either, as the “forthwith” requirement in

section 254 must be interpreted asallowing for the time required to take a proper sample, taking into account functional elements of the device (R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at paragraph 64). [44] However, in my view, the total delay from the time Mr. Anderson was stopped until the ASD was administered, offends the“forthwith” requirement in section 254(2), given the circumstances of this case. Mr. Anderson was detained, without being advised ofhis right to counsel, for 31 minutes. He was on his own property when he was stopped. The stop was random.

There had been nothingnoteworthy about his driving, and nothing in his appearance suggested his ability to drive was an issue. His licence and registration werein order. He was cooperative with the police and did nothing to contribute to the delay. In fact, Mr. Anderson admitted that he hadconsumed alcohol, thereby providing the grounds for Cst. Gramlich to make an ASD demand, almost immediately after Cst. Gramlichstopped him. [45] In these circumstances, the fact that Mr.

Anderson was detained for 31 minutes before being required to provide a samplemeans that the demand fell outside the parameters of section 254(2) of the Criminal Code, as the sample was not obtained “forthwith”, asdefined in Janzen and Ritchie, supra. As such, the search or seizure was not authorized by law, and was a violation of Mr. Anderson’srights under

section 8 of the Charter. In addition, because the sample was not obtained forthwith, Cst. Gramlich was required to informMr. Anderson of his rights under

section 10(

b) of the Charter. That was not done, and I am therefore satisfied on a balance ofprobabilities that Mr. Anderson’s right to counsel was violated.

(3) If there were violations of Mr. Anderson’s rights under sections 8, 9 or 10(b), is the remedy of exclusion of evidence warranted?

[46] Where evidence is obtained in a manner that infringes an accused person’s Charter rights, section 24(2) requires the Court toexclude the evidence if it is established that admitting the evidence would bring the administration of justice into disrepute. [47] In R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, the Supreme Court of Canada defined the test which a Court is toapply in determining whether evidence obtained as the result of the violation of the Charter rights of an individual ought to be admittedas evidence.

The Court must consider and weigh three factors in determining whether admission of the evidence would tend to bring theadministration of justice into disrepute: (1) the seriousness of the Charter-infringing state conduct which led to the discovery of the evidence; (2) the impact on the Charter-protected interests of the accused; and (3) society’s interest in an adjudication of the case on its merits. [48] In considering the first factor, the seriousness of the state conduct, I must keep in mind the importance of preservation ofpublic confidence in the rule of law and its processes.

Police are expected to abide by Charter standards. Obviously, minor andinadvertent breaches of Charter rights will be seen as less serious than deliberate or reckless violations. The more serious the breach, thegreater the need for the Court to dissociate itself from such conduct. Good faith and extenuating circumstances will weigh in favour ofadmission, while carelessness and ignorance of Charter standards will not. Negligence and wilful blindness do not constitute good faith. [49] In this case, given the fact that I have found breaches of Mr. Anderson’s rights under sections 8, 9 and 10(

b) of the Charter tohave been established, I consider the Charter-infringing state conduct to be serious, especially given the lack of reason to stop Mr.Anderson at all once his vehicle was off the highway. Analysis of this factor weighs in favour of exclusion of the evidence. [50] The second factor to be considered is the impact on the Charter-protected interests of the accused. This involves examiningthe interests engaged by the rights, and the extent to which the breach impacted upon those interests.

The more serious the impact uponthe accused person, the more heavily analysis of this factor weighs in favour of exclusion of evidence, as the more likely it would be thatthe admission of such evidence would bring the administration of justice into disrepute. [51] Although the breath sample evidence was obtained from Mr. Anderson in a relatively non-intrusive manner, a fact whichmight incline me toward its admission, I must consider the whole impact of the breaches in this case. Mr. Anderson was operating hisvehicle, and driving toward what appeared to be his place of residence.

He had committed no driving infractions, and given police noreason to suspect he had committed an offence. Cst. Gramlich entered onto private property to conduct an investigation which I haveconcluded he did not have authority to conduct. This led to Mr. Anderson being detained for more than 30 minutes before beingarrested, then transported to Carlyle for breath testing, and thus detained for several more hours. In the circumstances, the impact onMr.

Anderson was significant, and inclines me in favour of exclusion of the evidence. [52] Regarding the third factor, society’s interests in adjudication of the case on its merits, I note that the evidence obtained wasreliable, and would enhance the truth-seeking function if it were admitted. This factor would incline me towards admission of theevidence. [53] In balancing the three factors, I must keep in mind the long-term and prospective repute of the administration of justice.

Focusing on this particular case becomes less important than focusing on the long-term impact of admitting the evidence obtained byinfringement of Charter rights. This is not a mathematical exercise, but rather a qualitative one (See Grant, supra, at paragraph 86). Thenature of the breaches and their impact on Mr. Anderson’s Charter-protected interests, in this case, outweigh the societal interest in atrial of the case on its merits. I am satisfied on a balance of probabilities that admission of the evidence would bring the administrationof justice into disrepute.

CONCLUSION [54] The Certificate of Analyses is excluded as evidence. Therefore, there is no admissible evidence before me regarding Mr.Anderson’s blood alcohol concentration at the time of operating the motor vehicle, and I find him not guilty.

J. Kalmakoff, J