) ) HER MAJESTY THE QUEEN ) Janice Barclay ) for the Crown - v. - ), 2012 MBPC 41

2012 MBPC 41 THE PROVINCIAL COURT OF MANITOBA SWAN RIVER CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Janice Barclay ) for the Crown - and - ) ) EDWIN MARK CLEAVER ) Todd Bourcier ) for the Accused Accused. ) ) ) Judgment Delivered: ) APRIL 18 th , 2012 HARAPIAK, P.J. [ 1 ] On October 9 th , 2007 Edwin Mark Cleaver came to the attention of the RCMP when he was travelling between Swan River, Manitoba and his home near Bowsman, Manitoba. [ 2 ] Mr. Cleaver was charged, as a result of this encounter, with driving impaired and over .08.

The matter proceeded to trial on September 30 th , 2011 and was adjourned, for arguments on a Charter voir dire . Final arguments were submitted to the court on March 5 th , 2012. THE ISSUES [ 3 ] There are multiple issues to be determined, as enumerated in the Crown brief:

a) Has the accused been subjected to an arbitrary detention in breach of his s. 9 Charter right?

b) Did the arresting officer fail to inform the accused of his reason for arrest or detention in breach of his

section 10(

a) Charter right?

c) Was the accused denied his right to counsel in breach of his

section 10(

b) Charter right?

d) Has the accused been subjected to an unreasonable search and seizure in breach of his

section 8 Charter right?

e) If any of the accused’s

section 8, 9 or 10 Charter rights have been breached, is this an appropriate case in which to exclude the evidence against the accused under section 24(2) of the Charter ?

f) Has the accused’s right to make full answer and defence been violated because the videotape at the detachment has not been preserved?

g) If so, is the accused entitled to a stay of proceedings as a remedy under section 24(1) of the Charter ? THE FACTS

[ 4 ] The Court heard from two witnesses – the arresting Constable and the Corporal who had been with him in the police cruiser that night on a weapons-related call. As the two officers did not share their observations prior to the accused’s arrest the evidence of principal importance is from the arresting officer. [ 5 ] The Constable was running his radar on his way back to Swan River that night.

As the accused’s car passed in the opposite direction he noted his speed was approximately 90 kilometres an hour – under the 100 kilometre per hour speed limit. [ 6 ] The shoulders on Highway #10 around Swan River have a gravel surface. Cleaver’s car, when meeting the police cruiser, moved out of his lane and onto the gravel shoulder of the road. [ 7 ] The Constable found this “odd” and decided to make a traffic stop to investigate. He pulled his vehicle around and started to follow the accused. He observed at this point that the accused was swerving back and forth in his lane as he turned the corner.

Then another vehicle met the accused’s vehicle and he once again pulled onto the gravel shoulder as that vehicle passed. Again the constable observed some swerving, back and forth, by the accused in his lane of traffic. [ 8 ] One of the thoughts in the officer’s mind at that time was perhaps the driver was impaired. He did add, in direct, that he has sometimes seen drivers operate their vehicles like this at night – usually quite elderly people who are worried about oncoming vehicles and traffic.

He testified that going onto the gravel is “a little bit dangerous, too.” [ 9 ] At this point the emergency lights, but not the sirens, were activated. It took the accused a few moments to pull over but within about twenty seconds he had complied. At the car [ 10 ] The Constable did not smell alcohol on the accused’s breath at any time. He did note, when he asked for the accused’s driver’s license and registration, that his speech was a bit slow and that he spoke very deliberately.

He also observed his motor skills were very slow and deliberate when getting his documents out. [ 11 ] When asked where he was coming from the accused said he had been in Swan River as his son had been babysitting there. He said he had been at the sports lounge in Swan River and that he had had two beer when he was there. Outside the car [ 12 ] The Constable asked the accused to step out of the car and walk back to the police vehicle. He made no note as to what he said at this point, and speculated he may have said something about discussing or speaking to him some more about his driving.

He admitted, in cross-examination, that he likely did not tell him he was pursuing an impaired driving investigation. He testified that he also wanted to observe him walking. On his way back to the cruiser he observed the accused to be walking slowly, tentatively and deliberately. He took that as another sign that he was under the influence of alcohol, but did not feel he yet had grounds for a breathalyzer demand.

In the police cruiser [ 13 ] The police cruiser was not equipped with an ASD instrument that night and it would have taken 20 – 30 minutes to secure one. [ 14 ] Once in the police cruiser at 11:33 pm the officer took some notes and engaged the accused in conversation. They spoke about the accused’s son, who was a passenger in the vehicle, and the accused provided his phone number. It was during this time that the Constable observed the accused’s eyes were bloodshot and his speech was slightly slurred.

This seems to have been the tipping point for him as he proceeded to read him the breath demand at 11:39 pm, then advised him he was under arrest for impaired driving. [ 15 ] I note that in cross-examination defence counsel summarized grounds as being slow speech, slow motor skills, deliberate walking and admission of consuming two beers at some point and the Constable agreed that that was the extent of his reasonable and probable grounds for a breathalyzer demand. He was clearly in error at that point as he had testified in direct that he observed bloodshot

eyes and slurred speech prior to the demand. [16] At 11:44 pm the accused’s Charter Rights were given and at 11:47 the police warning. He indicated he understood all of therequired information and asked if he could call a lawyer immediately, at roadside. The Constable said no, but once he got to the policestation that he could call then. [17] There was a further wait at roadside as the accused’s wife was called to come and pick up their 15-year-old son. She attendedat 12:03 a.m., the Corporal spoke with her and then the officers left the scene with the accused at 12:08 a.m.

At the detachment [18] The accused arrived at the detachment at 12:18 pm. He was searched and then taken into the phone room to contact counsel. He remained in the phone room from 12:23 until 12:37 am. The first test started almost immediately after he exited the phone room. [19] Mr. Cleaver was released at 2:05 am to his wife. Video-tapes [20] The Constable testified that videos (without audio) showing the accused’s interactions with the officers in the booking areaand in the phone room had not been preserved. The breathalyzer room was not monitored by video.

The practice had been to recycle thetapes every couple of months unless there was an incident such as an assault or resistance. In this case there was nothing unusual thatoccurred at the detachment and he had formed his grounds at roadside, so he saw no relevance to the tapes and did not preserve them.

ARBITRARY DETENTION? [21] Has the accused been subjected to an arbitrary detention in breach of his s. 9 Charter right? [22] According to the Canadian Charter of Rights and Freedoms, s. 9, “everyone has the right not to be arbitrarily detained orimprisoned.” [23] The real issue, in any roadside stop, is not whether the individual was detained – the very nature of being required to stop forthe police results in an undeniable detention, but whether that detention is “arbitrary” and unjustified. [24] Defence concedes that the initial stop was lawful as authorized by s. 76.1(1) of the Highway Traffic Act, CCSM c.

H60, whichrequires a driver to immediately stop when directed to by a peace officer in the lawful execution of his duties but argues the officerexceeded his HTA jurisdiction when he asked Mr. Cleaver to leave his vehicle when he admits he did not have reasonable and probablegrounds for arrest at that time. [25] Crown counsel counters that the Highway Traffic Act authorizes the officer as part of his roadside stop to ask the accused toexit the vehicle so he could make observations of his walking to assess his sobriety. The Crown relies on R. v.

Orbanski, (2005) 2005SCC 37 , 2 S.C.R. 3, where Charron, J. wrote that: “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 officer to draw theline between those drivers with a permissible amount of alcohol in their body and those who have reached the impermissible level.” [26] I am in agreement with the Crown that the HTA powers entitled the officer to ask Mr.

Cleaver to leave his vehicle to makefurther observations in aid of his roadside assessment. Although this is not listed in

section 76.1(1) this subsection is specifically non-exhaustive and the predicate

section references the power to stop as being allowable if used “in the lawful execution” of the officer’s

duties, which includes roadside assessment for impaired drivers. [27] The Supreme Court, in R. v.

Nolet, 2010 SCC 24 , [2010] 1 S.C.R. 851, was clear that as long as investigators aremotivated by traffic safety concerns during the relevant part of a detention, that an interest in and suspicion about criminal activity willnot in itself invalidate what would otherwise be a lawful detention under provincial legislation. [28] It is when the accused left his vehicle that the Constable observed a deliberate, mindful walking that made him suspectimpairment, and he decided he needed “to establish further grounds” for impaired driving. [29] Justice Binnie, writing for a unanimous court in Nolet (supra) on “predominant purpose” tests in multiple purpose encountersbetween citizen and police, said: “[i]f the Charter is violated, it makes little difference, I think, that the police had in mind multiple purposes.

A valid regulatory purpose,whether predominant or not, would not sanitize or excuse a Charter violation.” [30] I am of the view that the entry into the police cruiser marks the bright line between an arguably simple HTA screeningencounter and a dual purpose investigative detention which included possible Criminal Code charges. [31] In R. v. Mann, 2004 SCC 52 , [2004] S.C.J. No. 49, the Supreme Court recognized that investigative detentionscarried out in accordance with the common law powers recognized in that decision are not “arbitrary” under s. 9. The Court confirmedthis again in R v.

Grant, (2009) 2009 SCC 32 , 2 S.C.R. 353, saying that: “Mann, in confirming that a brief investigative detention based on “reasonable suspicion” was lawful, implicitly held that a detention inabsence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9.” [32] Was there reasonable suspicion here? Defence counsel submits that it is at the point that Mr. Cleaver leaves his car thatreasonable suspicion must be present, pursuant to Mann (supra). For reasons outlined above, I disagree.

Reasonable suspicion, to makethe investigative detention pre-arrest lawful, must have existed at the time the accused entered the police car. [33] Justice Binnie, in R. v. Kang-Brown, 2008 SCC 18 , [2008] S.C.J. No. 18, wrote that: “a “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable andprobable grounds.” [34] In this case there was some debate about the significance of the manner of driving. The officer admitted that he had seen otherdrivers – usually very elderly people – partially pull off onto the gravel shoulder when passing vehicles. Mr.

Cleaver is not elderly. Hewas, at the time, a 42-year-old man. He was driving at about 90 kilometres per hour on a highway at night and pulling onto a gravelshoulder when passing other vehicles rather than maintaining his vehicle within his own lane of traffic. The officer found this “odd” andpotentially “dangerous” behavior. [35] Objectively, this seems to be an unusual and risky manner of driving, operating your car on two different road surfaces. It callsinto question the judgment and skill of the subject driver. [36] The officer also observed Mr. Cleaver’s car swerving from side to side in his lane.

[37] Once roadside the accused’s slow and deliberate way of moving and talking raised the officer’s suspicions yet higher. That,combined with the slow and tentative way he walked once out of the police car moved him into a focused investigation of the accused asa likely impaired driver. [38] Reasonable suspicion must be based on more than a “hunch”. There must be objectively discernable factors of the grounds forreasonable suspicion to permit judicial assessment. (R. v. Picard, [2008] M.J.

No. 27) I am satisfied that the factors outlined above aresufficient both on a subjective and objective standard to ground the officer’s reasonable suspicion. The lack of smell of alcohol does notdissuade me as it would merely have been a sign of consumption at some point, which had been admitted, and would have added nothingto the signs of impairment. [39] The initial roadside detention here was made pursuant to s. 76.1 of the HTA. This type of stop, when random, with verysimilar legislation from Ontario, was found to be arbitrary within the meaning of s. 9 by the Supreme Court in R. v.

Hufsky, (SCC), [1988] 1 S.C.R. 621, but its constitutionality was saved as it was found to be demonstrably justified in a free and democraticsociety via a s. 1 Charter analysis. [40] As the accused was subsequently simultaneously detained pursuant to a lawful investigative detention based upon reasonablesuspicion, the resulting detention is not arbitrary and therefore I find no breach. s. 10(

a) BREACH? [41] Did the arresting officer fail to inform the accused of his reason for arrest in breach of his

section 10(

a) Charter right? [42] The Charter provides the following right at s. 10(a) – “everyone has the right on arrest or detention to be informed promptly of the reasons therefore.” [43] This right applies to investigative detentions (see Mann (supra)). [44] I reviewed R. v. Kumarasamy, [2011] O.J. No. 2114, a fairly recent decision of the Ontario Superior Court of Justice. In thatsummary conviction drive over and impaired appeal the court reviewed the requirements of s. 10(

a) at roadside. Justice Dambrot wrotethat: “While there is no limitation on s. 10(

a) in the roadside screening context, nonetheless the courts have not taken a formalistic approach tothe adequacy of the information given to a person who has been arrested or detained.” [45] He went on to cite McLachlin, J., as she then was in the 1991 decision of R. v. Evans, (SCC), [1991] 1 S.C.R.869, who stated that: “[w]hen 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).”

[46] The Ontario Court of Appeal followed this less formalistic assessment of compliance with s. 10(

a) rights in R. v. Nguyen,(2008) 2008 ONCA 49 , 231 CCC (3d) 541. The Court held that: “[t]he right to be informed of the reasons for detention as enshrined in the Charter and the Canadian Bill of Rights is a codification of thecommon law described most famously in the case of Christie v. Leachinsky, [1947] A.C. 573 (H.L.). In Christie, the common law rightwas essentially described as follows: a person is entitled to be informed of the reason why he or she is being restrained, unless thecircumstances are such that he or she knows why.

The reasons do not need to be expressed in technical or precise language, but must, insubstance, inform the person as to the reason why the restraint is being imposed.” [47] In this case the accused was stopped after repeatedly driving his car onto the gravel shoulder of a highway and asked for hisdriver’s license and registration on first contact with the Constable. There was some reference to alcohol when he was asked where hewas coming from and he replied he had been at the sports lounge and had two beers. This is not a case where there was any smell ofalcohol coming from the vehicle.

The officer moved on to ask the accused to get out of the car to talk further about his driving. Although his evidence on the words he used was imprecise it was clear the manner of driving was of concern and he was investigatingthat. [48] In Kumarasamy (supra) the officer could smell alcohol coming from the vehicle and immediately asked if the driver had hadanything to drink that night. In the Crown’s case of R. v. Littlepolar, 1994 CarswellAlta 1074 (QB), the accused smelled strongly ofalcohol and other occupants were actually drinking beer at the time. In this case, Mr.

Cleaver volunteered the consumption evidence,which was not pursued, and there was no smell of alcohol. [49] A number of cases discuss how easy it can be to comply with s. 10(a). In Kumarasamy (supra) the court found that telling thedriver, who had hit the curb several times and almost hit a light post, that he was stopped to investigate why he was driving unsafelywould have been quite sufficient.

Here, the Constable’s reference to driving and the manner of his recent driving was sufficient notice ofthe reason for the highway traffic stop and the attendant screening for sobriety. [50] Things changed when the Constable directed Mr. Cleaver to enter the police cruiser. He then also became subject to aninvestigative detention respecting impaired driving. Should he have known this? I do not believe this can be inferred from thecircumstances in this particular case. There was no smell of alcohol, and Mr. Cleaver was the one to independently bring up drinkingand it was not pursued by the officer.

He cannot be said to have known the officer suspected this was a possibility by anything theConstable said. He should have known his driving was of concern, but not necessarily the officer’s mounting suspicions. [51] The officer agreed with counsel that “you need to tell somebody why they’re being detained” but that he did not do that in thiscase.

The accused sat in the back of the police cruiser for six minutes prior to the breath demand, with his 15-year-old son sitting in anearby car alone, without being told why he was being investigated, or if he was. [52] I find that this was a breach of his rights under s. 10(

a) of the Charter of Rights and Freedoms. I will deal with remedy later inmy reasons. s. 10(

b) BREACH? [53] Was the accused denied his right to counsel in breach of his

section 10(

b) Charter right? [54] The accused asserts that his s. 10(

b) right was breached when he was not immediately advised of his right to counsel uponinvestigative detention. He relies on the Supreme Court of Canada’s direction, in R. v. Suberu, (2009) 2009 SCC 33 , 2 S.C.R.460, that: “[s]ubject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, thepolice have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediatelyupon detention.”

[55] Manitoba’s Highway Traffic Act validly suspends, at 76.1(6), the right to counsel at roadside while certain investigations areongoing, including: “request(ing) information from the driver about whether and to what extent the driver consumed alcohol or drugs before or whiledriving.” (R. v. Orbanski ) [56] The Supreme Court, in Orbanski (supra), found that there is an implied limit to the right to counsel at roadside while screeningfor impaired drivers.

This restriction has “temporal limits” – “there is no question” they wrote: “that the motorist who is not allowed to continue on his way but, rather, is requested to provide a breath or blood sample, is entitled tothe full protection of the Charter right to counsel.” [57] Charron, J. also wrote that: “[i]f 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 measure that is the functional equivalent to theroadside screening device, namely, a technique conducted with the very objective of determining whether there are reasonable andprobable grounds justifying a s. 254(3) demand for a breath or blood sample.” [58] There was still the potential, here, when the accused entered the police cruiser that the Constable would ask a few morequestions, satisfy his concerns about manner of driving, and let him be on his way.

The Constable was clear that he had not yet formedreasonable and probable grounds for a breath demand at that time and his continued investigation was to determine whether there weregrounds.

His questioning in the cruiser was the further technique alluded to in Orbanski (supra) to help him in his determination. [59] The Supreme Court found, in Orbanski, that: “[t]he 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.” [60] This suspension of 10(

b) rights ended once the officer formed reasonable and probable grounds to demand a breath sample. Atthat point Mr. Cleaver was immediately advised of his Charter rights. Charter rights are not without limits – they are subject to“reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The abridgement of s. 10(b)rights at roadside for impaired driver screening has been found to be such a justifiable limit and I find no breach here as a result. s. 8 BREACH? [61] Has the accused been subjected to an unreasonable search and seizure in breach of his

section 8 Charter right? [62] Any warrantless search is prima facie unreasonable and violates s. 8 of the Charter unless the Crown can prove the search was:

a) authorized by law;

b) the law itself is reasonable; and

c) the manner in which the search was carried out was reasonable. (R. v. Collins, (SCC), [1987] 1 S.C.R. 265) [63] The law authorizing a demand for a breath sample is s. 254(3) of the Criminal Code. It reads: “If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable,

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood, or ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapableof providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of thequalified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood; and (

b) if necessary, to accompany the peace officer for that purpose.” [64] The issue for this Court is whether the Constable had reasonable and probable grounds to make a breath demand. [65] The most recent pronouncement on this point from the Supreme Court of Canada is found in R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, where the court affirmed their decision in R. v.

Bernshaw, (SCC), [1995] 1 S.C.R. 254,which required: “both a subjective and objective component to establishing reasonable and probable grounds; that is, the officer must have an honestbelief that the suspect committed an offence under s. 253 of the Criminal Code, and there must be reasonable grounds for this belief.” [66] In this case the accused drove in an overly cautious and potentially dangerous manner by repeatedly driving onto the gravelshoulder on the highway when meeting traffic, he did not immediately pull over for the police, he swerved back and forth in his lane, hehad slow speech and motor skills, he walked in a tentative and deliberate manner, he had bloodshot eyes and he slurred his speech.

Healso admitted to consuming alcohol sometime that night. [67] Although it may be possible to explain away or speculate about other causes for a number of these indicators individually thatis not the task before me. I must view the totality of circumstances as the officer observed them that night. [68] I am satisfied that the officer believed that he had reasonable grounds. In Bernshaw (supra) Justice Cory noted that admissionof drinking, erratic driving, alcohol on breath and red, glassy eyes were probably sufficient grounds for making a breath demand. Although Mr.

Cleaver lacked a smell of alcohol he had the other indicia noted in Bernshaw along with motor impairment and slurredspeech. [69] A reasonable person standing in the place of the Constable could come to the same conclusion; particularly when consideringthe manner of driving and the slurred speech. [70] Overall, I am satisfied that the Constable had reasonable grounds to make the demand, the Collins factors are satisfied and nos. 8 breach has been made out. s. 24(2) “GRANT” ANALYSIS [71] If any of the accused’s

section 8, 9 or 10 Charter rights have been breached, is this an appropriate case in which to exclude theevidence against the accused under section 24(2) of the Charter? [72] When faced with such a request the court must “assess and balance the effect of admitting the evidence on society’s confidencein 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 statemisconduct);

(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rightscount for little) and (3) society’s interest in the adjudication of the case on its merits.” (R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353) [73] Firstly – the seriousness of the Charter-infringing state conduct. Was it deliberate and egregious or done in good faith? Here,the officer admitted that he knew that detainees should be advised of their reason for detention but that he did not do that.

He had giventhe accused some indication that his driving was of concern, so the accused was not completely without notice of the reason that he wasdetained. He was not advised when the detention became part of a criminal investigation. This factor argues slightly towards exclusiondue to the officer’s awareness of an obligation to advise and lack of compliance. [74] Secondly – the impact of the breach on the accused’s protected interests must be assessed. The accused is entitled to know whyhe is being detained so he can assess whether to submit to the detention and, as an adjunct to his 10(

b) rights, what kind of jeopardy hemight be in. (R. v. Evans, (supra)) [75] Individuals who are held in the back of a police car should not be forced to guess why they are being detained. Having saidthat, the accused did nothing but briefly speak to the officer prior to the demand, and offer some fairly innocuous information – hisrelationship to the teenager in his car, and his home phone number. The observation that the officer made that crystallized his groundswas of the manner of speaking – something that would have been available to him outside the car just moments before.

The impact onthe accused’s protected interests is on the less severe side of the spectrum. [76] The third inquiry for the court is the importance of having the case heard on its merits. In Grant (supra) the Supreme Courtfound that: “where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidenceobtained from the accused’s body may be admitted.

For example”, they specified “this will often be the case with breath sampleevidence, whose method of collection is relatively non-intrusive.” [77] In this case, amidst the shifting and dynamic interaction between citizen and officer during roadside screening the accused wasnot promptly advised that he was being detained as a possible impaired driver. He should have been. In balance, however, excluding theresulting breath sample evidence, reliable and obtained with minimal intrusion, would bring the administration of justice into disreputemore than its exclusion.

The certificate of analysis will not be excluded under s. 24(2). FULL ANSWER AND DEFENCE RIGHT COMPROMISED? [78] Has the accused’s right to make full answer and defence guaranteed by s. 7 of the Charter been violated because the videotapeat the detachment has not been preserved? [79] In R. v. Kociuk, 2009 MBQB 154 , [2009] M.J.

No. 208, ACJ Joyal (as he then was) encapsulated the nature of a lostevidence application as follows: “It is well established that included in the s. 7 right to make full answer and defence is a corresponding obligation of the Crown to makefull disclosure of the fruits of the investigation. See R. v. Stinchcombe , (SCC), [1991] 3 S.C.R. 326, at p. 336. Nonetheless, the loss or destruction of something that may have been otherwise disclosable by the Crown, does not inexorably lead to afinding of a breach under s. 7 of the Charter.

The right to disclosure is not absolute and accordingly, in those cases where matters whichwould have otherwise been disclosable are lost, destroyed or not preserved, the loss, destruction and non-preservation of such items willrequire examination and evaluation in the context of the particular facts of that case.” (affirmed by MBCA – see R. v. Kociuk, 2011 MBCA 85 , [2011] M.J. No. 340)

[ 80 ] My sister Judge Hewitt-Michta had an opportunity to consider this analysis in a very similar fact situation to the case at bar recently. In R. v. Backe-Peters ( 2012 MBPC 13 ) the accused was brought to the Minnedosa Detachment for breath testing and videotaped when he was in cells, over a period of four and a half hours.

The officer did not preserve the videotape as he did not see the relevance to the investigation. [ 81 ] Judge Hewitt-Michta, in finding that failing to preserve the tape was not unreasonable, noted that the video was a safeguard more than an investigative tool, that the video did not show the accused until almost three hours after his roadside stop, and that any weight to the video evidence would have been minimal in any event. [ 82 ] In this case the indicia of impairment were subtle. Counsel suggested that the video may have shown whether the accused was staggering or falling at the detachment.

This is speculative as there is nothing in evidence which suggests he was impaired to that extent. The most compelling evidence of impairment was the manner of driving and the slurred speech. The video had no audio and the manner of driving could only be observed on the highway. [ 83 ] Although the time gap between roadside observation and video-taping at the detachment was not as great here as it was in Backe-Peters (supra) there was still a lag of about 40 minutes from stop to arrival at the detachment.

The most probative evidence on the impaired driving count is what was observed at the scene. [ 84 ] The explanation for the failure to preserve the videotape of a cooperative, minimally impaired accused is a reasonable one. I find no s. 7 breach here. Even if I had found a breach this would certainly not qualify as the “clearest of cases” where a s. 24(1) stay should be ordered by the court.

I struggle to see the “actual prejudice” suffered by the accused by the lack availability of the detachment videotape. [ 85 ] The Certificate of Analysis is accepted into evidence and marked as an exhibit in these proceedings. _______________________ Harapiak, P.J.