Her Majesty the Queen, and
Charges: Over 80.
Counsel for the Crown: Mr. F. Bartley.
Counsel for the Accused: Mr. T. Pain.
1 L. BOTHAM J.:— I think it will readily become apparent I am only going to address Mr. Vernon’s Charter Application.
2 Basically Section 254(2) of the Code provides statutory pre-conditions for a lawful roadside screening demand. The Defence argues that the failure to comply with those pre-conditions renders the demand unlawful; renders the seizure warrantless and unreasonable and constitutes to a Section 8 breach. I agree with the Defence on that point.
3 Not only have I had the opportunity to read Justice Green’s very helpful decision in R. v. Kerr,  O.J. No. 2222; I took a look at Justice Duscharme’s decision of R. v. Au-Yeung,  O.J. No. 1579. In that case Justice Duschampe was sitting as an Appellate Judge reviewing a Charter decision of Justice Kampling,  O.J. No. 5752. I also took a look at Alberta C.A. Megahy,  A.J. No. 585.
4 In that case although not really addressing the … or at least not addressing as part of the appeal the 24(2) issue did look at the failure to comport with the implicit requirements of Section 254(2) if I can put it that way and found that there a four minute delay was, in fact, a Section 8 violation. I take the case law from cases going back to Justice Abour in Dewalt 2005 and cases then analyzing … and pretty consistent in terms of requiring immediacy requirement. So, in my view, there is a Section 8 breach. I agree that once the police are found to be operating essentially outside the Section 254(2) framework the need not to comply with 10(a) and 10(b) disappears and, in fact, is a good requirement to comply with both 10(a) giving out reasons for detention and 10(b) Rights to Counsel but, in my view, really the most serious breach is the Section 8 breach.
5 The issue really in this case, in my view, is whether the admission of the blood alcohol readings by way of the Certificate … whether the admission of that Certificate would, in all circumstances, bring the administration of justice into disrepute.
6 In considering that I have looked at basically the Grant factors, the seriousness of the conduct, the impact of this breach on Charter protected interest, the societal interest in adjudication of this matter on the merits and then balanced all three of them and looking at the seriousness of the conduct I take into account that the failure to comply with the immediacy requirement is inconsistent with well settled law.
7 Again I look at Justice Arbour’s decision in Dewalt (1994) and the cases that follow along. That, also, is obviously consistent with. Justice Green’s analysis as well as Justice Duscharme’s analysis.
8 I also take into account that, this failure then engendered under breaches under 10(a) and 10(b).
9 In my view, looking at the seriousness of the conduct, most specifically the fact that an experienced officer clearly had turned his mind to what the level requirements are and as Defence Counsel pointed out, applies the wrong test and appears to have no concern with the fact that, in fact, he doesn’t make the demand immediately upon forming a suspicion. He does it at the time that it’s more convenient for him.
10 I can’t disregard the fact that in making the breath demand later on he seemed to follow the same analysis and didn’t give Rights to Counsel or make the demand until other matters were taken care of which, in my mind, shows a certain disregard for the legal requirements of his job.
11 In considering the impact of this breach on Charter protected interest I certainly acknowledge that seizure of breath samples: is more and more being characterized by many courts as by, itself, minimally intrusive and I also take into account that the 10(a) and 10(b) breaches in this particular case with the still reasonably short time at roadside were probably not as significant as they could have been and I can’t disregard the fact that, ultimately, Mr. Vernon chose not to ,contact counsel.
12 Having said that there still were breaches of 10(a) and 10(b). In my view though, although the seizure of a breath sample may be considered minimally intrusive, I can’t disregard the whole context of this matter. This occurred in the context of an actual arrest.
13 Mr. Vernon was handcuffed; he was transported to the station; a further demand of breath samples was made from him and he was released at 8:12 p.m., some two hours after he first was detained by the police. Now, in my view that renders the impact and his overall Charter protected interest far more so than simply a four minute delay in making the ASD demand and in coming to that conclusion I am assisted by the reasoning of Justice Duschampe in Au Yeung.
14 In considering the societal interest and the adjudication of the case on its merits clearly that actually favours admission of the breath samples. There obviously is an interest that these matters be dealt with. They are serious cases – drinking and driving – and there is interest that it be dealt with on the merits.
15 However, in considering all of the factors, in my view the seriousness of the conduct and the fact that there was, in my view, not an insignificant impact on Mr. Vernon’s Charter protected interest, the long term interest of society and the long term administration of justice favours the exclusion of the Certificate and it will be excluded.
16 MR. PAIN: Thank you.
17 THE COURT: There being no evidence of Mr. Vernon’s blood alcohol readings there is a finding of not guilty.
18 MR. PAIN: Thank you.
19 MR. BARTLEY: Thank you, Your Honour.