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In the Provincial Court of Alberta

Citation: R v Dahl, 2017 ABPC 48

Date: 20170302

Docket: 160567178P1

Registry: Lethbridge

Between:

Her Majesty the Queen

-and-

Wyatt Dahl

Ruling on Voir Dire by the Honourable Judge P.G. Pharo

Introduction

[1] Mr. Dahl is on trial for two Criminal Code (the Code) charges: contrary to s253(1)(a) of driving while impaired and s253(1)(b) which he is alleged to have operated a motor vehicle while having 80 mg of alcohol in 100 mL of his blood.

[2] The issue in this voir dire is whether the Certificate of Analysis (the Certificate) should be admitted as evidence in the trial. The Defence takes the positon that the police wrongfully detained Mr. Dahl, failed to provide him with his Charter rights to counsel, and then arrested him without reasonable and probable grounds for impaired driving, thereby breaching s8, 9 and 10(b) of the Charter. As a result of the alleged breaches of the Charter, the Defence therefore seeks the remedy of exclusion of the Certificate from evidence, pursuant to the provisions of s24(2) of the Charter.

Facts

[3] Officer Pintkowski was employed as a peace officer by the County of Vulcan and was on duty at the time of this incident. He had previously been a peace officer in Grande Prairie for about five years and had been a military policeman for four years as well.

[4] On the day in question, being May 6, 2016 Officer Pintkowski testified that he was patrolling around the Village of Carmangay with the captain of the local fire department, looking for people doing illegal burns. They were driving a fully equipped Ford F-150 truck which was marked with the standard markings for peace officers in Alberta. It had an emergency light bar on the roof with red and blue lights like a Sherriff’s cruiser and it was also equipped with a siren. Inside the vehicle it had a silent patrolman and no handles on the insides of the back passenger seat. I am drawing the inference that Officer Pintkowski was in uniform at the time.

[5] Officer Pintkowski testified that he was driving out of the Village of Carmangay when he observed what appeared to be two men on dirt bikes going east on George Street, just outside the village limits. Officer Pintkowski proceeded to catch up to the rearmost dirt bike which was being ridden by Mr. Dahl. According to the Information, Mr. Dahl was 20 years old at the time. Officer Pintkowski noticed that Mr. Dahl’s dirt bike had no licence plate. Mr. Dahl veered off to the left and went in the ditch, doubling back, then going the opposite direction in the ditch. At that point Officer Pintkowski activated his emergency lights. Mr. Dahl did not stop, but came out of the ditch and went back onto George Street, now going westbound. Officer Pintkowski also turned around and followed Mr. Dahl, still with his emergency lights on, going west on George Street. Mr. Dahl then turned south off George Street and started riding across a freshly seeded farmer’s field. He rode in a straight line for about 75 meters, when Officer Pintkowski said Mr. Dahl crashed, because he saw a big cloud of dust. Officer Pintkowski said he decided to follow Mr. Dahl into the field with his truck to see if Mr. Dahl was injured in the crash.

[6] As Officer Pintkowski was approaching in his truck, Mr. Dahl jumped back on the dirt bike, and took off again. Officer Pintkowski said he then turned on the siren and followed for about 50 meters, before Mr. Dahl stopped. Officer Pintkowski pulled up right next to the dirt bike and got out of his vehicle, and told Mr. Dahl to get off the dirt bike. Mr. Dahl complied. Officer Pintkowski told him to provide his documentation and Mr. Dahl provided his driver’s licence. Officer Pintkowski handcuffed Mr. Dahl and placed him in the back of his vehicle. Officer Pintkowski said he smelled alcohol on Mr. Dahl’s breath when he spoke. The traffic stop took place at about 20:18. At about 20:20 Officer Pintkowski testified that he radioed the RCMP detachment in Vulcan for assistance, and gave a code name of a possible 10-68, which he said means he had a possible impaired driver. He said no other details were given in the radio call. Officer Pintkowski said he did not ask them to bring an ASD. Officer Pintkowski testified that he has no training in administering an ASD or Breathalyzer, so whenever there is alcohol involved in a traffic stop, he always calls the RCMP for them to do that part of the investigation, which he did here. The evidence was that the Vulcan RCMP detachment is as close as any to Carmangay, and it is a twenty to twenty five minute drive away.

[7] When questioned, Officer Pintkowski stated he felt he had to handcuff Mr. Dahl because he felt he was a flight risk. [8] When he had Mr. Dahl handcuffed and in his truck, and he had radioed the RCMP for assistance, Officer Pintkowski testified that he noticed that Mr. Dahl had a graduated driver’s licence (GDL), which he explained meant that Mr. Dahl is not permitted to have any alcohol at all in his body when he is driving. Officer Pintkowski then testified that he told Mr. Dahl that he was being detained for investigation for impaired operation of the vehicle under the Traffic Safety Act, RSA 2000, cT-6 (the TSA), as well as failing to stop for a peace officer, and driving without registration and insurance. Officer Pintkowski was very clear, especially in crossexamination, that he did not arrest Mr. Dahl, but was only holding him under investigative detention under the Traffic Safety Act. Officer Pintkowski was also very clear in his testimony that he was not investigating Mr. Dahl for criminal charges; he was leaving that to the RCMP. For this reason, Officer Pintkowski said he did not have an obligation to advise Mr. Dahl of his Charter right to counsel under s10(b), or give a police caution, and he did not do so.

[9] At that point in time, Officer Pintkowski testified that they were joined by an irate farmer, whose freshly seeded field they had just driven over. The farmer was upset, and Officer Pintkowski testified he had to speak to him. Officer Pintkowski also testified that he prepared the Traffic Safety Act violation tickets to serve on Mr. Dahl. Officer Pintkowski testified that he spent all of the time that Mr. Dahl was in detention dealing with the irate farmer and filling out the violation tickets.

[10] Constable Provost was the RCMP officer on duty that night at the Vulcan detachment, who received the radio call from Officer Pintkowski. His recollection of the call is somewhat different than the testimony of Officer Pintkowski. In his evidence, Constable Provost confirms that he got the call at about 20:20. He said Officer Pintkowski told him about performing a traffic stop on a dirt bike that took off from him. Constable Provost testified that Officer Pintkowski believed Mr. Dahl was impaired, so he requested the assistance of the RCMP to take over the investigation. This is substantially more information than the code 10-68 that Officer Pintkowski said was the extent of their conversation.

[11] It was the evidence of Constable Provost that he drove from Vulcan to where Officer Pintkowski was near Carmangay, getting there at 20:52. Constable Provost said that Officer Pintkowski then gave him a rundown of why he had detained Mr. Dahl. According to Constable Provost, it was explained to him by Officer Pintkowski that Officer Pintkowski was trying to pull Mr. Dahl over for riding his dirt bike on the dirt roads, but Mr. Dahl took off. Officer Pintkowski also advised Constable Provost that he could smell alcohol on Mr. Dahl’s breath.

[12] At that point, Constable Provost said he went and talked to Mr. Dahl, who was still in the back of Officer Pintkowski’s truck. Upon speaking with Mr. Dahl, Constable Provost said he could detect a “note of alcohol” on Mr. Dahl’s breath when he was speaking with him and also noticed that he had red and bloodshot eyes. At that point, at 20:56, with just the information he had from Officer Pintkowski and his own observations, Constable Provost testified that he formed the opinion that Mr. Dahl’s ability to operate a motor vehicle was impaired by alcohol. Constable Provost then arrested Mr. Dahl for impaired operation of a motor vehicle at 20:57. Constable Provost escorted Mr. Dahl to his own police vehicle, at which point he read Mr. Dahl his Charter rights, the police caution and the breath demand at 20:58. Therefore, Mr. Dahl was detained from 20:20 until 20:58, without having his Charter rights read to him, being 38 minutes. Constable Provost did not handcuff Mr. Dahl because he was compliant and Constable Provost did not feel he was a security risk. They left for Vulcan at 21:03. They arrived at Vulcan at 21:26. At the Vulcan RCMP detachment, Mr. Dahl provided breathalyzer samples and the Certificate was produced. He was charged under s253(1)(a) and 253(1)(b) of the Code. He was released at 23:05.

Did Officer Pintkowski Have the Authority to Detain Mr. Dahl?

[13] The Defence argued this was a violation of s9 of the Charter, in that Officer Pintkowski arbitrarily and illegally detained Mr. Dahl. The Defence takes the position that Officer Pintkowski could not detain Mr. Dahl for alcohol related reasons under the TSA, because that legislation in s87.1, in essence states that only qualified personnel can enforce the provisions of sections 88, 88.1 and 90. With great respect, I find I cannot accept this argument. These sections deal with who can administer ASD and Breathalyser tests, and deals with the suspensions that follow. Officer Pintkowski was not qualified to administer such tests, and he made that very clear in his evidence. However, in my view, as a peace officer, Officer Pintkowski was entitled to detain on proper grounds, and arrange for someone who is qualified to administer an ASD test, or who could arrest for impaired driving on reasonable and probable grounds to attend, as long as there had been compliance with all the statutory, common law and constitutional requirements.

[14] The Supreme Court of Canada in R v Hufsky, [1988] 1 SCR 621, R v Ladouceur, [1990] 1 SCR 1257, and R v Orbanski, 2005 SCC 37, has ruled that the police have a wide constitutional power to stop motorists, even at random, to check for a driver’s licence, registration, insurance, mechanical fitness of a vehicle, and the sobriety of the driver. Such stops are generally prescribed by provincial statute and justified under s.1 of the Charter. In Alberta, such stops are authorized by s166 of the TSA.

[15] The TSA states as follows:

Stopping for peace officer

166

(2) When signalled or directed to stop by a peace officer who is readily identifiable as a peace officer, a driver of a vehicle shall

(a) forthwith bring the vehicle to a stop,

(b) forthwith furnish to the peace officer any information respecting the driver or the vehicle that the peace officer requires, and

(c) remain stopped until permitted by the peace officer to leave

[16] As further authority for this position one need only look at the wording of s254(2) of the Code which specifically allows a peace officer, who reasonably suspects that a person has alcohol in their body, to detain and to require such a person to perform physical coordination tests, or provide a breath sample into an ASD.

[17] There is no dispute in this case that Mr. Dahl was stopped and detained because he was driving his dirt bike on the roads without registration or insurance. The Defence concedes that this was a legitimate traffic stop and detention, at least at the beginning. The Defence argues that it was the continued detention that was illegal and arbitrary, and contrary to s9 of the Charter.

[18] There is also a common law ancillary powers doctrine that recognizes an investigative detention power. In R v Mann, [2004] SCJ No. 49, the Supreme Court of Canada held that an individual may be briefly detained where the police have reasonable grounds to suspect a clear nexus between the individual being detained and a recently committed or still unfolding criminal offence.

[19] Officer Pintkowski in this case clearly had the right to stop and detain pursuant to s166 of the TSA. The same act gives him the explicit right to arrest without a warrant for various enumerated offences in ss169, 170 and 171. In s2(c) of the Code a “peace officer” is defined as a person employed for the preservation and maintenance of the public peace. Officer Pintkowski clearly fits this definition of a peace officer under the Code as well, so had the right to detain and investigate for impaired driving under s254(2) of the Code. In my view he would have the “police “ powers to stop and detain set out in the common law as defined by the Orbanski, Ladouceur and Hufsky cases.

[20] The Supreme Court of Canada case of R v Nolet, 2010 SCC 24 dealt with what are sometimes called dual purpose traffic stop cases. Nolet states that once the stop and a search is authorized, it is not objectionable if unrelated criminal activity is discovered, and that such a chain of investigative activity does not offend the Charter.

[21] In the case of R v Dhuna, 209 ABCA 103, the police pulled over a truck they suspected might be stolen, and checked the registration. The driver left the vehicle and the police saw him throw a plastic item which later turned out to be cocaine. The police arrested him, and searched the vehicle and found more drugs and weapons. The accused argued he had been arbitrarily detained contrary to s9 of the Charter, because the stop was under the TSA, and it became unlawful when married to a driving related criminal offence. The Alberta Court of Appeal said that there was no reason to draw a bright line between traffic safety concerns and the investigation of a possible criminal offence. The Court found that there were also sufficient reasonable grounds for a common law detention, as required by the Mann case.

[22] In the case of R v Clayton ,2007 SCC 32, the Supreme Court of Canada said that a detention found to be lawful is necessarily not arbitrary and contrary to s9 of the Charter.

[23] In my view, Officer Pintkowski smelled alcohol on Mr. Dahl’s breath and therefore had the authority to detain under the Traffic Safety Act for sobriety concerns, in accordance with the Orbanski case, subject to the limitations set out in that case, such as brevity and minimum inconvenience. He was also entitled to make the stop under s166 of the TSA, and had reason to believe that Mr. Dahl was not in compliance with the requirements of his GDL licence not to have any alcohol in his body.

[24] I appreciate that Officer Pintkowski was very clear in his evidence that his investigative detention of Mr. Dahl was for a criminal investigation. Perhaps he took that positon as an explanation as to why he did not read Mr. Dahl his Charter rights. Nonetheless, in my view, under the statutory and common law, he clearly had the authority to make such a detention, if he had a suitable reasonable grounds.

[25] Lastly, I also find Officer Pintkowski had reasonable grounds to detain Mr.Dahl to investigate possible impaired driving as a common law investigative detention, as set out in Mann. For all these reasons, I therefore find that there was not an illegal and arbitrary detention, contrary to s9 of the Charter.

Was Mr. Dahl Detained for Traffic Safety Act Violations or for a Criminal Investigation?

[26] It is the Crown’s position that Mr. Dahl was detained for Traffic Safety Act violations only, and not for a criminal investigation, therefore Mr. Dahl was not entitled to be advised of his s10(b) Charter rights. It is conceded by the Defense that the initial traffic stop was for Traffic Safety Act violations.

[27] Officer Pintkowski testified that when he smelled alcohol on Mr. Dahl’s breath, his concern was that Mr. Dahl had a GDL licence and was not supposed to have any alcohol in his body when he was driving. Officer Pintkowski testified emphatically that he was not doing a criminal investigation, and had not arrested Mr. Dahl; it was only an investigative detention.

[28] I find that this investigation started out as a Traffic Safety Act stop, but then moved into a criminal investigation when Officer Pintkowski smelled alcohol on Mr. Dahl’s breath. I make this finding for the following reasons:

1. Officer Pintkowski called the RCMP immediately upon detaining Mr. Dahl, and said he had a possible “10:68”, which he said means he had a possible impaired driver.

2. Officer Pintkowski testified he always calls in the RCMP when there is a criminal impaired investigation, which is what he did here.

3. Officer Pintkowski testified that he did not realize that Mr. Dahl only had a GDL licence until after he called the RCMP. He said he was going to give notice of a suspension of the GDL himself, until he realized he did not have the proper forms. It is not clear why he would need the RCMP to attend, if he had already detected alcohol from the breath of Mr. Dahl himself and stated he initially was prepared to do the GDL suspension himself. Furthermore, Constable Provost did not recall being told by anyone that Mr. Dahl had a GDL licence.

4. Constable Provost testified that when Officer Pintkowski called him on the radio, Officer Pintkowski told him he had detained someone who he believed was impaired, and he requested the RCMP to attend and take over the investigation.

5. When Constable Provost arrived, he did not see the irate farmer that Officer Pintkowski mentioned. I draw the inference that the only reason Officer Pintkowski was detaining Mr. Dahl was that he was waiting for Constable Provost to arrive was so Constable Provost could take over the impaired investigation.

6. Officer Pintkowski could have issued any Traffic Safety Act violation tickets fairly quickly. I find it would not have taken anywhere close to the 38 minutes Mr. Dahl was detained to do so, even if he had to deal with the irate farmer during that time as well.

[29] Based on these facts, it is clear to me, and I find, that Mr. Dahl was detained by Officer Pintkowski until Constable Provost could arrive to take over the criminal investigation for impaired driving. In other words, Mr. Dahl was being detained for a criminal investigation.

Should Officer Pintkowski have Given Mr. Dahl his s10(b) Charter Rights Upon Detention?

[30] The Defence argues that Mr. Dahl was not told that he was being detained for a criminal investigation. However, the evidence of Officer Pintkowski was that he told Mr. Dahl that he was being detained for impaired operation of a motor vehicle under the Traffic Safety Act, as well as failing to stop and for not having a licence plate or registration. In my view, this is sufficient to comply with the requirements of s10(a) of the Charter, of advising a detainee of the reasons for the detention.

[31] Generally the police must also give s10(b) right to counsel Charter rights when they either stop motorists for purely criminal investigative purposes or, having initially stopped for traffic safety reasons, begin a purely criminal inquiry unrelated to traffic safety: R v Calderon, [2004] OJ No 3474 (ONCA). In this case I have found that this detention was for a criminal impaired driving investigation.

[32] The Supreme Court of Canada in the case of R v Suberu, 2009 SCC 33, was clear that in a case of an investigative detention, a person must be advised of their s10(b) Charter rights immediately.

[33] However, in the Supreme Court of Canada case of Orbanski, the Court also held that although the s10(b) Charter right to counsel was triggered in cases such as this, such a right was not absolute. It is subject under s1 of the Charter, “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”: paragraph 33. The facts in that case were that Mr. Orbanski had run a stop sign, and was stopped by police. Mr. Elias’ vehicle was stopped at a random roadside stop. In both cases the police officer who approached them could smell alcohol. Each driver was asked if he had been drinking. Mr. Orbanski was asked to perform roadside sobriety tests, which he failed. Mr. Elias failed an ASD. Both were arrested for impaired driving. It was conceded that both had been detained, but neither of them was fully advised of the Charter right to counsel under s10(b) until he was arrested.

[34] Justice Charron stated as follows at paragraph 60:

For these reasons, I conclude that while both Elias and Orbanski were detained for the purpose of s.10(b), hence triggering the right to counsel, the operational requirements of the statutory regimes in place in Manitoba prescribed a limitation of the right to counsel. This limitation is justifiable in a free and democratic society given the importance of detecting and deterring drunk driving, the highly regulated nature of driving on public roads, the limits placed by the common law on the types of screening that can be conducted at the roadside, and the limited use that can be made of the compelled evidence collected during the screening process.

[35] However, the Court found that there were some limits to the police powers to suspend the s10(b) rights in this kind of situation. In paragraphs 45, 46 and 47, she said as follows:

45 The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedman by that which is “necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference” (p. 35).

46 Doherty J.A. provided a useful delineation of the scope of the police power to check the sobriety of drivers at the roadside in Smith where he stated that “a procedure cannot be reasonable … unless it can be performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the detainee” (p. 73).

47 Whether a particular screening measure will fall within the scope of authorized police action is a question that necessarily calls for a case-specific inquiry. …

[36] Based on this case, it seems to me that a detainee’s Charter s10(b) right to counsel may be suspended if it is reasonable and necessary to carry out the police investigation at roadside. It will not be reasonable unless such police investigation is found to be performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the detainee. A case specific inquiry is always required.

[37] In addressing the specifics of this case, the question is whether it was reasonable and necessary to handcuff Mr. Dahl and then confine him in the back seat of a police vehicle for 38 minutes until the RCMP came to do the investigation?

[38] Officer Pintkowski repeatedly stated in his evidence that he did not arrest Mr. Dahl, insisting that he only did an investigative detention. If Officer Pintkowski had arrested Mr. Dahl, the law is clear that he would have had to give Mr. Dahl his s10(b) Charter right to counsel immediately. The case law states that an “arrest consists of the actual seizure or touching of a person’s body with a view to his detention”, or, alternatively the pronouncing of the “words of arrest” if the person submits voluntarily and goes with the arresting officer: R v Whitfield, [1969] SCJ No 66. In the case of R v Latimer, [1997] SCJ No 11, the Supreme Court of Canada held that the failure to use the word “arrest” was not determinative, and held that Mr. Latimer was under de facto arrest when he was told he was being detained for investigation.

[39] As to the use of handcuffs in an investigative detention, Steven Penney, Vincenzo Rondinelli and James Stribopoulos, in the text Criminal Procedure in Canada (Canada: LexisNexis Canada Inc, 2011) state at page 120-121:

… courts should be careful to avoid endorsing the use of handcuffs as a matter of course during all investigative detentions. Routine handcuffing is unwarranted and would result in the unnecessary erosion of an important distinction between brief investigative detentions and conventional arrests.

[40] At page 125 the authors state:

If courts were to authorize the police to routinely handcuff those detained for investigative purposes, to hold those detained for extended periods, to move those held to different locations (like the station house) and to carry out intrusive personal searches, then investigative detentions would in time become indistinguishable from conventional arrests…. In effect, such a change would impose the harsh consequences of arrest on a much greater number of innocent people. As a result, we hope that the courts, as custodians of this police power, will be fastidious in maintaining a clear distinction between investigative detentions and conventional arrests.

[41] The Defence has not argued that this was a de facto arrest, so I decline to make a ruling on that point. However, I will say that this detention does seem to me to be close to a de facto arrest, which in my view lends substantial weight to an argument that the s10(b) Charter right to counsel should have been given.

[42] In the Mann case, the Supreme Court stated that investigative detentions should be brief in duration. The question to be determined is what will be considered to be brief in any case specific context. In this case, the detention took place in a farmer’s field outside the Village of Carmangay, which is a 20-25 minute drive from the nearest RCMP detachment. In this specific context, was a 38 minute detention while being held in handcuffs in the back of a police vehicle to be considered brief?

[43] In the case of R v Plummer, [2011] OJ No 2034, the Ontario Court of Appeal addressed the importance of not expanding police powers under investigative detentions, in the context of a search, and stated as follows at paragraph 76:

Here, the police did not arrest the appellant, presumably because they did not think they had grounds for an arrest. As the appellant points out, there is an understandable tendency to expand a narrow rule to endorse the police conduct being challenged, since the case before the court will always be one where the search actually yielded a weapon, or some other valuable evidence. This is a tendency that the courts should resist.

[44] I am not satisfied, based on the above case law, that Mr. Dahl’s s10(b) Charter rights were properly suspended during the detention in this specific context. As to the reasonableness of the detention, as discussed in the Smith case, I find the roadside investigation was not done with “dispatch”. Mr. Dahl was held for 38 minutes, and then in fact no roadside investigations were done there at all. There is no evidence as to whether Constable Provost even brought an ASD with him to Carmangay. Mr. Dahl then spent the next 28 minutes driving into Vulcan to take the breathalyser. In my view, Mr. Dahl was subjected to much more than a “minimal inconvenience” during his 38 minutes of detention, handcuffed in the police truck. Therefore, I find that the suspension of Mr. Dahl’s s10(b) Charter rights during this detention was not reasonable in this case specific context.

[45] With respect to whether this particular detention was necessary, as discussed in Orbanski, I find it was not. It is not clear to me why Mr. Dahl was handcuffed. As stated in the case law, handcuffing is not, nor should it become, standard procedure for an investigative detention. Officer Pintkowski stated that he thought Mr. Dahl was a flight risk. However, the context was that they were standing in a freshly seeded farmer’s field in the country, and not in a downtown urban setting. If Officer Pintkowski was concerned about flight, he could have taken the keys to the dirt bike. Mr. Dahl showed no inclination at that point to flee. He was cooperative and compliant with all Officer Pintkowski’s directions and instructions. In any event, Officer Pintkowski had Mr. Dahl’s driver’s licence so he had his name and address. When Constable Provost arrived and arrested Mr. Dahl, he found Mr. Dahl very cooperative and did not handcuff him, even though that is standard practice on an arrest. For these reasons, I am not satisfied that it was necessary to handcuff and confine Mr. Dahl in the back of the vehicle during this detention.

[46] As already noted, the facts of this case seen to me to be closer to a de facto arrest situation, which requires the Charter s10(b) rights to be given, than an investigative detention.

[47] For all these reasons, I find that Mr. Dahl’s s10(b) Charter rights to counsel were not suspended during this detention, and since he was not advised of his rights, there was a Charter breach.

The Applicable Law on Reasonable and Probable Grounds to Demand a Breath Sample under s254(3)

[48] Section 8 of the Charter guarantees an individual the right to be free from unreasonable search or seizure. In this instance, the investigating officer did not have a prior judicial authorization to seize breath samples from the suspect. Where there is a warrantless search or seizure, the Crown has the onus of demonstrating on a balance of probabilities that the search was justified or reasonable. Such searches can be justified when the search is authorized by law, the law itself is reasonable, and the search or seizure is carried out in a reasonable manner: R v Collins (1987), 33 CCC (3d) 1(SCC).

[49] In this case, Constable Provost relied upon s254(3) of the Code as the basis of his right to ask for a breath sample. This section contains a number of statutory prerequisites. One prerequisite is that the officer believes that the person is committing, or in the previous three hours has committed, an offence under s253 as the result of the consumption of alcohol. Constable Provost testified he believed that Mr. Dahl’s ability to operate a motor vehicle was impaired by alcohol.

[50] In a voir dire, the Defence must establish a breach of the Charter on a balance of probabilities.

[51] In R v Bartle, [1994] 3 SCR 173, the Supreme Court of Canada held that the onus was on the Crown to prove that the police had reasonable and probable grounds to make a demand for a breath sample in order to satisfy s8 of the Charter.

[52] In R v Bernshaw, [1995] 1 SCR 254, Justice Sopinka made the presence of reasonable and probable grounds a constitutional requirement that the Crown must meet in order to meet a s8 Charter challenge. The existence of reasonable and probable grounds entails both an objective and a subjective component. That is, s254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must be reasonable grounds for this belief

[53] In R v Musurichan (1990), 56 CCC (3d) 570 (ABCA), McClung J.A. stated at 574:

The important fact is not whether the peace officer’s belief, as a predicate of the demand, was accurate or not, it is whether it was reasonable. That it was drawn from hearsay, incomplete sources, or that it contains assumptions, will not result in its legal rejection by resort to facts which emerged later. What must be measured are the facts understood by the peace officer when the belief was formed …

[54] In R v Huddle (1989), 21 MVR (2d) 150 (ABCA), the Alberta Court of Appeal held at page 152:

In our view, it is an error in law to test individual pieces of evidence which are offered to establish the existence of reasonable and probable grounds. That is similar to the approach which the Supreme Court of Canada condemned in R. v. Morin [1988] 2 S.C.R. 345, 66 C.R. (3d) 1, 88 NR. 161, 30 O.A.C. 81, 44 C.C.C. (3d) 193. True, the smell of alcohol alone does not show impairment; slurred speech alone does not show impairment by alcohol; glassy eyes may be associated with crying; but the question is whether the total of the evidence offered provided reasonable and proper grounds, on an objective standard. We say that because no issue of subjective belief arises here.

[55] In the case of R v Oduneye, [1995] AJ No 632, the Alberta Court of Appeal stated at paragraph 20:

It is clear from these cases that the question of the existence of reasonable and probable grounds must be based on facts known by or available to the peace officer at the time he formed the requisite belief. To paraphrase the statements in the cases cited, does the totality of the evidence available to the peace officer at the time he formed the belief support an objective finding that he had reasonable and probable grounds to believe that the ability of the driver was impaired by alcohol?

[56] In R v Shepherd, [2009] 2 SCR 527 (SCC), the Supreme Court reaffirmed and applied the standard outlined by Justice Sopinka in Bernshaw. The Court also discussed the nature of the reasonable and probable grounds standard. The Court held that the judge should consider the totality of the circumstances in measuring the objective basis for the officer’s demand.

[57] At paragraph 23, the Court stated:

Leaving aside the fact that this confusion itself can be a sign of impairment, it is important to note that the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving “over 80” before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation.

[58] In Shepherd, the accused, when stopped by the officer, explained that he did not stop for the officer because he believed he was being followed by an ambulance. The trial judge held that the officer did not have an objectively reasonable basis to make the breath demand because of Shepherd’s explanation and held there was a breach of the accused’s s8 Charter guarantee. The Supreme Court of Canada did not agree.

[59] The officer’s grounds to make the demand in Shepherd were:

1. The accused ran a stop sign, was speeding, and drove three kilometres while being followed by a police vehicle that was flashing its overhead lights:

2. He failed to stop because he mistakenly believed that the police car was an ambulance;

3. The officer observed that the accused had red eyes;

4. The accused appeared to be lethargic and fatigued;

5. The accused had a smell of alcohol on his breath; and

6. The accused moved slowly and deliberately.

[60] It is also important to consider that the degree of impairment of the ability to operate a motor vehicle is not a factor in assessing “reasonable grounds” since the offence of impaired driving can be established on proof of even slight impairment of the ability to operate a motor vehicle: R v Stellato (1993), 78 CCC (3d) 380 (ONCA) affirmed [1994] 2 SCR 478; R v Andrews (1996), 178 AR 182.

[61] In R v Waters, 2010 ABQB 607, the accused was stopped by police because he was operating a motor vehicle at night without any lights. The investigating police officer detected the smell of alcohol on the breath of the accused who admitted that he had consumed two or three beers that evening. He had glossy eyes and fumbled with some of the documentation, which he retrieved at the request of the police officer. The accused appeared surprised when he was told that the documents were expired. Justice Kenny concluded that the indicia of impairment found by the trial judge did not give the officer reasonable grounds to believe the appellant’s ability to drive was impaired. The Court found that the fumbling of the documents could be consistent with either nervousness or impairment. Additionally, the Court noted that the odour of alcohol was only detectable once the officer was really close to the driver. The Court found that the weak odour, glossy eyes and admission of consumption were not enough to have led to a reasonable belief that the ability to drive was impaired.

[62] In R v Baltzer, 2011 ABQB 84, Justice Graesser upheld the trial judge’s finding that the police officer had reasonable and probable grounds. The officer stopped a vehicle because its taillights were not working. The officer detected a heavy odour of alcohol, glassy, bloodshot eyes and slurred speech. The accused fumbled with his documents twice and showed signs of confusion.

[63] At paragraph 34, Justice Graesser observed:

It appears from my reading of Shepherd that the Supreme Court has set the bar quite low for objective standards.

[64] Justice Graesser went on to state at paragraphs 38 through 41 as follows: Impairment is objectively found in matters such as coordination, comprehension and a poor (but not simply illegal) driving pattern. When there are objective findings of a lack of coordination, a lack of comprehension or a poor driving pattern coupled with evidence of alcohol consumption, the dots are connected and there is an objective basis to conclude that the driver’s ability to drive is impaired by alcohol. This does not mean that once there is some minimal evidence of impairment and some minimal evidence of alcohol consumption the “reasonable” standard is met. That still requires consideration and analysis of the totality of the circumstances. It flows that two “minimals” do not likely amount to reasonable and probable grounds; two “strongs” do. There is an area of judgment call within those clear extremes, which must also be exercised in conjunction with the police officer’s honest, subjective belief that he or she had reasonable and probable grounds to make the arrest or make a breath sample demand.

Here, I need not determine how many factors need to be present. There can be no absolute checklist in matters like this, and there is no specific number of indicia that must be found.

There must at a minimum be some evidence of an impaired ability to drive coupled with some evidence of consumption of alcohol. A bloodshot, glassyeyed, deliberate and slow moving man smelling strongly of alcohol with slurred speech whose coordination and driving are just fine may not meet the objective test for reasonable probable grounds of impaired driving. There would be clear evidence of alcohol consumption but no evidence of impaired driving skills. On the other hand, an erratically-driving, clear-eyed man who has no slurring of speech but who smells of alcohol might meet the test. There would be clear evidence of an impairment of driving skills and some evidence of alcohol consumption.

Once there is some evidence of alcohol consumption and some evidence of impaired driving skills, the analysis becomes a matter of looking at the degree of each and assessing the totality of the circumstances.

[65] In the case of R v Cuthbertson, 2003 ABPC 83 the accused alleged that the breath samples were obtained in violation of s8 of the Charter, and sought to have them excluded. The accused was seen sleeping in his vehicle while the motor was running. The officer approached the accused, and formed the belief that the accused was impaired. The accused submitted to a breath demand and was ultimately charged with being in care and control of a vehicle with a blood alcohol content of over 80 contrary to s253(1)(b). Judge Allen summarized the evidence against the accused at paragraph 48:

1. A smell of alcohol emanated from the accused’s breath;

2. The accused had difficulty attempting to open his window at the officer’s request. He tried on four occasions within fifteen seconds. Fifteen seconds was adequate time for him to do so; nonetheless, it must be remembered that he was awakened from a sleep;

3. His eyes were glassy;

4. The accused answered her questions in a slow and deliberate fashion. However, he did appear to understand the warnings given to him and respond somewhat slowly and appropriately;

5. His movements were sluggish, but he had no difficulty with balance;

6. While he may have had difficulty with production of his documents he was able to produce the appropriate documents for the officer; and

7. The officer did not see the accused operating the motor vehicle.

[66] Judge Allen concluded at paragraph 50 that the “facts were certainly sufficient to form the basis of a demand for an approved screening device”, but fell short of reasonable and probable grounds. The result was that the breath samples were excluded from evidence, and the accused was acquitted.

[67] In the case of R v Singh, 2015 ABPC 62 the police constable spoke directly to the complainant who told him that she had been following a suspected impaired driver. She provided a description of the vehicle and the licence plate number. The constable promptly located and stopped the vehicle and identified the accused as the driver. The constable formed the opinion that the ability of the accused to operate a motor vehicle was impaired by alcohol on the basis of the following:

1. He was responding to the report of a suspected impaired driver, after having just talked to the complainant himself, and he located the accused’s vehicle one minute later;

2. The accused’s vehicle was straddling the centre line when the constable first saw it;

3. The accused’s vehicle weaved to the right and left as it came to a stop;

4. The accused’s eyes were red and glassy;

5. The accused’s speech was slurred, although the constable was aware that the accused spoke with an accent;

6. The accused was unsteady on his feet as he walked to the police vehicle; and

7. A strong smell of alcohol came from the accused as he was in the police vehicle.

[68] When Judge Henderson considered the totality of these circumstances, he found that although the constable had a genuine subjective belief that the ability of the accused was impaired by alcohol, that belief was not objectively reasonable. Using the terminology from the Baltzer case, Judge Henderson said that the constable observed moderate evidence of alcohol consumption, but only minimal evidence of impairment of driving skills.

[69] In the case of R v Tosczak, 2014 ABQB 86 the police constable saw the accused’s vehicle come out of the parking lot of a bar, and decided to follow it to watch its driving pattern. After a very short time he saw the two passenger side tires of the car drift over the lines into another lane of traffic, then come back again into the correct lane.

[70] The officer then activated his overhead lights to have the vehicle pull over. He followed it for just shy of a block. The vehicle initially did not appear to react but then abruptly made a very hard pull over to the side and came to a stop beside the curb near a Denny’s.

[71] When the constable approached the driver’s side of the car and informed the accused he was part of a Checkstop operation he noted the accused had what he described as a big dopey smile on his face. The officer testified that Mr. Tosczak had a very happy look. The accused fumbled with his wallet a little bit in retrieving his documents. The officer described this as the accused having tactile difficulty manipulating the wallet to get the licence out and give it to him. He testified it seemed more challenging than one would typically assume. He could not say for how long the accused fumbled. He noted that the accused had a very strong odour of alcohol on his breath. The officer also noted that the accused had a very pasty mouth and was smacking his lips as if very thirsty, which he demonstrated for the Court. He testified that this is very common with people drinking alcohol.

[72] He asked the accused where he was coming from. The accused admitted to the officer that he had just left the bar. Although the officer had already seen where he was coming from, he indicated he was just engaging the accused in conversation. He noted the accused had slow mumbled speech. The officer testified that often when dealing with impaired people they slow down their speech in an attempt to avoid mumbling.

[73] The police officer testified that based on having seen the vehicle drift over the lane markings, the big dopey smile, the very strong smell of alcohol or fairly strong smell of alcohol on the accused’s breath, the slow mumbled speech and the fumbling with the driver’s licence, he formed reasonable and probable grounds to believe the accused’s ability to operate a motor vehicle was impaired by alcohol.

[74] Justice Ross, on appeal, did not agree. She held that this single, brief incident, combined with the minor symptoms of impairment noted by the constable in an extremely short period of observation did not provide objective support for a belief that the accused was probably impaired.

Was there an Objective Basis for Constable Provost to have Reasonable and Probable Grounds?

[75] It is conceded in this case that Constable Provost had a subjective belief that Mr. Dahl’s ability to drive was impaired by alcohol. The question for this Court is whether there is an objective basis for that subjective belief. The case law makes it clear that the Court must consider the totality of the evidence, including exculpatory, neutral or equivocal information: Tosczak, paragraph 16.

[76] I find the following facts are the constellation of factors that must be considered in assessing whether or not Constable Provost had reasonable and probable grounds:

1. When Constable Provost got to the site, he said he got a run down as to the reason why Officer Pintkowski had Mr. Dahl with him. But what information was included in this rundown? Constable Provost testified that Officer Pintkowski told him that he was trying to pull Mr. Dahl over for riding his dirt bike on the dirt roads, and when Officer Pintkowski tried to pull Mr. Dahl over, Mr. Dahl went into the dirt road. I find this is a rather vague and somewhat unclear description by Constable Provost of exactly what he was told by Officer Pintkowski. From this it is hard to know whether Constable Provost was told by Officer Pintkowski that Mr. Dahl went into the ditch first, or how they got in the farmer’s field. It is also difficult to know if Officer Pintkowski told him when this all took place, how fast they were going, or how far they drove, or if Mr. Dahl was cooperative.

2. Although the relevant issue is what Constable Provost was told by Officer Pintkowski, the question of what Officer Pintkowski himself knew is also of interest because he may have passed that on to Constable Provost. It is important to note that in his evidence, Officer Pintkowski was very clear that he did not pull Mr. Dahl over because of his driving pattern. When asked about Mr. Dahl’s driving pattern Officer Pintkowski said “No, I mean, he was on a dirt bike, right, so, I mean, you don’t necessarily – a lot of people don’t necessarily ride in a perfectly straight line on a dirt bike, it definitely had nothing to do with his driving pattern”. Although Constable Provost did not say anything about Officer Pintkowski telling him this, I find it is a reasonable inference that Officer Pintkowski did not tell Constable Provost that Mr. Dahl was exhibiting any bad driving pattern.

3. In his evidence, Officer Pintkowski testified that when Constable Provost got there he gave Constable Provost a brief summary of what had occurred. As noted, there is no evidence of exactly what Officer Pintkowski told him. Specifically, it is not clear from the evidence of either Officer Pintkowski or Constable Provost whether Officer Pintkowski told Constable Provost that Mr. Dahl had driven into the farmer’s field, or that he had fallen off the bike. Was this information included in the “brief summary”? There is no evidence from Constable Provost about that. There really is no evidence of Officer Pintkowski relating any details about Mr. Dahl’s driving, except that he failed to stop.

4. Looking at the testimony of Officer Pintkowski, he mentioned he detected the smell of alcohol on Mr. Dahl’s breath. He did not mention any of the other usual indicia of impairment such as slurring words, red or glassy eyes, slow speech, fumbling with documents, loss of dexterity, confusion, rude or uncooperative conduct, staggering or loss of balance. Given Officer Pintkowski’s interaction with Mr. Dahl, namely telling him to get off the bike, having him produce his driver’s licence, handcuffing him, then walking him over to the truck, and confining him in the back seat, one would expect these indicia to be apparent if they occurred. As to what indicia of impairment he noticed, I conclude Officer Pintkowski only told Constable Provost of the smell of alcohol on Mr. Dahl’s breath.

5. In his testimony, Constable Provost said that after he talked to Officer Pintkowski he went directly to the truck where Mr. Dahl was detained and talked to Mr. Dahl there for a few minutes. Constable Provost stated that he detected a “note of alcohol” on Mr. Dahl’s breath when he was speaking to him, and that Mr. Dahl had red and bloodshot eyes. Based on that, he then formed the opinion, coupled with what he had been told by Officer Pintkowski, that Mr. Dahl had been operating a motor vehicle while under the influence of alcohol and he arrested Mr. Dahl immediately.

6. Constable Provost did testify that Officer Pintkowski had told him that Mr. Dahl had admitted consuming alcohol earlier in the day. However, Officer Pintkowski did not testify to that in his evidence. Although the law is clear that Constable Provost can rely on hearsay in forming his grounds, in this case where Officer Pintkowski testified himself as a witness, and did not mention that statement by Mr. Dahl, I am not prepared to accept that Officer Pintkowski told Constable Provost that.

7. In his testimony, Constable Provost did not mention that Mr. Dahl had any of the usual indicia of impairment such as slurring, smell of alcohol in the vehicle where he been sitting for over 30 minutes, problems with dexterity, confusion, rudeness or uncooperativeness, slow speech or lack of balance.

[77] At this point, according to the Oduneye case, I must ask myself if the totality of the evidence available to Constable Provost at the time he formed the belief supports an objective finding that he had reasonable and probable grounds to believe that the ability of Mr. Dahl to drive was impaired by alcohol.

[78] In Shepherd, the accused was followed by the police, and exhibited illegal driving behaviour, and some confusion. The accused had red eyes, appeared lethargic and fatigued, had alcohol on his breath, and moved slowly and deliberately. The Supreme Court of Canada held in Shepherd that there was sufficient evidence of objective grounds. However, in this case, Constable Provost did not observe any bad driving at all and there was no lethargy, confusion, or slow movement. It is not clear that Officer Pintkowski even told Constable Provost about Mr. Dahl falling off the bike in the field.

[79] In the Waters case, which is binding on me, the accused was stopped for operating his vehicle without lights. The police officer detected the smell of alcohol on the breath of the accused who admitted consuming two or three beers that evening. He had glossy eyes and fumbled with his documents. He was surprised when he was told that the documents had expired. Justice Kenny found that this was not sufficient to find reasonable and probable grounds. In my view, there is even less evidence in this case. I have found that there was no admission of consumption, and there was no fumbling or confusion with the documents. The totality of the evidence in this case is substantially less than in Waters.

[80] In the Baltzer case, which is also binding on me, Justice Graesser found reasonable and probable grounds where the accused had a heavy odour of alcohol, glassy bloodshot eyes, and slurred speech. In Baltzer, the accused fumbled with his documents twice and showed signs of confusion. In this case, neither witness said there was a heavy odour of alcohol, Constable Provost referred to it as a “note”. There was no slurring, and no fumbling. Considering the totality of the evidence of impairment in this case, in my view it is substantially less than in Baltzer.

[81] In the Cuthbertson case, which was decided before the Shepherd case was handed down, the accused was seen sleeping in the driver’s seat with the motor running. The accused was awoken and had a smell of alcohol on his breath, glassy eyes, and had difficulty opening the window. His movements were sluggish. He had some difficulty producing documents, but had no difficulty with balance. He spoke slowly, but appeared to understand what was said to him. Judge Allen found these indicia were not sufficient for reasonable and probable grounds. In my view the indicia of impairment are considerably less in this case. Although Cuthbertson is not binding on me, I find the reasoning persuasive.

[82] In the more recent case of Singh, the officer spoke directly to the complainant, and actually witnessed bad driving by the accused. The accused had red and glassy eyes, slurred speech, was unsteady on his feet as he walked to the police car, and had a strong smell of alcohol on his breath. Judge Henderson found there was not sufficient evidence to support objective reasonable and probable grounds. Although not binding on me, I find the case is persuasive. In my view, the indicia of impairment are considerably less in this case than in Singh.

[83] In the Tosczak case, which is binding on me, the police officer testified to bad driving by the accused. The officer also testified that the accused had a big dopey smile, a fairly strong smell of alcohol on his breath, slow mumbled speech and some fumbling with his driver’s licence. Justice Ross held that this single brief incident combined with the minor symptoms of impairment did not provide objective support for reasonable and probable grounds. In my view, the indicia of impairment in this case are less than those in Tocszak.

[84] Using the terminology set out in Baltzer, I find in this case that there is minimal evidence of consumption of alcohol, and little, or at best, minimal evidence of impairment of the ability to drive. Baltzer states that two minimals do not likely amount to reasonable and probable grounds.

[85] For these reasons, I find that based on the totality of evidence before me, and the case law which I find persuasive and which binds me, there was an insufficient objective basis for Constable Provost’s opinion that Mr. Dahl’s ability to drive a vehicle was impaired by alcohol. Therefore I find that there was a breach of Mr. Dahl’s s8 Charter rights.

Should the Certificate of Analysis be Excluded under s24(2) of the Charter?

[86] Section 24(2) of the Charter requires a trial court to exclude evidence that is obtained in a manner that infringes the Charter if, having regard to all the circumstances, the admission of that evidence into the trial would bring the administration of justice into disrepute.

[87] In R v Grant, [2009] 2 SCR 353, the Supreme Court of Canada set out the proper approach in order to assess the impact of admitting illegally obtained evidence. A court must consider and balance three factors: the seriousness of the breach, the impact of the breach on the Charter-protected rights of the accused and society’s interest in adjudication of the case on its merits.

Seriousness of the Breach

[88] In Grant, the court addresses the issue of the seriousness of the a breach at paragraph 108 as follows:

The first inquiry informing the s. 24(2) analysis – the seriousness of the Charterinfringing conduct – is fact-specific. Admission of evidence obtained by deliberate and egregious police conduct that disregards the rights of the accused may lead the public to conclude that the court implicitly condones such conduct, undermining respect for the administration of justice. On the other hand, where the breach was committed in good faith, admission of the evidence may have little adverse effect on the repute of the court process.

[89] In the case of R v Harrison, [2009] 2 SCR 494, at paragraphs 22 and 23, the Supreme Court gave further guidance and stated:

At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. Did it involve misconduct from which the court should be concerned to dissociate itself? This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Chartercompliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern.

[90] In the Waters case, Justice Kenny decided that the police officer should have administered the ASD first, instead of making an immediate arrest for impaired driving and requesting breathalyser samples. The Waters case is binding on me. With respect to the issue of the seriousness of the breach in the s24(2) analysis Justice Kenny stated as follows:

On the first branch of the Grant inquiry, I find that the Charter-infringing state conduct was serious. The Constable here should not have proceeded to a breath demand on the weak indicia available to him. Until the Constable smelled alcohol, he had no reason to believe the Appellant driving without headlights and with expired documents resulted from impairment, as opposed to simple inattentiveness. Further, the indicia regarding the amount of alcohol consumed suggested modest consumption. This should have indicated to the Constable that the level of alcohol consumption may not be such that it would impair the ability to drive. It is a serious matter to take breath samples in breach of the Charter when Parliament has provided an alternate course in the form of screening tools. The Constable knew the breath sample demand would have a significant impact on the Appellant, and should have taken the steps necessary to ensure he was not in breach of the Appellant’s Charter rights. The Court should dissociate itself from such conduct.

[91] In this case, it seems to me that the proper course of action would have been for either Officer Pintkowski or Constable Provost to administer an ASD test. The evidence was that Officer Pintkowski did not have one, and it is not clear if Constable Provost had one when he got there.

[92] With respect to the s10(b) breach, I have found that this was at least close to a de facto arrest, where a young man is handcuffed and confined in a police vehicle for more than half an hour. In this context, in my view, Mr. Dahl should have been given his s10(b) Charter rights.

[93] I am mindful of the admonition of the Ontario Court of Appeal in the Plummer case that expansion of the narrow rule allowing investigative detention powers should be resisted by the Courts. I also take note of the statements of Penney et al, in Criminal Procedure in Canada at page 125 encouraging the Courts to maintain a clear distinction between investigative detentions and conventional arrests.

[94] In my view, these Charter violations were both major in degree, and cannot be characterized as merely “inadvertent” or “of a technical nature”.

[95] There were two breaches, and in my view they are both individually and cumulatively serious. This favours exclusion.

Impact of the Breach

[96] The impact of any breach on the accused’s Charter-protected interests must also be considered. In Grant it states that the taking of breath samples is a relatively minor intrusion upon those Charter-protected interests. The impact of the administration of a breathalyser test is considerably greater than having to submit to a roadside ASD. The ASD can be administered at the road side very quickly, with little or minimal inconvenience to the driver. However, a breathalyser test is administered at the police station. The accused is arrested, may be handcuffed, his vehicle is towed and then he is transported to the police station. After release, someone has to drive the accused home. The whole process will usually take an hour or more, as it did in this case. This type of intrusion is significant.

[97] I also find that the impact on Mr. Dahl of a denial of the right to counsel, in this context, is intrusive.

[98] Again, there were two breaches here, and therefore two intrusions into Mr. Dahl’s Charter based liberty interests. In this context, it seems to me that two intrusions, in this specific case, are more impactful than one.

[99] As such I find that the impact on the accused’s Charter rights was significant and, considering only this line of inquiry, the admission of the Certificate into evidence would tend to bring the administration of justice into disrepute. This line of inquiry would favour the exclusion of the Certificate.

Adjudication on the Merits

[100] The third line of inquiry under the Grant approach is to consider the interest of society in an adjudication of the case on the merits. Rarely will this factor favour exclusion and this case is no exception. Also, the reliability of the evidence is an important factor in this line of inquiry. In this case, the breach of Mr. Dahl’s s8 and s10(b) Charter rights would not in any way undermine the reliability of the breathalyzer results. As a result, this line of inquiry favours the inclusion of the Certificate into evidence.

Conclusion – Section 24(2) Analysis

[101] All of the circumstances within the framework of the three lines of inquiry must be considered for the purpose of determining whether the admission of the Certificate into evidence would bring the administration of justice into disrepute. There are no overarching rules to determine how this balance should be struck. Mathematical precision is not possible.

[102] On the facts of this case, considering that there were two breaches, and following the Waters case, which binds me, I conclude that the balance falls in favour of the exclusion of the Certificate. In weighing the three lines of inquiry, I find that the inclusion of the Certificate in this case would bring the administration of justice into disrepute.

Conclusion

[103] I find that there was a breach of Mr. Dahl’s s8 and s10(b) Charter rights, and therefore the Certificate of Analysis is excluded under s24(2) of the Charter.

Heard on the 13th day of December, 2016.

Dated at the City of Lethbridge, Alberta this 2 nd day of March, 2017.

P.G. Pharo

A Judge of the Provincial Court of Alberta

 

Appearances:

E. Olsen

        for the Crown

W. Hlady

       for the Accused

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