Court File and Parties

Court File No.: Cambridge 2597/12 Date: 2013-05-22 Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kathryn Keats

Before: Justice G.F. Hearn

Heard on: January 10, 2013 and March 13, 2013

Reasons for Judgment released on: May 22, 2013

Counsel:

• Ms. Lynn Robinson, for the Crown
• Mr. Brian Starkman, for the accused Kathryn Keats

Hearn, J.:

BACKGROUND

[1] Kathryn Keats came before the court on January 10, 2013 and at that time entered a plea of not guilty to a count alleging that on or about May 5, 2012 at the City of Cambridge she operated her motor vehicle having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[2] Prior to the commencement of the trial counsel for the defence had served a Notice of Application alleging that Ms. Keats' right to be secure against unreasonable search and seizure pursuant to s. 8 of the Canadian Charter of Rights and Freedoms was infringed and further alleging that she was not afforded the opportunity to exercise her right to counsel as required under s. 10(b) of the Charter. Counsel asked that upon the finding of such breaches the court exclude certain evidence including ultimately the subsequent intoxilyzer results from the evidence at trial. Accompanying the Notice of Application was the affidavit of Kathryn Keats.

[3] The Crown has filed a response to the application simply taking some issue with respect to the facts alleged in the application and ultimately opposing the application and requests that it be dismissed. The Crown submits in the alternative that if breach or breaches are found of the accused's Charter rights then upon a proper analysis under s. 24(2) the results of the breath tests ultimately obtained should not be excluded from evidence.

[4] As is usual in these types of matters, the trial proceeded as a blended hearing. The Crown called evidence from a civilian and two police officers with respect to all matters. The defence has called the accused to give evidence on the application.

[5] Written submissions were received following the completion of the evidence and a ruling on the application was ultimately adjourned to today's date.

EVIDENCE OF THE CROWN

a) Evidence of Hugh Howie

[6] Mr. Howie was travelling on the westbound 401 on May 5, 2012 on his way to visit family in the Ayr area. Somewhere in the Milton area while travelling on the 401 at "around midnight" he passed a silver "Ford Echo" four-door vehicle. He indicated that about two minutes later that same motor vehicle passed his motor vehicle travelling at an estimated speed of 130 kilometres per hour. He estimates his vehicle was travelling at a speed of 105 to 110 kilometres an hour.

[7] He testified that this vehicle upon passing slowed to 100 kilometres and did not seem to be maintaining a steady speed which he found was "odd". He further noted the vehicle to be "jumping lanes" without signalling and to be tailgating a transport truck. He estimates that the vehicle was about 10 feet behind that truck.

[8] He describes the motor vehicle as being "all over the place". He felt nervous and stayed behind the vehicle while observing it from a distance.

[9] He noted the vehicle to be tailgating, driving at inconsistent speeds and changing lanes without signalling. It seemed "weird to him" and he suspected "drunk driving" as a result of what he described as "really erratic driving".

[10] As a result, he placed a call to 911 to report his concerns and stayed on the phone to keep the car in view. He noted the car continued to speed up, slow down, jump lanes and while observing the car noted it to be "all over the lanes".

[11] As the vehicle travelled through the Cambridge area, he observed the OPP to pick up the vehicle on the road and he stayed back a distance allowing the cruiser to come between him and the vehicle. He then noted what he described as two cruisers pull the vehicle over. He states he never lost sight of the vehicle and the vehicle he observed was the vehicle that was stopped by the police.

[12] In cross-examination he acknowledged that in the 911 call he could not recall if he had reported the "tailgating" and he further stated that although the lane changes were not signalled, the vehicle had not "cut off" other vehicles.

b) Evidence of Cst. Wayne Maxwell

[13] Constable Maxwell is a member of the Ontario Provincial Police, Cambridge Detachment. He was on duty on May 4 to May 5, 2012. He noted the weather conditions to be good and traffic on the 401 being moderate to heavy. His zone for coverage on the 401 on the day in question ranged from Milton to Woodstock. He had with him in his cruiser an approved screening device properly described which he had tested prior to his involvement with the accused, finding the device to be in proper working order.

[14] At 12:42 a.m. on May 5 he received a call from dispatch regarding a possible impaired driver near Hwy. 6 westbound on the 401. The report received indicated the subject vehicle was changing speeds and weaving in its lane. He was given a plate number and the vehicle was described as a "silver Toyota Echo". He parked his cruiser and then observed the subject motor vehicle to pass him in a westerly direction in the middle lane. He pulled his cruiser out onto the 401, got behind the vehicle and observed the vehicle to change lanes to lane number three. The officer indicated the vehicle was "weaving in its lane and touched the fog line on the right side of the lane".

[15] A traffic stop was initiated at 12:53 a.m. The officer confirmed the plate number and was satisfied that the vehicle was the same motor vehicle as described by dispatch. He approached the vehicle and found the accused to be the driver and the lone occupant.

[16] The officer advised Ms. Keats that there had been a traffic complaint and that is why he had stopped her. He then asked her if she had any alcohol to drink "that evening" and she said "no". The officer advised the accused that he had seen the vehicle weaving and asked if he gave her a test was she sure that it would show no alcohol. At that point Ms. Keats acknowledged that she had had a glass of wine "around 5:30 p.m."

[17] The officer testified that based on the driving he had observed and had been advised of, as well as the admission of consumption, he formed the suspicion that Ms. Keats had "alcohol in her body" and at 12:56 a.m. he read the approved screening device demand.

[18] The officer tested the device again himself at 12:57 a.m. and found it to be working properly. He demonstrated and provided verbal commands as to how to provide the sample. He did not recall specifically what he said but after six to seven attempts the officer advised Ms. Keats that he would arrest her for failure to provide a sample and that it was better if she was "under the limit and just to provide a sample for me", a suitable sample was obtained at 1:06 a.m. Upon obtaining a suitable sample an "F" was registered on the device and Ms. Keats was arrested for "being over the legal limit" at 1:08 a.m.

[19] At 1:09 a.m. the rights to counsel were read. Ms. Keats indicated she understood and when asked if she wished to call a lawyer at 1:12 a.m. she indicated "yes, duty counsel".

[20] The breath demand was read at 1:14 a.m. Ms. Keats asked the officer to repeat it. It was read again and the officer did not recall if there was a response to the second reading. The caution was read at 1:15 a.m. and at 1:16 a.m. the officer and Ms. Keats cleared the scene and attended at the Cambridge detachment arriving at 1:20 a.m.

[21] Ms. Keats was placed in an interview room at 1:21 a.m. and at 1:23 a.m. placed in a cell awaiting contact with duty counsel.

[22] At 1:24 a.m. the officer contacted the necessary 800 number and left a message. At 1:32 a.m. duty counsel called back. The duty counsel was named Michael Roberts and the officer noted that the telephone connection appeared to be bad, there was static on the line and he had difficulty hearing the duty counsel. The duty counsel provided another number, the officer called back and because of some issue with respect to transferring the call he requested that duty counsel call back to the detachment.

[23] The duty counsel did call back at 1:40 a.m. and the telephone was provided to Ms. Keats who was given an opportunity to consult in private in the cell area. Apparently this was viewed on video without audio and at 1:55 a.m. the officer noted Ms. Keats appeared to be finished with the call as she was standing with the phone in her hand.

[24] The officer then took Ms. Keats from the cell area at 1:55 a.m. to the breath room. It was at this point during the course of this officer's evidence that the DVD was played with respect to the video and audio recording of Ms. Keats and others upon her entering the breath room at or about that time. That DVD has been marked as Exhibit 1 to this proceeding.

[25] The officer was questioned with respect to any conversation he had immediately before entering the breath room with Ms. Keats. He did not recall any conversation wherein Ms. Keats may have indicated that she had "travelled around the world" or words to that effect, but he did recall Ms. Keats indicating as she was being removed from the cell area, that duty counsel was "slurring his words". The officer stated he responded by telling Ms. Keats that he had spoken to the gentleman twice and had not noted that nor had he ever had such an experience with duty counsel slurring their words. He provided the name of duty counsel to Ms. Keats and testified in-chief that he had no sense that she was not satisfied with the advice that she received. The officer stated as well that he told Ms. Keats that if she felt she had not received proper advice he would put her in touch with another counsel. She never said yes to call another lawyer. The officer felt he need do nothing further and if there was an issue she could raise it with the breath technician. His obligation was to provide a lawyer and a place to consult with a lawyer in privacy. He never asked her with respect to the quality of the advice that she received because that was "none of my business" nor had she asked for him to call another lawyer.

[26] Constable Maxwell, during a thorough cross-examination, indicated among other things:

1. He followed the subject vehicle for two kilometres during which it changed lanes as he came up behind without issue, travelling at a speed noted to be "nothing excessive" and weaving within the lane he was travelling in with the wheels on the fog line "but just within its own lane". He conducted a traffic stop and the motor vehicle pulled properly over with reasonable dispatch. He did not know the civilian who had notified dispatch and the officer agreed he only saw a "slight weave in its own lane" and had not noticed "an inconsistent speed".

2. When he approached the motor vehicle he noted Ms. Keats' speech to be normal as were her "fine and gross motor skills" when she was directed to exit the vehicle. She had no issue with production of her documents and confirmed again that she had stated that she had had a glass of wine "around 5:30 p.m." which the officer agreed would be "long gone" at 1:00 a.m. However, the officer stated he had reasonable suspicion as a result of the civilian complaint, the "slight weave" he had observed and the initial denial of consumption by the accused. Apparently "deception is a big thing" for this officer.

3. The officer did not note it as such in his notebook, but recalled the question he asked Ms. Keats initially was "had she consumed any alcohol tonight". He either said "tonight" or in "the last 24 hours" as he is very "set in the ways in how I do things".

4. The accused's reference to wishing to contact duty counsel was not at the detachment as suggested by counsel, but at the roadside. Contact was initiated by the officer upon arrival at the detachment and Ms. Keats spoke to this duty counsel from 1:40 a.m. to 1:55 a.m. Once the call was completed, her initial complaint to him was that duty counsel was "slurring his words" which the officer agreed with defence "absolutely", was extremely important. Still, the officer had not made note of the conversation as when it was said it had occurred as soon as the call had been completed and they were walking towards the breath room. He apparently felt the conversation would be captured on video as they entered the breath room, however upon further cross-examination the officer acknowledged given the distance it was not likely that conversation would be captured.

5. The officer then went on to state that Ms. Keats' comment "conflicted" with his evidence as he "spoke to duty counsel twice" and "spoke to him quite a bit" and "there was a bit of dialogue between him and I" and the officer did not detect anything. The officer did not "believe" Ms. Keats had indicated that she believed duty counsel was "intoxicated", but only that he was "slurring his words". The logical inference, with which he agreed, was that she was alleging duty counsel was "under the influence of alcohol".

6. The officer denied Ms. Keats then asked him if there was anyone else she could consult with nor that he had indicated that was the only duty counsel on call that evening. He also denied that he told Ms. Keats duty counsel was of Jamaican descent and he did not seem drunk to him. He did acknowledge saying he did not believe duty counsel was intoxicated in any way and was not slurring his words "with me" and according to the officer he has "been to Jamaica and would understand a Jamaican accent".

He did also acknowledge that the first connection was "such a bad connection" and all he got was a phone number and the second connection was nothing else other than the basic questions such as the name of the accused, whether the accused spoke English, was to be held for a bail hearing, were there any prior charges as well as the charge.

7. The officer agreed that the comment by the accused indicated to him that she was not content with the conversation with duty counsel. He agreed he had then said to her "the question is do you feel you got proper advice" and she had stated, "I don't know what advice I was looking for, to be honest with you." The officer agreed with counsel that was hardly "an unequivocal yeah, I'm fine with the advice I got even though he was under the influence". It was put to the officer as well that Ms. Keats was crying at this point, but the officer did not recall Ms. Keats ever crying in his presence.

[27] What was said by the officer with respect to the "proper advice issue" was captured on the tape as he and Ms. Keats entered the breath room. What he had actually said was that "what we're going to do is put the tape on and you can tell us what you thought and if there's an issue I'd be more than happy to call another duty counsel lawyer and you can express your issues". It was put to the officer that the issues to be addressed were Ms. Keats' concern with the duty counsel. The officer indicated that was not his intent at all and did not agree with counsel that when Ms. Keats indicated she did not know what advice she was looking for that that was an indication she was not content with the call. The officer meant by his comment that if Ms. Keats did not have proper legal advice, he would be more than happy to call another duty counsel lawyer. He did not agree that his statement was equally consistent with the fact that she could call another duty counsel to "complain about the first". The officer stated, "No, that was not my intent at all."

[28] The officer does not recall Ms. Keats saying "either way" whether she was content with the advice that she got and he did not recall her "ever coming up and saying I want to speak to another lawyer." It was suggested that Ms. Keats had indicated that in the hall, but the officer said, "I don't recall that at all."

[29] The officer also indicated he had told Ms. Keats that the duty counsel had given him his name, he had given duty counsel the officer's name and "I didn't detect any slurring". He also recalled Ms. Keats saying "something" to the effect that Ms. Keats had told the officer that when she asked duty counsel his name he had "hung up on me". The officer then responded "okay, well I have his name for you".

[30] The officer appears not to have accepted that based on the "totality of everything" as there was already "deception earlier in the evening" and Ms. Keats was "already contradicting what I knew to be true, as I didn't have any slurring and I had a conversation with the gentleman. So it's not uncommon for prisoners to bend the truth sometimes." The officer did not believe her when Ms. Keats indicated that the lawyer had hung up on her.

[31] Of note, defence counsel put it to the officer that even though Ms. Keats was saying things that would indicate she was not content with the advice and that the lawyer had hung up on her she was never asked point blank whether she wished to speak to another duty counsel lawyer. The officer agreed and stated, "I probably should have made a more pointed question, you're correct." The officer then went on to state however that Ms. Keats had never indicated to him that she wished to speak to another lawyer. Further, it appears the officer simply did not believe Ms. Keats when she stated the lawyer had hung up on her and if he had believed her, he would have either tried calling back the same duty counsel or another duty counsel.

[32] The officer said that if Ms. Keats had indicated that she was not "happy with my advice" or "not happy with that lawyer I spoke to" and "I want to speak to another one", the officer would not have denied that request even though he did not believe her. The following was put to the officer:

Q: Alright. And your testimony then, is that when she tells you that this guy was – that she believed that this guy was intoxicated or words that allowed you to infer that, and that he hung up on her, that that didn't tell you – that didn't telegraph to you that she wasn't happy with this advice?

A: No, once again that telegraphed to me, a person who was under the influence of alcohol sometimes perceives things differently.

[33] The officer also stated that in his 12 years of "arresting impaired drivers" he has never had this experience previously and he had been "privy" to duty counsel himself and the officer was sure "with my experience I would detect it better than her".

[34] The officer was insistent in cross-examination that at no time had Ms. Keats specifically stated to him that she wanted to speak to someone else or that she wanted a new lawyer to speak to and that "I can't say other than one thousand times I would have provided another lawyer if she would have said I would like to speak to another lawyer". There is no doubt, however, during the cross-examination the officer clearly knew that the comments Ms. Keats was making were her inferring that the duty counsel was "intoxicated".

[35] The officer stated as well that he had said something to Ms. Keats to the effect that he was going to leave that particular issue to the breath tech to pursue. As a breath tech himself one of the things he does as soon as "they walk in" is to read rights to counsel, caution and demand and ask if there has been a reasonable opportunity to speak to a lawyer in private. If there is dissatisfaction at that point when he is the breath tech, he stops, goes to the arresting officer and advises them to contact counsel. The officer then appears to have assumed the breath tech was going to "offer you that same question if you've spoken or if you're happy with your legal advice". In his experience as a breath tech if an accused indicates they are not happy and they wish to speak to another lawyer he would make those arrangements "absolutely".

[36] The following exchange then took place with counsel:

Q: So why is it if you're the breath tech and she says the lawyer is drunk, you'd want her to speak to another lawyer, but you're the arresting officer and she says her lawyer is drunk and you don't?

A: The difference is a breath tech is you don't speak to the duty counsel. As the arresting officer I spoke to that duty counsel clearly, twice and he was not drunk in my opinion.

[37] Ultimately the officer stated he simply did not believe Ms. Keats, but he did not indicate that to her as he did not want to "get into any type of a conflictual ....come across being rude".

c) Evidence of Cst. Michael Kathen

[38] Constable Kathen is a qualified breath technician and acknowledged to be such. During the course of this officer's evidence the DVD from the interaction with Cst. Kathen and Ms. Keats in the breath room was played. At the commencement of that DVD there was captured some interaction between Cst. Maxwell as he entered the breath room with Ms. Keats prior to Cst. Kathen's involvement. During the course of that interaction it is clear from the DVD that there were discussions between Ms. Keats and Cst. Maxwell about the telephone call with duty counsel. Ms. Keats wipes her eyes and is obviously upset.

[39] Constable Maxwell on the DVD does actually indicate what was put to him by defence counsel during cross-examination, that is words to the effect that he could call other duty counsel to discuss "the issues" that Ms. Keats had indicated she had with duty counsel. The constable does state quite clearly that the question is whether or not Ms. Keats felt she received proper advice. Ms. Keats responds to that, while wiping her eyes, that she does not know what advice she was to get. Cst. Maxwell seems to effectively disregard that comment and then provided the grounds to Cst. Kathen. It is also clear that during that time Ms. Keats indicated again clearly to Cst. Maxwell that duty counsel had hung up on her. Again, Cst. Maxwell seems to have given little weight to that particular comment and simply carried on with his grounds. It is important to note that during all of this taking place Cst. Kathen is in the room and, obviously from his demeanour on the tape, is listening to that conversation.

[40] On the DVD as well, Cst. Kathen receives the grounds from Cst. Maxwell and during Cst. Maxwell providing those grounds there are some interjections by Ms. Keats who obviously disagrees with some of the comments made by Cst. Maxwell. Cst. Kathen does ask Cst. Maxwell if rights to counsel have been exercised and Cst. Maxwell indicates "Yes". When Cst. Maxwell leaves the room Cst. Kathen does read a secondary caution to Ms. Keats but does not prior to introducing her to the machine confirm anything about rights to counsel, as is apparently the practice of Cst. Maxwell when he conducts such tests.

[41] During cross-examination Cst. Kathen confirmed he was aware when Cst. Maxwell and Ms. Keats entered the room that they were discussing some issue with respect to duty counsel and he appreciated that Ms. Keats was expressing concerns about the state of sobriety of duty counsel. He agreed at the point of the turnover of Ms. Keats to himself he was aware that is what she was thinking and his response was that during the providing of the grounds when asked if the rights were read Ms. Keats had been asked if she contacted Legal Aid and she had indicated yes "and said nothing else". Cst. Kathen said that there was no other complaint after that and when reminded by defence counsel that between the two tests when the officer was commencing the alcohol influence report and indicated to Ms. Keats that he was going to ask her some questions she had responded "I was told by my drunk counsel that I'm not supposed to do anything other than blow into that", pointing to the intoxilyzer. Interestingly enough, Cst. Kathen did not recall that and the DVD had to be played back so that he could see that is exactly what the exchange had been.

[42] It was also clear, or should have been clear to the officer who was listening during the exchange between Cst. Maxwell and Ms. Keats as they entered the room, that Ms. Keats had indicated to Cst. Maxwell duty counsel had hung up on her. Again, the constable did not seem to recall that but clearly on the DVD he is present in the room when that exchange takes place.

[43] When questioned as to why he would not take steps to contact counsel given the comment that was made by Ms. Keats with respect to the state of duty counsel, the officer indicated that if Ms. Keats had asked to speak to another lawyer he "probably would have stopped and said okay, let's go call one", but she had never said anything like that to him, only that her lawyer was "drunk".

[44] The officer was pressed as to how he interpreted that and indicated that because Ms. Keats had never said precisely that she wished to contact another lawyer, nor that she was not satisfied, he did not take the comment about the lawyer being "drunk" as an indication she should be given an opportunity to speak to someone else.

[45] The following exchange then took place with defence counsel:

Q. You didn't say to her - were you satisfied with the advice you got from duty counsel, right?

A. I don't have to say that.

Q. Well, I'm going to suggest to you, you do if you've already heard before that question - you put that question to her, that she thought the duty counsel lawyer was drunk?

A. Well, it's up to her to tell me if she wants to speak to another lawyer. She never said that to me. She said he – she thought he was drunk.

Q. And you don't think there was any obligation on you, hearing two separate times that she thought he was drunk, no obligation on you to ask her to do you want to speak to a different lawyer who maybe hasn't been drinking tonight?

A. No, the obligation is on Kathryn Keats to tell me if she wants to speak to another lawyer.

[46] The officer was questioned about his training and the fact that someone would have to specifically ask for a lawyer and stated as follows:

Q. But what you're saying is that that's your personal policy when it comes to somebody who is not content with their counsel. Unless they actually go that extra mile and say I want to speak to a different lawyer, you don't feel it's obligation on you to address the issue. Is that....

A. She never said anything about speaking to another lawyer. She just said that her lawyer or Legal Aid was drunk.

[47] The officer also gave other evidence with respect to the instrument itself but for the purposes of the application that evidence is not relevant.

EVIDENCE OF THE DEFENCE ON THE APPLICATION

a) Evidence of Kathryn Keats

[48] Ms. Keats gave evidence on her own behalf. She took the stand and adopted the contents of her affidavit that has been filed in support of the application herein as being accurate and correct. In that affidavit she states among other things the following:

(1) She was arrested on May 5, 2012 and taken into custody, blew into the screening device and was then arrested by the arresting officer who, among other things, read something to her with respect to her right to call a lawyer. Ms. Keats did not recall anything about an 800 number or the words "duty counsel" and after reading off the information with respect to the right to call a lawyer the officer indicated words "to the effect that there was more but he wasn't going to bore me with the details because it was a lot like what he had just read". The officer then asked if she understood and she stated "yes".

(2) She was transported to the detachment and was asked by the officer if she wished to call a lawyer. She did not have a lawyer and she asked for a phone book but the officer indicated that she would not get in touch with a lawyer at that time and they would call duty counsel, to which suggestion Ms. Keats acquiesced.

(3) At some point while in a cell she was handed a telephone receiver and on the other end of the line was someone who identified himself as a duty counsel lawyer. She stated that she came to believe there was something wrong with that party's condition after a short conversation. She noted the individual to be male with drawn out, slurry speech and unusual pauses when she would wait for him to speak. She suspected that he was "drunk". That consultation was brief, two to three minutes, although Ms. Keats acknowledged it could have been longer. She asked for the name of the individual for future reference and immediately after she asked for his name the line was disconnected. Ms. Keats believed that the duty counsel had "hung up on me".

(4) After the conversation she waited with the phone receiver in hand until the officer came in. She then brought to the attention of the officer (Cst. Maxwell) her concerns and indicated that it "might seem funny given the circumstances but it sounded to me as though the other party was intoxicated". She then asked if there was someone else to be consulted. The officer had responded that was the only duty counsel on call that evening and that conversation continued as she was escorted to the breath testing room. The officer indicated that he had spoken with the individual, that he was Jamaican and he did not "seem drunk to him". Ms. Keats stated that she had been around the world and that this explanation did not "make sense to me".

(5) Constable Maxwell indicated to her that if there was an issue he would be more than happy to call another duty counsel "on my behalf" but the question was whether I felt I got proper advice to which she had responded she did not know what advice she was looking for.

(6) Constable Maxwell had indicated he had spoken with duty counsel twice and the lawyer did not slur his speech, although he did indicate that duty counsel had called back because the phone was "low and hard to hear". Ms. Keats also told Cst. Maxwell that the duty counsel had hung up on her at which time the officer provided the name of duty counsel. At this point she was in the breath room and was advised that the room was being audio and videotaped and the issue of consultation with duty counsel was dropped. After the completion of the first test Ms. Keats stated to Cst. Kathen after he indicated he was going to ask questions that she had been "told by my drunk counsel that I was not supposed to do anything other than blow into the machine". Ms. Keats states upon her release she also reasserted her position with respect to her feeling that duty counsel was intoxicated.

[49] In examination during the trial, in addition to adopting the contents of the affidavit Ms. Keats indicated that the timeframe while speaking with counsel was noted by the officer to have been about 15 minutes and she indicated that after duty counsel hung up she had stood there in the cell with the phone in her hand, and she demonstrated that on the stand, for quite a long time just holding it. She estimated it was ten to 15 minutes after the completion of the call before the officer came in the room.

[50] Also in examination-in-chief she indicated that she had interpreted the conversation when the officer indicated he would be "more than happy to call another duty counsel lawyer so she could express her issues" as being an indication that she was being offered a call so she could "complain about the person that I spoke to". She never interpreted that to mean she could simply call another duty counsel lawyer because the officer had never said that. She had in fact been told that was the only duty counsel on call that evening. She appreciated the officer indicated that exchange did not take place, but she was adamant that it did and if she had been offered an opportunity to speak to a different lawyer she would have "definitely spoken to somebody else".

[51] In cross-examination she was questioned with respect to her education which includes university and post-graduate work. She stated on the night in question, although she felt a little intimidated by the process, she appreciated she did not express to either officer that she wished to speak to another lawyer. She had mentioned her dissatisfaction to Cst. Maxwell, did not wish to be "overly persistent" because she was not aware what consequences might be in place but she definitely was not happy with the conversation.

[52] During the course of cross-examination Crown counsel attempted to elicit particulars of the advice that had been given with a view to arguing it was the correct advice. However, counsel at that point for Ms. Keats indicated that the argument was not the quality of the advice, the question to be determined was whether or not Ms. Keats honestly believed that the person was drunk. Counsel also made it clear Ms. Keats was not indicating that in fact the duty counsel was drunk, but simply that she was of that belief. The issue is not whether that belief was mistaken or accurate, the issue simply is whether or not it was an "honest belief".

[53] With that in mind Crown counsel questioned Ms. Keats about her belief. Ms. Keats indicated she could not trust that he was providing the best advice. She found his speech to be slurred and drawn out and was sure that he was intoxicated. She had asked the officer if she could look up a lawyer in a phone book, he asked if she had a lawyer when she had been walked to the cell and was told that she would not get a hold of anybody at that time so they "direct me to a duty counsel". She stated that at the time she did not realize duty counsel was the same as a "normal lawyer". She still indicated at trial she was not "one hundred percent sure what the difference is between the two", although she did believe when the phone call ended that she had spoken to a lawyer. She was of the view that she had not been allowed to look up a lawyer because she did not have one so she took the only other option she was presented with and that was to speak with duty counsel.

[54] She stated that when she told Cst. Maxwell of her dissatisfaction she thought, when he stated he would be happy to call another duty counsel to discuss the issues, it was the issue of the intoxication of duty counsel. She did not believe she had the option to make another call to another lawyer. She stated that she was trying to express her dissatisfaction with whom she spoke with and, by doing so, get Cst. Kathen to call another lawyer. She did agree, however, she chose not to ask the "obvious question, please call me another lawyer".

[55] Counsel stated she did not present as a "timid little thing sitting in the corner afraid to speak up for herself", but Ms. Keats responded that she had been arrested, placed in a cell, spoke to somebody on the phone who she thought was drunk who had hung up on her and she had requested to speak to somebody different, had raised the point that she did not know if she was getting good advice or not and no options were offered to her.

[56] That concluded the evidence.

ISSUES TO BE DETERMINED

[57] The issues to be determined in this matter are:

(1) Did Cst. Maxwell have the reasonable suspicion to make the demand that he did with respect to the approved screening device? If not, defence argues that the test results ought to be excluded as flowing from the violation of Ms. Keats' rights to be free from unreasonable search and seizure as guaranteed by s. 8 of the Charter.

(2) The second issue to be determined is whether or not Ms. Keats' s. 10(b) right to consult with counsel has been breached and, if so, what relief, if any, is available under s. 24(2) of the Charter.

(1) Reasonable Suspicion Issue

[58] Section 254(2) of the Criminal Code permits a police officer to make a demand to provide a breath sample into an approved screening device in the circumstances set out in that section. That section requires the peace officer to have "reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has within the preceding three hours operated a motor vehicle...or had the care or control of a motor vehicle".

[59] If the seizure of the breath sample into the approved screening device was made without authority under s. 254(2) of the Code, it is an unlawful seizure and therefore a breach of Ms. Keats' s. 8 Charter rights. Breath testing constitutes a warrantless search and as a result s. 8 of the Charter is engaged and requires the Crown to establish on a balance of probabilities that the search was reasonable. This is accomplished by the Crown if it establishes that subjectively and objectively Cst. Maxwell had the grounds for the approved screening device demand, that is that Ms. Keats had alcohol in her body while operating or in care or control of a motor vehicle. See Regina v. Haas, [2005] O.J. No. 3160 (OCA) para. 24.

[60] Section 254(2) requires that the officer have "reasonable grounds to suspect" the presence of alcohol in the body. The officer's reasonable suspicion is in relation only to alcohol in the body. The officer need not suspect impairment, nor indeed an illegal blood alcohol level. Observations of overt indicia of impairment or consumption are not required and the reasonable suspicion must be objectively reasonable. Each case is fact specific and previously decided cases, although they can be informative, it is an incorrect approach to look at other cases and pigeonhole into those fact situations. See Regina v. Singh [2006] O.J. No. 5133 paras. 8 and 14.

[61] It is also clear that a reasonable suspicion may be formed in the absence of an odour of alcohol. See Regina v. Zoravkocic [1988] O.J. No. 2668 (OCA) and Regina v. Hyrniewicz [2000] O.J. No. 436, again a decision of the Ontario Court of Appeal. On the other hand, the odour of alcohol is sufficient if it leads to a suspicion that there is alcohol in the body. See Regina v. Carson (2009) ONCA 157 (OCA), Regina v. Lindsay, [1999] O.J. No. 870 (OCA).

[62] The case law clearly indicates that the requisite subjective standard under s. 254(2) is a reasonable suspicion that an individual has alcohol in his body and not merely the smell of alcohol on his breath, nor simply a suspicion that alcohol has been consumed. See Regina v. Latour, [1997] O.J. No. 2445 (OCA).

[63] Still, the standard of reasonable suspicion is not an onerous standard and the case law also establishes that reasonable suspicion is a much lower threshold than reasonable and probable grounds. Absent the reasonable suspicion the demand is invalid and the person to whom the demand is made is under no obligation to comply with it. Regina v. Grant (1991), 67 C.C.C. (3d) 268 (SCC).

[63] In considering forming the reasonable suspicion, the officer must consider all of the circumstances including the presence, if any, of the odour of alcohol which is the best indicator of the presence of alcohol in the driver's body but is not the only one, or the officer can also consider an admission by the driver that alcohol was consumed. See Regina v. Singh, supra, and Regina v. Mutisi [2011] O.J. No. 4546.

[65] For a thorough discussion on the issue of the reasonable suspicion standard, see Regina v. Williams 2010 ONSC 1698, [2010] O.J. No. 1324 which deals at some length with the issue of reasonable suspicion. Among other things, the case law noted in that particular case indicates that reasonable suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. While a reasonable suspicion involves lesser probability than reasonable and probable grounds, it cannot be limited to a hunch or a feeling without extrinsic evidence. Accordingly, the standard is not a hunch based on intuition gained by experience or a well-educated guess and an officer's subjective belief must be accompanied by objectively verifiable evidence supporting reasonable suspicion. What is reasonable by its very nature must be assessed in context. See Regina v. Jackpine (2006) 2006 SCC 15, 207 C.C.C. (3d) 225 (SCC). The totality of the circumstances viewed as a whole must be considered and even if an officer has a subjectively held reasonable suspicion of alcohol in Ms. Keats' body at the time the approved screening device demand was made, that belief must be objectively supported on the facts.

[66] So, looking at the totality of the evidence here, what did Cst. Maxwell consider when making the ASD demand, and did those considerations comprise reasonable grounds to suspect Ms. Keats had alcohol in her body at the relevant time, and was that suspicion reasonable when viewed objectively?

[67] Constable Maxwell stated the basis for his reasonable suspicion was:

(1) The observations of the driving that he had been advised of.

(2) The observations that he himself had made of the driving.

(3) The admission of consumption of alcohol by Ms. Keats.

[68] Looking then at those reasons and the totality of the evidence, what exactly did the officer reasonably know?

(1) With respect to what he had been advised of, he acknowledged that he did not know the informant who provided the information to the dispatch, but he did know from the report he received that there was an allegation regarding a "possible impaired driver" whose vehicle was changing speeds and weaving within its lane. The officer did not know nor have the further information the court now has in its possession as a result of having heard from Mr. Howie. What he had was the extent of the information that the officer stated he had received from dispatch.

(2) His own observations do not appear to have been entirely consistent with that information. He picked up the vehicle somewhere on the 401 and followed it for approximately two kilometres. When he got behind the vehicle he observed the vehicle to change lanes without issue, apparently with appropriate signalling or at least not noted to be without a signal. He then observed the subject vehicle to weave within its lane and touch the fog line on the right side of the lane. There were no observations of excessive speed or indeed any variation in speed, nor was there anything else other than this minor weaving, all within the lane, without crossing any lane markings. He indeed noted the weave to be a "slight weave in its own lane" without any noticing of any "inconsistent speed".

(3) With respect to the admission of consumption, Cst. Maxwell's evidence indicates that at 12:53 a.m. he made a traffic stop, approached the vehicle which pulled over without issue, and found Ms. Keats to be the driver. He advised her that there had been a traffic complaint and why he had stopped her. He then asked her if she had any alcohol to drink "that evening", to which Ms. Keats responded no. The officer advised that he had seen her vehicle weaving and asked her if he gave her a test would it show no alcohol. At that point Ms. Keats acknowledged she had had a glass of wine around 5:30 p.m. There was no noticeable odour of alcohol on her breath to indicate to the officer recent consumption and he acknowledged in cross-examination that he may not have asked about alcohol "tonight" but may have said "in the last 24 hours" notwithstanding he is an officer who acknowledges that he is very set in the way of how he does things. He acknowledged that if in fact the alcohol had been consumed around 5:30 p.m. as indicated by Ms. Keats, it would be long gone at the time of the traffic stop. The officer concluded because of the first denial of any alcohol, then the admission of a drink some time well before the stop that Ms. Keats was not being truthful as "deception is a big thing". He then made the demand some three minutes after the stop.

[69] Here, Cst. Maxwell did not testify that he detected an odour of an alcoholic beverage on Ms. Keats' breath at any point prior to making the demand. The absence of such an odour does not necessarily negate a reasonable suspicion and the absence of an odour of alcohol does not necessarily render the officer's suspicion objectively unreasonable where there are other signs that would indicate alcohol was in the body of Ms. Keats, or there was an admission of drinking. Here, there was in fact ultimately an admission of drinking, although there had originally been a denial of consumption. However, even the admission and the timing with respect to that consumption would certainly on an objective basis, and in fact on a subjective basis as far as the officer is concerned, indicate that particular alcohol would be "long gone" at the time of the stop of the vehicle. Counsel argues that the ultimate admission of alcohol consumption here is equivalent to a denial of consumption. Indeed, it would seem that the absence of the odour, or at least the lack of evidence with respect to such odour, would corroborate that the alcohol consumption had not been relatively recent.

[70] With respect to the driving, with all respect the officer's observations are not consistent at all with the observations of Mr. Howie given at trial, nor most importantly, not consistent even with the information provided by dispatch to Cst. Maxwell. He noted no inconsistent speeds and did not note weaving within the lane, save and except for a "slight weave" in one lane where the wheels apparently touched the fog line. He followed the vehicle for two kilometres, made no mention of any other weaving or issues with speed, and in fact it appears once he got behind the vehicle it changed lanes, properly signalling and when requested to pull over did so without any issue.

[71] The officer made no note, or at least gave no evidence with respect to any physical observations of Ms. Keats upon approaching her. There is nothing about difficulties with her speech, production of documents, issues with gross or fine motor skills, nor anything at all in her demeanour or her presentation prior to the demand to assist Cst. Maxwell in formulating his grounds.

[72] It is clear that Cst. Maxwell can rely on the information from third parties, but that information is to be confirmed in some form or another and Cst. Maxwell's own observations did not confirm entirely the information that he had received from dispatch. What the officer effectively had was a hunch. He felt that Ms. Keats had been deceptive in the response with respect to consumption, relied on some minimal observations that he had made of the driving and information from dispatch which suggested perhaps more concern about the driving which was not observed by Cst. Maxwell himself.

[73] There is a low level threshold when dealing with the issue of reasonable grounds to suspect, but there in fact is still a threshold.

[74] To be clear, the absence of indicia of impairment or at least alcohol in the body by virtue of no odour or lack of issues with co-ordination, speech or physical observations is not necessarily the end of the matter. However, in this case the court finds that when viewed objectively given all of the evidence and given the inconsistency in the evidence provided through dispatch about the driving and that actually observed by Cst. Maxwell, what Cst. Maxwell ultimately had was an admission of consumption at some time well before the incident with very little else to go on to form reasonable grounds to suspect that alcohol was in Ms. Keats' system or that she had operated a motor vehicle within the preceding three hours with alcohol in her body.

[75] The court is aware that the case law indicates that the absence of particular indicia of impairment does not in itself necessarily render an officer's belief unreasonable where other evidence provides an objective basis for the suspicion or grounds. Indeed, the absence of the odour or even a denial of consumption are factors to be considered but how significant they will be depends on the context of each individual case. See Regina v. Defend [2010] O.J. No. 2406.

[76] Here, in the context of this particular case the lack of an odour of alcohol as well as the lack of other evidence and the admitted consumption of alcohol well before the incident, fully appreciating there originally was a denial, lead the court to find that it is not satisfied that the requisite degree of proof that Cst. Maxwell's suspicion was objectively supported on the totality of the circumstances has been met by the Crown.

[77] The court finds that the approved screening device demand was in fact unlawful as the officer did not have the reasonable grounds to suspect as required under s. 254(2).

[78] Prior to dealing with the remedy, if any, available under s. 24(2) as a result of this finding I propose next to deal with the issue concerning rights to counsel and then ultimately consider s. 24(2) and its application.

2. Rights to Counsel Issue

[79] Section 10(b) of the Charter states as follows:

"Everyone has the right on arrest or detention,

(b) to retain and instruct counsel without delay and to be informed of that right."

[80] As set out in Regina v. Bartle, (1994), 92 C.C.C. (3d) 289 (SCC) by Justice Lamer, there are three duties imposed on the police upon arresting or detaining an accused:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise his right to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and,

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[81] Once an accused has contacted counsel, the police may question the accused as an informed detainee and the accused has the right to choose between exercising his or her rights to silence under s. 7 of the Charter, or, in fact engaging and speaking with the police. See Regina v. Hebert, 1992 S.C.R. 151 at page 184.

[82] So, effectively there are three duties. The first duty is an informational one, that is, that the police must provide certain information with respect to the exercising of right to counsel to an accused. The next two duties are implementational duties and are triggered once an accused indicates a desire to exercise his or her right to counsel.

[83] What constitutes a reasonable opportunity to retain and instruct counsel or reasonable diligence in contacting counsel depends on the circumstances of an individual case. The right to counsel is not an absolute right and unless an accused when exercising that right is reasonably diligent in doing so the duty imposed on the police to provide a reasonable opportunity and refrain from eliciting evidence does not arise at all or will be suspended.

[84] There are two components that must be complied with, the informational component and the implementation component. In Regina v. Blacket, [2006] O.J. No. 2999, the test to be applied in determining if there has been a s. 10(b) violation was set out as follows:

(1) Did the police fulfill their duty to act diligently in facilitating the rights of the accused to consult with counsel of choice? If so, then there is no 10(b) breach.

(2) If the police did not fulfill their duty then there are two possibilities:

i) if the police breach their duty because they took no step to facilitate the right to counsel then the breach is established;

ii) if the police breached their duty because they have made some effort but it is found not to constitute reasonable diligence the trial judge must decide whether the accused failed in his or her duty to act diligently to exercise the right to counsel. If the answer yes, then there is a 10(b) breach made out. If no, then this trumps the breach of duty by the police and there is no breach of s. 10(b); and,

iii) if there is a breach established that s. 24(2) will come into play and the areas of concern set out in Regina v. Grant will be balanced.

[85] The case law is clear that what the police must do or not depends on what the detainee says and does. See Regina v. Tremblay, (1987), 37 C.C.C. (3d) 565 at page 568.

"The police are not there to play 20 questions therefore the appeal must turn on what the police knew or would readily surmise, not hidden facts".

See Regina v. Top, 1989 ABCA 98, 48 C.C.C. (3d) 493 at page 497.

[86] With respect to the onus or proof where an individual such as Ms. Keats alleges that a right guaranteed by the Charter has been violated the onus is on that party to prove the violation complained of on a balance of probabilities.

[87] Looking at this issue then, I have considered the evidence of both police officers and that of Ms. Keats. I have also had the opportunity of viewing the DVD which includes not only the interaction between Cst. Kathen and Ms. Keats, but also that of Cst. Maxwell and Ms. Keats as they enter the breath room.

[88] Ms. Keats' evidence is quite clear and, interestingly enough, not entirely at odds with the evidence of the officers concerning the issue of the condition of duty counsel. Ms. Keats states quite clearly that she was of the view that the duty counsel she spoke to was, among other things, "drunk" and hung up on her when she asked him his name. When told by Cst. Maxwell that the important issue is whether or not she received the proper advice, Ms. Keats promptly responded that she did not know what advice she was to receive. She was also quite clear, and the DVD supports, the fact that during the course of her interaction with Cst. Kathen during the breath test procedure she had indicated the condition of the duty counsel as being "drunk".

[89] Both officers confirmed that she made those comments. Ms. Keats was articulate, consistent and forthright. She is quite a believable witness and I accept her evidence as to her comments made to the officers concerning duty counsel and her concerns with respect to that contact. I accept as well that she was clearly indicating to the officers her dissatisfaction with that contact. Although she did not expressly state to the officers that she wished to speak to another lawyer, I find that she did not do that for the reasons she stated. She thought effectively that she had done everything to communicate her concerns about duty counsel through her comments and as a result of the responses she was receiving, or the lack of response, felt it was not a possibility nor an issue that she could pursue. I accept that when she was told by Cst. Maxwell she could contact another duty counsel to discuss "those issues", that the issues the officer was referring to were in fact the issues of her concerns with respect to the call to the first duty counsel.

[90] Ms. Keats made it an issue of the quality of advice she had received or not received from the duty counsel immediately after she presented the phone back to Cst. Maxwell. She told Cst. Maxwell she believed the duty counsel was drunk, that he had hung up and never at any point did she confirm that she had received proper advice.

[91] Constable Maxwell, to be quite candid, seems to have simply disbelieved the comments made by Ms. Keats. He himself acknowledges that he could have put more appropriately the questions to Ms. Keats regarding the quality of the advice she had received from duty counsel. Cst. Maxwell, in my view, treated the matter rather lightly because he had been, on his own evidence, deceived at the scene with respect to the consumption of alcohol, that impaired drivers in his view are less reliable, and most importantly, he seems to have relied a good deal on his own perception of his conversation with duty counsel for discounting what Ms. Keats was stating. However, that reliance is relatively suspect because even on the officer's own evidence the first call with duty counsel was such a bad connection he could hardly make out what duty counsel was saying and had to get another telephone number to have him call. The second call, when contact was originally made, seems to have been of short duration and although at one point he says he spoke to him "quite a bit", in the next breath he says that there was a "bit of dialogue".

[92] In many ways Cst. Maxwell presented his evidence in what appeared to be a fair manner, but ultimately when the court looks at his conduct throughout the evening it is clear he is in fact a "creature of habit". He seems to draw general conclusions about deception and the reliability of anything a person in custody might state and does not follow up on what should be obvious. What should have been obvious here to both Cst. Maxwell and Cst. Kathen is that Ms. Keats, although she was not specifically saying 'I want to talk to another lawyer', was clearly stating to them her dissatisfaction with the contact that she had experienced with the duty counsel called by the officer. Short of actually stating the words, 'I wish to speak to someone else', there could be no other reasonable inference objectively from what she was telling not only Cst. Maxwell continuously from the time the call ended until she was presented to Cst. Kathen but also Cst. Kathen during the course of the procedure other than she was not happy with the advice and the contact with duty counsel. A reasonable police officer in these circumstances could do nothing else but draw the inference that the contact had not been satisfactory and should, in this court's view, have taken further steps to ensure that Ms. Keats had been given an opportunity to properly exercise her rights to counsel.

[93] Constable Maxwell states that he is a breath tech and in his experience when someone is presented for a breath test he revisits the issues of, among other things, right to counsel. If someone expresses dissatisfaction to him during the course of the breath test, he "immediately" goes to the investigating officer to make certain proper right to counsel is exercised. He appears, however, to have a different approach when concerns are stated to him as an investigating officer which should raise red flags all over the place about proper exercise to right to counsel, and he does nothing.

[94] In addition, Cst. Kathen notwithstanding Cst. Maxwell's procedure does not seem to follow the same procedure during his involvement with Ms. Keats. He is aware that there are concerns about right to counsel from the moment that Ms. Keats enters the breath room as a result of being present during the exchange with Cst. Maxwell and Ms. Keats concerning that very issue. The videotape shows quite clearly that issue is not even addressed by him once he is left alone with Ms. Keats until she comments on what her "drunk counsel" indicated to her about not answering questions and only blowing into the machine. He does not even follow up on that comment. This was not a comment made in isolation, this was a comment made in the context of the entire issue about counsel that Cst. Kathen was aware of or should have been aware of upon the entry of Ms. Keats into the breath room.

[95] Here, the evidence in my view clearly establishes that Ms. Keats was reasonable and diligent in her exercise of right to counsel, she was equally diligent in complaining about the quality of the advice she had received and her evidence, when considered within the totality of the evidence, including the evidence of the two police officers, makes sense. I accept her evidence. It is clear that the police are not required to play "20 Questions" where the facts are hidden, but here the facts were right in the open and the complaint of Ms. Keats made consistently throughout her contact with both officers, and in particular Cst. Maxwell, leads the court to find without difficulty that the police either knew and did nothing, or failed to surmise what was obvious.

[96] I am satisfied that Ms. Keats has met the onus on her with respect to this particular alleged breach and I find that there has been a breach of Ms. Keats' s. 10(b) rights. I find that the complaints and concerns that she lodged with Cst. Maxwell, and as well at a later point with Cst. Kathen given the fact that he was aware of the concerns initially expressed in the breath room, imposed an obligation on Cst. Maxwell and also Cst. Kathen to provide Ms. Keats with a further opportunity to consult with counsel in order to obtain meaningful advice and have a reasonable opportunity to consult.

3. Consideration of s. 24(2)

[97] In Regina v. Grant 2009 SCC 32, [2009] S.C.J. No. 32 the Supreme Court of Canada set out a three-pronged test for exclusion under s. 24(2) of the Charter which the court must assess balance when dealing with the effective admitting the evidence on society's confidence in the justice system. These are:

(1) the seriousness of the Charter-infringing state conduct;

(2) the impact of the breach on the Charter-protected interests of the accused;

(3) society's interest in the adjudication of the case on its merits.

[98] At the first stage then the court must consider the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation the greater the need for the court to disassociate themselves from that conduct by excluding evidence linked to that conduct in order to preserve public interest in and ensure state adherence to the rule of law.

[99] The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on those interests the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

[100] At the third stage the court asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion. Factors such as reliability of the evidence and its importance to the Crown's case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the courts in each case.

[101] So the role of the court under 24(2) is to balance the various assessments made under the analytical approach set out in Grant and determine whether in all the circumstances admission of the evidence would bring the administration of justice into disrepute. The balancing is not a mathematical exercise as noted in Grant, it is qualitative. A trial court must be careful not to give undue emphasis to one line of inquiry or to neglect the importance of any of the three lines of inquiry and the s. 24(2) analysis should not simply be boiled down to a contest between the degree of police misconduct and the seriousness of the offence.

The Seriousness of the Charter-infringing State Conduct

[102] Here I am mindful that I have found not only one but two breaches of Ms. Keats' Charter rights. I have found that a demand for the sample of breath into an approved screening device was made without the necessary reasonable suspicion and, as a result, there is a violation of s. 8 of the Charter. Further, not only was the demand in my view unlawful, even after the arrest of Ms. Keats for the failure on the approved screening device, the initial breach was compounded further and enhanced by the s. 10(b) breach.

[103] In dealing with the analysis under this particular heading the court focuses on the gravity of the police conduct. In assessing the seriousness of the conduct the court is aware that deliberate and egregious police conduct in disregarding the rights of an accused can lead to an exclusion of evidence, however, where the breach has been committed in good faith admission of the evidence may have little adverse effect on the repute of the court process.

[104] Further, I keep in mind that the case law seems to establish that even if the officer or officers are not acting in bad faith that does not necessarily amount to good faith. As noted in Grant itself at para. 75, "Ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith."

[105] Here, Cst. Maxwell, in my view, was at the very least cavalier when it came to properly assessing the rights of Ms. Keats. At worst one might say he is negligent and, although as I noted during the course of the assessment of the evidence he presented in a fair fashion, it is obvious that he has a number of pre-conceived notions that in fact impacted, in my view, his impartiality when assessing the circumstances of Ms. Keats as they presented to him.

[106] Without in any way being an exhaustive summary, I note:

(1) Constable Maxwell had an opportunity to observe the driving of Ms. Keats over at least a two kilometre distance. His observations did not support to any degree, other than warranting perhaps a traffic stop, a set of circumstances consistent with the information he had received from dispatch. He presented as an officer who was determined from the outset to rely on information that he had not had an opportunity to confirm, but had been in a position to do so, and seems to have taken the view that "impaired drivers" (which I find Ms. Keats was not) are prone to deception.

(2) Constable Maxwell seems to approach Ms. Keats, as he probably does every other driver he stops on a hunch (I find that is simply what this was here), with the same degree of skepticism. He made no observations of Ms. Keats consistent with the consumption of alcohol and the only issue he seems to rely on are her utterances. He disbelieves her, puts effectively a challenge to her after which she replies that she had one glass of wine several hours before the driving had taken place.

(3) Constable Maxwell simply did not make, in this court's view, a reasonable and balanced assessment of what he knew, what he did not know and what he was unable to confirm. His fairness in dealing with Ms. Keats was effectively compromised by his approach that "deception" is in place when dealing with any suspected impaired driver, including Ms. Keats, and this biased approach, in my view, compromises the officer's ability to reasonably assess the actual circumstances that are in place (i.e. a slight weave, no confirmation of information from dispatch, an admission of dated consumption, no odour of alcohol, no signs of alcohol consumption apparent on Ms. Keats, etc.).

(4) Constable Maxwell's attitude and approach to this investigation continued once Ms. Keats was at the detachment. He seems to have disregarded her concerns and, as I noted previously, ignored the obvious. He fails to note a conversation that was not captured on video and where his evidence differs from Ms. Keats as to what the conversation was after the phone call ended prior to being picked up on the video, I accept Ms. Keats' evidence. He is unclear in his responses to Ms. Keats (and acknowledges to be so) when trying to deal with the issue of the advice that she had received and whether it was proper). Again, I accept Ms. Keats' evidence with respect to that exchange. Most importantly, his approach to Ms. Keats seems to be uneven from the beginning of his involvement with her and that continues at the police station. He states that people in Ms. Keats' situation have a tendency not to tell the truth effectively. Notwithstanding that she repeated on a number of occasions after the completion of the call to duty counsel, her dissatisfaction in no uncertain terms neither Cst. Maxwell nor Cst. Kathen took any steps to properly address the situation.

[107] I find that the conduct of Cst. Maxwell throughout this proceeding, and indeed the conduct of Cst. Kathen who took no steps to address the obvious which should have been readily apparent to him about the dissatisfaction of Ms. Keats with counsel right from the get-go, elevate the seriousness of the police conduct when considered in its entirety.

[108] In my view, in this particular case the actions of Cst. Maxwell primarily, but also Cst. Kathen, favour the exclusion of evidence.

The Impact of the Breach on the Charter-protected Interests of the Accused

[109] Accepting that the taking of the breath sample is minimally intrusive as noted in Grant, still given the multiple breaches here Ms. Keats was detained at the roadside, arrested, handcuffed, transported to a police detachment, spoke to a lawyer who she honestly believed was incapable of giving her proper advice and effectively was ignored by the officers. The ability to consult with counsel, among other things, includes the ability of an accused to have trust and confidence in the counsel with whom they speak. Here, that trust and confidence in counsel by Ms. Keats was absent from the beginning to the knowledge of Cst. Maxwell and Cst. Kathen and her concerns were ignored. Certainly she did not specifically say 'I wish to speak to another lawyer' but, as noted, I accept her reasons for not doing that and, in any event, she is a novice in these type of matters. The officers, at least Cst. Maxwell is an experienced officer who should have known better.

[110] Ms. Keats was detained in a cell, required to provide a sample of her breath and the officer's conduct, in my view, shows indifference and carelessness in ensuring that her detention and arrest were within the requisite statutory and constitutional grounds.

[111] Here, the impact on Ms. Keats was significant. This was not a minimal infringement and under this analysis the exclusion of evidence is favoured.

Society's Interest in the Adjudication of the Case on its Merits

[112] Under this analysis the court accepts that the evidence of the breath testing is reliable and that at this point there has been no attack on the reliability of such tests. The court appreciates the interests of society in having matters tried on their merits, but the court appreciates as well that persons accused of drinking and driving offences, such as Ms. Keats, are also entitled to the full protection of the Charter. As noted by counsel, Ms. Keats has no criminal record, there is no accident, property damage or personal injury in this matter, the readings are at the low end of the scale and there is no allegation of impaired operation in this matter.

The Balancing of Factors

[113] The court recognizes that without the readings the Crown's case will fail, but after having conducted the necessary analysis and balancing all factors to be considered I am more than fully satisfied that in this particular case the evidence of the breath tests should be excluded. I am satisfied that a reasonable person properly informed, including understanding the rights set forth in the Charter and considering the facts in this particular case, would arrive at the same conclusion the court has. That is, that the breath tests should be excluded. In fact, not to exclude the evidence given the breaches in place in this particular matter I find would itself bring the administration of justice into disrepute.

[114] As a result, the breath tests will be excluded. The Crown is unable to establish the essential elements of the charge before the court to the degree required on the evidence that is before the court and the charge will be dismissed.

Released: May 22, 2013

Signed: "Justice G.F. Hearn"