ONTARIO COURT OF JUSTICE

DATE: 2014·01·15

COURT FILE No.: Walkerton 12-1070 / 12-20071

Citation: R. v. Gies, 2014 ONCJ 22

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SCOTT GIES

Before Justice Brophy

Heard on 30 October 2013

Reasons for Judgment released on 15 January 2014

Melody Martin ......................................................................................... counsel for the Crown

William Thompson ........................................................ counsel for the defendant Scott Gies

BROPHY J.:

INTRODUCTION

[1] Scott Gies has been charged with operating a motor vehicle while his ability to do so was impaired by alcohol contrary to section 253(1)(a) and also operating that motor vehicle while his blood alcohol concentration exceeded 80 mg of alcohol in 100 mL of blood contrary to section 253(1) of the Criminal Code of Canada. It is alleged that these events occurred on 2 November 2012.

[2] The core narrative is that a Saugeen Shores police officer stopped the accused at approximately 12:15 AM on November 2, 2012 for speeding. The officer made observations that satisfied him that the accused was impaired and he arrested him for that offence. Seven minutes after the arrest he was read a breath demand. The accused was taken to the Saugeen Shores police station where he mentioned that through Bruce Power he had some legal services available to him. That was not followed up on and he spoke to duty counsel. Subsequent breath tests revealed blood alcohol concentrations of the 187 and 173 mg of alcohol in 100 mL blood.

[3] This matter came on for trial on 30 October 2013.

[4] The defence brought a Charter Application and it was agreed at the outset of the trial that this matter would proceed as a blended hearing. That is to say that the evidence would be received and applied both to the trial and to the Charter Application. In this particular case the accused testified in a voir dire on the Charter Application only.[^1]

[5] The Crown has proceeded summarily.

ISSUES

[6] There are two issues on the over 80 charge. The first is whether or not the breath demand was made as soon as practicable. The second is whether or not the police facilitated implementation of the right to counsel.

[7] The defence concedes that if the evidence of the breath test results is admitted then there will be a conviction on the over 80 offence. Hence the Charter Application seeks exclusion of that evidence and alleges breaches of section 8 and 10(b) of the Charter with an exclusion of the evidence of the breath test results pursuant to section 24(2) of the Charter.

[8] The accused also faces an impaired driving charge. The sole issue with respect to that charge is whether the crown has proven beyond reasonable doubt that he was impaired by alcohol while operating a motor vehicle.

FACTS

[9] The Crown called two witnesses.

[10] The first witness was Matthew Mulholland. He is a police officer with Saugeen Shores Police Service. He was a good witness. Very straightforward.

[11] His evidence is that at 12:10 AM on November 2, 2012 he had set up a stationary radar position at the corner of Bruce Rd. #40 and Highway 21 facing south. He states that the radar device was an approved device and that he had tested it before and after the stop and found it to be working properly.

[12] At 12:13 AM a red truck passed his location traveling southbound on Highway 21 at a high rate of speed. He locked in the radar at 129 km/h in an 80 km/h zone. He decided to pursue the vehicle but had a hard time catching having to travel at approximately 140 km/h to overtake the red truck. Officer Mulholland observed the red truck swerving back and forth on the roadway and on 2 occasions it crossed the centerline while it was traveling at approximately 130km/h. The officer activated his emergency lights and pulled the truck over onto the west shoulder of the roadway. The officer’s evidence was that he was able to determine the speed of the red truck by both the radar device and the speedometer on his cruiser when he was pacing the vehicle.

[13] Officer Mulholland approached the truck on the driver’s side and found the accused in the driver’s seat. He was the lone occupant. He was advised that he had been stopped for speeding and he was asked to produce his documents. Officer Mulholland noted a strong odour of an alcoholic beverage coming directly from the breath of the accused and that his eyes were red and glossy. He also noted that his speech was very slurred. When the accused was producing his documents he had a hard time finding them and the officer had to point them out in his wallet. The accused also fumbled with them and dropped them onto his lap

[14] Officer Mulholland asked Mr. Gies to step out and the accused had trouble opening his door from the inside and Officer Mulholland had to open the door for him. When out of the vehicle the accused was very unsteady on his feet and was swaying back and forth to the point where Officer Mulholland had to grab his arm to steady him.

[15] At 12:17 AM Officer Mulholland arrested Mr. Gies for impaired operation of a motor vehicle as a result of the consumption of alcohol. He escorted the accused to the back of the truck and then asked him to put his hands behind his back and handcuffed him to the rear. At 12:18 AM he was searched and placed into the rear of the officer’s cruiser. Officer Mulholland was conscious of officer safety issues because Mr. Gies is a very large man.

[16] Officer Mulholland then advised his communications centre of the arrest and that he had a prisoner. Officer Mulholland asked dispatch to have another police unit attend to look after the pickup truck and to have a tow truck sent. He also asked dispatch to arrange to have Officer Christopher Shaidle, who was the breath technician working that night, to be made available to conduct the tests.

[17] The evidence of the officer is that his portable radio was not working properly and he was required to use the radio that was in the cruiser.

[18] At that point Officer Mulholland decided that it was necessary to attend at the truck of Mr. Gies to turn it off as it was still running. He also obtained the wallet of the accused and his Bruce Power ID and house keys. The motor vehicle keys were left in the ignition so that the tow truck would be able to move the vehicle. In cross-examination officer Mulholland said that he thought it important that he turn off the truck off so that it would be safe. He had concerns about leaving an unattended motor vehicle on the side of the road while it was running.

[19] At 12:22 AM Officer Mulholland read Mr. Gies his rights to counsel from his notebook. The defence concedes that the words used were appropriate.

[20] Mr. Gies said that he understood and wanted to call a lawyer. Officer Mulholland told him that they would take him to the police station and he could call a lawyer from there.

[21] At 12:23 AM the standard police caution was read to the accused from the officer’s notebook. The accused said he understood. At 12:24 AM the breath demand was also read from the officer’s notebook and again he said he understood.

[22] At 12:25 AM Officer Chantel Primeau arrived on scene to stay with the motor vehicle and to wait for the tow. After briefing her, Officer Mulholland left the scene with the accused at approximately 12:27 AM and at 12:34 AM they arrived at the police station.

[23] When searching the accused before placing him in a cell Officer Mulholland states that the accused was required to take off his shoes and while doing so he almost fell over.

[24] When the accused was placed in the cell at 12:38 AM Officer Mulholland again read the rights to counsel from his notebook and explained them in general terms. He made it clear that the accused was free speak to anyone he wished but if he had no one to talk to then he could call free duty counsel. The officer also testified that in the booking area there’s a placard with the full wording of the rights to counsel.

[25] Officer Mulholland’s evidence is that Mr. Gies said he had a lawyer through Bruce Power but he did not know the name of that lawyer. Mr. Gies then told Officer Mulholland that he would like to talk to free duty counsel.

[26] At 12:42 AM the call was placed to duty counsel and at 12:54 AM duty counsel returned the call and at 12:56 AM the accused was able to speak to duty counsel. The conversation took place in private and was completed at approximately 12:57 AM.

[27] The accused did not say that he was unsatisfied with the conversation with duty counsel and did not ask to speak to anyone else. Officer Mulholland’s evidence is that no request was made by the accused for help in locating the name of the Bruce Power lawyer.

[28] At 12:59 AM Mr. Gies was turned over to Officer Christopher Shaidle the breath technician.

[29] At 3:15 AM Officer Mulholland had another opportunity to speak to the accused and felt that he was still intoxicated. The accused said that he did not wish to call his wife and had no one to pick them him up.

[30] In cross-examination Officer Mulholland confirmed what he had said in chief, that is to say that the accused was polite and cooperative throughout all of his dealings with him.

[31] Officer Mulholland’s evidence is that after the comment was made about the Bruce Power lawyer Mr. Gies seemed happy to speak to duty counsel. After he said that he would talk to duty counsel the accused did not ask for information related to calling anyone else. The officer acknowledged that if there had been a request for help in finding the name of that lawyer it was the duty of the officer to facilitate that effort. However no such request was made. Officer Mulholland testified that he had no memory of any conversation about calling a third person for contact information. The officer says that if he had been asked to help with that process he would have been glad to do so.

[32] Officer Mulholland said that he was not personally aware of any legal insurance plan related to a union at Bruce Power.

[33] In redirect officer Mulholland indicated that no information was given to him by the accused about how to find a lawyer through Bruce Power.

[34] Officer Christopher Shaidle testified. He is a police officer with the Saugeen shores police service and has been so since 2003. He was also a good witness.

[35] Among his other duties he is a breath technician. No issue was taken with his qualifications. The defence takes no issue with respect to the nature of the machine used, the quality of the breath samples and the results obtained by the breath technician.

[36] Officer Shaidle first encountered the accused during the booking process at approximately 12:34 AM and immediately smelled a strong odour of an alcoholic beverage on the breath of the accused, that his speech was slurred, that he was unsteady on his feet and that he had a glazed stare.

[37] At 12:59 AM, after the call to duty counsel had concluded, Mr. Gies was presented to Officer Shaidle for the purpose of the breath tests. Officer Shaidle advised the accused of his right to call a lawyer, using the standard wording. The accused said he understood. He was then asked if he had spoken to a lawyer and he said that he had. He was then asked if he wanted to call a lawyer or counsel and he said no.

[38] The accused said he understood that a demand been made that he provide a sample of his breath he said that he would do so.

[39] Officer Shaidle read him a secondary caution and he said that he understood that as well.

[40] The first satisfactory test was completed at 1:07 AM and it resulted in a reading of 187 mg of alcohol in 100 mL of blood. The second test was completed at 1:37 AM and produced a result of 173 mg of alcohol in 100 mL of blood. A Certificate was prepared, served, and filed as Exhibit 2 in the trial showing truncated readings of 180 and 170 mg of alcohol in 100 mL of blood. The defence admits the admissibility of the certificate save and except it being subject to the Charter Application.

[41] The reason for the extended time between the first and second tests was because an intervening test had to be aborted because the accused was not blowing in a proper manner. No issue was taken about this by the defence.

[42] Between the first test and second aborted test there was a conversation between Officer Shaidle and the accused of some consequence.

[43] The officer asked standard questions from an alcohol influence report and in the course of answering those questions Mr. Gies said that he would not answer questions related to whether he had been drinking or any details related to same. He did respond to questions related to time; he thought it was 2:39 AM when in fact it was 1:13 AM. Nor would he respond to questions related to seeing a doctor. He did say that he was on no medications and had no medical issues and that he had not used any mouthwash the last hour.

[44] At 1:15 AM he was asked if he would do any physical tests. He said no - because his lawyer had told not to do so.

[45] Officer Shaidle said that from the time of lodging Mr. Gies to the end of his involvement with the accused there was no change in his physical appearance. In the opinion of Officer Shaidle he was impaired by alcohol. Officer Shaidle did say that the accused was cooperative and compliant.

[46] Officer Shaidle indicated that the accused never said that he was dissatisfied with the legal advice he received.

[47] Mr. Gies testified in the Voir Dire related to the Charter Application. He said that he was 45 years old and has worked at Bruce Power for approximately 2 and half years as a radiation protection technician. He also indicated he is a member of the Power Workers Union and has legal benefits including the right to access a criminal lawyer through an insurance plan. He learned about the legal insurance plan when he was hired in July 2011 from his union representative. From July 2011 to November 2, 2012 he had no cause to access that service.

[48] The accused says that on November 2, 2012 he wanted to speak to a lawyer associated with Bruce Power that he had access to through his insurance plan. He did not know the names of the lawyers that were available. He had no information as to what the police could do to help him contact a lawyer and he was not told about anything they could do.

[49] He says that he told Officer Mulholland that he had the legal insurance plan but did not have any contact information. He said the officer’s response was that we will get you a lawyer on the phone. He wanted to talk to someone immediately so he did talk to duty counsel. He did not know that he could call someone else to contact the insurance plan lawyer.

[50] He spoke to duty counsel for about a minute. He had no complaint about what duty counsel told him but he had no point of reference with respect to the quality of advice.

[51] Afterwards he found his insurance plan online through the Power Workers Union website and was able to contact the appropriate counsel.

[52] Mr. Gies says that he never changed his mind about wanting to talk to the Power Workers Union lawyer. He cannot explain why he did not say something about that too officer Shaidle.

[53] In cross examination Mr. Gies said that he remembered that Officer Mulholland said he would get him a lawyer on the phone. He agrees that he said to Officer Shaidle that he did not want to call a lawyer. He also confirms that he had no complaints about duty counsel and acknowledges that he never said he wanted to talk to someone else and never asked the officers if there was anything they could do to assist him. He concedes that the police were fair and polite. Indeed they did offer to call his wife but he declined. Further he was able to say no to officer Shaidle about answering some questions and therefore was able to implement some of the advice he had received.

[54] He did not tell Officer Mulholland that he was a member of the Power Workers Union or that he had access to a lawyer through the union. He only said that he had a lawyer though Bruce Power. He acknowledges that he could have asked for a phone book to call his union representative but he did not think to do it on the night in question. In hindsight he says he could have but he didn’t. He also says that there was nothing the police did that suggested they would not have helped him contact the lawyer offered by the union.

[55] In redirect he says that he did not know he was allowed to ask the police to do a Google search to obtain the necessary information.

ANALYSIS

[56] There are two charges before the court.

IMPAIRED

[57] The first is the impaired driving charge. The evidence in support of that charge, which is unchallenged, is that the accused operated his motor vehicle at a high rate of speed in the early morning hours. His vehicle swerved on the road and crossed over the center line. When he was stopped he was noted to have indicia of impairment, that is to say an odour of an alcoholic beverage on his breath, slurred speech, red and glossy eyes, and he fumbled with his documents and when he was asked to exit his vehicle he was unable to open the door and then when he got out he was unsteady on his feet. The evidence also includes an incident at the police station where he almost fell over when taking his shoes off.

[58] It is noted that the breath tests performed set out results that indicated he had consumed alcohol. The test results in the absence of expert evidence do not in and of themselves prove impairment.

[59] However the evidence taken as a whole satisfies the court beyond a reasonable doubt that he was impaired in his functional ability to operate a motor vehicle. It was painfully obvious that he was drunk. His physical presentation when he was spoken to by the police at the scene and then later at the police station confirmed that fact. Those physical indicia also clearly signalled that his coordination was impaired. Further, the speed and swerving on the road were not a minor deviation or slight departure from normal conduct. His operation of the motor vehicle was not normal. It was dangerous. His functional ability to operate a motor vehicle was impaired. See R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380, 18 C.R. (4th) 127, 12 O.R. (3d) 90, 18 W.C.B. (2d) 320, 1993 CLB 2659 (Ont. C.A.), affd 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478n, 90 C.C.C. (3d) 160n, 31 C.R. (4th) 60n, 18 O.R. (3d) 800n, 3 M.V.R. (3d) 1, 72 O.A.C. 140n, 168 N.R. 190, 23 W.C.B. (2d) 598, 1994 CLB 153 and R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392, 110 W.A.C. 182, 29 W.C.B. (2d) 474, 1996 CLB 290 (Alta. C.A.), leave to appeal to S.C.C. refused 106 C.C.C. (3d) vi, 135 W.A.C. 79n.

[60] The Crown has proven the impaired driving offence beyond a reasonable doubt.

OVER 80

[61] The second charge is an over 80 offence. With respect to that charge the defence takes no issue with the validity of the breath testing process and results. The complaint is that with respect to allegations of section 8 and 10(b) Charter breaches.

Section 8 – Demand Made As Soon As Practicable

[62] The section 8 breach allegation goes to whether or not the breath demand was made as soon as required in the Criminal Code. This is framed as a Charter breach under section 8, but also can be looked at as a question of whether or not the officer followed the provisions of the criminal code with respect to the seizure of the breath samples thus making the seizure lawful.

[63] Section 254(3)(a)(i) states that:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, or8 (small C) (II)

[Emphasis added]

[64] In this case the arrest was made at 12:17 AM. The breath demand was made at 12:24 AM. In that 7 minutes officer Mulholland attended at the pickup truck to turn it off and to retrieve the keys and documents of the accused. He also contacted his communication center to request that another officer attend and to arrange for the breath technician. He then provided the accused with his rights to counsel and read him the caution, and immediately following that he read the breath demand. All of these actions on the part of officer Mulholland were required and were done promptly.

[65] The Ontario Court of Appeal in R. v. Vanderbruggen 2006 CanLII 9039 (ON CA), [2006] O.J. No. 1138, albeit with respect to providing the samples, has stated that as soon as practicable is not as soon as possible. The question is whether the police acted reasonably in all the circumstances.

[66] All of officer Mulholland’s actions were directed towards the case and were performed promptly and with dispatch. He had to manage the contact with his communication center through the cruiser radio as opposed to his portable radio. He felt it important to turn off the ignition of the pickup truck and to retrieve appropriate items from same.

[67] It is unfair to criticize the officer for taking the time to attend at the truck and turn it off. He was by himself. It was critical that he stabilize the situation while he waited for another officer to attend. It was absolutely reasonable that he turn the pickup truck off.

[68] In my view all of the decisions and actions of officer Mulholland in this seven minute period of time were a continuum of necessary functions in aid of the investigation. It is Monday morning quarterbacking to suggest that Officer Mulholland priorized the wrong things. Everything he did was important to expeditiously moving the case forward. The officer acted reasonably in all the circumstances.

[69] I adopt the language of Justice Bourque where he states in the R. v. Stephens [2012] O.J. No. 3588, at paragraph 16, that the activities of the police: “were [a] continuum of actions all of which were necessary to perform in the course of this investigation.”

[70] The Charter Application as it relates to section 8 fails. The Crown has established that the officer complied with section 254(3)(a)(i) of the Code. As a result the seizure of the breath samples was lawful.

Section 10(b) – Rights to Counsel

[71] The next issue is whether the police failed to perform their duty concerning implementation of the 10(b) rights of the accused. This relates to the question of whether or not Officer Mulholland should have taken further action with reference to the statement made by the accused that he had a lawyer through Bruce Power.

[72] The evidence is that at the scene Mr. Gies said that he did want to talk to lawyer and he was advised he could do that from the police station. Later when his rights were explained to him once again at the station he said he had a lawyer through Bruce Power but did not know the name. Officer Mulholland’s evidence is that the accused then said he would like to talk to free duty counsel. Officer Mulholland says that after Mr. Gies spoke to duty counsel he did not say that he was not satisfied with the conversation and he did not ask to speak to anyone else. Officer Mulholland says that he would have helped Mr. Gies if he had asked him to call anyone else to get a lawyer’s name. Officer Mulholland says that he was given no clues by the accused as to how he would be able to contact a lawyer connected with Bruce Power.

[73] It is noteworthy that when the accused was with the breath technician he was again advised about his right to call a lawyer and he said that he had spoken to a lawyer and when asked again if he wanted to call a lawyer he said no. It is also interesting that in the course of the interview that took place between the breath tests the accused acted on advice he received from his lawyer by refusing to answer some questions and specifically saying would not do physical tests because the lawyer had told him not to do so.

[74] In the voir dire on the Charter application the accused testified. His complaint is that the police did not tell him what they could do to assist him in contacting the lawyer though Bruce Power. Or as it turned out later the Power Workers Union. This lack of detail in the information given to the police is typical of the lack of information given to the police by the accused.

[75] The accused said that he wanted to talk to someone immediately so he did in fact speak to duty counsel. He did not know that he could call someone else to contact a different lawyer. In cross-examination the accused said that what the police officer said was accurate that he did not know the name of the Bruce Power lawyer and that he did talk to duty counsel and that he did say to the breath technician that he did not want to call a lawyer. He also confirmed that he never asked the officers if there was anything else they could do to assist him and that the police were polite and fair. He also confirms that they offered to call his wife and he declined. He also confirmed that he was able to say to Officer Shaidle that he did not wish to answer some questions and was able to implement some of the advice he received from duty counsel. In fairness to the police he accepts that nothing the police did suggested they would not have helped him.

[76] He states as well that he did not discuss with Officer Mulholland how to get access to the insurance plan lawyer and that he did not know how to do that. In hindsight he realizes he could have perhaps looked up the union representative in the phone book but did not think about it that night.

[77] The defence argument is that the police have a duty to facilitate counsel of choice and that on these facts the only reasonable inference was that the accused wanted to talk to a lawyer through his insurance plan. Therefore the reasonable next step by Officer Mulholland was to ask what he wanted and how to find that person. In effect there is no way for the accused to know what to ask for without some explanation by the police. The police control all forms communication. All that Officer Mulholland had to do was ask a few simple questions and he would have been given the necessary information that would have allowed him to facilitate contact with counsel of choice.

[78] The Crown argues that the officers were reasonable and fair throughout and that it is necessary for an accused individual to be diligent in exercising his rights to counsel. The accused in this case did not give useful information and only in hindsight did he think it was a good idea to call a union steward to obtain a referral. He made no comments to the police at the time about what steps could be taken to facilitate his request. Instead he was content to speak to duty counsel and received advice and acted on that advice. The flaw according to the Crown in the defence argument is that the accused failed to articulate in any meaningful way what it was that he wanted and quickly turned to the available option because he wanted immediate assistance. This notwithstanding that he is an intelligent man as evidenced by his meaningful employment at Bruce Power as a radiation protection technician. He was not diligent in telling the police what he wanted and as a result the police were not able to assist him, which they said they were quite willing to do if they had been given some indication that this was the path he wanted to go down.

[79] The Crown argument is strong. The police acted fairly and reasonably and Mr. Gies was not diligent as it is understood in the case law. See R. v. Richfield (2003) 2003 CanLII 52164 (ON CA), 178 C.C.C. (3rd) 23 (Ont.C.A.). The police are not there to play 20 questions. What they must do or not do depends in part of what the detainee says and does. The Alberta Court of Appeal stated in R. v. Top (1989) 1989 ABCA 98, 48 C.C.C. (3rd) 493: “if he expects the police to help him reach a lawyer, he should give them some logistical information.”

[80] In this case I accept the evidence of Officers Mulholland and Shaidle that the accused did not provide information that was sufficient to cause the police to take further steps. In effect the accused abandoned the idea of the Bruce Power lawyer and chose to speak to duty counsel. That was his right. If the accused had followed up his statement about the Bruce Power lawyer with a request for the police to take some specific steps or actions or to make some specific inquiries then they would have been required to do so. That was not the case here. Nothing was requested of them.

[81] For these reasons I find that the defence has not made out the 10(b) breach on the balance of probabilities and that aspect of the Charter application is also dismissed.

[82] As admitted by the defence, with the admission of the breath sample results all constituent elements of the over 80 offence has been proven and there will therefore be a finding of guilt entered with respect to same.

Section 24(2) Analysis – In Default

[83] In the event that I am wrong with respect to whether the breaches have been made out, I will make some comments about exclusion of the evidence under section 24(2) of the Charter.

[84] The structure of the analysis is set out set out in the R. v. Grant, 2009 SCC 32.

[85] In considering s. 24(2), the court must have regard to the following: (1) the seriousness of the Charter-infringing state conduct (admission may send the message that the justice system condones serious state misconduct); (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little); and (3) society's interest in the adjudication of the case on its merits. The court must balance the assessments under each of these lines of inquiry to determine whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[86] The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of and public confidence in the justice system.

[87] With respect to the seriousness of the Charter infringing state conduct, in my view this was a near run thing as it relates to both section 8 and section 10(b). If the officers missed the mark it was not by very much. The police officers were completely polite and respectful throughout. They performed their duties in a rational, focused and reasonable fashion. If there was a breach of section 8 it was completely technical and with respect to any complaints related to section 10(b) the officers did make all of the necessary inquiries and their only error was in not cross-examining the accused with respect to finding out more about the Bruce Power insurance plan. They did ensure that the accused spoke to duty counsel and the accused was able to act on that advice. There was good faith exhibited by the officers and they paid attention to their duties. In the circumstances of this case this tends to favor admission.

[88] With respect to the impact of the breach on the Charter protected interests of the accused, and the question of whether admission that would send the message that individual rights count for little, it is noted that in this case the accused was required to provide breath samples only, which is minimally intrusive and is reliable evidence. Further he did in fact speak to duty counsel and acted on the advice received and in any event he did not know any lawyer associated with the insurance plan and effectively would have been speaking to a stranger in any event. All of these factors attenuate the impact on the protected interests of the accused. This factor ordinarily would lean towards exclusion, but in this case not in a dominant manner.

[89] Lastly, it is almost always important to have cases decided on their merits particularly when there is reliable evidence. This would suggest the evidence should be admitted.

[90] Grant notes in paragraph 110 that unlike compelled statements bodily evidence is generally reliable. Grant goes on in paragraph 111 to state that where the violation is less egregious and intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused body may be admitted. Grant then states that breath sample evidence is relatively nonintrusive.

[91] This is clearly the case here. It is acknowledged that the interaction with the police and the arrest have an impact on an accused individual. Nevertheless the efforts of the police to accommodate and treat with respect the accused should be recognized as attenuating whatever breach might have occurred. This also applies to the fact that duty counsel was involved and advice was received and acted upon.

[92] In my view, in the event the Charter breaches are made out, after considering all three factors in Grant, on balance the breath sample evidence should be admitted into evidence. As a result the evidence is not excluded.

[93] If the evidence is admitted the defence concedes that the over 80 charge has been made out.

CONCLUSION

[94] For these reasons in my view the Crown has proven both charges beyond a reasonable doubt and there will be findings of guilt entered on each count, both the impaired and the over 80.

Released: January 15, 2014.

Signed: “Justice Brophy”

[^1]: It was also agreed that the evidence in this trial apply on the trial of the provincial offence that is to say the speeding charge that arose of this same incident.