Breathalyzer Results Excluded as a Result of a s.10(b) Charter Breach

A Judge of the Alberta Provincial Court recently excluded breathalyzer evidence in R. v. Buker, 2010 ABPC 203, as a result of a breach of the accused’s right to counsel. The Judge applied the three stage inquiry as set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 which balances:

1. the seriousness of the Charter-infringing state conduct;
2. the impact of the breach on the Charter- protected interests of the accused; and
3. society's interest in the adjudication of the case on its merits.

The accused was detained and placed in the phone room to make a call to counsel. When the officer saw that the accused was off the phone, he entered the room and took him for the breath tests. The officer’s practice was to never wait for a detainee to wave him in to the phone room and indicate that they were done calling counsel. He also never asked them if they were satisfied. He was of the opinion that it was none of his business whether or not they were satisfied. It was only his job to make sure they called a lawyer.

The Judge found that Mr. Buker was not provided with a reasonable opportunity to consult with counsel in violation of his rights under section 10(b) of the Charter. The Charter-infringing conduct was found to be serious as it was not inadvertent, but rather followed a pattern of conduct that the officer had developed as a result of experience. The impact of the breach was found to be serious as Mr. Buker was detained and required by law to provide a sample of his breath which would likely incriminate him. In addressing society’s interest in the adjudication of the case on its merits, the Judge found that breathalyzer evidence is relevant and reliable and that the exclusion of such evidence would invariably result in the dismissal of the charge which in turn runs counter to society's interest in a decision based on the merits.

The Judge excluded the breathalyzer results and concluded:

14 When I consider the evidence and balance the three factors in light of the long-term repute of the administration of justice; I find the accused has demonstrated that the admission of the Certificate of Analysis would bring the administration of justice into disrepute. The Certificate is excluded pursuant to Section 24(2) of the Charter.

Delay to change alcohol solution results in acquittal

In the recent case of R. v. Drazdoff, (June 3, 2010) Nelson Registry no. 21187-1 (Provincial Court), the RCMP allowed the solution by which alcohol in breath is measured by the machine to expire. The delay required to change the solution, followed by a test to ensure the machine was operating properly, resulted in the breath tests not being taken as soon as practicable, as required by the Criminal Code. Mr. Drazdoff was acquitted as Crown Counsel was unable to rely on the presumption of identity and there was no evidence that his Blood Alcohol Concentration was above the legal limit.

4 The question in this case is whether police obtained a sample of his breath as soon as practicable, as required by s. 258(1)(c)(ii) of the Criminal Code, in the 55 minutes that elapsed between the commencement of the observation period to first breath sample. […]


12 Police did nothing unnecessary during the time that elapsed between when Mr. Drazdoff was placed in the observation room and his testing.


13 However, Mr. Drazdoff argues that while officers acted quite reasonably in changing the solution, the real problem in this case lies with the reason why the solution needed changing in the first instance.


14 Constable Finkensiep testified that it was the practice of the Castlegar RCMP detachment to review the Datamaster standard log and to change the solution before expiration, rather than waiting. Therefore, on the evidence, there is effectively an unexplained reason for the failure of a member of the detachment to follow its own policy, as well as the Datamaster recommendation, to replace the solution before its expiry date.


[…]


27 It was reasonable for police to deal with the error, but they cannot be immune from responsibility for having created the error in the first instance.


[...]


34 It seems to me that if this aspect of impaired driving investigations are rendered immune from judicial review, or unexamined generally, there is nothing to prevent police from lapsing in their maintenance and leaving persons such as Mr. Drazdoff waiting. I do not think that persons under investigation for impaired driving who are detained by police should bear this burden.

Law Authorizing Roadside Breath Demands Unlawful

On July 8, 2010, a BC provincial court judge found that section 254(2) of the Charter. The new section authorizes a demand for roadside breath samples where the officer reasonably suspects that a person has alcohol or a drug in their body and has operated a motor vehicle within the previous 3 hours. The requirement that the demand be made forthwith makes clear that the relevant time regarding the suspicion the person has alcohol in his or her body is at the time of the demand. There is no requirement the officer also suspect the person had alcohol in his body at the time of driving. Under the wording of the amended section, an officer would still be authorized to make an roadside breath demand in circumstances where the officer believed an offence had not been committed as long as the other conditions in the section where met.

75 The current version of s. 254(2) allows a search or seizure in circumstances where there is no reason to think that the results will provide evidence that an offence had been committed.

76 I find that insofar as s. 254(2) authorizes a breath seizure in circumstances where there are no reasonable grounds to suspect an offence has occurred, it is an unreasonable law and is contrary to s. 8 of the Charter.

[…]

89 It can not be said that a law authorizing a breath search and seizure in circumstances where there is no reason to suspect the search will afford evidence an offence has been committed minimally impairs an individual's right to be free from unreasonable search and seizure. This is especially so given the First Reading version of Bill C-32 would appear to address the primary concerns and objectives motivating Parliament to amend 254(2) in the first place, and does so without being in breach of s. 8.

90 I find s. 254(2) can not be saved under s. 1.

[...]

164 To make s. 254(2) of the Criminal Code of Canada consistent with the Charter, I order the following [emphasized] words to be read into s. 254(2), resulting in s. 254(2) now reading (in relevant part) as follows:

254(2) "If a peace officer has 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 vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, with alcohol or a drug in their body, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol: ..."

R. v. Jaycox, [2010] B.C.J. No. 1368

The judge found that the demand was unlawful and consequently, the accused's refusal to give a sample of her breath was not. She was acquitted of the charge of refusing to provide a breath sample.

Unlawful breathalyzer demand leads to exclusion of samples

In R. v. Marshall 2010 BCPC 72 a Kamloops judge acquitted a driver following the failure of the Crown to prove a lawful breath demand. The case is noteworthy for the Court’s ruling that “an unlawful demand that a person provide incriminating evidence of a bodily sample lies as the most serious occasion of a privacy breach.”
The Court considered the issue of the remedy available for the breach, and concluded that certificate of a qualified technician should be admitted but that the evidentiary presumption of identity should be excluded.

26. In weighing and balancing the competing interests set out in the three-part Grant test, I am mindful of the following considerations: (1) The issue of whether the admission of evidence would bring the administration of justice into disrepute must be examined in the long-term with respect to maintaining integrity within and public confidence for the justice system. (2) If the breach of privacy does not result in the exclusion of evidence, then reasonable grounds, as statutorily mandated, become irrelevant. (3) if the certificate of analysis is included to the extent that the Crown cannot rely on the presumption of identity, evidence may still be called to prove the alcohol content at the time of the alleged offence. (4) If the presumption of identity was not excluded, the practical result would be that in spite of an unlawful demand, a citizen’s right to privacy is secondary to the need to shortcut the burden of proof, i.e. the presumption of identity.

The Court held that without the presumption of identity, there was no evidence that Mr. Marshall’s blood alcohol content exceeded .08 at the time that he had care or control of the vehicle. Mr. Marshall was found not guilty.

Police Officers can't search on a hunch

In a recent British Columbia Supreme Court decision, R. v. Darling, [2010] B.C.J. No. 715, the court ruled drug evidence inadmissible because of an illegal search by an inexperienced police officer. The police had set up a containment zone in the hopes of catching an armed robber as he left the area. Mr. Darling was stopped as he matched the general description of the armed robber. Mr. Darling was detained and told he was being investigated for the robbery. The police officer mistakenly believed that by placing a person under investigative detention, he was entitled to search that person for evidence to implicate him in the robbery.

Mr. Justice Shabbits discussed the common-law power of a peace officer to make a lawful investigative detention and the Supreme Court of Canada decision of R. v. Mann, 2004 SCC 52. He then excluded the evidence after considering the line of inquiry for admissibility of evidence as set out in R. v. Grant, 2009 SCC 32.

35 Iacobucci J. says that the general duty of officers to protect life may in some circumstances give rise to the power to give a pat-down search incidental to an investigative detention. Such a search power does not exist as a matter of course. The officer must believe on reasonable grounds that his own safety or the safety of others is at risk. Iacobucci J. says that he disagrees with the suggestion that the power to detain for investigation endorses an incidental search in all circumstances. The officer's decision to search must be reasonably necessary in light of the totality of the circumstances. It cannot be justified.
[...]

37 Iacobucci J. says that an investigative detention should be brief in duration and does not impose and obligation on the detained individual to answer questions posed by the police. He says the investigative detention and protective search power are to be distinguished from and arrest and its incidental power to search.
[...]

42 I have concluded that Constable Bentley did not conduct the search for officer safety incidental to his investigative detention of Mr. Darling. I have concluded that Constable Bentley did exactly what he told Mr. Darling he would be doing - that is to say, he searched Mr. Darling for evidence that Mr. Darling had committed the robbery. He did that without having a lawful basis for arresting Mr. Darling for the robbery - he had no reasonable and probable grounds to believe that Mr. Darling was the robber.
[...]

47 Constable Bentley was not an experienced police officer. He did not know what he was entitled to do during an investigative detention. He was of the mistaken belief that he was entitled to detain for investigative detention anybody leaving the area of the robbery that he reasonably suspected of having been being involved in the robbery, and that he was entitled to search them for evidence relating to the robbery.

48 Constable Bentley's search of Mr. Darling was conducted in a respectful and non-intimidating fashion, and Constable Bentley thought he was acting pursuant to legitimate policing powers. In that sense, at least, he was not acting in bad faith.
[...]

50 In Grant, Chief Justice McLachlin says this:

Ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith; R. v. Jenest [1989] 1 S.C.R. 59 at page 87 per Dickson C. J.; R. v. Kokesch [1990] 3 S. C. R. 3 at pages 32-33 per Sopinka J.; R. v. Buhay 2003 SCC 30, [2003] 1 S.C.R. 631 at paragraph 59.

51 She writes that wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court disassociate itself from such conduct, and that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.
[...]

53 The search of Mr. Darling was a result of deliberate police conduct in violation of established Charter standards. Constable Bentley ought not to have searched Mr. Darling without determining the scope of his authority to search.

54 In my opinion, the seriousness of this Charter infringing state conduct supports exclusion of the evidence.

Lack of police understanding of roadside devices and of the law leads to a Charter breach

In R. v. Costa, [2010] O.J. No. 1881, the court found a serious violation of section 8 of the Charter where the investigating officer did not have reasonable grounds to make an arrest. The officer lacked a basic understanding of the roadside device he was using and he was ignorant to the law regarding the use of roadside screening devices.

13 Detective Iancu's grounds to arrest Mr. Costa were based on his understanding of the results of the roadside breath testing, and he agreed that he would not have arrested Mr. Costa in the absence of the "F" or "fail" on that test. The issue is therefore whether he had both a subjective and objective basis to rely on the device: in the absence of reasonable grounds the arrest would be unlawful and the subsequent taking of the breath samples would be a violation of s. 8: see R. v. Mandarino, [2010] O.J. No. 856 (C.A.), upholding Thorburn J.'s decision at [2008] O.J. No. 771 (S.C.J.); and R. v. Topaltsis, [2006] O.J. No. 3181
(C.A.)
[…]

15 On behalf of Mr. Costa, Mr. Rabinovich submits that there are three reasons to be concerned about Detective Iancu's faith in the device:
1. the officer twice indicated in his notes and repeated in his evidence that the device used to test Mr. Costa was a Drager Alcotest "740" GLC, which is not an aproved device;
2. he was unfamiliar with the error codes on the device that he was using, and was therefore unable to explain whether the errors generated by Mr. Costa's failed attempts were related to the device or not;
3. he thought he had no power to arrest someone whom he believed had a blood alcohol content of over 80 without a roadside test.
[...]

19 The officer's mistake with the error codes is more problematic. While Detective Iancu believed the device was working properly, he also understood that the only error that could occur was due to insufficient air provided by Mr. Costa, which he understood would always display as an "E" on the screen. This was incorrect. […]

22 Detective Iancu was not knowledgeable about the device that he was using and he was incorrect in his understanding of the potential errors that could be generated. Since his assumptions were mistaken in important respects, this undermines the reliability of his evidence regarding the device.

23 I am also concerned that Detective Iancu understood that he was required by law to test every suspect with a roadside testing device, regardless of his belief that they had over 80 mg of alcohol in their system. This is simply wrong. It is well established law that where an officer reasonably believes that a person has over 80 mg of alcohol in 100 ml of blood, they may arrest the person and make a demand for a breath sample: see s. 254(3) of the Criminal Code, and see the Supreme Court of Canada to this effect in R. v. Bernshaw, [1995] 1 S.C.R. 254 and more recently in R. v. Shepherd, [2009] 2 S.C.R. 527. To be clear: there is no legal obligation to use the roadside testing device if there are grounds for an arrest and a demand: see Censoni (cited above) at para. 50.

24 I find that the cumulative effect of the errors revealed in Detective Iancu's evidence underminethe reliability of his understanding of the device. In particular, I am concerned that his incorrect understanding about the potential for error influenced his subjective belief that the device was working. Moreover, the lack of evidence before me regarding the error codes means it is impossible to know the nature of the two errors, and therefore to assess the objective reasonableness of Detective Iancu's opinion that the device was working.

25 In the result, I am not satisfied that the officer had reasonable grounds to make the arrest, and I find there was a violation of s. 8 of the Charter.

After excluding the evidence of the breath samples and finding Costa not guilty, the Judge went on to state that the crown could not have relied on the expert’s report on blood alcohol level extrapolation as they had not proved an absence of “bolus drinking”, or consuming a large quantity of alcohol shortly before being pulled over.

36 There was no evidence explaining what Mr. Hinman meant by "large quantities of alcoholic beverages", nor any evidence that might explain how long a time was meant by "shortly prior" to the incident. Similarly, there was no evidence regarding how many drinks or how much alcohol Mr. Costa would have had to consume to bring his blood alcohol content within the legal limits at the time of driving.
[…]

40 However, in this case, I see no circumstantial evidence suggesting the absence of bolus drinking at all. There was no evidence about where Mr. Costa was coming from, how long he had been driving, and no admissible evidence about what he drank or when he had last consumed alcohol. There was further no quantification of what Mr. Costa would have had to drink in order to be at or under the legal limit. In combination, I find these factors leave what Langdon J. called an "evidentiary vacuum" about bolus drinking.

41 On the other hand, although there was no evidence of alcohol in the car, there was a strong odour of alcohol coming from the car. There was also a strong odour on Mr. Costa's breath. While I would not go so far as to say these factors provided positive evidence of recent bolus drinking, neither do they assist the Crown in showing no bolus drinking.

42 The absence of bolus drinking is an element that the Crown must prove in order to rely upon the report and sustain a conviction. Based on the evidence before me, I find I have no basis upon which to conclude or draw the inference that there was no bolus drinking. In the circumstances, the Crown has failed to meet its burden on this issue and the accused is entitled to the benefit of the doubt.

Tackling Impaired Driving

Edward Prutschi, a defence lawyer from Toronto, recently published an article on slaw.com about our impaired driving laws. He makes a great deal of good sense.

Driver Not Guilty After Refusing to Blow

In R. v. Buyco [2010] AJ No. 115 (Alta PC), the accused was chared with refusing to provide a sample of breath into an approved screening device. Mr. Buyco argued that the demand for an approved screening was unlawful as their was no evidence regarding when the device would arrive at the scene.
The Court agreed and found him not guiltly, saying:

78 In this instance, the officer made the demand and did not have a screening device. He called promptly for a screening device to be brought to the location where the applicant was detained. He did not await the arrival of the screening device; instead, he called off the need to deliver that device after fifteen minutes. It is unclear when, if ever, that device would arrive.
79 A valid demand is based upon proof that the breath sample could be provided in a forthwith manner. This is a factual determination. It is important to remember that an element of the offence charged is that the officer made a lawful demand which the Crown must prove beyond a reasonable doubt. In this instance, the demand could not be proven as valid because the officer's actions gave rise to a reasonable doubt whether the applicant could provide a sample of breath in a forthwith manner.
80 Therefore, on that basis alone the accused must be acquitted of the offence charged.

It is interesting to note that the Court also considered an attack on the constitutionality of the suspension of the right to counsel following a roadside screening device, and held that the section, as recently amended, continued to act as a limitation on the right to counsel but that the limitation was justiified under s. 1 of the Charter.

Officer not obligated to make ASD demand immediately following admission of consuming four beer

In the recent case of R. v. Temple, 2010 BCPC 4, a provincial court judge admitted evidence of the accused’s ASD reading and breath test results despite the demand having been made six minutes after he admitted to drinking four beer, and the samples being taken fifteen minutes after that. The accused’s vehicle was struck by a driver that failed to stop at a stop sign. While investigating the accident, the police officer began to suspect that the accused had been drinking. The accused admitted to drinking four beer, however the court accepted the officer’s testimony that she did not subjectively believe she had the information needed to make a breath demand until she smelled alcohol on his breath six minutes later. The officer then waited five minutes to ensure the sample would not be contaminated by the accused's smoking, and extended the waiting period when it was noticed the accused was chewing gum as well.

The Court held that the sample was taken forthwith, and was therefore not an unreasonable search and seizure.

[23] In the present circumstances I conclude that Cst. Steiger was not under an obligation to make a demand under s. 254(2) at the moment Mr. Temple told her he had consumed four beer. It is the point at which the officer's suspicion becomes reasonably grounded that she is entitled under s. 254(2) to make a demand for a breath sample to an ASD. In Mr. Temple's case that occurred at 6:42 when Cst. Steiger, leaning close to Mr. Temple, detected an odour of liquor on his breath. It is at that point that Cst. Steiger's suspicion was elevated such that she believed she had grounds to make the demand, and those grounds were objectively, that is reasonably supportable. She immediately made the demand in a proper form.
[…]

[26] In the present case, the demand was made at 6:42 p.m. but the sample was not supplied until 6:51 p.m. The delay is accounted for by the application of two waiting periods totalling nine minutes to address first the fact Mr. Temple had been smoking, and then four minutes later the detection of gum in his mouth requiring, in the constable's opinion, an additional five minutes to ensure a suitable, that is uncontaminated, sample would be obtained.
[…]

[28] Although the law as set out by the Supreme Court of Canada contemplates that "forthwith" will mean an immediate response, some latitude to address certain circumstances is permitted. For example, as Judge Gulbransen points out in R. v. Turton, there is likely to be a brief delay while the officer obtains from her vehicle, readies it, and instructs the subject as to what he must do to provide the sample. Further, the Supreme Court of Canada has recognized that where a driver has recently consumed alcohol, burped or vomited, a waiting period of about 15 minutes to ensure the sample provided will result in a proper analysis of the breath of that person is appropriate, and will fall within the meaning of "forthwith" for the purposes of s. 254. (R. v. Bernshaw, [1995] 1 SCR 254).

[29] Cst. Steiger was operating under the same statutory scheme as was in effect in R. v. Bernshaw and R. v. Thomsen. That scheme required she obtain the sample and the accused provide the sample forthwith, but the sample also be one which will provide a proper analysis of Mr. Temple's breath. Cst. Steiger referred to her training and to information provided to her in the course of her work which pointed out the need for a brief waiting period of five minutes where cigarette smoke or gum was present in the mouth, similar to the presence of recently consumed alcohol in the mouth in R. v. Bernshaw. This waiting period, she believed, was required to ensure the sample taken would provide a proper analysis of Mr. Temple's breath.
[…]

[31] In the present circumstances, I conclude that in waiting nine minutes to ensure that the presence of cigarette smoke and gum in Mr. Temple's mouth would not affect the obtaining of a proper analysis of his breath, Cst. Steiger nevertheless obtained a sample and Mr. Temple provided the sample forthwith under the legislation. Those waiting periods are justified and supported for the same reasons that waiting to dissipate mouth alcohol in R. v. Bernshaw is supportable.

Close not good enough in search case

The Courts continue to grapple with the application of the three cases released by the Supreme Court of Canada last summer relating to the exclusion of evidence following Charter violations. Recently, in a case called R. v. Leitner, a BC Provincial Court Judge in Kelowna excluded evidence of marijuana discovered during a search made under authority of a faulty search warrant:

[18] A search warrant is a very powerful tool available to the police for investigation of crime. It allows them to enter an individual’s home without their permission. Therefore the police are held to a high standard when using this tool. They need to be very careful about how they go about obtaining a warrant, including how they convey information both to the JJP and on the warrant itself.

[19] The legislation requires that the basis for the warrant be very clear to the JJP and in turn, the information on the warrant must be very clear so that the resident whose home is being searched understands the basis on which the warrant was issued and the search is being conducted. From that perspective, the forms used by the police in this case are inaccurate. Whether done inadvertently or not, they are misleading to anyone looking at them and that is more than a “slip”.

[20] The same criteria apply to the requirement to name an officer to whom the warrant is directed. The Defence referred the Court to R. v. Goodbaum (1977) 38 CCC (2d) 473, a decision of the Ontario Court of Appeal. In that case, the search warrant was directed to all officers in of the Metropolitan Toronto police force. The Court found that this error made the warrant defective ab initio. It held that “named” is to be defined specifically and that a general authorization is not good enough. Furthermore it found, at page 480, that “this is not a technical breach”. Therefore the Court found that the warrant was fatally defective.

[21] Thirdly, the supervision of the junior officer applying for the search warrant was similarly not to the standard of supervision expected for an officer’s first-time application for a warrant.

[22] I find that the particular errors in this case and the lack of care taken by the supervisor and the JJP, are fatal to the validity of the warrant. The warrant is null and void.

The Court went on to consider whether the evidence, namely the 455 marijuana plants seized, should be admitted on the trial in spite of the Charter violation. The Court said:

[29] The Court must be concerned, where there has been a serious breach of the Charter, that admission of evidence does not send the message that individual rights count for little. In this case, the intrusion on the accused’s rights was significant because it resulted in a warrantless search of his home. This is at the serious end of the scale for Charter breaches because the expectation of security in one’s residence is high. “Close” is not good enough when it comes to searching a person’s home. Everything needs to be done properly.
..................

[33] In summary, this Court must assess and balance each of the three articulated issues and determine, considering all the circumstances, the effect of admitting the evidence on society’s confidence in the justice system. The test is an objective one – would a reasonable person, informed of all relevant circumstances and the values underlying the Charter, conclude that the admission of the evidence would bring the administration of justice into disrepute?

[34] The trilogy of Supreme Court of Canada cases emphasizes that the assessment must be on “all the circumstances”. Section 24(2) is not to be aimed at punishing the police or providing compensation to the accused. Rather it is directed at systemic concerns.

[35] Taking all these issues together, the failure in the system used to obtain this warrant is the root of the concern here. First the junior officer made mistakes with which form he used and what was on it. This should have been caught by his supervisor. Presumably that is why the officer had a supervisor, to make sure he was getting everything right. As well, the JJP should not have signed off on this particular warrant when, reading the ITO, clearly there weren’t grounds to issue this particular kind of warrant.

[36] The system at several points failed to operate properly which led to a warrantless search of a residence. In some areas of investigation this might be excusable. But when it comes to intrusion into a person’s home, this degree of error is not excusable.

[37] While the public may not be happy that reliable and relevant evidence is being excluded in this particular case, I conclude that a reasonable person, informed of all relevant circumstances and considering the long term integrity of and public confidence in the justice system, would agree that admitting the evidence would bring the administration of justice into disrepute.

[38] Accordingly, with the various Charter breaches which occurred and relating as they do to a person’s residence, I find admission would bring the administration of justice into disrepute and accordingly I exclude the evidence.

One of the issues the Courts must deal with is the similarities and contrasts between circumstances involving the searches of buildings including private residences, and searches involving the compelled production of bodily samples for testing by the state, like breath tests. Those cases will be coming soon.

www.duicentre.ca

Breathalyzer Samples Excluded When Accused Believed She Was Being Videotaped During Call To Counsel

The Ontario Court of Justice recently considered the case of a driver who was arrested for impaired driving, and placed in a phone room to contact her lawyer. The room had a sign on the wall which warned that occupants were subject to video and audio recording, and a camera and microphone were visible. The driver testified she believed she did not have privacy and refused to answer some of the questions the lawyer asked her: R. v. Banks, 2009 ONCJ 604.

After finding that the driver's right to counsel had been violated, the Court held that the breathalyzer samples had to be excluded, which led to a finding of not guilty. Regarding the importance of the right to counsel, the Court said this:

23 In assessing the seriousness of the Charter-infringing government conduct, it is recognized that there exists a continuum of unconstitutional departure from the minor, trivial, technical or something that is the product of an understandable mistake to wilful or reckless disregard of Charter rights. The decision in Grant at para. 74 sets this out, as does Harrison at para. 22. As indicated in the decision of R. v. Harrison at para. 23:

"Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights ... What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct."

24 The more severe or deliberate the unconstitutional departure, the greater the need for the court's dissociation from the fruits of that conduct. Otherwise, the failure to exclude evidence risks undermining ongoing public confidence and respect for the rule of law and the administration of justice.

25 In assessing the seriousness of the s. 10(b) violation before me, the trial record establishes the defendant was not maltreated. Nor was there any denial of s. 10(b) rights categorized as being purposeful or in bad faith. While good faith on the part of the police may reduce the need to dissociate itself from that police conduct that results in the breach. However, as stated by the Supreme Court of Canada in Grant at para. 75:

"... ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith."

26 In R. v. Bryce [2009] O.J. No. 3640 (S.C.J.) in the decision of Justice Casey Hill at para. 54, the Court found that the impact of the police conduct on the accused's Charter-protected interests must be examined from the perspective of the accused.

27 The case before me, the accused, Kimberley Banks, believed that her conversations with counsel were being audio-taped and videotaped; that her communication with counsel was being listened to. Further that the communication she had with that lawyer was inhibited as a result of that belief. In law, solicitor client communication has been ferociously protected and the communication between a client and his counsel is, in almost all but few circumstances, protected by the highly protected solicitor client privilege. Any violation of that privilege, or attack or dilution of such privilege must be considered to be serious.

28 I find the violation of the accused's right to counsel on the specific facts before me, to be a violation of a significant privacy interest in the circumstances of a detention and taking of breath samples. It must be considered to be a serious violation of the accused's rights. I also find that the violation of the accused's right to consult counsel in private, on balance, and having regard to all the evidence would necessarily bring the administration of justice into disrepute, taking into account the long-term societal interest and preserving the administration of justice and a long-term repute of the justice system.

29 I also take into account the markedly intrusive effect this breach had on Ms. Banks and more specifically on her communication with counsel. These factors outweigh any community interest in the adjudication of this case on its merits.

30 As such pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, I order that the evidence of the results from the Intoxilizer testing and the observations of the Intoxilizer technician be excluded.

Certificate of Analysis Excluded as Police Officer Could Not Recall Giving a Copy to the Accused

A BC Provincial Court Judge excluded the Certificate of Qualified Technician in an “over .08” case because the Crown failed to establish that the Defendant had received a copy as required by S.258(7) of the Criminal Code.

The officer testified he gave the accused a copy he had made of the certificate of the breathalyzer technician. However, on cross examination he qualified his statement by saying that he could not specifically recall giving a copy to the accused, but that it was his usual practice to do so. The court found that the Crown has not satisfactorily proved that the Defendant received a copy of the breath test certificate as required by s. 258(7) of the Criminal Code. The certificate of analysis of the breathalyzer technician was therefore not admissible in evidence and in the absence of proof, the "over .08" charge was dismissed.
R. v. Northrup, [2009] B.C.J. No. 2386, 2009 BCPC 348.

46 Section 258(7) provides that various forms of certificate relevant to drinking-driving prosecutions, including the Certificate of Qualified Technician, will not be admitted into evidence unless the prosecution has provided the Defendant with reasonable notice of its intention to produce the certificate, together with a copy of the certificate. The use of certificates such as the Certificate of Qualified Technician involves a procedural shortcut which is entirely dependent upon such statutory authority. It is trite law that the courts require strict compliance with the statutory preconditions for admissibility.
47 Judicial authority establishes that there is sufficient compliance with s. 258(7) once it has been demonstrated that the Defendant received a copy of the certificate which is true in all its essential particulars: R. v. Glass (1973), 12 C.C.C. (2d) 450 (Sask. C.A.). Furthermore, the unchallenged testimony of a police officer to the effect that he or she served a copy of the certificate on the Defendant will be considered, in the absence of evidence to the contrary, to constitute prima facie compliance with the statutory requirement: R. v. Pederson (1973), 15 C.C.C. (2d) 323 (B.C.S.C.); R. v. Mavin (1997), 119 C.C.C. (3d) 38 (Nfld. C.A.).
48 The situation becomes more complicated, however, if a police officer qualifies his or her evidence regarding the extent to which he can actually confirm that the copy of the certificate matched the original document. In those circumstances, each fact pattern must be considered on its own merits.
49 In the present case, as I have said, the police officer initially gave evidence which constituted prima facie compliance with s. 258(7). In cross-examination, however, he conceded that he could not specifically recall copying the certificate or serving the copy upon the Defendant. He agreed that his initial testimony really amounted to evidence of his usual practice.
50 In situations where compliance with s. 258(7) is placed in issue in circumstances like the present I find it helpful to refer to the words of Berger, J. in the Pederson case (above). I refer to the following passage, found at paragraph 6 of that judgment :
It is a simple thing to require that a copy be compared with the original. It may not, of course, be necessary in some cases to make a comparison. If the certificate has been Xeroxed by the officer who serves the copy upon the accused, he can say so. If he typed it, and the document he serves is a carbon copy, he can say so. If he did not Xerox it or type it, he should compare the copy with the original certificate, so that he will know, and so that he can say, that the copy he handed to the accused is accurate. While it may be sufficient for a witness to say in his evidence in chief simply that he handed a copy of the certificate to the accused -- that would be prima facie evidence that it was an accurate copy -- it would be necessary for that witness, or for some other witness for the Crown, to be in a position to swear to its accuracy, if the defence were to challenge him on that point. That is not too much to ask.
51 In the present case, the Crown submits that I should conclude that Constable Hanbury must have taken the steps required by s. 258(7) because he says it is his usual practice to do so and there is no evidence to contradict him. With respect, I do not think that is good enough. Reliance on one's actual practice is not a substitute for actual recall. I reached the same conclusion in the recent case of R. v. Devlin (unreported, Victoria Registry Number 144449, October 27, 2009), which seems to me indistinguishable on this point.
52 I appreciate that some of the steps in garden-variety police investigations can become routine. That may be true with respect to the service of documents in drinking-driving cases. But police officers are trained to take notes to assist with memory, especially with respect to essential parts of an investigation. Here, unfortunately, I have no idea whether this officer made note of his actions with respect to the copying and service of documents because the officer did not ask to refresh his memory from that source.
53 I do not believe that the affidavit of service which appears on the reverse of the certificate is of any assistance with respect to the issue now under consideration. The affidavit is purely conclusory in nature. It makes no reference to any comparison of documents, nor does it assist on the question of who copied the original certificate. The affidavit must be read in conjunction with the testimony given by the witness in the courtroom and is subject to the same failings as that testimony.
54 There are circumstances in which it may be possible to reach a different conclusion on this point even though the investigator does not specifically recall doing the photocopying or comparing the original with the copy at the time of service. It is not uncommon, for example, to hear an investigator testify that a discussion took place at the end of the night's events in which the investigator explained the significance of all of the documents that had been served upon the accused person during the course of the investigation. If that evidence suggests that the officer and the accused person discussed the significance of the certificate in detail at a time when the original and the copy were in plain view, and neither party noted any discrepancy between the documents, it might well be a fair inference that the two documents were identical.
55 The evidence in this case does not allow such an inference to be drawn, however. The officer did testify that he explained to the Defendant the nature of the documents that had been served upon him, but he does not say that the Defendant's copy was in view at the time, nor does he provide any detail about the discussion.
56 I appreciate that the outcome of this case is now quite likely to turn upon a narrow technical point. In some ways that is unfortunate. But it must be appreciated that when evidentiary shortcuts are invoked the admissibility of that evidence will frequently turn upon such technical issues.
The certificate cannot be admitted into evidence in this case because the Crown has failed to demonstrate compliance with s. 258(7).