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).