1. the seriousness of the Charter-infringing state conduct;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.
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 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.
