IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 30 Date: February 4, 2011 Information: 30105329 Location: Regina Between: Her Majesty the Queen and Curtis Russell Francis Appearing: Mr. L. Hnatiuk For the Crown Mr. C. Demmans For the Accused VOIR DIRE AND TRIAL DECISION M.J. HINDS, [1] A trial took place before me regarding Curtis Russell Francis who is charged that on or about the 10th day of January A.D. 2009, at or near Regina, Saskatchewan, he did:1. While his ability to operate a motor vehicle was impaired by alcohol or drug operate a motor vehicle contrary to sections 255(1) and 253(1)(a) of the Criminal Code. 2. Having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle, contrary to sections 255(1) and 253(1)(b) of the Criminal Code. [2] The Crown called five witnesses to testify at the trial: Constable Ahren Strueby, Constable Melissa Boxall, Dave Fowler, Lisa McDonnel and Constable Todd Gottselig. No witnesses testified for the defence. [3] At the onset of the trial, counsel for the Crown and the accused advised the Court that Constable Strueby obtained Warrant to Search for Blood samples from Justice of the Peace on January 10, 2009. The warrant resulted in blood samples being taken from the accused. The Court was further advised that the blood samples were subsequently analysed and the Crown would be seeking to have Certificate of Analyst setting out the concentration of alcohol in the accused’s blood and report from the analyst dated April 20, 2010, setting out the blood alcohol concentration of the accused at the time of the accident, admitted as evidence at the trial. [4] granted leave to cross-examine on the Information to Obtain Search Warrant. Guided by the Supreme Court of Canada’s decisions in R. v. Garafoli, [1990] S.C.R. 1461 and R. v. Lising, 2005 SCC 66 (CanLII), [2005] S.C.R. 343, found that the defence had established there was reasonable likelihood (i) that cross-examination is necessary to enable the accused to make full answer, and (ii) that cross-examination could elicit relevant and material evidence of probative value that may discredit the existence of the requisite reasonable grounds. [5] In this case counsel for the Crown and defence agreed that Constable Strueby should testify on voir dire for the purpose of the Court making determination of the validity of the warrant and the admissibility of Certificate of Analyst. Counsel for the Crown and accused also agreed that evidence heard on the voir dire of Constable Strueby could be applied to the trial proper. [6] The first issue before the Court arises from the voir dire and concerns whether the Information to Obtain blood samples contained sufficient grounds in support of the warrant. I found that it did not and as a result there was a breach of the accused’s rights under s. 8 of the Charter to be free from unreasonable search and seizure. I then conducted an analysis pursuant to s. 24(2) of the Charter respecting the violation of the accused’s s. 8 rights. I determined that the Certificate of Analyst and the report from the analyst dated April 20, 2010, should be admitted into evidence at trial. [7] then considered all of the evidence before me at trial. found the Crown had proved that the accused was operating his vehicle and was guilty of the offence of operating motor vehicle while over .08. entered judicial stay of proceedings on count one. The facts arising from the evidence at the voir dire [8] Constable Strueby was performing general patrol duties with Constable Dodds during the early morning hours of January 10, 2009. At 1:19 a.m., the officers were dispatched to attend motor vehicle collision which had occurred at 2007 6th Avenue in the City of Regina. The officers arrived at the scene in their patrol car at 1:22 a.m. Constable Strueby observed grey 1991 Ford Tempo vehicle wrapped around power pole on the north side of 6th Avenue. After observing the scene of the accident, Constable Strueby was of the view that the Tempo vehicle had been driving eastbound on 6th Avenue when it veered in northerly direction and struck power pole on the north side of 6th Avenue. [9] Constable Strueby observed male in his mid 20’s that was the sole occupant of the Tempo vehicle. He observed the male to be unconscious, with his feet located in the driver’s leg/foot area of the vehicle. The rest of the male’s body was slumped across the passenger’s seat. Emergency Medical Services personnel (hereinafter referred to as “EMS”) were on the scene of the accident and attending to the male, who was unresponsive. After short time, EMS extracted the male from the Tempo vehicle and put him in an ambulance. [10] Constable Strueby was advised by his police partner, Constable Dodds, that the registered owner of the Tempo vehicle was Curtis Francis. Constable Strueby later, independently, confirmed that the male he observed was Curtis Francis, using police database. [11] Constable Strueby accompanied EMS and Mr. Francis to the Regina General Hospital and to trauma room number seven, where Dr. Radford attended to him. [12] Constable Strueby initially testified that while he was at the scene of the accident, he smelled beverage alcohol in the interior of the Tempo vehicle. He testified that it was not an overly strong smell of alcohol. Constable Strueby testified that after Mr. Francis was extracted from the Tempo vehicle he could smell strong odour of alcohol in the ambulance and at the Regina General Hospital. [13] Dr. Radford and nurse worked on Mr. Francis in trauma room number seven. Constable Strueby observed that during this time, Mr. Francis lapsed in and out of consciousness. He also observed that at times Mr. Francis flailed his arms around. Dr. Radford was concerned that Mr. Francis had head injury. CT scan and X-rays were done on Mr. Francis. Constable Strueby was advised that Mr. Francis was in stable condition, however, the CT scan was positive for brain bleed. [14] Sergeant Bray attended at the hospital. Sergeant Bray directed Constable Strueby to get “blood warrant” for Mr. Francis. Constable Strueby testified that warrant was necessary for the following reasons: (1) he thought Mr. Francis had been driving his vehicle that early morning, (2) the vehicle had been in an accident, (3) it was apparent that Mr. Francis had been drinking alcohol, and (4) Mr. Francis was in no condition to consent to providing samples of his breath. [15] Constable Strueby had standard police “blood warrant kit” delivered to him at the hospital. [16] Constable Strueby completed an Information to Obtain Warrant For Blood Samples by writing in several areas of the form. Constable Strueby then went to Justice of the Peace Corey Boychuk’s home in the City of Regina. Constable Strueby testified that he signed the Information to Obtain before Justice of the Peace Corey Boychuk at 3:30 a.m. on January 10, 2009. The Information to Obtain reads as follows: This is the information of Constable Ahren Strueby Peace Officer in the Province of Saskatchewan, hereinafter called the informant, taken before me. The informant says that he has reasonable grounds to believe that the suspect, Curtis Francis has within the preceding four hours committed, as result of the consumption of alcohol, an offence under section 253 of the Criminal Code and was involved in an accident resulting in the injury to Curtis Francis person, to wit: brain bleed. The informant further says that there are reasonable grounds to believe that Dr. Radford, qualified medical practitioner is of the opinion that by reason of any physical or mental condition of the suspect that resulted from the consumption of alcohol, the accident or any other occurrence related to or resulting from the accident, the suspect is unable to consent to the taking of samples of blood and that the taking of samples would not endanger his life or health. The informant further says that his/her reasonable grounds for belief are as follows: Interior of vehicle smelled strongly of beverage alcohol. Accused Curtis Francis smelled of beverage alcohol. Wherefore the informant prays that warrant may be granted authorizing peace officer to require qualified medical practitioner to take, or to be taken by qualified technician under the direction of qualified medical practitioner, such samples of blood of Curtis Francis as in the opinion of the person taking the samples are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the blood. SWORN BEFORE me at 0330 hours this 10th day of January, A.D. 19 2008 at Regina, in the Province of Saskatchewan “Cst. A. Strueby 695” Signature of the Informant) Justice of the Peace in and for the Province of Saskatchewan [17] Constable Strueby testified that he incorrectly filled in the date in the jurat as being January 10, 2008, rather than the correct date of January 10, 2009. Constable Strueby did not, however, testify as to the reason, if any, that Justice of the Peace did not sign as the witness to the Information to Obtain. [18] Justice of the Peace Corey Boychuk issued Warrant to Search for Blood Samples from Curtis Francis on January 10, 2009 (Exhibit P-1 on the voir dire). The warrant specified that the blood samples were authorized to be taken between the hours of 1:22 o’clock a.m. and 5:22 o’clock a.m. [19] Constable Strueby went back to the hospital and gave the blood warrant to Dr. Radford. At 4:02 a.m., Dr. Radford drew two samples of Mr. Francis’ blood. Constable Strueby took possession of the blood samples and exhibited them at 4:58 a.m. on January 10, 2009. The samples were sent away for analysis. On June 28, 2009, Constable Strueby received Certificate of Analyst respecting the blood samples taken from Mr. Francis. [20] The Certificate of Analyst, Certificate of Qualified Medical Practitioner (Dr. Radford) and curriculum vitae of the analyst, Tracy Cherlet and her written report dated April 20, 2010, were marked as Exhibits P-2, and respectively, at the voir dire. [21] During cross-examination on the voir dire, Constable Strueby admitted: (a) The only information that he provided to Justice of the Peace Boychuk in support of the warrant was contained in the Information to Obtain. (b) The Information to Obtain did not contain any details of the accident. (c) He and EMS personnel arrived at the scene at the same time. Due to the severity of the accident, EMS took control of the scene. As result he does not know if EMS personnel moved Curtis Francis before he saw him in the vehicle. (d) He observed that Curtis Francis was not wearing seat belt. (e) He observed Mr. Francis’ buttocks to be situated on the driver’s side of the vehicle. (f) There was lot of damage done to the Tempo vehicle. The passenger side door was bent in as result of colliding with the power pole. (g) Despite his testimony during the voir dire that Curtis Francis “smelled strongly of beverage alcohol”, the Information to Obtain says that Curtis Francis “smelled of beverage alcohol”. (h) The Information to Obtain does not include the source of his belief that Mr. Francis was the driver of the vehicle. Nor does it speak to the reliability of the source of his belief. (i) There were witnesses at the scene of the accident. He was advised by Constable Dodds that these witnesses had not seen anyone flee from the Tempo vehicle. The Applicable Law Charter Voir Dire [22] The burden of proof rests upon the accused to establish on balance of probabilities that the warrant to seize his blood samples was invalid and that there was an infringement of his rights as guaranteed by s. of the Charter. [23] Section of the Charter states as follows: Everyone has the right to be secure against unreasonable search or seizure. [24] Section 256 of the Criminal Code deals with Warrants to Obtain Blood Samples. It reads as follows: (1) Subject to subsection (2), if justice is satisfied, on an information on oath in Form or on an information on oath submitted to the justice pursuant to section 487.1 by telephone or other means of telecommunication, that there are reasonable grounds to believe that (a) person has, within the preceding four hours, committed, as result of the consumption of alcohol, an offence under section 253 and that person was involved in an accident resulting in the death of another person or in bodily harm to himself or herself or to any other person, and (b) qualified medical practitioner is of the opinion that (i) by reason of any physical or mental condition of the person that resulted from the consumption of alcohol, the accident or any other occurrence related to or resulting from the accident, the person is unable to consent to the taking of samples of his blood, and (ii) the taking of samples of blood from the person would not endanger the life or health of the person, the justice may issue warrant authorizing peace officer to require qualified medical practitioner to take, or to cause to be taken by qualified technician under the direction of the qualified medical practitioner, such samples of the blood of the person as in the opinion of the person taking the samples are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood. justice of the peace may issue warrant to seize blood samples where the conditions prescribed in s. 256(1) of the Criminal Code are met. [25] In R. v. Clark, [1995] S.J. 566, Gerien J. discussed the requirements of s. 256(1) of the Criminal Code and the test to be applied on judicial review of the validity of warrant and the sufficiency of the information underlying it as follows at paragraphs 10 11: 10 Section 256(1) of the Criminal Code speaks of justice being satisfied “that there are reasonable grounds to believe that” person has committed an offence under s. 253 and was involved in an accident resulting in death or bodily harm. Section 253 creates the offences of driving while impaired or while the concentration of alcohol in person’s blood exceeds 80 milligrams in 100 millilitres of blood. The standard to be applied by the justice is that the grounds be such that “credibly-based probability” is established. Suspicion alone is insufficient. See: Director of Investigation and Research, Combines Investigation Branch et al v. Southam Inc. (1984), 1984 CanLII 33 (SCC), 41 C.R. (3d) 97 (S.C.C.). The justice must consider and weigh the grounds as presented and then decide whether they meet the standard. 11 When court is called upon to review the validity of warrant and the sufficiency of the information underlying it, the test to be applied is that stated in R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 at 188 (S.C.C.) and quoted in R. v. Grant (1993), 1993 CanLII 68 (SCC), 84 C.C.C. (3d) 173 (S.C.C.), at p. 195: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. The approach to be taken has been set forth in R. v. Grant, supra, R. v. Wiley (1993), 1993 CanLII 69 (SCC), 84 C.C.C. (3d) 161 (S.C.C.) and R. v. Plant (1993), 1993 CanLII 70 (SCC), 84 C.C.C. (3d) 203 (S.C.C.) and adopted in this province in R. v. Richter (1994), 1994 CanLII 4663 (SK CA), 120 Sask. R. 257 (C.A.). [26] In R. v. Morelli, 2008 SKCA 62 (CanLII), [2008] S.J. No. 300, Hunter J.A. of the Saskatchewan Court of Appeal provided comprehensive summary of the standard of judicial review when there is challenge to the issuing of search warrant, at paragraphs 19 24: 19 In the instant case, the trial judge reviewed the information provided to the justice to obtain the search warrant. Counsel agree that in her review of the decision of the issuing justice, the trial judge correctly set out the applicable standard of review in R. v. Garofoli as follows: 2. The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. The reviewing judge should not set aside this decision unless he or she is satisfied on the whole of the material presented that there was no basis for the authorization. 20 The standard of review set out in Garofoli has been affirmed in many subsequent cases including, R. v. Araujo, which confirm that the analysis of the affidavit in support of the search warrant is undertaken after any incorrect information has been excised and the information contained therein is amplified by the evidence given on the voir dire. 21 In R. v. Hopkins this Court noted that errors in the information provided to the justice do not automatically invalidate search warrant: [11] The reviewing court must still assess the facts placed before the authorizing justice in light of the additional evidence brought out at trial to determine whether there continues to be basis upon which the search warrant could have been issued: Araujo. Where an officer has reasonable grounds, acted in good faith, and made minor and technical mistakes in drafting the affidavit material, amplification evidence is permissible to determine whether the requisite grounds were present. 22 Further, with respect to the treatment of informant information and referring to Garofoli, the Court in Hopkins stated: [15] Thus, the “totality of the circumstances” must be considered. Weaknesses in one area can be offset by strengths in others. The issue is whether having regard for the totality of the information sworn to by the officer, the information is compelling, credible and corroborated (see: Debot and Plant, 1993 CanLII 70 (SCC), [1993] S.C.R. 281). [16] In Debot the Court considered number of factors with respect to whether the information provided by an informant was compelling, credible and corroborated. An informant’s tip may be found more compelling and credible according to the degree of detail and its specificity, such as the names of the participants in the offence; the location of the event; the time of day when the event was to take place; and whether the informant’s information came from first-hand observations or “mere rumour or gossip?” [19] The fact that more detail can lend greater credibility to an information does not mean that the police must provide more, The police officer has to provide sufficient detail so as to permit the justice of the peace to determine that reasonable grounds exist for the warrant to issue. [Footnotes omitted] 23 In R. v. Pires; R. v. Lising, the Supreme Court commented on the purpose of the Garofoli hearing as follows: [30] However, the Garofoli review hearing is not intended to test the merits of any of the Crown’s allegations in respect of the offence. The truth of the allegations asserted in the affidavit as they relate to the essential elements of the offence remain to be proved by the Crown on the trial proper. Rather, the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to presumptively valid court order.. .The reviewing judge on Garofoli hearing only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed. Hence, there is relatively narrow basis for exclusion. Even if it is established that information contained within the affidavit is inaccurate, or that material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context 24 The reviewing court examines whether the statements in the information are supported by the material contained therein, or whether they are more in the nature of conclusions. This question must be assessed against the “totality” test, looking to the whole information and excising any misleading parts. [See: R. v. Breton and R. v. Pastro.] [emphasis added] Analysis Re: Validity of Blood Warrant [27] In the present case, having reviewed the whole of the material presented, am of the view that there was no basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions of s. 256 of the Criminal Code existed. [28] While do have concerns with the absence of Justice of the Peace Boychuk’s signature on the witness portion of the jurat on the Information to Obtain and with the date in the jurat (10th day of January A.D. 2008), am satisfied having heard the testimony of Constable Strueby (amplification) concerning the events of January 10, 2009, that he swore the information before Justice of the Peace Boychuk at 3:30 a.m. on January 10, 2009. am of the view this is technical error and is not fatal to the warrant. [29] In this case am of the view that Constable Strueby did not provide sufficient detail in the Information to Obtain so as to permit the Justice of the Peace to determine that reasonable grounds exist for the warrant to issue. [30] The Information to Obtain largely consists of boiler-plate. This is to be expected in such document. In R. v. Morelli, supra, Hunter J.A. made the following comment on the use of boiler-plate in Informations to Obtain: Boiler-Plate Statements 51 Some latitude must be allowed to those who prepare the materials in support of search warrant since the same are not prepared by lawyers. As is often the situation, as in the instant case, the Information is less than perfect and, of course, more information could have been disclosed. However, as noted earlier, errors, omissions and inaccuracies do not necessarily mean the search warrant should not have issued. [See: R. v. Hopkins and R. v. Pires.] [31] The first paragraph of the Information to Obtain is largely boiler-plate. It requires an individual to write in their name as the Peace Officer providing the information (Constable Ahren Strueby). The third paragraph requires the informant to write in the name of the physician whom they believe is of the opinion that the suspect is unable to consent to the taking of blood samples and that such blood samples would not endanger the suspect’s life or health (Dr. Radford). Likewise, paragraph five requires the informant to write in the name of the person who the blood samples are to be taken from (Curtis Francis). [32] The second paragraph of the Information of Obtain requires more of the informant. The informant must write in the name of the suspect whom they have reasonable grounds to believe has within the preceding four hours committed, as result of the consumption of alcohol, an offence under s. 253 of the Criminal Code and was involved in an accident. The informant must also write in who was injured as result of the accident (injury to Curtis Francis) and the nature of the injury (a brain bleed). [33] The fourth paragraph of the Information to Obtain is the critical paragraph. The informant is no longer simply filling in blanks on boiler-plate. The informant is now required to provide his reasonable grounds for belief. In this case those reasonable grounds consist solely of two pieces of information: (1) “Interior of vehicle smelled strongly of beverage alcohol”, and (2) “Accused Curtis Francis smelled of beverage alcohol”. [34] In my view, Constable Strueby omitted crucial ground for his belief. He did not depose that he believed that Mr. Francis was the driver of any motor vehicle, let alone the driver of the Tempo motor vehicle which was registered in his name and which crashed into a light standard around 1:19 a.m. on January 10, 2009. Nor did Constable Strueby depose that he believed that Mr. Francis was in care and control of the motor vehicle which could have been accomplished by writing that he observed that Mr. Francis was the sole occupant of the vehicle, was unconscious, with his feet located in the driver’s leg/foot area of the vehicle and the rest of his body slumped across the passenger’s seat. Constable Strueby knew all of this information when he applied for the warrant. He failed to communicate this basic information to Justice of the Peace Boychuk. [35] I am of the view that the information which Constable Strueby deposed in the Information to Obtain, when reviewed as a whole, did not constitute reasonable grounds for the belief that the accused had committed an offence under s. 253. Accordingly, I hold that the Warrant to Search for Blood was invalid. [36] find that the taking of the blood samples from the accused constituted warrantless search. further find that the taking of the blood samples from the accused constituted violation of the accused’s right to be secure against unreasonable search and seizure as guaranteed by s. of the Charter. As the accused's section Charter right was breached, what is the appropriate action to be taken under section 24(2) of the Charter? [37] Section 24 of the Charter states as follows: (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [38] The main authorities on the exclusion of evidence, under s. 24(2) of the Charter, prior to the release of the Supreme Court decisions on July 17, 2009, were R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 (Collins), and R. v. Stillman, 1997 CanLII 384 (SCC), [1997] S.C.R. 607 (Stillman). The judgments of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.J. No. 32 (Grant) and R. v. Harrison, 2009 SCC 34 (CanLII), [2009] S.C.J. No. 34 (Harrison) now replace the previous approach that was taken when considering whether to exclude evidence under s. 24(2) of the Charter. [39] Under the Collins/Stillman approach to s. 24(2) of the Charter where the Court found Charter breach, Certificate of Analyses evidencing the results of conscripted breath samples would almost automatically be excluded on the basis of trial unfairness. Grant and Harrison have altered the inquiry that must be made by trial judge in determining whether, notwithstanding Charter breach, the evidence should be excluded. Pursuant to the approach set out in Grant, it does not automatically follow that conscripted evidence obtained following Charter breach is to be excluded. [40] In Grant, the Supreme Court of Canada defined the purpose of s. 24(2) of the Charter. The Court found that the purpose of the section is to maintain the good repute of the administration of justice. The “administration of justice” encompasses both the rule of law, as well as the upholding of Charter rights within the judicial system. The phrase “bring the administration of justice into disrepute”, as found in s. 24(2), is to be interpreted as meaning the “long term sense of maintaining the integrity of, and public confidence in, the justice system” (Grant at 66-67). [41] The inquiry under s. 24(2) of the Charter is an objective one, and looks at “whether reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute” (Grant at 68). Three avenues of inquiry under section 24(2) [42] When faced with an application for exclusion under s. 24(2), Court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to “three avenues of inquiry”. The three avenues of inquiry were described as follows at paragraph 71: (1) First Inquiry: The seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct) [43] During this inquiry the Court has to determine whether the admission of evidence would send message that the Courts, as institutions responsible for the administration of justice, condone the state deviation from the rule of law based on the fact that they failed to disassociate themselves from the “fruits of that unlawful conduct” (Grant at 72). This is fact specific inquiry. [44] This inquiry requires trial judge to evaluate “the seriousness of the state conduct that led to the breach”. The more severe or deliberate the infringing conduct was, the greater the need for the Courts to disassociate themselves from that conduct by excluding evidence linked to it, in order to preserve public confidence in and ensure state adherence to the rule of law. [45] If the conduct of the officers was wilful or reckless disregard of Charter rights, it will be more serious violation and will have negative effect on the public confidence in the rule of law. This will increase the chances of bringing the administration of justice into disrepute (Grant at 74). However, if there is the need to prevent the disappearance of evidence or there is “good faith” on the part of the police officers this may mitigate the need for disassociation from the police conduct. If the breach was “merely technical in nature” or resulted from an “understandable mistake”, the Court will not have to be as concerned with disassociation (Harrison at 22). (2) Second Inquiry: The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little) [46] In Grant, the Court indicated at paragraph 76, that trial judges must concentrate on “the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused”. This requires an evaluation “of the extent to which the breach actually undermined the interests protected by the right infringed” and the “degree to which the violation impacted on those interests”. [47] The more serious the infringement on the individual’s rights or freedoms, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute (Grant at 76). This stage of the inquiry should aim to prevent the mistaken belief that Charter rights do not count. (3) Third Inquiry: Society’s interest in the adjudication of the case on its merits [48] The third stage deals with the criminal trial process and whether its “truth-seeking function” is better served by the admission or exclusion of the evidence in question. This is based on the belief that it is in the interest of society to ensure that individuals who are accused of violating the law are brought to trial, and are dealt with according to the law. [49] The Court points out in Grant, at paragraph 79, that Canadian society “generally expects that criminal allegation will be adjudicated on its merits”. Thus, this third avenue of inquiry requires trial judge to ask him or herself “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion?” Bodily Evidence under Grant [50] In Grant, the Court also held that the reliability of the evidence “is an important factor in this line of inquiry” because the exclusion of reliable evidence can render trial “unfair from the public perspective, thus bringing the administration of justice into disrepute” (at paragraph 81). The Court recognized that the third avenue of the inquiry would generally favour admission of bodily samples on the basis of their reliability: The third line of inquiry the effect of admitting the evidence on the public interest in having case adjudicated on its merits will usually favour admission in cases involving bodily samples. Unlike compelled statements, evidence obtained from the accused’s body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission. (See Grant, supra at para. 110) [51] Another important consideration is the importance of the evidence to the Crown’s case. Where the evidence is at the heart of the Crown’s case, if it is unreliable its admission is more likely to bring justice into disrepute; if it is reliable its exclusion may have more negative impact (Grant, supra at 83). In this case the evidence which the defence seeks to exclude is the Certificate of Analyst which sets out the results of the blood tests and accompanying report of the analyst which sets out the blood alcohol concentration of the accused at 1:19 a.m. The blood alcohol concentration of an accused is central to the Crown’s case in charge under s. 253(1)(b). The three avenues of inquiry in the present case. 1. The seriousness of the Charter-infringing police conduct. [52] With respect to the first avenue of the inquiry, must consider the police conduct involved in the violation of the accused’s s. right under the Charter. [53] While I have found that the blood warrant was invalid and that the seizure of blood samples from Mr. Francis breached his s. 8 right to be secure against unreasonable search or seizure, I am of the view that Constable Strueby was nonetheless acting in good faith when he obtained blood samples from Mr. Francis. [54] When Constable Strueby attended 2007 6th Avenue at 1:22 a.m., he observed that grey 1991 Ford Tempo vehicle, registered to Mr. Francis, wrapped around power pole on the north side of 6th Avenue. No other vehicles appeared to be involved in the accident. Mr. Francis was the sole occupant of his Tempo vehicle. Mr. Francis was unconscious. His feet were situated in the driver’s leg/foot area of the vehicle. The rest of his body was slumped across the passenger’s seat. Constable Strueby smelled beverage alcohol in the interior of the Tempo vehicle. He also smelled beverage alcohol on Mr. Francis. After Mr. Francis was extracted from the Tempo vehicle, Constable Strueby could smell an odour of beverage alcohol in the ambulance when he accompanied Mr. Francis to the Regina General Hospital. Constable Strueby was advised by Dr. Radford that Mr. Francis had brain bleed injury, was unable to consent to the taking of blood samples and the taking of such samples would not endanger Mr. Francis’ life. Acting on that information, Constable Strueby provided an Information to Obtain to Justice of the Peace Boychuk and obtained blood warrant. Thereafter blood samples were obtained from Mr. Francis. [55] In my view, this was not an instance where Constable Strueby wilfully or recklessly disregarded Mr. Francis’ s. Charter right. While I have found the Information to Obtain in support of the blood warrant deficient, I am confident that Constable Strueby honestly held the belief that Mr. Francis was drinking and driving and was acting in good faith throughout the early morning of January 10, 2009. He attempted to comply with the law by obtaining valid warrant. Under these circumstances do not find his conduct to be serious. 2. The impact of the breach on the Charter-protected interests of the accused. [56] With respect to this avenue of inquiry, I am of the view that the breach of Mr. Francis’ s. 8 Charter right was done in good faith and did not seriously undermine the interests protected by the accused. The breach of Mr. Francis’ right under s. 8 of the Charter was not flagrant, but rather technical in nature. The Justice of the Peace and disagree as to whether reasonable grounds were present for the blood warrant. 3. Society’s interest in the adjudication of the case on its merits. [57] The evidence in question is Certificate of Analyst and accompanying report dated April 20, 2010, which sets out the results of the concentration of alcohol in the accused’s blood arising from blood samples taken from the accused following the Charter breach. The reliability of this evidence, of course, can be subject to challenge by the defence at the trial itself. Although offences under ss. 253(1)(a) and (b) are not amongst the most serious of offences in the Criminal Code and are generally disposed of with fines and driving prohibitions, the societal problems they are intended to denounce and deter are amongst the most serious faced by innocent users of the highway. In the face of this, am of the view that the truth-seeking function of the trial process would be better served by the admission of the evidence. Conclusion on section 24(2) of the Charter [58] Section 24(2) of the Charter states that the evidence (obtained following the Charter breach) shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings (in this case the trial of the accused) would bring the administration of justice into disrepute. [59] Notwithstanding the Charter breaches in this matter, conclude that, having regard to my findings in the three stages of inquiry, the admission in the trial of the Certificate of Analyst and report of the analyst dated April 20, 2010, the Warrant and Certificate of Qualified Medical Practitioner will not bring the administration of justice into disrepute and accordingly, rule in favour of their admission at trial. [60] The Certificate of Analyst reveals that samples of blood taken from the accused contained 229 milligrams of alcohol in one hundred millilitres of blood. The report of Analyst Tracy Cherlet dated April 20, 2010, provided two estimates of blood alcohol concentration (BAC) for the accused at 1:19 a.m. on January 10, 2009. The first estimate of BAC is based on the BAC at 4:02 a.m. (blood sample) which was 229 mg% and on the assumption that the accused’s drinking concluded one half hour or more prior to the time of collision, such that peak BAC was attained prior to, or at the time of the collision. The second estimate of BAC is based on the BAC at 4:02 a.m. (blood sample) which was 229 mg% and on the assumption that the accused’s drinking continued up until the time of the collision, such that the peak BAC was attained after the time of collision, prior to the time the blood was taken. [61] Using the assumptions set for the first estimate, Analyst Cherlet opined that the BAC of the accused at 01:19 a.m. is estimated to be between 256 mg% and 283 mg%. Using the assumptions set out for the second estimate, Analyst Cherlet opined that the BAC of the accused at 01:19 a.m. is estimated to be between 236 mg% and 263 mg%. Analyst Cherlet further opined that by combining estimates one and two, the BAC of the accused Mr. Francis at the time of the collision at 1:19 a.m. would be between 236 mg% and 283 mg%. Analyst Cherlet further opined that all individuals would be impaired in their ability to operate motor vehicle with BAC within this range. Additional Evidence at Trial [62] The evidence of Constable Strueby will be applied to the trial. At trial Constable Strueby also testified that it was cold during the early hours of January 10, 2009 and 6th Avenue had been recently graded and the roadway was icy. [63] Constable Gottselig testified that he and his partner, Constable Hogan work as traffic collision investigators. They arrived at the scene of the accident on 6th Avenue around 1:21 a.m. on January 10, 2009. Constable Gottselig observed grey Tempo vehicle which had come to rest against power pole. He went to the passenger door of the Tempo and observed the upper torso of lone male slouched on the passenger seat with his head resting on the front passenger window. He also observed that the lone male’s feet were in the driver’s side floor area of the vehicle. He also smelled the odour of beverage alcohol coming from inside the vehicle. He was unsure if the male was wearing seat belt. [64] Constable Gottselig tried to talk to the male in the vehicle, however, there was no response. Constable Gottselig observed that the vehicle was running and the transmission was set in the drive setting. He was unable to say if the vehicle could be put in motion. He turned the key in the ignition of the vehicle to the off position. [65] Constable Gottselig and his partner made note of the damage to the vehicle. Constable Gottselig also observed that telephone utility box on the roadway was damaged. He observed single set of tire tracks from the Tempo going eastbound on 6th Avenue which then rotated in counterclockwise direction ending up against power pole. [66] Constable Gottselig testified that the temperature was around minus fifteen Celsius and that there was some packed snow and loose snow on the roadway which made driving slippery. He added that he was able to walk on the roadway without difficulty. [67] Constable Melissa Boxall testified that she attended the scene of the accident on 6th Avenue at 3:40 a.m. on January 10, 2009, for the purpose of taking photographs. photo booklet of eight photographs taken by Constable Boxall was admitted into evidence at trial. The photographs show the passenger side door of the Tempo vehicle dented from side impact with power pole along with an area of impact on the driver’s side door. [68] Dave Fowler and his wife Lisa McDonnel live at 2007 6th Avenue. The power pole which the Tempo vehicle struck is located on 6th Avenue across the street from their three-story home. Dave Fowler was getting ready to go to bed around 1:30 a.m. on January 10, 2009. Around this time he heard two sounds from his bathroom located on the third floor of the home. The first sound he heard was the opening of the garage door to his home on the ground level. This coincided with his wife arriving home. Dave Fowler also heard the sound of car going fairly fast on the roadway outside his home. He then heard loud bang and observed puff of smoke and the wires on nearby power line swaying back and forth. Mr. Fowler then went downstairs to the second floor of his home where he saw his wife. Mr. Fowler then went to window on the second floor of his home and observed car to be up against power pole on 6th Avenue. Mr. Fowler did not see anyone leave the car or enter the car. He placed call to 911. As Mr. Fowler was not dressed, he asked his wife to go outside to see how things were. Mr. Fowler observed that the police and an ambulance came to the scene of the accident within five to ten minutes. Mr. Fowler admitted on cross-examination that he did not have his eyes on the car at all times after it collided with the power pole. [69] Lisa McDonnel testified that after arriving home and speaking with her husband Dave, she became aware that an accident had occurred outside of their home. She did not see the accident occur. Lisa and Dave met on the second floor of their home. Dave was on the telephone to 911 and from window overlooking 6th Avenue she saw car up against pole. Less than minute later Lisa McDonnel went from the second floor of her home to the garage on the ground floor and thirty or forty feet to the car up against power pole on 6th Avenue. Ms. McDonnel observed one person inside the car. That person was slumped over onto the passenger side of the car and appeared to be asleep. Before she could knock on the window of the car the police arrived at the scene. She did not observe anyone leave the car. Issue at Trial [70] The issue at trial is whether the Crown has proven beyond a reasonable doubt that the accused, Curtis Francis was the driver of the Tempo motor vehicle or alternatively was in care and control of the motor vehicle. Analysis for Trial [71] I am of the view that the Crown has proved beyond a reasonable doubt that Curtis Francis was the driver of the Tempo vehicle which collided with the power pole on 6th Avenue at 1:19 a.m. on January 10, 2009. [72] found Dave Fowler, Lisa McDonnel and Constables Strueby and Gottselig to be very credible and reliable witnesses. There is no question that none of the Crown witnesses actually saw Mr. Francis at the wheel of his Tempo vehicle prior to it colliding with the power pole. However, when their evidence is examined as a whole I am sure that Mr. Francis was driving his Tempo vehicle when it collided with the power pole. [73] The evidence establishes that at approximately 1:19 a.m. on January 10, 2009, from the third floor of his home, Dave Fowler heard the sound of car going fairly fast on the roadway outside his home. He then heard loud bang and observed puff of smoke and the wires on nearby power line swaying back and forth. Within less than one minute following the crash, from his second story window, Mr. Fowler observed car to be up against power pole on 6th Avenue. This vehicle was the Tempo owned by Mr. Francis. infer that the Tempo struck telephone utility box causing the puff of smoke which Mr. Fowler observed. The Tempo also struck the power pole which caused the power lines to sway, which Mr. Fowler also observed. [74] While Mr. Fowler was looking at the car below him, he did not see anyone leave the car or enter the car. find that no more that one minute passed from the time Mr. Fowler took his eyes off the car, placed call to 911 and had his wife go outside to the car. On route to the car from her home, Lisa McDonnel did not see anyone leave the car. Lisa McDonnel saw one person in the car, who find to be Curtis Francis, who was slumped over onto the passenger side of the car and appeared to be asleep. Ms. McDonnel remained at the car until EMS personnel and police arrived at the scene. [75] Constable Gottselig and Constable Strueby also saw only one unconscious occupant in the vehicle. That occupant was Mr. Francis. Constable Gottselig also noticed that the engine in the Tempo vehicle was still running, with the keys in the ignition. He also noted that the transmission was set in the drive position. Constable Gottselig observed that the upper torso of Mr. Francis’ body was slouched on the passenger seat area with his head resting on the front passenger window. He also observed that Mr. Francis’ feet were in the driver’s side floor area of the vehicle. Similar observations were made by Constable Strueby. [76] am of the view that the evidence establishes that Mr. Francis was driving his Tempo vehicle on 6th Avenue when he lost control of the vehicle and struck the electrical utility box and power pole. The fact that his feet were located in the driver’s side floor area of the vehicle and the position of his upper body and head on the passenger side of the front seat area of the Tempo lead me to conclude he was in fact the driver of the vehicle when it collided with the power pole. The impact and resulting damage to the passenger side of the Tempo, in my view, account for some movement of Mr. Francis’ body within the vehicle. [77] In addition, on the evidence before me find that there was not enough time that the vehicle was not in the view of Mr. Fowler, his wife, Ms. McDonnel, or the police to have the driver leave the vehicle and be replaced by the unconscious Mr. Francis, positioned as he was. In my view the only reasonable conclusion is that Mr. Francis was the operator of the vehicle at the time of collision. [78] As I have determined that the accused was the operator of a motor vehicle at 1:19 a.m. on January 10, 2009, with a blood alcohol concentration of between 236 mg% and 283 mg%, I find him to be guilty of count number two. [79] In accordance with the usual practice in this jurisdiction, conditional stay shall be entered on count number one, to be made complete upon the expiration of the appeal period or alternatively, until such time as all initiated appeals have been completed, whereby conviction on count number two is maintained. M.J. Hinds,
The accused was charged with impaired care and control of a motor vehicle and care and control of a motor vehicle while his blood alcohol level exceeded .08. The accused was found in the driver's side of a vehicle with his legs near the pedals. His body was slumped over into the passenger side. The vehicle had collided with a power pole and sustained significant damage. The engine was running when the police arrived. There was no one else in the vehicle. The accused was transported to hospital where the doctor suspected he had a brain bleed and recommended the police obtain a blood warrant. The officer who swore the Information to Obtain the warrant indicated that the interior of the vehicle smelled strongly of beverage alcohol and the accused smelled of beverage alcohol. The Justice of the Peace did not sign the Information to Obtain. The issues before the Court were whether there had been a breach of the accused's s. 8 right to be free from unreasonable search and seizure and whether the Crown had proven beyond a reasonable doubt that the accused was in care and control of the motor vehicle. HELD: The blood warrant was found to be invalid, meaning that the blood samples were obtained as part of a warrantless search in breach of s. 8. The Information to Obtain the blood warrant did not depose that the officer believed the accused was the driver of the vehicle which had crashed into the power pole or that the accused was in care and control of the motor vehicle. The officer should have included information about the accused's position in the vehicle and that the accused was unconscious. Without this information, the Information to Obtain did not contain reasonable grounds to believe that the accused had committed an offence under s. 253 of the Criminal Code. However, the blood sample evidence was admitted after a s. 24(2) analysis. The Court held that the officer was acting in good faith and that he honestly held the belief that the accused was drinking and driving when he swore the Information to Obtain. The impact on the accused was technical in nature and did not seriously undermine the accused's rights. The Court held that the truth seeking function of the trial process would be better served by admission of the Certificate of Analysis. The Court found that the accused was in care and control of the motor vehicle at the time of the collision. There was no evidence that anyone else was in the vehicle and the position of the accused when discovered suggested he had been driving the vehicle. The accused was found guilty of driving while his blood alcohol level exceeded .08. The Court held that his blood alcohol level was between 236 mgs% and 283 mgs%.