R. v. Martinez, 2012 ABQB 317

Court of Queen ’ s Bench of Alberta Citation: R. v. Martinez, 2012 ABQB 317 Date: 20120515 Docket: 080806250S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Carlos Emilio Martinez Appellant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice B.A. Browne _______________________________________________________ Appeal from the Conviction by The Honourable Judge S. R. Creagh Convicted on the 28 th day of June, 2011 ( 2011 ABPC 237 , Docket: 080806250P1) Nature of the Appeal [ 1 ] Mr. Martinez appeals his June 28, 2011 conviction on a charge of driving when his blood alcohol concentration was over 80

mg/100 mL, contrary to s. 253(1) (

b) of the Criminal Code . Facts [ 2 ] On June 15, 2008, Cst. Jennings of the Edmonton Police Service responded to a minor motor vehicle collision involving two vehicles. Two gentlemen, including Mr. Martinez, were outside of their vehicles at the location of the collision. [ 3 ] Cst. Jennings demanded a roadside breath sample based on Mr. Martinez’ admission of driving, his admission of consumption of alcohol, the fact of the collision and physical signs of impairment observed by Cst. Jennings, including the odour of alcohol on the breath and glassy eyes.

The roadside breath sample provided a reading of “F” signifying failure. [ 4 ] The fail reading of the roadside test together with Cst. Jennings’ other observations led him to form the belief that Mr. Martinez’s ability to operate a motor vehicle was impaired by alcohol. Cst. Jennings arrested Mr. Martinez for impaired driving and demanded that he provide a breath sample. At the detachment, Mr. Martinez complied with the demand and provided two breath samples. Given the results of these tests, 0.16, Mr.

Martinez was charged with impaired driving (s. 253(a)), and driving while his blood alcohol concentration exceeded the legal limit (s. 253(b)). [ 5 ] At trial, a voir dire was held to determine whether the police had breached Mr. Martinez’ Charter rights during the investigation, specifically s. 7, s. 8 (search/seizure) and s. 10(b) (right to counsel). Prior to the completion of the trial, Mr. Martinez also alleged that the trial was not completed within a reasonable time in breach of his s. 11(

b) Charter right. [ 6 ] The trial judge dismissed all of the Defence’s Charter arguments and convicted Mr. Martinez of the charge under s. 253 (

b) of the Criminal Code (driving while his blood alcohol level was over 0.08). Mr. Martinez was sentenced to pay a $900.00 fine and was prohibited from driving a motor vehicle for one year. He was, however, allowed eligibility for the Interlock ignition device. Issues on Appeal [ 7 ] The following issues are raised on appeal: 1. Did the trial judge err in dismissing the s. 11(

b) application? 2. Did the trial judge err in concluding that there was no s. 8 breach of Mr. Martinez’ right to be secure against unreasonable search and seizure? Standard of Review [ 8 ] A

summary conviction appeal court has the power under s. 686(1)(a) (through s. 822) of the Criminal Code to allow an appeal against conviction where the verdict should be set aside if it is unreasonable or cannot be supported by the evidence, there was a wrong decision on a question of law, or there was a miscarriage of justice. [ 9 ] The Supreme Court of Canada in Housen v Nikolaisen , 2002 SCC 33 (CanLII) , [2002] 2 SCR 235 at paras. 8 to 36 held that

[9] The Supreme Court of Canada in Housen v Nikolaisen, 2002 SCC 33 , [2002] 2 SCR 235 at paras. 8 to 36 held thatthe standard of review of a trial judge’s findings on a pure question of law is correctness, and the standard of review on a question of factor mixed fact and law is palpable and overriding error. [10] Whether a trial judge has properly concluded on the facts that s. 11(

b) of the Charter has been infringed is a question of law tobe reviewed on the standard of correctness: R v Yelle, 2006 ABCA 160, 384 AR 318 at para. 6, citing R v Conway, (SCC), [1989] 1 SCR 1659. [11] The same is true regarding review of the assessment of reasonable and probable grounds for the purposes of s. 8 of theCharter: R v Shepherd, 2009 SCC 35, [2009] 2 SCR 527.

However, whether the police officer had an honest subjective belief is aquestion of fact that will not be overruled unless it reflects palpable and overriding error: R v Loewen, 2010 ABCA 255, 490 A.R. 72 atpara. 6, aff’d 2011 SCC 21, [2011] 2 SCR 167. [12] The Alberta Court of Appeal in R v Janzen, 1998 ABCA 371, 228 AR 12 summarized as follows the law on review ofcredibility findings: 7 Pursuant to ss. 686(1) of the Criminal Code, an appellate court is required to determine, on the whole of the evidence, whether aproperly instructed trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt.

Inconsidering the evidence, the appellate court is entitled to review and, to some extent, reweigh the evidence. However, in so doing, theappellate court must show great deference to the findings of the trial judge on matters of credibility, given that the trial judge has had theadvantage of seeing and hearing the witnesses testify: R. v. W.(R)., (SCC), [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134. [13] Inadequacy of reasons does not constitute a free-standing right of appeal.

However, where the absence of reasons prevents anappeal court from properly reviewing the trial judge’s pathway to her conclusion and treatment of the principal issues in the case, thenthe failure to deliver meaningful reasons constitutes an error of law within the meaning of s. 686(1)(a)(ii): R v Sheppard, 2002 SCC 26,[2002] 1 SCR 869. Reasons need not necessarily reveal all the thought processes leading up to the final conclusions: R v Pan, 2001 SCC42, [2001] 2 SCR 344.

They are to be considered in the context of the record, and it is reasonable to infer that the trial judge understoodthe import of the evidence, and the basic principles of criminal law at issue in the trial. The reasons need not be so detailed that theyallow an appeal court to retry the entire case on appeal, nor that they prove that the trial judge was alive to and considered all of theevidence, or answered each and every argument of counsel: R v REM, [2008] 3 SCR 3, 2008 SCC 51.

Reasons will be adequate if thetrial judge stated her conclusions briefly, and those conclusions are supported by the evidence: R v Burns, (SCC),[1994] 1 SCR 656. 1. Did the trial judge err in dismissing the s. 11(

b) application? [14] The relevant time line is as follows: June 15, 2008: Mr. Martinez was arrested and charged. July 2, 2008: Information was sworn. July 16, 2008: Agent attended on behalf of Mr. Martinez and adjourned to obtain disclosure. July 31, 2008: Further adjournment was granted for purpose of obtaining disclosure. August 14, 2008: Not guilty plea entered; matter set down for trial to begin on February 25, 2009 for 2 hours (6 months).

January 12, 2009: Defence counsel requested matter brought forward to endorse an order for a Spanish interpreter. January 25, 2009: Order for Spanish interpreter. February 25, 2009: The trial commenced but could not be completed in the allocated time. Court time became available that afternoon,and the trial was continued, but still could not be completed. It was adjourned until March 10, 2009 for a decision on the issue ofvoluntariness. March 10, 2009: The decision on voluntariness was issued and the matter was adjourned to July 15, 2009 for a further 2 hours (4months).

July 15, 2009: The Spanish interpreter was ill and the substitute interpreter was engaged in other matters, causing the matter to beadjourned to December 4, 2009 (4 ½ months). December 4, 2009: Due to an error, no interpreter was present. As well, an essential defence witness was absent, but defence counseloffered to proceed on the understanding that a date would be set in 2010 to hear further evidence on the voir dire from the defencewitness. Crown indicated a preference not to further split the trial. The matter was adjourned until April 6, 2010 (4 months). March 25, 2010: Mr.

Martinez filed an amended Charter notice alleging breach of his s. 11(

b) rights. April 6, 2010: Mr. Martinez sought an adjournment to November 9, 2010 due to his counsel of choice, Ms. Simić, taking an unexpectedleave of absence. November 9, 2010: Court heard the s. 11(

b) application. Ms. Simić’s colleague represented Mr. Martinez. The lawyer advised that if thes. 11(

b) application was unsuccessful, they would seek a further adjournment to await first counsel’s availability. At the conclusion ofthis hearing, the trial was adjourned to March 28, 2011. January 14, 2011: The trial judge dismissed the s. 11(

b) application. [15] The trial judge held that the delay of over two years and seven months (31 months) to that point warranted inquiry. However,after examining the reasons for delay, she concluded that an 8 ½ month period attributable to interpreter problems did not render the timeto trial unreasonable. Positions of the Parties [16] Mr. Martinez submits that in the unique circumstances of this case, his insistence on counsel of choice did not constitute awaiver for the purpose of the s. 11(

b) analysis. Further, the trial judge misapprehended Defence counsel’s submissions on actualprejudice: his counsel would have been available but for the institutional delay. He also submits that the trial judge erroneously foundthat he had attempted to avoid responsibility for his criminal actions. Finally, he argues that the trial judge erred in balancing the factorsunder R v Askov, (SCC), [1990] 2 SCR 1199. [17] The Crown submits that only the delay resulting from the lack of an interpreter on December 4, 2009 should be countedagainst the Crown. With respect to actual prejudice: Mr.

Martinez was never in custody on these charges; he was released on a Promiseto Appear and faced no restrictions on his movements, residence, activities, associations and had no reporting conditions or supervision;there was no evidence to indicate that the delay affected his ability to make full answer and defence; the evidence did not support a

finding that the prejudice resulted from delay, rather than from the fact of being charged; and the trial was conducted by his counsel ofchoice as the Court granted all of the adjournments he requested so that his counsel could be available. Law [18] The primary purpose of s. 11(

b) of the Charter is to protect an individual’s right to a fair trial, liberty, and security of theperson: R v Godin, 2009 SCC 26, [2009] 2 SCR 3 at para. 31. However, a court must be mindful not only of the societal interest inensuring that individuals accused of a crime be treated humanely and fairly, but also that laws are enforced and those who transgress thelaw are brought to trial: R v Sapara, 2001 ABCA 59, 277 AR 357 at paras. 13-14, leave denied [2001] SCCA No 237. [19] The relevant factors in addressing the reasonableness of delay under s. 11(

b) were set out by the Supreme Court of Canada inR v Morin, (SCC), [1992] 1 SCR 771 at 787-88: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including; (

a) inherent time requirements of the case; (

b) actions of the accused; (

c) actions of the Crown; (

d) limits on institutional resources; (

e) other reasons for delay; and 4. prejudice to the accused. [20] Courts are not to take a narrow “fault-oriented” approach in examining the above factors. Instead, the real question to beanswered remains the reasonableness of the overall length of time taken to bring an accused to trial: R v Koruz (1992), 1992 ABCA 144, 125 AR 161 at para. 32 (CA). [21] Waiver of s. 11(

b) rights must be clear and unequivocal, with a full understanding of the effect on those rights. Waiver may beinferred in certain circumstances, but does not include mere acquiescence to the inevitable: R v Sapara at para. 16. Analysis [22] As mentioned above, the standard of review on this issue is correctness. [23] The delay in this case was prima facie unreasonable: R v Smith, 2009 ABQB 618, 483 AR 295. The trial judge properlydetermined that the overall delay warranted an inquiry. [24] Each time period must be examined in order to determine the reasons for delay.

July 2, 2008 to August 14, 2008 [25] The relatively brief delay between the swearing of the information and setting of the trial date was inherent. This time isproperly considered to be neutral in the s. 11(

b) assessment: R v MacDougall, (SCC), [1998] 3 SCR 45 at para. 44. August 14, 2008 to February 25, 2009 [26] Given that the period between the setting of the trial date on August 14, 2008 and the start of trial on February 25, 2009 (194days or 6 ½ months) is within the guidelines contemplated for Provincial Court, it is also properly described as inherent. February 25, 2009 to July 15, 2009 [27] The trial could not be completed on the initial date. The trial judge noted that the proceedings evolved in complexity from thetime the trial date was set: Mr.

Martinez alleged a number of Charter breaches, raised the admissibility of a statement, and theproceedings involved an interpreter. The trial judge found that these factors were not known to the Crown when the time estimate of twohours was given. Although the trial was continued in the afternoon of February 25, 2009, it could not be completed. The trial judgereserved on the voluntariness issue and ruled on March 10, 2009, at which time the matter was adjourned to July 15, 2009. The trialjudge noted an eight to ten month guideline for institutional delay in Provincial Court.

July 15, 2009 to December 4, 2009 [28] On July 15, 2009, the interpreter was ill and the substitute was engaged in other matters.

The trial judge counted the resultingdelay against the Crown. [29] In R v MacDougall, (SCC), [1998] 3 SCR 45, the Supreme Court recognized that a delay caused by anillness of the trial judge will count as inherent delay so long as it was not reasonable to expect the Crown to have the judge replaced.Further, as noted in R v AJW, 2009 ONCA 661 at para. 35, delay as a result of the illness of a Crown witness is ordinarily attributed tothe inherent time requirements of the case. [30] I see no reason to differentiate between the illness of a trial judge or Crown witness and that of a required interpreter.Similarly, I do not find that it would be reasonable to expect the Crown to have a replacement interpreter readily available on shortnotice.

As such, the delay caused by the interpreter being absent due to an unexpected illness is inherent to the operation of our courtsystem and ought to be considered neutral. However, not all the ensuing delay is necessarily neutral, and some portion of it may properlybe considered institutional delay. Here, some portion of the almost five month delay could be considered institutional delay. December 4, 2009 to April 6, 2010 [31] The trial judge properly attributed the lack of an interpreter due to an apparent error, and lack of a backup, as a resource issueresulting in institutional delay.

The ensuing delay was properly attributed to the Crown. There was no reason given to explain theabsence. However, the trial judge did note that a defence witness was missing, which would have resulted in a further adjournment andsplitting of the defence case, even if they had proceeded on that date with an interpreter. April 6, 2010 to March 28, 2011 to April 4, 2011 [32] On April 6, 2010, counsel of choice was unavailable. During the s. 11(

b) application on November 9, 2010, defence counsel

stated (Transcript, p. 18, ll 29-41, p. 19, ll 5-28): ...that takes us to April the 8th, and April the 8th, I would submit, we have a delay which is purely the fault of the defence. It is not what Iwould describe would be a voluntary decision to delay. ...Trial counsel, as the Court is aware, her mother is suffering from cancer... Ms.Simic, made a decision to essentially halt her practice of law and take a leave of absence from our firm to help her mother... ...We acknowledge that there’s going to be a further delay into 2011, undoubtedly, and Mr.

Martinez has essentially indicated that if Ms.Simic is not available at that additional date that he will allow another member of our firm to take over the file if he cannot find anotherSpanish-speaking lawyer to assist him. ...I’m not certain what the bar has to offer with respect to Spanish-speaking counsel.

But the point remains that there will be a furtherdelay, and I’m completely anticipating my friend is going to argue that, and that delay ... will fall squarely on the defence as well. ...I’m asking the Court to take into consideration that there are some unique circumstances here, and we do have an accused who wouldlike to have a lawyer that can speak his language as he finds that he is far more comfortable with Ms. Simic in discussing the case withher. [33] The trial judge held that this period of delay was attributable to Mr. Martinez’ actions.

She also noted at para. 14 of thewritten reasons (2011 ABPC 30), that the applicant had accepted that any delay since April 6, 2010 was as a result of his decisionregarding counsel of choice, and that he conceded that the time period was “waived”. [34] In the s. 11(

b) context, attributing delay to actions voluntarily taken by an accused does not equate to finding impropermotive, nor do bona fide actions by an accused necessarily constitute a waiver. They are, however, to be taken into account indetermining the reasonableness of the delay: R v Morin, at 793. [35] No one can fault Mr. Martinez for exercising his right to counsel of choice. However, that does not mean that a considerableresulting delay can be successfully invoked in support of the s. 11(

b) claim: R v Conway, at 1679. O’Connor J.A. for the Court in R vMcCallen (1999), (ON CA), 131 CCC (3d) 518 at 533 held that in determining whether to adjourn a trial date inorder to permit an accused's counsel of choice to be available, the emphasis is on the reasonableness of the delay involved inaccommodating the accused's choice. If counsel of choice is not available within a reasonable time, then the rights of the accused mustgive way to other considerations. [36] Mr. Leebody, agent for Ms. Simić, argued the s. 11(

b) application. This was seven months after the matter was adjourned dueto Ms. Simić’s unavailability. While Mr. Leebody cited legitimate reasons for Mr. Martinez’s choice of counsel, he did also state that ifcounsel of choice was not available on the next scheduled date, Mr. Martinez would proceed with alternate counsel. [37] Based on the information provided to the trial judge, it was reasonable to infer that the length of Ms.

Simić’s absence from thepractice of law was uncertain from at least April 6, 2010 until November 9, 2010 and indefinitely into the future. [38] I find that the trial judge erred in principle by failing to distinguish between a waiver of the time period and Mr. Martinez’concession that his actions caused the delays in question. Nevertheless, in my view she did not err in attributing the delay in question tothe actions of Mr. Martinez. [39] The trial judge’s decision was based on the proceeding up to November 9, 2010. Ultimately, Ms. Simić did appear on behalfof Mr.

Martinez. [40] In the timeline, I have noted an appearance on March 28, 2011. The case was set to proceed on that date but the interpreter

was unable to communicate with the Defendant. The Court, no doubt being concerned about the delays, managed to set a date forcontinuation in the week following. [41] Given the previous issues in this matter concerning the need for

interpretation, it is distressing that the interpreter on March28, 2011 was unable to competently translate for Mr. Martinez on the day that he was to take the stand. However, I note that thisshortcoming resulted in only one additional week of delay as the matter was heard on April 4, 2011 before being adjourned for adecision. Reasonableness of Overall Delay [42] In her assessment of the reasonableness of the overall delay, the trial judge recognized that the time requirements of this casewere seriously underestimated when the trial date was initially set, and on a number of occasions thereafter.

Despite being initiallyscheduled for only two hours, as is common in trials of this kind, the matter continued for the full day on February 25, 2009. If one looksbeyond the court time related to delay but includes the time on April 4, 2011, this matter ultimately required approximately two full courtdays. [43] As noted by the trial judge, this underestimate can be attributed to both the evolving complexity of the case, and the need forthe proceedings to be interpreted into Spanish.

Counsel must give some accurate assessment of issues and time required - most of thatinformation is within the knowledge of the Defence. Counsel for Mr. Martinez filed the Charter notice 12 days prior to trial. BothMr. Martinez and another defence witness gave evidence at trial. The Crown was not aware of any of this information when the timeestimation of two hours was set. Further, there was no indication to the Court or the Crown that Mr. Martinez would require aninterpreter when the trial date was originally set.

Interpretation generally adds considerably to the time required for trial. [44] While an accused is under no obligation to disclose his or her case to the Crown prior to trial, he or she ought not be permittedto silently rely on the Crown’s time estimate based on incomplete information.

In R v Koruz, Chief Justice Fraser acknowledged at para.65 that the Crown is not a guarantor of time estimates, and that the level of complexity is not inevitably of the Crown’s making. [45] In R v Sapara, the Alberta Court of Appeal adopted the Ontario Court of Appeal decision in R v Allen (1996), (ON CA), 110 CCC (3d) 331, for the proposition that an adjournment occasioned by an inadequate time estimate may be viewed asinherent and considered neutral.

As explained in R v Allen at para. 27, the system cannot be expected to push other cases aside andinstantaneously provide more resources where a case requires additional court resources. As I have set out above, the Crown is notwholly responsible for the delays caused by the underestimation of trial time required in this matter. This case is not an instance wherethe delay was entirely attributable to the Crown or where the delay was unexplained. [46] Prejudice may be inferred from the length of the delay. The accused may also prove actual prejudice: R v Morin at 801.

Withrespect to inferred prejudice, the trial judge noted that the impairment of the right to liberty was minimal as Mr. Martinez was releasedon an appearance notice within hours of his arrest. She did, however, assume that his security of the person had been affected. Thisrelates to the sense of being “free from the stress and cloud of suspicion that accompanies a criminal charge”: R v Godin, at para. 30.The trial judge found that there was no evidence of actual prejudice beyond that which naturally arises by virtue of being charged with anoffence. [47] Mr.

Martinez submits that the trial judge misapprehended his argument of actual prejudice, being that the last period of delaydue to unavailability of counsel only occurred because of the earlier delays. As mentioned above, Ms. Simić did ultimately appear on hisbehalf. The Court’s observation in R v Koruz at 418 is apt: . . . the Supreme Court did not have occasion in either Morin or Askov to discuss the interplay between three competing Charter rights:the right to a fair trial; the right to trial within a reasonable time; and the right to counsel.

But the Supreme Court recognized in Conwaythat these rights might well collide. Or at the very least, they might pull in different directions. That is what happened here. Priority wasplaced on a fair trial. And that is what should have happened. The right to a fair trial and the right to counsel in these circumstancesoutweighed the right to a speedy trial. [48] Finally, the trial judge considered the public interest in prosecution of those charged with drinking and driving offences.

In Rv Orbanski; R v Elias, 2005 SCC 37, [2005] 2 SCR 3, the Supreme Court of Canada reiterated the strong public interest in reducing the

carnage caused by those who commit offences involving drinking and driving. The trial judge properly considered Mr. Martinez’ individual rights in the context of the broader societal interest of ensuring that those who transgress the law are brought to trial. [ 49 ] However, in considering the public interest, the trial judge mentioned that if she accepted the evidence of Mr. Miric, there was also evidence that Mr. Martinez attempted to avoid criminal liability by offering the complainant money following the accident. Mr. Martinez was not facing any proceeding in relation to that allegation, and in my view it did not properly enter into the discussion under s. 11(

b) of the public interest in prosecution. [ 50 ] Therefore, I find that the trial judge erred in the s. 11(

b) analysis regarding the public interest finding and the findings on defence waiver of delay for choice of counsel. [ 51 ] The question for this Court is whether any error undermined the conclusion that there was no s. 11(

b) breach. Whether s. 11(

b) has been infringed is not to be determined by a mathematical or administrative formula but instead by balancing the interests which the

section protects against the factors discussed above: R v Morin , at 787. The second interpreter-related adjournment of 118 days (almost 4 months) was based on an endorsement or a booking error and is of grave concern. [ 52 ] The time period to consider for the purposes of s. 11(

b) is from the time of the charge until the end of trial: R v Morin at 789. Here, the information was sworn on July 2, 2008 and Mr. Martinez was convicted on June 28, 2011. The original s. 11(

b) application was heard by the trial judge on November 9, 2010, but it was contemplated that the trial would not conclude until after the then- scheduled continuation date of March 28, 2011 with a decision to follow some time after. [ 53 ] It is important to take a step backwards, as is suggested in some of the cases, to return to a principled approach to trial within a reasonable time period. This is a drinking and driving charge, there was minimal property damage to the vehicles involved in the collision, the Crown proceeded by

summary conviction. Taking into account all those factors, there is a compelling need for

summary disposition. I appreciate there was significant underestimation of the time required for this trial. Unfortunately, each time there was a problem incurred in the trial proceeding, an adjournment necessitated a 4 to 6 month delay in a new trial date being obtained. The result being that the charge laid on July 2, 2008 was concluded on June 28, 2011. That time frame is too long when we talk about a

summary conviction, drinking and driving charge with no particular challenges. [ 54 ] This has been a most difficult decision to reach as evidenced by my delay in releasing this Judgment. Part of the problem is the fundamental scheduling process whereby each time there is a problem proceeding with the trial there is another 4 to 6 month delay in the continuation of the trial. [ 55 ] After anxious consideration, I am satisfied that the delays for choice of counsel were due to Mr. Martinez’ decisions and not those of the Crown, nor were they institutional, or systemic.

The delays in locating an interpreter are the only delays which are not either joint delays or otherwise explicable. Despite a lengthy delay within the parameters of the previous case law, there was no actual prejudice to Mr. Martinez beyond that experienced by virtue of being charged with an offence. [ 56 ] The standard of review is correctness. I am satisfied that the decision of the trial judge under all the circumstances was correct. 2. Did the trial judge err in concluding that there was no s. 8 breach of Mr.

Martinez' right to be secure against unreasonable search and seizure? [ 57 ] While the trial judge’s factual findings are entitled to deference, the application of a legal standard to those facts is a question of law to be reviewed for correctness: R v Shepherd , at para. 20 . [ 58 ] Mr. Martinez makes two arguments in support of his argument that the trial judge erred in concluding that a breach of s. 8 of the Charter was not occasioned in the circumstances:

a. The trial judge erred in finding that Mr. Martinez was lawfully identified as operating the motor vehicle; and b. The trial judge erred in concluding that Cst. Jennings had the necessary subjective belief in the reasonable and probable groundsto arrest Mr. Martinez. Identification of Mr. Martinez [59] An issue arose at trial as to whether Cst. Jennings only received information as to Mr. Martinez’s operation of the motorvehicle from Mr. Martinez himself or also from Mr. Miric, the driver of the other vehicle.

It was argued that the statement from Mr.Martinez was statutorily compelled and therefore inadmissible as a lawful basis upon which Cst. Jennings could demand a breathsample. [60] Mr. Martinez submits on this appeal that the trial judge erred by failing to assess the evidence in accordance with R v W(D), (SCC), [1991] 1 SCR 742, failed to assess the issue of credibility and how it related to the burden of proof on the voirdire, and failed to consider relevant defence evidence. [61] Mr. Martinez submits that the trial judge erred in finding there were reasonable and probable grounds for Cst.

Jennings todemand a breath test. Specifically, she did not properly apply R v W(

D) to conflicting evidence relating to the identification of Mr.Martinez as having operated the motor vehicle, and her reasons do not explain the pathway to her conclusion. [62] The Crown submits that there was uncontroverted evidence that when Cst. Jennings arrived, two men were standing outsidethe two vehicles, no other person was seen in the Martinez vehicle, and Mr. Miric told Cst. Jennings that Mr. Martinez was the otherdriver. [63] The Crown further submits that the applicable standard of proof is the balance of probabilities. [64] The principles articulated in R v W(

D) are intended to guide a trier of fact’s assessment of credibility as it relates to proofbeyond a reasonable doubt. Here, within the context of a voir dire, the trial judge was required to determine on a balance of probabilitieswhether Cst. Jennings had reasonable and probable grounds to demand a breath sample and arrest Mr. Martinez. The guidance providedby R v W(

D) is not applicable in this context. [65] The law is well established that, absent an error of law, a court of appeal “should show great deference to findings ofcredibility made at trial”: R v W(R), (SCC), [1992] 2 SCR 122 at 131. [66] After thoroughly discussing the evidence of Cst. Jennings and the submissions of Mr. Martinez, the trial judge concluded: 104 ... I accept the evidence of Cst. Jennings on the point. I have no doubt that he followed his standard operating procedure and soasked Mr. Miric who was the operator of the Toyota and Miric told him it was the accused. Cst.

Jennings' reason for using thisprocedure is easily understood. Since he is not contradicted on the point by Mr. Miric, I have no basis to reject this evidence that hefollowed his procedure. [67] Here, the trial judge recognized the conflicting evidence before her, acknowledged the contrary argument proposed by Mr.Martinez, and articulated her reasons for accepting the evidence of Cst. Jennings. I find her conclusion that Mr. Martinez wasappropriately identified as having driven his vehicle is supported by admissible evidence and is not palpably wrong.

Subjective Belief in Reasonable and Probable Grounds [ 68 ] Whether the police officer had an honest subjective belief is a question of fact that will not be overruled unless it reflects palpable and overriding error: R v Loewen at para. 6. The standard of review for the assessment of reasonable and probable grounds for the purposes of s. 8 of the Charter is correctness: R v Shepherd . [ 69 ] Mr. Martinez submits that the trial judge erred by failing to properly consider whether Cst. Jennings had the requisite subjective belief in the reasonable and probable grounds that Mr.

Martinez operated a motor vehicle while impaired to arrest him. [ 70 ] The trial judge accurately articulated the law concerning the objective and subjective components of reasonable and probable grounds. Further, the trial judge explained that the subjective component was to be assessed from the perspective of the officer making the evidentiary demand based on the knowledge of the officer at the time the demand was made. [ 71 ] According to the trial judge’s

summary of Cst. Jennings’ testimony, Cst. Jennings formed the reasonable suspicion that Mr. Martinez’s ability to operate a motor vehicle was impaired by alcohol on the basis of the collision, an admission of consumption, and physical observations, including that Mr. Martinez had glossy eyes and a light odour of alcohol whenever he spoke. [ 72 ] The approved screening device registered an “F” which Cst. Jennings testified he understood meant that the accused had a blood alcohol level in excess of 100 milligrams. [ 73 ] Cst. Jennings arrested the Mr. Martinez for impaired operation of a motor vehicle. Cst.

Jennings testified that “based on everything that had happened and the reading of the approved screening device, I then formed the belief that the accused’s ability to operate a motor vehicle was impaired by alcohol”: Trial Transcript, February 25, 2009 at p. 72, ll. 9-12. [ 74 ] After canvassing Cst. Jennings’ evidence, the trial judge concluded at para. 119 that Cst. Jennings’ acknowledgment that a reading of 100mg percent is over the statutory limit of 80mg “combined with the other observations is sufficient to equip Cst.

Jennings with the subjective reasonable belief that the ability of the accused to operate a motor vehicle was impaired by alcohol”. [ 75 ] In R v Rhyason , 2007 SCC 39 , [2007] 3 S.C.R. 108, the Supreme Court of Canada affirmed that a trial judge’s reasons are to be read as a whole. [ 76 ] Reading the trial decision as a whole, I have no doubt that the trial judge correctly set out the law and applied it properly in concluding that the Crown met its obligation to establish that the demand and subsequent arrest were in compliance with s. 8 of the Charter . [ 77 ] The officer testified that Mr.

Martinez had been in a motor vehicle accident, smelled of alcohol, had glossy eyes and failed the roadside screening test. The trial judge did not err in concluding that the officer had sufficient grounds to reasonably suspect that Mr. Martinez had recently operated the vehicle and had alcohol in his body so as to support an ASD demand. Further, the trial judge did not err in finding that Cst.

Jennings, upon the “F” result from the ASD, had subject and objective reasonable and probable grounds for demanding a breath test. [ 78 ] The majority in R v Rhyason at paras. 18 and 19 noted that the circumstances of an accident can be taken into account, along with other evidence, in determining whether an officer had reasonable and probable grounds to arrest an individual for impaired driving.

Although consumption plus an unexplained accident is not necessarily conclusive, the presence of an unexplained accident is a factor that the trial judge appropriately takes into consideration when determining whether reasonable grounds existed. [ 79 ] As for the inability of Cst. Jennings to explain the relationship between an “F” result on the screening device and impairment of the ability to drive, the majority in R v Black , 2011 ABCA 349 , leave denied [2012] SCCA No 49, summarized the law on ASD:

44 The ASD's role in establishing an over .08 offence is that it provides officers with the means to gain the reasonable and probablegrounds necessary to demand a breathalyzer test. If the officer reasonably suspects that a motorist has alcohol in his or her body, theofficer may demand that the motorist provide a breath sample into an ASD: Criminal Code, s. 254(2)(b). A fail result on a properlyconducted ASD test constitutes reasonable and probable grounds to demand a breathalyzer test: Bernshaw at para 49. There is norequirement that the ASD be proven to be working properly: R. v.

Arthurs (1981), (SK CA), 12 Sask R 95, 63 CCC(2d) 572 (CA); R. v. Yurechuk (1983), 1982 ABCA 341 , 42 AR 176, 23 Alta LR (2d) 136 (CA). So long as the ASD has beenapproved under the statutory scheme, the officer can reasonably and honestly rely on its accuracy unless there is evidence that the officerknew or believed that it was not working properly: Bernshaw at para 80. [80] The inability of the officer to articulate the significance of the “F” result is not fatal to the Crown’s case.

It suffices for theofficer to state that he formed the opinion based on the “F” result: R v Braun, 2003 ABQB 273, 45 MVR (4th) 150; R v Beaudoin, 2008ABQB 656, 74 MVR (5th) 274, R v Kortzman, 2012 ABQB 123.

Sufficiency of Reasons [81] The Supreme Court of Canada enunciated the test for considering whether a trial judge has erred in law by failing to provideadequate reasons in R v Sheppard at para. 28: The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellatereview of the correctness of the decision, then an error of law has been committed. [82] Mr. Martinez submits that the trial judge’s reasons are lacking in three ways: a.

The reasons do not sufficiently articulate a resolution of the allegedly conflicting evidence relating to the identification of Mr.Martinez as having operated the motor vehicle; b. The reasons do not sufficiently address the claim of actual prejudice that was allegedly suffered by Mr. Martinez due to delay;and c.

The reasons do not permit a determination as to whether the findings resulted from a careful weighing of all the evidence and aproper analysis of all relevant issues disclosed at trial. [83] First, while the test is certainly one of function, not form, it is notable that unlike the singular sentence of reasons provided inR v Sheppard, the trial judge in this case provided the parties with a written decision of 181 paragraphs, not including the previous 55-paragraph written reasons provided on the issue of delay.

The decisions were thorough and thoughtful and deal with all of the legalissues and factual issues required to be addressed. There can be no legitimate criticism of the reasons of the learned trial judge. [84] While it may have been preferable for the trial judge to provide some commentary on why she preferred the evidence of Cst.Jennings to that of Mr.

Martinez, a judge is not required to provide perfect or exhaustive reasons. [85] Further, reading the decision as a whole, the absence of this explanation does not impede my ability to comprehend the trialjudge’s reasoning nor preclude me from conducting meaningful appellate review. The reasons provided by the learned trial judge areexhaustive and complete. [86] The trial judge expressly addressed the points raised by Mr. Martinez. The reasons were thorough and thoughtful and deal

with all of the pertinent legal and factual issues. The factual findings are supported by the evidence. The trial judge properly expressed and applied the legal tests. [ 87 ] I therefore find that no error of law has been committed with respect to the adequacy of the trial judge’s reasons. Conclusion [ 88 ] I conclude that the trial judge did not err in dismissing the s. 11(

b) application, nor in concluding that there was no s. 8 breach of Mr. Martinez’ right to be secure against unreasonable search and seizure. The trial judge’s reasons were adequate on all issues. [ 89 ] The appeal is dismissed. The conviction is properly entered. Heard on the 10 th day of November, 2011. Dated at the City of Edmonton, Alberta this 15 th day of May, 2012. B.A. Browne J.C.Q.B.A. Appearances: Aleksandra Simić for the Appellant Julie Snowdon for the Respondent