Her Majesty the Queen - v. -, 2016 SKPC 072

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 072 Date: June 17, 2016 Information: 24522194 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert Lee Stewart Appearing: Ms. Cynthia Alexander For the Crown Mr. Ronald Piche For the Accused DECISION S.D. SCHIEFNER, J [ 1 ] Mr.

Robert Stewart is charged with refusing to comply with a demand for a breath sample on an approved screening device (ASD) contrary to s. 254(5) of the Criminal Code . [ 2 ] The defence takes the position that Constable Wittal, the peace officer who detained Mr. Stewart and made the ASD demand, did not have proper grounds for doing so. In addition, the defence takes the position that Constable Wittal did not make the demand for a breath sample “forthwith” upon the officer forming his suspicion that Mr. Stewart had alcohol in his body.

For either or both reason(s), the defence takes the position that the officer’s ASD demand was unlawful; therefore, there was no obligation on Mr. Stewart to comply with an unlawful demand; and thus, there is no valid basis for a refusal charge. In addition (or potentially in the alternative), the defence takes the position that Mr. Stewart had a reasonable excuse for failing to comply with Constable Wittal’s demand for a breath sample; namely that he didn’t understand the ASD demand. For these reasons, the defence takes the position that the Crown failed to prove beyond a reasonable doubt that Mr.

Stewart intended to refuse to comply with the officer’s ASD demand.

[ 3 ] In addition, the defence filed a Charter notice taking the position that Constable Wittal’s detention of Mr. Stewart was not Charter compliant. The defence submits that Constable Wittal’s delay in making the ASD demand rendered both the demand and Mr. Stewart’s detention unlawful. The defence argues that, because Mr. Stewart’s detention was unlawful, his rights under s. 10(

b) of the Charter were not suspended during the period of his detention. The defence argues that Mr. Stewart was not informed of his right to retain and instruct counsel without delay. Further, he was denied the right to contact counsel at the roadside when he specifically asked to do so. As a result, the defence takes the position that any evidence of his refusal or failure to comply with Constable Wittal’s ASD demand should be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms . [ 4 ] The trial proceeded as a blended voir dire and trial.

The Crown called all of its evidence in the voir dire . Mr. Stewart also testified in the voir dire . However, his testimony was confined to the circumstances of his vehicle stop, the ASD demand, and his response thereto. Mr. Stewart did not testify on the trial. It was agreed that all admissible evidence from the voir dire would be applied to the trial. The matter was then reserved for decision on the voir dire and on the trial itself. This is my decision on both. TESTIMONY OF CONSTABLE WITTAL [ 5 ] Constable Wittal is a member of the RCMP.

He has been a sworn member of the force for fourteen (14) years, currently stationed at Prince Albert. Constable Wittal has been serving in the traffic division for the past four (4) years. [ 6 ] On December 6, 2015, Constable Wittal was working the night shift in an unmarked patrol vehicle. At approximately 2:40 a.m., Constable Wittal was on patrol in the City of Prince Albert. It had rained earlier that evening and therefore the pavement was wet. He was stopped at a red light in his patrol vehicle.

When the light turned green, he heard a nearby vehicle spin its tires on the wet pavement and saw a vehicle heading south at a high rate of speed. Constable Wittal followed the vehicle for approximately six (6) blocks. While following the vehicle, the officer radioed in the plates to check on the registration. Although nothing unusual came back on the plate check, Constable Wittal decided to stop the vehicle and check on the operator’s licence and sobriety.

At approximately 2:41 a.m., Constable Wittal activated his lights and, within approximately thirty (30) feet, the vehicle pulled over and stopped. [ 7 ] Constable Wittal walked up to the vehicle, stopped in front of the driver’s door, and asked the driver for the vehicle’s registration and his driver’s licence. Mr. Stewart produced these documents. There was a passenger in the vehicle. The officer then asked Mr. Stewart where they were coming from and Mr. Stewart answered “the casino ” . The officer asked Mr. Stewart if he had been drinking that evening and he answered “no”. Constable Wittal testified that Mr.

Stewart appeared to be avoiding eye contact with him and that he tended to look away from the officer when he was answering questions. Constable Wittal also observed that Mr. Stewart was a little “slow” in answering his question. Constable Wittal testified that, in the course of his interaction with Mr. Stewart and notwithstanding his tendency to avoid eye contact, he observed glassy eyes and could smell alcohol on Mr. Stewart’s breath. Constable Wittal testified that he asked Mr. Stewart why he could smell alcohol if he hadn’t been drinking that evening and that he replied “It’s him (pointing to the passenger).

I’m not blowing”. Constable Wittal then asked if there was any alcohol in the vehicle and Mr. Stewart pointed to a case of unopened beer on the floor by the passenger. Constable Wittal testified that the passenger appeared to be intoxicated. It was at this point that Constable Wittal formed the suspicion that Mr. Stewart had alcohol in his body. It was approximately 2:45 a.m. [ 8 ] Constable Wittal then had Mr. Stewart exit the vehicle and placed him in the rear passenger seat of the patrol vehicle. Constable Wittal testified that, in doing so, he informed Mr.

Stewart that it was his intention to administer a roadside breath sample. Constable Wittal testified that it is his standard practice, when he asks a driver to come back to his vehicle to administer an ASD demand, to explain that the driver is being asked to come to the police vehicle for the purpose of providing a breath sample for a roadside screening device. Constable Wittal testified that Mr. Stewart was cooperative, followed him to the police vehicle without incident, and sat where directed. Prior to having him sit in the back seat of his vehicle, Constable Wittal also asked Mr.

Stewart if he had any knives, weapons, or sharps on his person. Mr. Stewart responded “No”. [ 9 ] Constable Wittal then got into the front seat of the police cruiser and began making notes about the traffic stop and his observations in his field book. At approximately 2:49 a.m., Constable Wittal made the following demand of Mr. Stewart: I have reasonable grounds to suspect that you have alcohol in your body. In accordance with the Criminal Code I demand that you provide a sample of your breath suitable for analysis in an approved screening device and that you accompany me for the purpose of providing such sample.

Do you understand? [ 10 ] Constable Wittal testified that this was his standard demand for a roadside screening sample and he read it directly from a card containing the script for this demand. Mr. Stewart’s response to this demand was to say “I don’t understand”. At which point, Constable Wittal asked if Mr. Stewart would like him to re-read the demand. Constable Wittal re-read the demand from his card, this

time more slowly and pausing between each sentence. Mr. Stewart again answered “I don’t understand”. The second demand was made at approximately 2:50 a.m. Constable Wittal testified that, prior to this point in time, he had not observed any difficulty in Mr. Stewart’s understanding any of his questions or instructions. He had not observed any difficulty in Mr. Stewart’s hearing or any language bearers that could account for his lack of understanding. [ 11 ] Constable Wittal testified that he then informed Mr. Stewart of the consequences of not complying with an ASD demand, namely; “Mr.

Stewart do you understand that if you don’t provide a sample on an approved screening device you could be looking at charges that are similar to an impaired driving charge?” Constable Wittal read the ASD demand verbatim from his card a third time at approximately 2:53 a.m. The officer testified that he read the card very slowly, stopped after every sentence and asked Mr. Stewart if he understood what the officer was saying. Constable Wittal testified that Mr.

Stewart kept saying “I don’t understand” after each sentence. [ 12 ] Constable Wittal testified that he had an approved screening device with him in the front seat of the police cruiser, that at this point he opened the box in which the device was located, and held it up for Mr. Stewart to see. Constable Wittal then asked Mr. Stewart if he was willing to provide a breath sample. Mr. Stewart responded “I don’t understand. I’m not blowing”. [ 13 ] Constable Wittal testified that he read the demand from his card a fourth time at approximately 2:55 a.m. Mr. Stewart responded by saying “I don’t understand.

I don’t understand”. [ 14 ] At this point, Constable Wittal concluded that Mr. Stewart was not going to provide a breath sample as requested and that he was stalling the officer’s investigation by being uncooperative. Constable Wittal advised Mr. Stewart that he was being placed under arrest for refusing to provide a breath sample on an approved screening device and asked if he understood. Mr. Stewart said “I don’t understand. I don’t understand.” The officer then asked “What don’t you understand? You are under arrest . ” Mr. Stewart responded “I don’t understand.

Can I call my lawyer?” [ 15 ] In cross-examination, Constable Wittal acknowledged that he did not give Mr. Stewart an ultimatum or final warning prior to charging him with refusal. Constable Wittal testified that it was not his practice to do so as he felt individuals tended to perceive such ultimatums as a threat. In cross-examination, Constable Wittal also indicated that, in his many years of conducting roadside screening tests, he has never had an individual repeatedly indicate that he did not understand the ASD demand when given.

Finally, in cross- examination, Constable Wittal admitted that he did not turn on the ASD nor hold out the mouth piece of the device so that Mr. Stewart could blow into it. [ 16 ] Constable Wittal then exited the vehicle, removed Mr. Stewart from the vehicle, searched him for weapons, handcuffed him, and placed him back in the patrol vehicle. Constable Wittal then returned to the front of the vehicle, got out his card for rights to counsel, and read the following demand to Mr. Steward: You have the right to retain and instruct counsel without delay. You may call any lawyer you wish.

Legal Aid duty counsel is available to provide you with immediate legal advice free of charge, and can explain the legal aid plan to you. I can provide you with the number you call free of charge. Do you understand? [ 17 ] Mr. Stewart responded by saying “Yes”. Constable Wittal then asked “Do you wish to call a lawyer now? To which, Mr. Steward said “Yes. Yes, I do”. [ 18 ] Constable Wittal then read the following police caution to Mr. Stewart: You need not say anything. You have nothing to hope from any promise or favour and nothing to fear from any threat, whether or not you say anything.

Anything you do say may be used as evidence. Do you understand? [ 19 ] Mr. Stewart responded by saying “Yes”. [ 20 ] Constable Wittal then called for another vehicle to assist in transporting the passenger in Mr. Stewart’s vehicle. Mr. Stewart’s vehicle also had to be impounded. It took approximately ten (10) minutes for another officer to arrive and to make arrangements for the passenger and Mr. Stewart’s vehicle. While waiting for the other officer to arrive, Constable Wittal finished making his field notes. Mr. Stewart arrived at the police station at approximately 3:31 a.m.

[ 21 ] When at the police station, Mr. Stewart was taken to a phone room and provided an opportunity to speak to a lawyer of his choosing. Mr. Stewart spoke with a lawyer. However, this lawyer encouraged Mr. Stewart to speak to another lawyer. Several messages were left on this other lawyer’s answering machine. However, the lawyer did not call back during the time that Mr. Stewart was at the police station. During this time, Mr. Stewart was finger-printed, photographed and served with various documents. Constable Stewart indicated that, while Mr.

Stewart was at the police station, he indicated no difficulty in understanding what the officer was saying or in understanding what was going on. Constable Wittal then gave Mr. Stewart a ride home at approximately 4:00 a.m. [ 22 ] Finally, Constable Wittal testified that he had an approved screening device with him that evening, that he had confirmed the device was calibrated, and that it was functioning properly at the start of his shift. TESTIMONY OF MR. STEWART [ 23 ] Mr.

Stewart’s description of the events that occurred in the early morning of December 6, 2015, were consistent with the account provide by Constable Wittal except in a few areas. For example, Mr. Stewart testified that, when Constable Wittal directed him to get out of the vehicle and go to the police cruiser, the officer did not explain why he was being asked to do so. To the contrary, Mr. Stewart denied that Constable Wittal explained why he was being asked to exit his vehicle and go to the police cruiser. In support of this assertion, Mr.

Stewart testified that he asked Constable Wittal “Am I being detained? ” when he was first placed in the police cruiser. Mr. Stewart testified that, at this point, the officer was writing notes and did not respond to his question. Mr. Stewart testified that he was sitting in the back of the police cruiser for approximately five (5) minutes before Constable Wittal read from his card (i.e.: made the ASD demand). In addition, Mr. Stewart testified that he asked to speak to a lawyer prior to Constable Stewart administering the first ASD demand. [ 24 ] In cross-examination, Mr.

Stewart indicated he did not understand why the officer stopped him on December 6, 2015. Mr. Stewart agreed that Constable Wittal had asked him where he had been that evening and about his alcohol consumption. However, Mr. Stewart testified that these conversations occurred in the police cruiser; not while he was still in his vehicle. In addition, Mr. Stewart denied being asked about the smell of alcohol on his breath while he was in his vehicle. [ 25 ] Mr. Stewart testified that, when he was in the back of the police cruiser, he did not understand why he had been stopped or why he had been detained.

In cross-examination, Mr. Stewart admitted that he did not explain to Constable Wittal what it was that he did not understand about the officer’s ASD demand. [ 26 ] In cross-examination, Mr. Stewart was asked what he did not understand about the ASD demand. Mr. Stewart indicated that he did not understand what preceded the demand. In other words, he didn’t understand why he was stopped by the officer in the first place. FINDINGS OF FACT [ 27 ] I find that the interaction between Constable Wittal and Mr. Stewart about where he had been that evening and whether or not he had consumed alcohol occurred while Mr.

Stewart was still in his vehicle. These are not essential elements of the offence. To the extent that these findings have any relevance, I accept the evidence of Constable Wittal. Questions of this nature are routinely asked by peace officers in roadside stops and they are routinely asked while the operator is still in his/her vehicle. Furthermore, Constable Wittal has conducted hundreds of impaired driving investigations in his career as a police officer. The officer’s testimony was internally consistent and consistent with, what he described as, his standard practice for conducting roadside investigations. Mr.

Stewart on the other hand was in unfamiliar and stressful circumstances and events unfolded in a very short period of time. Under these circumstances, I have reservations about the reliability of Mr. Stewart’s evidence. [ 28 ] With respect to the information that Constable Wittal provided to Mr. Stewart when he was asked to exit his vehicle and go to the police cruiser, I find that Constable Wittal did inform Mr. Stewart that it was the officer’s intention to administer a demand for roadside breath sample.

On this point, I again accept the evidence of Constable Wittal and did so for essentially the same reason as previously stated. However, it should be noted that, for reasons stated later, little turns on this determination. [ 29 ] With respect to the duration of time between when Constable Wittal formed the suspicion that Mr. Stewart had alcohol in his body and when he administered the ASD demand, I accept the evidence of Constable Wittal. The officer made notes of the time as events were occurring in his field book and these notes were internally consistent with the description of events as they unfolded.

THE LAW [30] Constable Wittal sought a breath sample from Mr. Stewart pursuant to s. 254(2)(

b) of the Criminal Code. This provisionreads as follows: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has,within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railwayequipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, thepeace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs(

a) and (b), in the case of alcohol: (a) . . . (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [31] Mr. Stewart is charged with refusing to provide a breath sample pursuant to s. 254(5) of the Criminal Code. This provisionreads as follows: 254(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peaceofficer under this section. [32] In these proceedings, a number of issues require determinations by this Court.

I will address these issues as either Charterissues or trial issues. THE CHARTER ISSUES [33] Driving is a heavily regulated activity. Many provinces, including Saskatchewan, permit police officers to stop vehicles andconduct brief pre-emptive roadside investigations relating to, inter alia, driver sobriety. In addition, s. 254 of the Criminal Code permitsroadside testing to identify potentially impaired drivers. The legislative goal of both statutory schemes is to screen intoxicated drivers atthe side of the road; not at the scene of an accident.

As a result, drivers may expect to be stopped from time to time and questioned bythe police concerning matters relating to the operator of their vehicles and their consumption of alcohol. That expectation is part andparcel of the privilege of operating a motor vehicle. See: R v Smith, (ON CA), [1996] OJ No 372 (QL) (Ont CA).Both vehicle inspections and roadside testing involve the detention (albeit temporary) of citizens. Peace officers must conductthemselves within the confines of their authority. In addition, the detention itself must be compliant with the Canadian Charter of Rightsand Freedoms.

As a consequence, the conduct of peace officers engaged in these activities is subject to careful scrutiny. See: R v Koma,2015 SKCA 92. On the other hand, an accused cannot avoid or frustrate such investigations merely by refusing to comply with anofficer’s lawful demand. [34] In R v Birnie, 2013 SKPC 50 at paras 9 – 11, 416 Sask R 197, Judge Kalmakoff (as he then was) provided a helpfulexplanation regarding the interplay between an ASD demand, the offence of refusal, and the Charter: [9] In order for a demand of this nature to be lawful, it must comply with section 254(2)(

b) of the Criminal Code. That means thepolice officer who makes the demand must: (1) have reasonable grounds to suspect that the subject of the demand (

a) has been operating a vehicle within the preceding threehours, and (

b) has alcohol in his or her body; and (2) make a demand that the person provide the breath sample forthwith. [10] In a case of refusal, the Crown must prove the lawfulness of the demand beyond a reasonable doubt. A person who refuses tocomply with a demand which does not itself comply with section 254(2)(

b) is entitled to an acquittal, because there is no obligation tocomply with an unlawful demand: R. v. Grant, (SCC), [1991] 3 S.C.R. 139; R. v. Lytle, 2008 SKPC 156 . Insuch a case, no Charter application is required: R. v. Luider-Grebnev, 2013 SKPC 22 .

[11] Furthermore, if the demand is not lawful, then (

i) a breath sample obtained in connection with it is an unlawful search andseizure, which violates

section 8 of the Charter; (ii) the detention necessary to obtain the breath samples is arbitrary, and violates section9 of the Charter, and (iii) the accused's rights under

section 10(

b) are not suspended during the period of detention, and obtaining breathsamples without informing the accused of, and implementing, the right to counsel violates

section 10(

b) of the Charter: R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640; R. v. Grant, supra. The accused is required to establish a Charter breach on a balance ofprobabilities. A. Did the police officer have lawful grounds to stop Mr. Stewart’s vehicle? [35] Pursuant to The Traffic Safety Act, SS 2004, c.T-18.1, police officers have express authority to stop vehicles to ensure that thevehicle is registered and that the driver has a valid operator’s license and is sober.

While this is not a general power of investigation, it isclear authority for officers to detain and obtain information from motorists about their identity and about their consumption of alcohol(and drugs) before and while they were driving.

Section 209.1 of that Act, which reads: 209.1(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer: (

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities.

(2) A peace officer may, at any time when a driver is stopped pursuant to subsection (1): (

a) require the driver to give his or her name, date of birth and address; (

b) request information from the driver about whether and to what extent the driver consumed, before or while driving, alcohol or anydrug or other substance that causes the driver to be unable to safely operate a vehicle; and (

c) if the peace officer has reasonable grounds to believe that the driver has consumed alcohol or a drug or another substance that causesthe driver to be unable to safely operate a vehicle, require the driver to undergo a field sobriety test.

(3) No person in charge of or operating a motor vehicle shall, when signalled or requested to stop by a peace officer pursuant tosubsection (1), fail to immediately bring the vehicle to a safe stop.

(4) No person in charge of or operating a motor vehicle shall fail, when requested by a peace officer to comply with the requests of apeace officer pursuant to subsection (2). [36] From Mr. Stewart’s perspective, it may well seem unfair or unjustified that his vehicle was stopped on December 6, 2015. However, vehicle stops and sobriety checks are part and parcel of the privilege of driving. Constable Wittal was acting lawfully inexecution of his duty that evening. He heard a vehicle spin its tires (albeit on wet payment) and he saw Mr. Stewart’s vehicle travelingat a high rate of speed.

That was sufficient to bring Mr. Stewart’s vehicle to the officer’s attention and, pursuant to The Traffic SafetyAct, he had the right to stop Mr. Stewart’s vehicle and check on the vehicle’s registration, to ask for the operator’s driver’s licence, and tocheck on Mr. Stewart’s sobriety. [37] There was no evidence before this Court from which I can infer that Constable Wittal stopped Mr. Stewart’s vehicle for animproper purpose. As a consequence, I find the officer’s actions in stopping Mr. Stewart’s vehicle were lawful. Furthermore, I amsatisfied that the basic questions asked by Constable Wittal of Mr.

Stewart were in furtherance of the authority granted pursuant to s.209.1 of The Traffic Safety Act. [38] In the normal course, drivers are free to go on their way following compliance with a vehicle stop and sobriety check. However, as was the case with Mr. Stewart, if evidence supporting a potential violation or charge is found during these briefinteractions, the nature of the investigation may change and the period of detention may continue for purposes of that new investigation.As a consequence, it is necessary to examine Constable Wittal’s authority to continue detaining Mr.

Stewart as his investigationproceeded through its various stages. B. Did the police officer have lawful grounds to make the ASD demand of Mr. Stewart? [39] The requirements for the making of an ASD demand are set forth in s. 254(2)(

b) of the Criminal Code. To be a valid demand,

the officer must have a suspicion that the operator of a vehicle has alcohol in his/her body and that suspicion must be reasonable both ona subjective basis (i.e.: the officer must have an honest belief) and on an objective basis (i.e.: the belief must be rationally sustainable).See: R v Anderson, 2010 SKQB 70, 347 Sask R 283. In this regard, it should be noted that the officer need only suspect that the operatorhas some alcohol in his/her body. The officer need not suspect impairment or an illegal blood alcohol level. [40] Constable Wittal testified that, during his conversation with Mr.

Stewart, he smelt alcohol on Mr. Stewart’s breath, that heobserved that Mr. Stewart’s eyes were glassy, and that he observed that Mr. Stewart was trying not to speak or breathe on the officer. Itwas on these indicia that Constable Wittal formed the suspicion that Mr. Stewart may have consumed alcohol. There was nothing in thetestimony upon which I could infer that Constable Wittal did not honestly suspect that Mr. Stewart had alcohol in his body. The officerdid not have to accept Mr.

Stewart’s declaration that he had not consumed alcohol that evening over his own observations (i.e.: the smellof alcohol and glassy eyes). While the indicia of alcohol consumption were modest and may have been otherwise explainable, in all thecircumstances, I am satisfied that the officer’s subjective belief that Mr. Stewart had alcohol in his body was objectively supportable.

Inthis regard, it should be noted that the threshold for a “reasonable suspicion” is relatively low; considerably less onerous than that of thethreshold of “reasonable grounds” that are required for a breath demand pursuant to s. 254(3) of the Criminal Code. [41] In R v Yates, 2014 SKCA 52, [2014] 8 WWR 489, the Court of Appeal applied the following test for assessing whether apolice officer’s suspicion is reasonable; would a reasonable person, standing in the shoes of that officer and aware of all of the objectivefactors he/she articulated, reasonably suspect the person to whom the officer made his/her demand had alcohol in his/her body at thetime the officer made that demand?

In applying this test, I am satisfied that a reasonable person, standing in the shoes of ConstableWittal and considering the factors he articulated, would have come to the same conclusion as the officer did; namely, that Mr. Stewartmay have consumed alcohol that evening notwithstanding his statements to the contrary. [42] On this basis, I find that the officer’s ASD demand was lawfully made. C. Did the police delay in making the ASD demand of Mr.

Stewart? [43] While not set forth in s. 254(2) of the Criminal Code, it is now accepted that, for the detention associated with roadsidescreening to be Charter compliant, the demand by a peace officer for a breath sample must be made “forthwith” upon that officerforming the suspicion of the presence of alcohol. In other words, the immediacy requirement associated with roadside screening andtesting applies to both the making of an ASD demand and the administering of that demand through a breath sample. See in R vPierman, (1994), 19 OR (3d) 704, (ON CA).

See also: In R v Billette, 2001 SKQB 150, 205 Sask R 79 [Billette]; andR v Mertins, 2013 SKQB 252, [2013] 9 WWR 364. [44] In Billette, Justice Ryan-Froslie held that “forthwith” meant as quickly as possible in the circumstances. At paragraph 19, shestates as follows: [19] It is obvious that “forthwith” means as quickly as possible in the circumstances. There should be no undue delay because in thenormal operation of s. 254(2) an individual’s s. 10(

b) Charter rights are being infringed and because under the general scheme set out ins. 254, time is of the essence. [45] In R v Janzen, 2006 SKCA 111 at para 4, 285 Sask R 296, the Saskatchewan Court of Appeal interpreted "forthwith" asmeaning "without unreasonable or unjustified delay".

The Court held it must consider the length of the delay and the reasons for it inthe context of the circumstances of the case, while balancing Parliament's objective in combating the dangers of drinking and drivingagainst the constitutional right to be free from unreasonable search or seizure and the fact that a person's right to consult counsel issuspended upon a demand for a screening sample pursuant to s. 254(2). [46] In R v Quansah, 2012 ONCA 123 at paras 45-49, [2012] 286 ccc (3d) 307, Mr. Justice Laforme noted that the immediacyrequirement begins at the stage of reasonable suspicion.

He said that the time from the formation of reasonable suspicion to the makingof the demand and the detainee’s response must be no more than is reasonably necessary to enable the officer to carry out his or her dutyunder s. 254(2). [47] This does not mean that any delay, no matter how slight, fails the “forthwith” test. For example, delays that are necessary toensure accurate results or due to articulated and legitimate investigative or safety concerns are justifiable delays, provided they arereasonable.

On the other hand, any delay not justified or which is not reasonable under the circumstances exceeds the immediacyrequirement and render the concomitant detention unlawful. See: R v Anderson, 2011 SKCA 13, 366 Sask R 175.

[ 48 ] Constable Wittal asked Mr. Stewart to exit his vehicle when the officer first formed his suspicion that Mr. Stewart had alcohol in his body. It was 2:45 a.m. when the officer did so. [ 49 ] While Constable Wittal did not read a formal ASD demand to Mr. Stewart at his vehicle, I am satisfied that he did provide Mr. Stewart with a general explanation that he was being asked to go to the police vehicle so that the officer could administer a roadside breath sample. On this point, I reject the evidence of Mr. Stewart that he was not told by the officer why he was being asked to go to the police vehicle.

However, I do so, not on the basis of credibility, but on the basis of reliability. The interaction between Mr. Stewart and the officer at Mr. Stewart’s vehicle was relatively short (approximately 1 minute) before the nature of the interaction changed. When it changed, it changed abruptly. During the initial interaction, the officer was merely asking routine questions and observing Mr. Stewart. Upon Constable Wittal forming the suspicion that Mr. Stewart may have consumed alcohol, things changed. Mr. Stewart was then asked to exit his vehicle and accompany the officer to the police cruiser.

Under these circumstances, the fact that Mr. Stewart did not remember one (1) component of Constable Wittal’s instructions to him is, in my opinion, not particularly probative as to whether or not the officer’s instructions included an explanation component (i.e.: why he was being asked to exit the vehicle). Mr. Stewart was testifying from his recollection of events that occurred several months prior. [ 50 ] On the other hand, Constable Wittal made field notes contemporaneous with events as they occurred and these field notes were read in part by defence counsel and used by Constable Wittal to refresh his memory.

The officer’s field notes indicated that at 2:45 a.m. he asked Mr. Stewart to exit his vehicle and come back to the police vehicle “to provide a sample on an ASD”. Constable Wittal testified that it was his standard practice to provide a general explanation of why people were being asked to come back to the police vehicle and that he did and said essentially the same thing with all drivers to whom he makes an ASD demand. Constable Wittal’s testimony was internally consistent and logical. In all the circumstances, I accept Constable Wittal’s evidence on this point.

Simply put, I am satisfied that the officer told Mr. Stewart that he was being asked to accompany the officer to the police vehicle for the purpose of providing a breath sample on an approved screening device. As a consequence, I find that there was no delay in Mr. Stewart being informed of the reason for his detention. [ 51 ] On the other hand, it was apparent from his testimony, that Mr. Stewart did not hear or comprehend the officer’s explanation. This fact may have been important under different circumstances. However, in the present case, if there was a delay in the officer explaining the reason for Mr.

Stewart’s detention, that delay was, in my opinion, both reasonable and justified. [ 52 ] In other words, even if the officer’s instructions did not include an explanation component when Mr. Stewart was asked to leave his vehicle at 2:45 a.m. or Mr. Stewart did not hear or comprehend the officer’s explanation, a formal ASD demand was read to Mr. Stewart at 2:49 a.m.; four (4) minutes after Constable Wittal first formed his suspicion that Mr. Stewart had alcohol in his body.

In all the circumstances, I am satisfied that the demand satisfied the immediacy requirements of s. 254(2) of the Code . [ 53 ] After Constable Wittal formed the suspicion of presence of alcohol, Mr. Stewart was immediately escorted from his vehicle and placed safely in the back seat of the police cruiser. While an ASD demand may be made at the operator’s vehicle, it is certainly an acceptable (if not common) practice to make a formal ASD demand (i.e.: read the standard ASD script) in the police cruiser.

Doing so places the officer in a safer position, removes potential distractions when the officer reads the ASD demand to the operator, and ensures that a breath sample can be administered forthwith upon making the demand. See: R v Morrison , 2008 SKPC 19 , [2008] SJ No 78 (QL). Therefore, I am satisfied that any delay associated with removing Mr. Stewart from his vehicle and placing him in the back of the police cruiser was both reasonable and justified. [ 54 ] Of more controversy is the fact that Constable Wittal made field notes before making the ASD demand of Mr. Stewart.

Was it operationally necessary for the officer to make his field notes prior to making the ASD demand (and thereby articulating to Mr. Stewart the reason for his detention)? Was the delay in doing so reasonable and justified in the circumstances? While it is not entirely clear how long it took for the officer to complete his field notes, I infer that it only involved a few minutes; probably a minute or two (2). [ 55 ] I am satisfied that field notes are operationally necessary for police officers.

They assist both the Crown and the accused; they permit careful scrutiny of a police officer’s conduct; and, in legal proceedings, they generally assist in the pursuit of the truth. In this particular case, Constable Wittal was cross-examined extensively on his field notes. To be reliable, such notes must be made contemporaneous with events as they unfold. [ 56 ] As I have noted, Constable Wittal’s interaction with Mr. Stewart changes from a routine traffic stop to a potential impaired driving investigation. It was reasonable and justifiable for the officer to make his field notes after he had safely secured Mr.

Stewart in his vehicle but prior to the taking of a roadside breath sample on an approved screening device. In the present case, I am satisfied that the amount of time that was involved was very short; particularly so in light of the fact the officer also would have had to ensure that the

ASD was available and that he was in a position to administer the breath sample forthwith (i.e.: he had his script in hand). [ 57 ] In light of the events that were occurring during this period, I am satisfied that a four (4) minute delay from the point in time that the officer formed his suspicion to the making of a formal ASD demand satisfied the immediacy requirements of s. 254(2) of the Criminal Code . As a consequence, I am satisfied that the detention of Mr.

Stewart was not arbitrary or otherwise in violation of the Canadian Charter of Rights and Freedoms . [ 58 ] However, parenthetically, even if I had found that the detention of Mr. Stewart was arbitrary because the ASD demand was not made forthwith, I would have found the evidence that Mr. Stewart did not provide a breath sample admissible utilizing the analysis outlined in R v Grant , 2009 SCC 32 , [2009] SCR 353 [ Grant ]. While any arbitrary detention reflects a serious breach of Charter standards, in the present case, the breach was not deliberate. Furthermore, the breach consisted of a very short delay in Mr.

Stewart receiving an explanation for his detention. The consequence for Mr. Stewart was a very short period of confusion as to why he was being detained before the formal ASD demand was read to him. No evidence was gathered from him during the period of the delay and it would have been impracticable for him to contact legal counsel during this very brief period of time. Finally, I am also satisfied that there would be a societal interest in adjudication of this case.

Alcohol-related driving offences are a significant problem in Saskatchewan and roadside screening is an effective means of reducing the risks associated with impaired driving. Field notes play an important role in policing; they are relied upon by both defence and the Crown; and they generally aid in the Court’s pursuit of the truth. Balancing all of the factors anticipated in a Grant analysis, the factors would have weighed in favour of admitting the evidence. [ 59 ] For the foregoing reasons, Mr. Stewart’s Charter application is dismissed and all evidence admitted on the voir dire is applied to the trial.

THE TRIAL ISSUES [ 60 ] The decision of the Saskatchewan Court of Appeal in R v Lewko , 2002 SKCA 121 , 227 Sask R 77 [ Lewko ] provides a helpful overview of the elements of the offence of refusal pursuant to s. 254(2) of the Criminal Code and is the leading case on the proper analysis of a reasonable excuse, including burdens of proof. [ 61 ] As noted by the Court in Lewko , supra, in a refusal case, the Crown must prove that:

(1) There was a lawful demand;

(2) The accused failed or refused to produce the required sample of breath (the actus reus ); and

(3) The accused intended to produce the failure or had the intention to refuse (the mens rea ). [ 62 ] If the Crown is successful in establishing the above noted elements beyond a reasonable doubt, then the accused is presumed guilty unless he/she raises a defence. [ 63 ] I have already determined that Constable Wittal had lawful grounds to stop Mr. Stewart’s vehicle, that he had lawful grounds to make an ASD demand, and that the demand was made “forthwith” and was otherwise Charter compliant. There is also no dispute that Mr. Stewart did not provide a breath sample in response to the officer’s demand.

Therefore, the only trial issue remaining to be decided is as follows: A . Did Mr. Stewart intentionally fail or refuse to provide a sample of his breath for analysis or did he have a reasonable excuse; namely, by not understanding the officer’s demand?

[ 64 ] The presumption of innocence requires that the Crown to prove, beyond a reasonable doubt, that Mr. Stewart had the requisite state of mind at the time of the offence. In other words, the Crown must prove that Mr. Stewart intentionally refused to comply with the officer’s demand for a breath sample. See: Lewko . [ 65 ] To raise a defence, the accused bears merely an evidentiary burden; a burden that may be discharged by tendering or pointing to evidence of something capable at law of being a "reasonable excuse".

Once an accused raises the possibility of a reasonable excuse through evidence, then the burden shifts to the Crown to negate that excuse as working in favour of the accused. In evaluating the factual foundation for an excuse, the Court may make determinations about credibility of witnesses and the weight to be given to evidence as it would with any other factual determination. See: Lewko . [ 66 ] While Mr. Stewart was in his police cruiser, Constable Wittal made a formal ASD demand of him four (4) times.

The officer testified that he read the demand literally from his standard script each time and that, after each demand, he asked Mr. Stewart if he understood. In response, Mr. Stewart indicated that he did not understand. As a result, in each subsequent demand, the officer read the card slower and paused between each sentence. In addition, prior to the third demand, Constable Wittal cautioned Mr. Stewart that his failure to provide a breath sample in response to his demand could result in Mr. Stewart being charged with an offence that is “similar to an impaired driving charge”.

Prior to the fourth demand, Constable Wittal removed his ASD from its box, held it up for Mr. Stewart to see, and asked Mr. Stewart if he was willing to provide a breath sample. In response to each of the officer’s demands, Mr. Stewart said “I don’t understand” save when the officer held up the ASD between the third and fourth demand when Mr. Stewart said “I don’t understand. I’m not blowing.” [ 67 ] These events occurred along the following timeline: 2:45 Officer forms suspicion of the presence of alcohol. --- Officer asks Mr.

Stewart to exit his vehicle. --- Officer provides general explanation of reason for detention. 2:49 Officer makes formal ASD demand. 2:50 Officer makes 2 nd ASD demand. --- Officer provides general explanation of consequences of refusal. 2:53 Officer makes 3 rd ASD demand. --- Officer removes ASD from box and holds for Mr. Stewart to see. 2:55 Officer makes 4 th ASD demand. --- Mr. Stewart charged with refusal. [ 68 ] In my opinion, a lack of understanding of the officer’s demand is relevant to mens rea ; namely, whether or not Mr. Stewart intended to refuse to comply with the officer’s demand.

Also, applying the Lewko test, I am satisfied that not understanding is a lawful excuse. There are many reasons why a person may not understand information he/she is receiving from a police officer, including being unconscious (because of intoxication or otherwise), a relevant medical issues (i.e.: as a result of a concussion), or a language barrier. [ 69 ] Whether examined as a lack of intent or a lawful excuse, there must be an evidentiary basis for Mr. Stewart’s claim he did not understand the officer’s ASD demand. At trial, Mr.

Stewart did not provide nor did his counsel point to any evidence as to why he did not understand the officer’s ASD demand. Furthermore, Mr. Stewart did not provide nor did his counsel point to any evidence as to what he did not understand about the ASD demand other than his statement in cross-examination that he did not understand why his vehicle was stopped by the officer in the first place. The evidence that I have that Mr. Stewart did not understand the demand being made of him by Constable Wittal was his repeated statements that he did not understand. Is Mr. Stewart’s evidence on this point credible?

[70] When credibility is at stake, I must be guided by the instructions of the Supreme Court of Canada in R v W(D), (SCC), [1991] 1 SCR 742: First, if I believe the evidence of Mr. Stewart, obviously I must acquit. Second, even if I do not believe the testimony of Mr. Stewart but I am left in a reasonable doubt by it, I must acquit. Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which Iaccept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [71] Absent some explanation as to why Mr.

Stewart did not understand the ASD demand that was made of him on December 6,2015, and absent any explanation of what he did not understand, I find the assertion that he did not understand difficult to believe. Thereis certainly a compelling inference that Mr. Stewart’s failure to provide a breath sample in response to the officer’s repeated ASDdemands was intentional. Constable Wittal made the standard ASD demand and did so on four (4) separate occasions; Mr. Stewart wascautioned as to the consequences of failing to comply; and the ASD was held before him as a visual aid.

In this regard, I note that Mr.Stewart understood the various questions asked of him by the officer prior to the ASD demand without any difficulties. I also note thatMr. Stewart understood the right to counsel when it was provided to him by Constable Wittal, together with the police caution that hewas provided; all without any apparent difficulties. Mr. Stewart also understood all of the officer’s requests at the police station. [72] On the other hand, I must be satisfied, beyond a reasonable doubt, that Mr.

Stewart did understand the ASD demand providedby Constable Wittal, and that his conduct on December 6, 2015 was indicative of his desire and intention to refuse to comply with thatdemand. Does the evidence support this conclusion? [73] While at one point Mr. Stewart did say the words “I’m not blowing”, in my opinion his words of refusal are equivocal. Hispredominate response was “I don’t understand”. Therefore, I must find the requisite mens rea from his conduct (i.e.: “constructiverefusal”). Mr.

Stewart’s opportunity to positively respond to Constable Wittal’s ASD demand began at 2:49 a.m. and he was arrested (forrefusing to comply) immediately after the fourth demand at 2:55 a.m. In other words, the conduct upon which I must draw the inferenceof intent occurred during a period of six (6) minutes. I also note that Constable Wittal did not give Mr. Stewart a so-called “last chance”;namely, one final opportunity to comply with his demand coupled with a warning that failing to comply would result in a charge ofrefusal. Did Mr. Stewart clearly understand what was required of him? Did Mr.

Stewart clearly have a reasonable opportunity to comply?Do his actions clearly demonstrate an intention not to comply? Simply put, in all the circumstances, am I satisfied that the inference ofconstructive refusal is unequivocal or inexorable? [74] When I consider these questions, I am left with a reasonable doubt. While I understand why the officer thought Mr.

Stewartwas being obstructive, the threshold for a Criminal conviction is high; particularly so in cases such as the present, where the offence isby and large committed through omission (rather than an overt act) and evidence of intention must be found through inference. [75] In coming to this conclusion, I note that in R v Kot, 2014 SKPC 63, an officer (Cst. Crain) encountered a similar problemwhen attempting to obtain a roadside breath sample. In this case, the accused also indicated he did not understand the officer’s ASDdemand.

In this case, the officer read the standard ASD demand from his script (as did Constable Wittal for Mr. Stewart). However,when Mr. Kot said he did not understand, the officer asked him to be specific about what he did not understand (something ConstableWittal did not do). Cst. Crain provided Mr. Kot a general explanation of the consequences of refusal (as did Constable Wittal). However,Cst. Crain also provided a plain language explanation of the options available to Mr. Kot and their probable outcomes (somethingConstable Wittal did not do for Mr. Stewart). While neither Cst.

Crain nor Constable Wittal made a “last chance” demand, I note thatCst. Crain did provide Mr. Kot with more time. In Mr. Kot’s case, the officer gave him approximately 15 minutes to consider his optionsbefore charging him with refusal. [76] Mr. Stewart did not have 15 minutes to consider his options nor did he have the benefit of the additional narrative provided byCst. Crain to Mr. Kot. While neither of these factors is individually determinative, when I examine the totality of the evidence, I am leftwith a reasonable doubt as to Mr. Stewart’s state of mind on December 6, 2015. CONCLUSION

[ 77 ] In all the circumstances, I am not satisfied, beyond a reasonable doubt, that the accused intentionally refused to provide a sample of his breath for purposes of analysis by means of an approved screening device contrary to s. 254(5) of the Criminal Code . [ 78 ] Mr. Stewart is therefore acquitted of the charge. Dated this 17 th day of June, A.D. 2016, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J