Her Majesty the Queen - v. -, 2013 SKPC 121

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 121 Date: July 15, 2013 Information: 24461296 Location: Humboldt _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tara Lee Danielson Appearing: B. Burrage For the Crown R. Piché For the Defence JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused was charged in a two count information with impaired driving and drive while over .08, respectively. [ 2 ] On March 11, 2012 at approximately 01:07 hours RCMP Constable Gillis while on patrol westbound on highway #5 leaving

Humboldt, noted a vehicle to be travelling adjacent on a service road without functioning taillights. A vehicle stop was effected shortly thereafter. The operator was noted to be the sole occupant of the vehicle. Following a brief roadside discussion, Constable Gillis observed red eyes and detected an odour of alcohol on the driver’s breath. He then queried the operator, later identified as the accused, as to how much she had to drink to which she responded “a few”.

She was then asked to exit her vehicle and return to the patrol car for purposes of providing a roadside breath sample into an approved screening device (ASD). At 01:12 hours the accused was given a formal ASD demand. Between 01:12 and 01:16 hours Constable Gillis made CPIC inquiries and waited for the ASD to achieve “ready” status which it did at 01:15 hours. During this period the accused was questioned as to her familiarity with the ASD and instructed as to the use and proper method of providing a sample of breath. [ 3 ] At 01:16 hours a sample was provided which registered a fail.

Thereafter rights to counsel were given at 01:18 hours and police warning and formal breath demand at 01:19 hours. After dealing with the issue of vehicle impound at roadside the accused was transported to Humboldt detachment arriving at 01:27 hours. At 01:30 hours an observation period was commenced which Constable Gillis explained was necessary to ensure nothing was taken by mouth or regurgitated to ensure accuracy of breath samples on the intoxilyzer.

The first intoxilyzer sample was received at 01:56 hours registering 140 milligrams percent and a second sample taken thereafter at 02:17 hours again registering 140 milligrams percent. Constable Gillis then prepared the necessary release documentation including Certificate of Analyses and Notice to Produce which he explained to the accused and subsequently served copies upon her. II ISSUES The Defence raised the following three issues for determination by way of written submissions as a clarification and supplement to oral submissions:

a) Compliance with s. 254 (2) (

b) of the Criminal Code , in particular, whether ASD samples were taken “forthwith ”;

b) Compliance with s. 258 (7) of the Criminal Code in that the Crown has not proven beyond a reasonable doubt that a true copy of the Certificate of Analyses was served upon the accused, thereby making the Certificate inadmissible;

c) Failure to continuously watch the Accused during the observation periods prior to providing intoxilyzer samples thereby raising an argument of “evidence to the contrary ” in accordance with s. 258 (1) (c) (iv) of the Criminal Code . III DETERMINATION

a) Compliance with section 254 (2) (

b) of the Criminal Code , in particular, whether ASD samples were taken “forthwith ”; [ 4 ] The salient portions of section 254 (2) (

b) read:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol... in their body ... the peace officer may, by demand, require the person ... (

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 an approved screening device ... [ 5 ] The “forthwith” requirement denotes an “immediacy” component both in the demand once reasonable suspicion of alcohol in the body has been determined and the taking of the sample once the demand has been made. [1] [ 6 ] Courts have recognized that in certain instances flexibility must be allowed depending upon the context of any delay in either making the demand or receiving the sample.

Principally, such delay must be reasonable as it relates to obtaining an accurate result or some other exigency which makes the delay necessary to enable the officer to properly perform his or her duties. [2]

[ 7 ] Many examples exist. In R. v. Bernshaw [3] a fifteen minute delay in administering the test was acceptable to allow for dissipation of residual mouth alcohol. In R. v. Quansah , supra , a seventeen minute delay was justified when the accused had sped away from a roadside stop prompting a vehicle search for weapons and thereafter to allow for alcohol related questioning. In R. v. Ostropoloskyi [4] a twenty minute delay was held to be forthwith because the officers had to deal with unruly passengers. Similarly, in R. v.

Athanasopoulos , [5] this Court held a two-part delay of twenty-seven minutes in total due to attending to medical needs of passengers and thereafter waiting a fifteen minute observation period due to cigarette consumption, met the immediacy requirement. [ 8 ] In R.v. Megahy [6] however the court held a very short delay to obtain an ASD sample exceeded the forthwith requirement because it was not reasonably necessary to have kept the ASD device at a location other than roadside. In R. v.

McMahon [7] this Court held an approximate fifteen minute delay exceeded the forthwith requirement because note taking at that point and innocuous questioning was unnecessary prior to receiving the ASD sample. In R. v. Grant [8] a thirty minute delay after the demand for the ASD to arrive did not meet the forthwith requirement. [ 9 ] In the instant case, the accused was stopped shortly after her vehicle was observed without taillights at roughly 01:07 hours.

The investigating officer then attended immediately to the accused’s vehicle and after checking the taillights made routine inquiries concerning driver’s license, registration, and recent alcohol consumption. He immediately formed the opinion through observation and interaction with the accused including her admission that she had “a few” drinks that evening that she had alcohol in her body. The accused was then asked to return to the patrol car where a formal demand at 01:12 hours was made and the sample ultimately received at 01:16 hours.

In the intervening four minutes between the formal demand and receiving the sample, Constable Gillis made CPIC inquiries, questioned and instructed the accused in the usage of the ASD and waited the time when the ASD would be ready to receive samples which was noted to be 01:15 hours. All of this is captured on the in-car video entered as Exhibit P-2. [ 10 ] In all respects, Constable Gillis performed his duties promptly and efficiently.

There was no delay in making the demand once reasonable suspicion of alcohol in the body had been determined and thereafter no inappropriate or inordinate delay in making a formal demand and thereafter receiving a proper ASD sample. Rather, the time was spent attending to necessary duties [9] most of which were performed while the ASD went through its warm up phase. In the circumstances, the court finds that Constable Gillis fulfilled the “forthwith” immediacy requirement imposed upon him by section 254 (2) (

b) of the Criminal Code .

b) Compliance with section 258 (7) of the Criminal Code in that the Crown has not proven beyond a reasonable doubt that a true copy of the Certificate of Analyses was served upon the accused, thereby making the Certificate inadmissible. [ 11 ] Section 258 (7) reads: No certificate shall be received in evidence pursuant to paragraph (1) (e), (f), (g), (

h) or (

i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.... [ 12 ] Section 258 (7) is a statutory shortcut permitting the Crown to use the Certificate of Analyses as proof of its contents in place of having to call the breath technician to provide viva voce evidence regarding same.

To be admissible at trial, certain prerequisites must be proven including, inter alia, as noted, compliance with s. 258 (7) . [ 13 ] Some decisions have held that the standard of proof regarding service of a copy of the Certificate on Analyses is the civil burden of balance of probabilities [10] . The more recognized and appropriate approach, in the Court’s view, is the criminal standard being proof beyond a reasonable doubt. In R.v. B.(KG) [11] and R. v.

Egger [12] , the Supreme Court made the distinction between proof of a “ preliminary question of fact” regarding admissibility of evidence and proof of a “vital” issue -ie where admission of the evidence would have a conclusive effect regarding determination of guilt. The Certificate of Analyses in a prosecution while driving over .08 would certainly be in this latter category of a vital issue.

[ 14 ] It is important then to bear in mind that it is the service of the copy that must be established by the Crown in order to satisfy the requirements of section 258(7) . Further, it must be a “true copy” [13] in the sense that it was an accurate reproduction of the original which the serving officer must satisfy himself or herself of - in other words the obligation to look. There is no onus on the Accused to demonstrate an error on the Certificate - rather has the Crown met its onus to prove service? If not, the Certificate ought not to be admitted into evidence. [ 15 ] If, on the other hand, the accused points to certain error(

s) on the Certificate itself, this would lead to a different inquiry regarding whether the accused was misled, confused or prejudiced by such error(s). [14] Simply identifying an innocuous or immaterial error otherwise and no more would be to reduce the issue to that of a “procedural prize” as described in R. v. Longley . [15] In this instance, the Court should bear in mind the purpose of the accused receiving the copy of the Certificate. In R. v.

Dillon [16] the Court articulated the following in this regard: 1) To enable the accused person to know precisely the nature of the case against him or her thereby providing an adequate opportunity to make full answer and defence; 2) The Notice must be precise and accurate and reasonably certain so an accused person is alerted with certainty as to the procedure to be invoked; 3) To permit adequate deliberation time as to whether an application to the Court ought to be made for an Order requiring attendance of the analyst or Certificate for the purpose of cross-examination; 4) To simplify the production of evidence; 5) Reducing the time and cost of criminal prosecutions. [ 16 ] Errors on the Certificate relating to such stated purposes causing prejudice or confusion or misleading the accused would mean that the accused has not received reasonable notice as per the intent of s. 258(7) , again making the Certificate inadmissible. [ 17 ] Errors in reproducing the Certificate have been minimized to a great extent by technological advancement.

The original method of long hand was replaced by the three-form carbon process.

This carbon replication had the potential of producing copies that did not accurately match either through smudging or illegibility due to failure to sufficiently depress the writing on the original, hence the necessity for studied comparisons often undertaken on a line by line basis. [17] Document reproduction however is now much more precise being computer generated or photocopied which have been accepted as representing true copies of the original without the necessity of such close scrutiny, [18] a position which this Court endorses.

Nonetheless, there must still be objectively reasonable evidence that the serving officer did in fact serve a true copy of the original Certificate. [ 18 ] Difficulties in this regard can still arise where the officer serving the copy did not make the photocopy himself or herself and did not take appropriate steps for verification. In R. v. Stewart [19] Baniak J. had this very circumstance, evidenced by the following excerpt from cross-examination: Q: You did not complete the top portion? A: No Q: This particular document has not been in use very long. A: Probably less than a year Q: You copied it?

A: Guard photocopied the Certificate of Technician. Sometimes I copy myself sometimes the guard does it. Q: Who was the guard? A: I don’t recall. Q: Did you compare the copy to the original? A: I glanced at it. In the circumstances the Certificate was held to be inadmissible. [ 19 ] In the present case the Court has had the benefit of real-time video of the entire serving process of the release documentation at the Detachment entered as Exhibit D-1.

As shown, Constable Gillis who is seated across from the accused (herself a police officer with apparent familiarity with the process as demonstrated throughout) explains the documentation to her one by one, including the Certificate of Analyses and Notice of Intention to Produce same. He then states “you’ll get a photocopy of this” and then “do you have any questions about that?” to which the accused replies “no”. [ 20 ] Constable Gillis then hands the documents to the breath technician, Constable Ness, requesting that he make copies.

From there Constable Ness goes into the adjacent room and within minutes the unmistakeable sound of a photocopier can be heard accompanied by the tell-tale light flashes off the room door. Constable Ness subsequently re-enters the room and hands a sheaf of documents to Constable Gillis. [ 21 ] Constable Gillis then briefly looks at, and refers to, the Certificate of Analyses and Notice of Intention to Produce laying it down next to the photocopy. He then states to the accused as he points to the top of the photocopy “you can see it’s a true copy”.

The accused replies “okay” and “yeah”, looking at it momentarily before folding and placing it in her purse. [ 22 ] The contemporaneous photocopy reproduction, presentation, and acknowledgement of the copy by the accused distinguishes it from the vague and incomplete evidence as presented in Stewart . [ 23 ] In all the circumstances, the Court does not have a reasonable doubt that the accused received a true copy of the Certificate of Analyses in compliance with s.258(7) of the Criminal Code . Therefore, P-1 is made a full exhibit on the trial proper.

c) Failure to continuously watch the Accused during the observation periods prior to providing intoxilyzer samples thereby raising an argument of “evidence to the contrary ” in accordance with section 258 (1) (c)(iv) of the Criminal Code . [ 24 ] Paragraph s. 258 (1) (c) (iv) establishes the Certificate of Analyses as conclusive proof of an accused’s blood alcohol content both at the time of testing (presumption of accuracy) and the time that the offence was committed (presumption of identity). [ 25 ] Use of the statutory presumptions however was always subject to an accused being able to raise a reasonable doubt by leading “evidence to the contrary” which, if accepted, would mean the Crown would lose the benefit of being able to rely on the Certificate of Analyses as proof of the contents therein. [ 26 ] In an apparent attempt to overcome the widespread success of the Carter [20] defence and to re-assert the scientific primacy of the intoxilyzer instrument, Parliament legislated three required criteria to establish evidence to the contrary as embodied in the current s. 258 (1) (c)(iv):

a) instrument malfunction or operator error,

b) that such malfunction or operator error resulted in the over 80 reading, and

c) that the accused’s blood alcohol content in fact would not have exceeded .08 at the time of the offence. [ 27 ] The harshness and inherent unfairness of these criteria however was recently ameliorated by the Supreme Court in the decision of R.v.

St-Onge Lamoureux [21] which deleted the latter two requirements leaving only the raising of reasonable doubt regarding “instrument malfunction” or “operator error” as necessary to establish evidence to the contrary in accordance with this sub-section. [22] [ 28 ] The defence asserts that failure to watch the subject continuously during the observation periods [23] prior to providing Intoxilyzer samples can raise a reasonable doubt relating to instrument malfunction or operator error because the Court cannot be certain there was no presence of mouth alcohol or some other substance taken orally by the accused. [ 29 ] In most instances, the consumption of extraneous substances or material would be unlikely at this juncture since the subject would have been searched prior, likely both at roadside and the Detachment.

A more common concern involves burping or belching by the accused or some other form of regurgitation thereby potentially skewing a test result by analysing mouth alcohol rather than solely blood alcohol measured from a deep breath lung sample. [ 30 ] In the present case, the Defendant asserts that on two occasions Constable Gillis did not maintain continuous “face to face” surveillance throughout the observation periods when the Constable was dealing with the accused’s purse. These observation periods are captured on video D-1 which the court has had the benefit of carefully reviewing.

While it is true that Constable Gillis did initially retrieve the purse at the accused’s request, he did not leave the room to do so. His back was to her for approximately three seconds according to the Court’s calculations. Similarly, during the second observation period Constable Gillis replaced the purse in the same fashion again turning away from the accused to do so for roughly three seconds. [ 31 ] In cross-examination Constable Gillis conceded that he had done so but testified that he was also observing by way of auditory monitoring.

In this regard, he was not alerted in any fashion to any burping or belching by the accused. [24] The significance of this possibility was underscored by the clear observation in the car video that the accused appeared indeed to be belching prior to arrival at the Detachment, which Constable Gillis was aware of. [ 32 ] In addition to the evidence of Constable Gillis, the Court was able to ascertain that the accused, by comparison to what occurred in the patrol car, did not appear to do anything other than sit normally for the brief seconds required for Constable Gillis to retrieve and subsequently return her purse within the room. [ 33 ] Accordingly, no evidentiary basis exists in this case to support an argument of reasonable doubt by introducing evidence to the contrary referenced in section 258 (1) (c) (iv) of the Criminal Code .

IV RESULT [ 34 ] All evidence having been applied from the voir dire to the trial proper by consent, the accused is found guilty of Count #2 of the information of driving while over .08. [ 35 ] No representations were made regarding the impaired driving charge in Count #1. On the evidence presented the Court finds that the Crown has not proven this count beyond a reasonable doubt. Apart from no driving evidence, there were no physical signs demonstrating that the accused’s ability to operate a motor vehicle was impaired by alcohol. [25] Accordingly, this charge is dismissed.

________________________ R.D. Jackson, J [1] R. v. Dewald (1994) (ON CA), 19 O.R. (3d) 704 at para. 5 (S.C.C.); R. v. Anderson, 2011 SKCA 13; R. v. Janzen2006 SKCA 111. [2] R. v. Quansah 2012 ONCA 123 at paras. 45 - 49 [3] (SCC), [1995] 1 S.C.R. 254, 95 C.C.C. (3d) 193 [4] 2013 SKPC 17 , 2013 SKPC 017 [5] 2013 SKPC 79 , 2013 SKPC 079 [6] (2008) 2008 ABCA 207 , A.J. No. 585 (Alta. C.A.) [7] 2002 SKPC 139 [8] (SCC), [1991] 3 S.C.R. 139 [9] In R. v.

McMahon, supra, this Court determined that CPIC checks on an accused prior to administering the ASD were a valid andproper discharge of an officer’s duties, if done expeditiously. The purpose of CPIC checks generally is for officer safety and informationconcerning the accused. (See also R. v. Vogel, [2010] S.J. No. 316 at para. 11). [10] R. v. MacKinnon (ON CA), [2003] O.J. No. 3896 (C.A.); R. v. Naidu [2004] O.J. No. 2471 (S.C.J.) [11] (SCC), [1993] 1 S.C.R. 740 [12] (SCC), [1993] 2 S.C.R. 451 [13] R. v. Glass, (1973) (SK CA), 12 C.C.C. (2d) 450, [1973] 5 W.W.R. 761 (Sask. C.A.) [14] See R. v.

Zaccaria, 2005 ABCA 130 , [2005] A.J. No. 318 paras. 15 - 16 (C.A.), leave refused [2005] S.C.C.A. No. 272 [15] (SK KB), [1997] S.J. No. 207 (Q.B.) [16] [2005] O.J. No. 2516 at para. 12 (S.C.J.) [17] In R. v. Vogel,

(2010) SKPC 36 , this Court held the Certificate of Analyses to be inadmissible where the officer testified hemade a tripartite carbon copy without checking the accused’s copy against the original. [18] R. v. Naidu, supra [19]

(2012) SKPC 39 [20] In R. v. Carter (1985), (ON CA), 19 C.C.C. (3d) 174 (Ont. S.C.) it was established that if the defence evidence ofdrinking consumption and/or pattern was accepted by the trial judge forming the basis for expert evidence this could raise a reasonabledoubt as evidence to the contrary notwithstanding the actual readings shown on the breathalyzer instrument. [21] 2012 SCC 57 , [2012] S.C.J. No. 57, [2012] 3 S.C.R. 187, 351 D.L.R. (4th) 381 [22] It is still possible as well to establish evidence to the contrary relating to the second presumption of identity contained in s.258(1)(d.1).

This defence accepts the Certificate of Analyses as correct but due to unabsorbed alcohol at the time of driving theaccused’s BAC was under 80, provided that the actual consumption of alcohol was consistent with the demonstrated Intoxilyzerreadings.

[23] Although no requirement exists in the Criminal Code concerning such continuous observation prior to receiving Intoxilyzer samples,from a pragmatic perspective they are being utilised to deflect the argument of potential mouth contamination (See R. v. Tek, infra). [24] In R. v. Tek [2012] A.J. No. 1406, Bridges J. at para. 47 in a similar case regarding this issue observed “ . . . However, burping,belching or regurgitating are mostly identified by common human experience either by sound or possibly by smell . . . No such evidenceexists in this voir dire.” [25] See R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, 18 C.R. (4th) 127 (Ont. C.A.)