Her Majesty the Queen - v. -, 2014 SKPC 3

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 003 Date: February 4, 2014 Information: 32303286 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Carrie Lynn Binetruy Appearing: Brian Hendrickson, Q.C. For the Crown Mervin Nidesh, Q.C. For the Accused DECISION M. GORDON , J INTRODUCTION [ 1 ] On July 31, 2013, I gave a written decision on the voir dire which can be found at 2013 SKPC 118 . The accused had alleged certain Charter breaches.

I concluded that I was satisfied on the evidence the accused’s s. 9 Charter rights were violated by holding her in custody for approximately four hours after the breathalyzer tests were completed. However, I held that under s. 24(1) of the Charter if there is a conviction, a reduction in sentence would adequately reflect the seriousness of the breach and the Certificate of Analyses was admitted as evidence in the trial proper.

[2] The defence did not call any evidence on the trial proper. By agreement the DVD of Ms. Binetruy providing samples in theIntoxilyzer room was entered as a full exhibit (D-2). POSITION OF THE PARTIES [3] The Crown submitted that it can rely on the presumption in s. 258 of the Criminal Code and therefore the results of theIntoxilyzer tests in Exhibit P-1 are presumed to be the same as at the time of driving.

The Crown argues it has complied with theprerequisites and in particular the Crown argues that the second sample as recorded in Exhibit P-1 was taken “as soon as practicable” inthe circumstances. [4] The defence argues that according to the Certificate of Analyses there is a 42 minute unexplained delay between thesamples. The defence relies in particular on the case of R. v. Kolynk, 2006 O.J. No. 1844, where there was a 28 minute unexplaineddelay between the two breath samples. THE ISSUE [5] The only issue is whether the Crown is entitled to rely on the presumption of identity in s. 258(1)(

c) of the Criminal Code toprove that the concentration of alcohol in Ms. Binetruy’s blood at the time of driving is the same as it was at the time the breath sampleswere taken. EVIDENCE [6] The evidence is at 23:44, Ms. Binetruy finished speaking with Legal Aid. She was directed to sit and wait while thebreathalyzer technician prepared the Intoxilyzer machine. Cst. Heck testified this observation period commenced at 23:45 (11:45) andended at 12:02. At 12:09, she was presented to the technician.

The Certificate of Analyses shows that she provided her first suitablesample at 0013 (12:13) and the second or last suitable sample at 0055 (12:55). [7] On cross-examination defence counsel entered by agreement as a full exhibit the DVD showing Ms. Binetruy and thetechnician in the Intoxilyzer room. Cst. Heck testified this was an accurate depiction of the events as he observed from the doorway ofthe breathalyzer room. The DVD clearly shows that Ms. Binetruy blew twice before providing a sufficient sample on her third attempt. This was sample 1. Ms.

Binetruy is then shown exiting and then returning to the Intoxilyzer room approximately 15 minutes later andanother sample is obtained from her on her first try. Initially it appears to be satisfactory but the technician says the machine indicates itis not due to the presence of mouth alcohol. Ms. Binetruy leaves for another 15 minute observation period. Approximately 15 minuteslater the technician is seen calling Cst. Heck to return with Ms. Binetruy to the Intoxilyzer room. Approximately three minutes later, Ms.Binetruy can be seen entering the room.

Again the technician explains to her how to blow and the “second” acceptable sample isobtained at 12:55. This is the second sample as referred to in the Certificate of Analyses. ANALYSIS [8]

Section 258 of the Criminal Code provides a shortcut for the Crown and the requirement such as “as soon as practicable”provides protection for the accused. The only time period in issue is the 42 minutes between the two samples. In R. v. Carriere, 2010SKPC 118, Judge Kalmakoff stated at paragraph 58: “As soon as practicable” is a standard which must be applied with reason. It does not mean as soon as possible, but as soon as canreasonably be expected (R. v. McCoy (1990), (SK KB), 86 Sask. R. 204 (Q.B.)).

The Crown is obligated todemonstrate, in all the circumstances, that the breath samples were taken within a reasonably prompt time. There is no requirement thatthe Crown account for what happened every minute that the accused was in custody prior to the tests being taken (R. v. Vanderbruggen(2006), (ON CA), 206 C.C.C. (3d) 489 (Ont. C.A.)), but as long as the delay can be explained to the satisfaction of thetrial judge, the Crown is entitled to rely on the presumption in section 258(1)(c) (R. v. Carter (1981), (SK CA), 9

Sask. R. 1 (C.A.) at para. 7). This requires that there be some evidence from which the Court can infer an acceptable reason for thedelay. A significant delay which is completely unexplained provides no evidentiary basis upon which to find the delay is reasonable (R.v. Craig, 2007 ONCJ 424; R. v. MacInnis, 2003 NSPC 63 , [2003] N.S.J. No. 532 (Prov. Ct.); R. v. Bugler, [1997] O.J. No.2283 (C.A.); R. v. McCoy, supra; R. v. Allin, 2003 SKPC 58). [9] There is no definition of the term “as soon as practicable” in the Criminal Code however, the case law is clear and provides asensible approach to this issue. In R. v.

Kinzel, 2013 SKQB 201, Mr. Justice Schermann upheld my decision and at paragraph 30 statedas follows: The essential principles to be extracted from the foregoing are that: (

i) the phrase “as soon as practicable” does not mean as soon as possible; (ii) the phrase means nothing more than samples are to be taken within a reasonably prompt time under the circumstances; (iii) the requirement of “as soon as practicable” is one which must be applied with reason; (iv) as long as the first sample was taken within two hours of the alleged offence, the second no sooner than 15 minutes after the first anddelays the impact the “as soon as practicable” requirements are explained to the satisfaction of the judge and those delays did notprejudice the accused the prosecution is entitled to rely on the presumption.

Other cases which follow this approach were cited by the Crown and which I agree with are R. v. Vanderbruggen, Ont. C.A.; Christopher James Friesen v. R., 2012 SKQB 488; R. v. Leonard Zemlak, 2013 SKQB 34; and R. v. Keith Klassen, 2013SKPC 193. [10] I have viewed the DVD again (it was played in its entirety in Court before being marked as an exhibit) and find that the timebetween the first and second test as recorded on the certificate is satisfactorily accounted for. The dealings between the police and theaccused are professional. The Intoxilyzer operator does not appear to be distracted by other duties.

He is seen in the Intoxilyzer roompreparing the machine, administering the tests, and making notations. There is approximately, at the most, six minutes from the secondsample which was not satisfactory due to mouth alcohol and the final sample which is the second sample on the certificate that is notdirectly accounted for. However, not every minute needs to be accounted for and there is obviously some time in getting Ms. Binetruyfrom the waiting area into the breathalyzer room and having the sample provided. The police acted reasonably and with dispatch. Thebreathalyzer technician was patient with Ms.

Binetruy, clearly explained what was required, encouraged her appropriately and took thefinal sample. Therefore in this case with the evidence from the DVD, and considering the evidence in total, I am satisfied beyond areasonable doubt that the Crown has met this onus and can rely on the presumptions. [11] The accused is required to provide suitable samples for her breath for analysis. The defence did not challenge the second 15minute observation period after the unsatisfactory sample. In R. v.

Smith, 2012 ONSC 4492, the Court found that if a sample is abortedbecause of mouth alcohol, a clear 15 minute wait will be required. [12] In this case, with the evidence from the DVD, I am satisfied beyond a reasonable doubt that the Crown has met the onus andcan rely on the presumption pursuant to s. 258 of the Criminal Code. As a result I find Ms. Binetruy guilty of count 1 on theInformation. IMPAIRED DRIVING CHARGE [13] On the impaired driving charge, the Crown argued that the evidence proves beyond a reasonable doubt that Ms. Binetruy wasoperating her motor vehicle while impaired by alcohol.

The Crown relies on the well-known case of R. v. Stellato, [1993] 2 S.C.R. 478(S.C.C.) and R. v. Andrew, 1996 ABCA 23 , [1996] 104 C.C.C. (3d) 392 (Alta. C.A.) (leave to appeal refused). The Crown inits written brief also referred to Roy John Rodgers v. R., 2013 SKCA 16. The defence argues that the evidence is insufficient to provethis charge. The defence did not file a written brief. The police officer, Cst. Heck, used the approved screening device to determine if hecould lawfully arrest Ms. Binetruy for impaired driving and may subsequently make the breathalyzer demand.

In other words, the policeofficer without the result of the ASD was of the opinion he did not have reasonable grounds to make the breathalyzer demand.

[ 14 ] The evidence is that Cst. Heck observed Ms. Binetruy’s vehicle fail to come to a complete stop at the corner of Coteau and 12 th Avenue. This is a four-way stop and the officer observed the Binetruy vehicle to slow to approximately five kilometres per hour. The officer stated it is not unusual for people to fail to stop completely at this corner especially at this time of night when the traffic was light. Cst. Heck testified that Ms. Binetruy pulled over promptly. He observed her to be slouching forward while seated in the driver’s seat and her eyes appeared glassy.

There was a mild smell of beverage alcohol coming from her. She stumbled slightly getting out of her SUV but walked without difficulty to the police vehicle. As events progressed, Ms. Binetruy became more emotional and was dizzy and crying. She indicated she had a miscarriage recently. She spoke normally. There were no difficulties with her at the police station and she was able to name five lawyers to call when she was exercising her rights to counsel. [ 15 ] Applying the law to these facts, I am not satisfied beyond a reasonable doubt that Ms.

Binetruy’s functional ability to operate a motor vehicle was impaired. I find her not guilty on count 2. M. Gordon, J