Her Majesty the Queen - v. -, 2016 SKPC 128

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 128 Date: December 16, 2016 Information: 90124647 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Matthew John Hrynkiw Appearing: Andrew Wyatt For the Crown David Rusnak, Q.C. For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] Mr. Hrynkiw is charged with driving while over the legal limit of .08 and while his ability to operate his vehicle was impaired by alcohol, on March 28, 2016 at the Crystal Lake District. [ 2 ] On this evening, Cst.

Elena Kondratoff stopped Mr. Hrynkiw and detained him for an approved screening device (ASD) test. She decided to wait a number of minutes before administering the ASD test, given her belief about his recent consumption of

alcohol, and when she tried to turn on the ASD she discovered it was not working. She then arrested Mr. Hrynkiw for impaired driving and read him the Intoxilyzer breath demand (under s. 254(3) of the Criminal Code ). He later provided breath samples at the RCMP detachment in Sturgis. [ 3 ] The defence claims that Mr. Hrynkiw’s rights under the Charter of Rights and Freedoms were violated in two ways: i. His right to be free from arbitrary detention under

section 9 of the Charter was violated when Cst. Kondratoff did not immediately attempt to administer the ASD but instead waited to do so; and ii. His rights, to be free from arbitrary arrest under

section 9 of the Charter and his right to be free from unreasonable search and seizure under s. 8 , were violated as the officer did not have reasonable grounds to make the breath demand under section 254(3). [ 4 ] As a result, pursuant to s. 24(2) of the Charter , the defence seeks to exclude the Certificate of Analyses from Mr. Hrynkiw’s Intoxilyzer breath tests. [ 5 ] The other issue to be determined in the trial is, regarding the impaired driving charge, whether there was proof beyond a reasonable doubt that Mr.

Hrynkiw’s ability to operate a motor vehicle was impaired by alcohol. [ 6 ] The only witness to testify on the Charter voir dire was Cst. Kondratoff. Her evidence on the voir dire was applied to the trial by the agreement of counsel. The defence called no evidence on the voir dire or the trial. II. BACKGROUND [ 7 ] Cst. Kondratoff was the only police officer from the Canora detachment on duty the evening of March 28, 2016.

She was driving south on Highway #9, travelling from Sturgis, when she saw a vehicle in front of her near the turnoff to Crystal Lake, a distance of about 20 kms. from the RCMP detachment in Canora. She said the vehicle was swerving within its lane and she followed this vehicle for awhile. Upon reaching a bridge on the highway, the driver - who turned out to be Mr. Hrynkiw - slowed from 110 km/hr to 80 km/hr. At that point, she turned on her emergency lights and said it took Mr. Hrynkiw “a little bit, for him to stop”. [ 8 ] Cst. Kondratoff went to the driver’s door and spoke to Mr. Hrynkiw.

She asked for his driver’s licence and registration and he provided these and identified himself. He was smoking a cigarette and Cst. Kondratoff could smell alcohol coming from inside the vehicle. [ 9 ] Cst. Kondratoff asked Mr. Hrynkiw where he was coming from and he said he was coming from the restaurant Rawhide’s at Stenen, where he worked. She asked him if he had anything to drink and he said he had consumed one or two drinks, the last one just before he left the restaurant. She as well asked him why he was swerving and he said he was texting and driving.

The officer did not believe him, as she did not see any light from a cell phone screen when she was following him. [ 10 ] Cst. Kondratoff asked Mr. Hrynkiw to come back to the vehicle to give an ASD sample at 10:21 p.m. She said he supported himself on the door as he got out of the vehicle, and when he came back to the vehicle he went to the driver’s side and she then told him he had to go to the passenger’s side. When he walked back to the police vehicle, she described this as “staggering back a little bit”. She searched Mr.

Hrynkiw prior to putting him into the back of the police vehicle, and at that time smelled a strong odour of alcohol on his breath. She then formally read him the ASD demand. [ 11 ] As Mr. Hrynkiw had told her he had a drink just before he left the restaurant, Cst. Kondratoff decided to wait fifteen minutes from when she believed that drink had occurred before taking the ASD sample. She admitted she did not know on that date the distance in kilometres to Stenen from that point, but based on her previous trips to the restaurant she believed it was approximately a five minute

drive from where they were stopped to Stenen. After this day, and before the trial, she determined that it was exactly 14.6 km from where she stopped Mr. Hrynkiw to the restaurant. [ 12 ] Cst. Kondratoff said Mr. Hrynkiw was very friendly to her, but it took him a couple of seconds to answer her questions and this struck her as a very slow response.

She described his demeanor, while in the police car, as very giggly and said his speech “kind of seemed confused”, as he first said his middle name was John, paused and thought about it, and then said it was Jonathon, and then paused again, and said it was John. [ 13 ] Cst. Kondratoff turned on the ASD instrument a couple of minutes before 10:34 p.m., and to her surprise, she discovered that it was not operational.

Although she did not test the ASD at the start of her shift, she believed it would be working as it was the responsibility of another officer in the detachment to check and maintain the device. [ 14 ] Cst. Kondratoff then arrested Mr. Hrynkiw for impaired driving and read the Intoxilyzer demand to him. She explained this arrest by saying at that point, she believed that, taking into consideration all of the factors - his behaviours, mannerisms, the strong smell of beverage alcohol, and his driving - she believed she had enough to arrest him for impaired driving.

When further asked about the grounds for her s. 254(3) demand, Cst. Kondratoff said that, as she was talking to him in the police vehicle, there were more and more signs of impairment: the smell of beverage alcohol was getting stronger, he was slow to answer, he was nervous and giggling and he was confused about his middle name. [ 15 ] Further, regarding her grounds for the s. 254(3) demand, she said the roads were basically dry and she did not accept Mr.

Hrynkiw’s explanation that swerving within his lane or slowing at the bridge was as a result of texting, as she didn’t detect any light as though he was texting when she was driving behind him. She, however, did not recall what type of cell phone he had and didn’t look at it as she didn’t believe he was texting. She, as well, said the time of night she stopped Mr. Hrynkiw was significant, as this is the time of the day when many impaired incidents occur. While she did not see any wildlife in the area of the stop, she admitted this was an area frequented by it. [ 16 ] Cst. Kondratoff left the scene with Mr.

Hrynkiw in the back seat at 10:36 p.m. She took him to the detachment sub-office in Sturgis, which was the closest place where an Intoxilyzer breath instrument was located. At the detachment, after speaking with a lawyer and going to the washroom, Mr. Hrynkiw provided samples of his breath to Cst. Kondratoff, a qualified technician for the Intox EC/IR II breath instrument, of 180 milligrams percent at 11:22 p.m. and 190 milligrams percent at 11:43 p.m. After the breath tests, she took a video recorded statement from Mr. Hrynkiw, that the defence admits was voluntary. [ 17 ] Regarding Mr. Hrynkiw’s condition, Cst.

Kondratoff said that by the end of her interaction with him this night his eyes were very bloodshot. On a scale of one to ten, regarding impairment, she would put him at an eight. That said, she admitted that he responded appropriately to her request for his driver’s licence and registration and, as well, admitted that Mr. Hrynkiw’s speech was not slurred when he spoke and, lastly, that it would be unusual if someone did not steady themselves on the door getting out of a vehicle. When asked whether his giggling in the police vehicle was similar to his giggling in the recorded statement at the detachment, Cst.

Kondratoff said he was giggling more in the police vehicle. She believed his alcohol readings were going up while she was talking to him at the office, which to her meant that his impairment was increasing. [ 18 ] Cst. Kondratoff did not handcuff Mr. Hrynkiw at any point this evening, and released him after his statement. She then drove him to his vehicle to get his belongings, before the vehicle was towed, and after that drove him to his home in Canora. III. WERE MR. HRYNKIW ’S

SECTION 9 RIGHTS VIOLATED AFTER HE WAS DETAINED FOR THE ASD TEST? [ 19 ] I am satisfied that Cst. Kondratoff had a reasonable suspicion that Mr. Hrynkiw had alcohol in his body, after she spoke to him. She smelled alcohol coming from his vehicle, which he alone occupied, and he told her he had a drink of alcohol just before leaving the restaurant at Stenen and driving to where she stopped him. As a result, her demand for an ASD sample under s. 254(2) was lawful. That subsection, however, further provides that the ASD breath sample must be provided forthwith. [1]

[ 20 ] Despite the forthwith provision, the case of R v Bernshaw [2] - an oft-quoted authority from the Supreme Court of Canada - sets out the grounds upon which a police officer can delay for a short period in taking an ASD sample if she believes such a delay is necessary to obtain a proper sample, and yet still remain within the lawful authority to detain a suspect under s. 254(2).

Speaking for the majority of the Court, Justice Sopinka approved the standard “that the police can only detain a suspect for an extra 15 minutes where there is some factual basis upon which to suspect that the screening device would yield an inaccurate result.” [3] Such a factual basis was said to include a belief by the police officer that suspect had recently consumed a drink of alcohol. [4] [ 21 ] Here I am satisfied that Cst. Kondratoff did have a factual basis upon which to suspect that immediate administration of the ASD to Mr. Hrynkiw would yield an inaccurate result.

She was told he had a drink just before leaving the restaurant in Stenen, which she believed was a five minute drive from where she stopped him. The fact that the actual distance (14.6 kms.) would have added a few minutes onto this does not change what I believe was a reasonable estimation by the officer at the time, based on her previous trips to Stenen. While the exact time she stopped the vehicle was not given in evidence, I am satisfied, and find, that she tried to turn on the ASD at a time that was no more than 15 minutes after the time when she reasonably believed Mr.

Hrynkiw had consumed his last drink. [ 22 ] As a result, I am satisfied that she was acting within the authority of s. 254(2) when she waited before trying to take the ASD test, and I am not satisfied: (1) that she did not administer the ASD test forthwith; and (2) that Mr. Hrynkiw was arbitrarily detained, contrary to s. 9, up to the point where Cst. Kondratoff discovered that the ASD she had was not working. IV. WAS THERE A LAWFUL BASIS FOR THE S. 254(3) DEMAND? [ 23 ] Section 254(3) requires that Cst. Kondratoff had reasonable grounds to believe Mr.

Hrynkiw was committing the offence of impaired driving before she demanded that he provide a breath sample into an approved instrument at the detachment. This means that she must have subjectively (or honestly) believed Mr. Hrynkiw had driven while impaired within the preceding three hours and that this belief must be rationally sustainable on an objective basis. [5] [ 24 ] When asked about the grounds for the demand she made to Mr. Hrynkiw under section 254(3), Cst. Kondratoff said that, as she was talking to him in the police vehicle, there were more and more signs of impairment.

She said these were: (1) the smell of beverage alcohol was getting stronger; (2) he was slow to answer; (3) he was nervous and giggling; and (4) he was confused about his middle name. [ 25 ] Cst. Kondratoff further said the roads were basically dry and she did not accept Mr. Hrynkiw’s explanation that swerving within his lane or slowing at the bridge was as a result of texting, as she didn’t detect any light as though he was texting when she was driving behind him. She, however, did not recall what type of cell phone he had and didn’t look at it as she didn’t believe he was texting.

Lastly, she said the time of night she stopped Mr. Hrynkiw was significant, as well, as this is the time of the day when many impaired incidents occur. [ 26 ] While I accept that Cst. Kondratoff honestly believed Mr. Hrynkiw was driving while impaired, I don’t accept that her belief was rationally sustainable on an objective basis. That is because at the point she brought Mr. Hrynkiw back to the police vehicle, I am satisfied she had only a suspicion he had alcohol in his body, and no more.

To that point in my view the evidence of his driving was entirely equivocal: at just after 10:00 p.m. he was moving back and forth in his lane and slowed to 80 kms. while going over a bridge on a rural highway in an area frequented by wildlife. Cst. Kondratoff did not see any sign of a cell phone in his vehicle while driving behind him, but chose not to take any further investigative steps about the nature or location of the phone after stopping him.

What in my view she had, after detaining him, was a suspicion he had alcohol in his body because of the alcohol on his breath and his admission he had a drink before he left the restaurant in Stenen. [ 27 ] The information added to this suspicion was a stronger smell of alcohol, he was nervous, slow to answer and giggling, and he said his middle name was John, then said it was Jonathan and then said it was John. Taken together, I am not satisfied that this additional information, while not irrelevant, was sufficient to raise a reasonable suspicion that Mr.

Hrynkiw had alcohol in his body to a reasonable belief he was committing the offence of impaired driving. As a result, I am satisfied that when Cst. Kondratoff arrested Mr. Hrynkiw for impaired driving and read him the breath demand under s. 254(3), his rights not to be arbitrarily detained or imprisoned (under s. 9 of the Charter ) and to be free from unreasonable search and seizure (under s. 8 ) were violated.

V. WOULD ADMISSION OF THE CERTIFICATE OF ANALYSES BRING THE ADMINISTRATION OF JUSTICE INTO DISREPUTE UNDER S. 24(2) OF THE CHARTER ? [ 28 ] Given my finding that Mr. Hrynkiw’s rights under ss. 8 and 9 of the Charter were violated at the point he was arrested by Cst. Kondratoff and read the breath demand under s. 254(3), the question becomes whether admission of the Certificate of Analyses from his breath tests would bring the administration of justice into disrepute, based on a balancing of: (1) the seriousness of the breach, (2) the impact of the breach on the Charter -protected rights of Mr.

Hrynkiw, and (3) society’s interest in the adjudication of the case on its merits. [6] [ 29 ] The arrest of any person without reasonable grounds is in a sense serious, but, that said, there were factors here which I view as mitigating. I am satisfied that this officer honestly believed Mr. Hrynkiw was driving while impaired. While her grounds fell short of what was objectively required in this case for an Intoxilyzer demand, nevertheless, what she had was more than a reasonable suspicion that Mr. Hrynkiw had alcohol in his body.

She was as well in a situation where she had placed reasonable reliance on another police officer to ensure that she had an operable ASD in her vehicle, and then discovered she did not. All of this happened when she was - as the only officer on duty from her detachment that evening - in a rural area some 20 kms. away from the RCMP detachment where she could get another ASD. [ 30 ] I find that the impact of the breach on Mr. Hrynkiw’s Charter protected rights was moderate.

While he was taken in the police vehicle and required to provide breath tests, the officer went directly to Sturgis - the nearest detachment office with an Intoxilyzer - then arranged for him to speak to a lawyer, took the breath tests and a brief statement from him, and released him.

He was not handcuffed at any point, and the officer brought him back to his vehicle to get his belongings, then drove him to his home in Canora. [ 31 ] There is no doubt that society’s interest in the adjudication of the case on its merits favours inclusion of the Certificate of Analyses into evidence, especially considering the readings obtained. [ 32 ] The decision of whether to exclude the Certificate of Analyses under s. 24(2) in this case must be taken in the context of the Supreme Court’s guidance in Grant [7] : While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted.

For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [ 33 ] While keeping in mind that it is the long term repute of the administration of justice that is to be considered, when I balance the three factors discussed above from Grant , I find that the admission of the Certificate of Analyses in this case into evidence would not bring the administration of justice into disrepute. As a result, I am not excluding the Certificate from the evidence. VI.

HAS IMPAIRMENT BEEN PROVED BEYOND A REASONABLE DOUBT? [ 34 ] In determining the issue of impairment, I have considered the evidence of Mr. Hrynkiw’s driving, and his personal actions and demeanour at the roadside and at the detachment - outlined above in this decision and in particular at paragraphs 23 to 27 - together with his demeanour and coherence in the recorded statement he gave at the detachment. In total, all of this evidence leaves me with a reasonable doubt that his impairment has been proved as required by law. VII. CONCLUSION

[35] Because I am satisfied that the statutory requirements under s. 258(1)(

c) have been proved by the Crown, the evidence as awhole, including the Certificate of Analyses, satisfies me beyond a reasonable doubt of Mr. Hrynkiw’s guilt on the .08 charge and he isfound guilty on count number one. Because the evidence tendered on impairment leaves me with a reasonable doubt of his guilt on theimpaired driving charge, Mr. Hrynkiw is found not guilty on count number two. R. Green, J [1] See R v Lomenda, 2015 SKCA 40. [2] (SCC), [1995] 1 SCR 254. [3] At para 72. [4] Ibid. [5] See R v Gunn, 2012 SKCA 80 at para 7. [6] R v Grant (2009), 2009 SCC 32 , 245 CCC (3d) 1 at para 72. [7] At para 111.