Her Majesty the Queen - v. -, 2011 SKPC 146

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 146 Date: December 16, 2011 Information: 24373752 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Derek G. Lomenda Appearing: Mr. Daryl Bode For the Crown Mr. Shane Wagner For the Accused JUDGMENT R. GREEN , J I. OVERVIEW [ 1 ] Derek Lomenda is charged with driving a motor vehicle while impaired by alcohol or a drug and with driving over the legal limit of .08. On October 11, 2009, at 8:17 p.m., Sgt. Ronald Macrae of the RCMP stopped Mr.

Lomenda on Queen Street, which is a highway bypass to the City of Yorkton. After Mr. Lomenda stopped on the shoulder of the highway, the officer spoke with him through the driver’s window, and then had him step out of his vehicle. The two spoke again outside, between the subject vehicle and the police vehicle.

[2] To this point, Sgt. Macrae had smelled alcohol on Mr. Lomenda’s breath, had noted that his eyes were red and bloodshot andthought Mr. Lomenda looked sleepy. At 8:21 p.m. the officer told Mr. Lomenda to come back to the police vehicle for a roadside test. Inside that vehicle Sgt. Macrae gave him the formal Approved Screening Device (ASD) demand at 8:23 p.m., but then, after somefurther discussion with him, waited 13 minutes before he had Mr. Lomenda blow into the ASD (at 8:36 p.m.). This resulted in a failreading which was reported by the officer to Mr. Lomenda at 8:37 p.m.

Subsequent Intoxilyzer tests of 140 and 150 mg% were obtainedfrom Mr. Lomenda at 9:03 and 9:29 p.m. at the Yorkton Rural RCMP Detachment. [3] The issues to be determined in this case are: 1. Is there proof beyond a reasonable doubt that Mr. Lomenda’s ability to operate a motor vehicle was impaired by alcohol or a drug thisevening? 2. Were Mr. Lomenda’s rights under ss. 8, 9 and 10(

b) of the Charter of Rights and Freedoms violated as a result of the time Sgt.Macrae waited before administering the ASD to him? 3. If Mr. Lomenda’s rights were violated, should evidence of the results of the ASD test and the Intoxilyzer tests be excluded under s.24(2) of the Charter? II. IS THERE PROOF BEYOND A REASONABLE DOUBT THAT MR. LOMENDA’S ABILITY TO OPERATE A MOTORVEHICLE WAS IMPAIRED BY ALCOHOL OR A DRUG? [4] Sgt. Macrae testified that he stopped Mr. Lomenda to check his driver’s licence, vehicle registration and sobriety. In cross-examination, he said Mr.

Lomenda’s manner of driving did not raise his concern. As noted above, the officer smelled alcohol on Mr.Lomenda’s breath, and observed him to appear sleepy, with red and bloodshot eyes. No other symptoms or behaviour, which could havebeen consistent with impairment by alcohol, were noted by Sgt. Macrae. Indeed, the officer candidly admitted that he did not havesufficient grounds to believe that Mr. Lomenda’s ability to operate his vehicle was impaired by alcohol at the point he arrested him forthe offence of driving over .08. [5] Applying the test established by the Supreme Court of Canada in R. v.

Stellato, (SCC), [1994] 2 S.C.R. 478,I have a reasonable doubt that Mr. Lomenda’s ability to operate a motor vehicle was impaired by alcohol or a drug this evening. III. WERE MR. LOMENDA’S RIGHTS UNDER SS. 8, 9 AND 10(

B) OF THE CHARTER VIOLATED BECAUSE OF THETIME SGT. MACRAE WAITED BEFORE ADMINISTERING THE ASD? [6] Section 254(2) of the Code provides, in part, that where a peace officer reasonably suspects that a person who is operating amotor vehicle has alcohol in his body, the officer may by a demand made to that person, require the person to provide forthwith a sampleof breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an ASD. [7] The Saskatchewan Court of Appeal considered the meaning of “forthwith” in this subsection in R. v. Janzen (2006), 2006SKCA 111 , 285 Sask.

R. 296 and in R. v. Ritchie, 2004 SKCA 9. In Janzen, the Court defined the term to mean without anunreasonable or unjustified delay (at paragraph 4). In Ritchie, the Court (at para. 17) said “forthwith” meant “as soon as possible andbefore there is any realistic possibility that the subject could successfully contact counsel and get legal advice”. [8] In R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640, the Supreme Court found that the

section authorizing thetaking of an ASD test (the forerunner of s. 254(2)) limited the right to retain and instruct counsel under s. 10(

b) of the Charter, but foundthat this limitation was demonstrably justified in a free and democratic society under s. 1 of the Charter. The Court said the Codeprovision meant the ASD test was to be administered “as quickly as possible” (para. 19).

[ 9 ] Mr. Wagner argues that Mr. Lomenda was not given the opportunity to provide a sample “forthwith” to Sgt. Macrae, and that, as a result, the manner in which the ASD sample was obtained from him was not lawful and constituted a breach of Mr. Lomenda’s rights: (1) to be secure against unreasonable search or seizure (under s. 8 of the Charter ); (2) not to be arbitrarily detained (under s. 9 ); and (3) to retain and instruct counsel without delay and to be informed of that right (under s. 10(b) ). [ 10 ] The central issue is whether the officer was entitled to wait until 8:36 p.m. before having Mr.

Lomenda blow into the ASD. An answer to this question requires a detailed consideration of what happened at roadside. The best evidence on that comes from the video taken by the camera in Sgt. Macrae’s police vehicle (Exhibit P-1). That video includes sound captured from the microphone worn by this officer and discloses the following chronology: 20:17: Sgt. Macrae stops Mr. Lomenda, on Queen Street in Yorkton. 20:18: The officer approaches the driver’s side window, and asks for Mr. Lomenda’s driver’s licence and registration. He puts his head into the driver’s window, toward Mr.

Lomenda, and asks him if he has been drinking alcohol. Mr. Lomenda responds: “Just one”. The officer asks if Mr. Lomenda is looking sleepy and whether he has had more than one drink. Mr. Lomenda answers “no” to both questions, and when asked why his eyes are red, replies: “My eyes are always red”. 20:20: Sgt. Macrae asks him to step out of the vehicle, and to come back to the space between the two vehicles. He then asks Mr. Lomenda, further, about his drinking, and Mr. Lomenda responds: “I had one about 15 minutes ago”, and then denies drinking other alcohol that day.

When asked if he is feeling ill, he says he is “not feeling great”, and, when asked about medication, says he is taking dilantin. Mr. Lomenda further admits that he is drowsy. 20:21: Sgt. Macrae tells Mr. Lomenda to come with him to the police vehicle to take a roadside test. The two walk toward the police vehicle and Mr. Lomenda is placed in the back seat. 20:23: There is a brief discussion about whether Mr. Lomenda has taken an Approved Screening Device (ASD) test before. Sgt. Macrae then reads the ASD demand to Mr. Lomenda. 20:24: Mr. Lomenda says he understands the demand.

The officer then asks: “You said you had your last beer 15 minutes ago, could it have been sooner?” Mr. Lomenda responds: “Well, possibly, I don’t know, I wasn’t timing it.” Sgt. Macrae then says he is going to wait 15 minutes, and there is discussion about Mr. Lomenda’s 15 year old son who is seated in the Lomenda vehicle. There is no discussion between the two for the next six to seven minutes. 20:31: Mr. Lomenda tells Sgt. Macrae that he was at his parents’ place in Esterhazy and that he “had more than one”. When the officer suggests he looks sleepy, Mr. Lomenda says: “My eyes are always red”. 20:32 Sgt.

Macrae then asks: “How many did you have?” Mr. Lomenda responds: “About four over a two hour period”. The officer then asks when his last drink was, and Mr. Lomenda says: “Forty-five minutes before you stopped me.” 20:36: Sgt. Macrae presents the ASD to Mr. Lomenda. 20:37: The officer reports a fail reading. [ 11 ] Sgt. Macrae testified that the reason he waited 15 minutes before administering the ASD in this case was his concern about obtaining a false positive result due to the presence of mouth alcohol (pages 29 - 32 of transcript). He was sceptical about whether Mr.

Lomenda, like others he had stopped in his career, accurately recalled when his last drink was and believed that Mr. Lomenda’s last drink could have been less than 15 minutes before being stopped.

[12] Sgt. Macrae is a Unit Commander in the RCMP’s Traffic Services and teaches evidentiary breath testing to other RCMPmembers, which I take to include how to use the ASD. He testified that, when Mr. Lomenda eventually told him that his last drink was45 minutes before the officer stopped him, he began the process of getting the ASD ready for the breath test (page 32, lines 4-8 oftranscript). [13] Ultimately, the question to be answered can be simply stated. Sgt. Macrae waited 15 minutes from when he formed hisgrounds to request an ASD sample from Mr. Lomenda before administering the test to him.

Did he obtain the sample “forthwith” fromMr. Lomenda in compliance with s. 254(2)? [14] In R. v.

Bernshaw (1995), (SCC), 95 C.C.C. (3d) 193 (S.C.C.), Sopinka J. said the following (at page 219)regarding the potential limits of basing reasonable and probable grounds solely on an ASD test: If the scientific evidence establishes a high degree of unreliability with respect to the screening device when certain conditions prevail,and if a police officer knows, for example based on his or her training, that the resultant screening device will provide inaccurate resultswhere a suspect has consumed alcohol within the 15 minutes prior to administering the test, how can the police officer testify that he orshe had an honest belief of impairment, absent other indicia?

Surely the knowledge that the screening test is unreliable would vitiate anysubjective belief that an officer may have regarding reasonable and probable grounds of the commission of an offence under s. 253 of theCode. A police officer will have difficulty in concluding that such a flawed test upgrades one's mere suspicion into reasonable andprobable grounds.

If the police officer is to give an honest answer as to his belief, I cannot see how, as a matter of law, we can tell theofficer that the answer is wrong. [15] Justice Sopinka, however, went on to find that the officer in that case, who made no inquiry on when the driver’s last drinkwas, did not know whether the driver had consumed alcohol within 15 minutes of the ASD test, and said that, without this knowledge, “itis too speculative to assert that the screening device test was unreliable”. [16] In R. v. Pierman (1994), (ON CA), 19 O.R. (3d) 704 (Ont.

C.A.), Arbour J.A. said the following aboutwhen a police officer was entitled to delay taking an ASD sample: In my view, a police officer cannot delay the taking of a breath sample, when acting pursuant to s. 254(2) of the Criminal Code, unlesshe or she is of the opinion that a breath sample provided immediately will not allow for a proper analysis of the breath to be made by anapproved screening device. The officer is not required to take a sample that she or he believes is not suitable for a proper analysis. Theexpression "proper analysis" incorporates an element of accuracy.

A police officer may be of the opinion that a breath sample which hasbeen recently contaminated, by cigarette smoke or by the recent consumption of alcohol, will not provide a basis for a proper analysis. Ifthere are facts which cause the officer to form the opinion that a short delay is required in order to obtain an accurate result, I think thatthe officer is acting within the scope of the

section in delaying the taking of the breath sample. In such a case, as I indicated earlier, I donot think that it matters whether the officer postpones making the demand or postpones administering the test after having made thedemand. (at para. 21) [17] Sgt. Macrae was of the opinion in this case that the presence of mouth alcohol - whether by recent consumption, by vomitingor by regurgitation by Mr. Lomenda - could cause a false positive, or fail, reading on the ASD. The officer testified that it was “standardprocedure” to wait 15 minutes before taking the ASD test (transcript page 105, lines 1 - 5).

While such a blanket approach is, to say theleast, questionable in view of the Charter jurisprudence I note above, the issue is whether in this case Sgt. Macrae’s subjective belief thatit was necessary to wait 15 minutes from when he came to believe Mr. Lomenda had alcohol in his body, to avoid a false positivereading on the ASD, was reasonable. [18] I accept that it was. That is because:

(1) Mr. Lomenda admitted that it was possible he had his last drink less than 15 minutesbefore and further admitted he wasn’t keeping track of when his last drink was; and

(2) Sgt. Macrae’s scepticism that Mr. Lomendaaccurately recalled when his last drink had been was well founded as, during the waiting period, Mr. Lomenda changed his version bothon how much he had consumed that day -increasing this to four over a two hour period - and on how long it had been since his last drink- increasing this to forty-five minutes before he was stopped.

[ 19 ] Further, I am not satisfied that there was any realistic possibility that Mr. Lomenda could have successfully contacted counsel and received legal advice before the ASD was administered. Sgt. Macrae had a cell phone on him, but said he did nothing to assist Mr. Lomenda in contacting a lawyer because of a lack of privacy to allow for this to happen. I accept that this was a valid reason given: (1) the proximity of the officer to Mr.

Lomenda; (2) the reality that their exchange was being recorded on video; and (3) the significant safety concerns with either man exiting the vehicle to facilitate a cell phone call, as both vehicles were on the shoulder of a busy highway in the dark of night. [ 20 ] As well, Mr. Lomenda’s son was in his vehicle, and Sgt. Macrae was in a position where he could not safely leave this boy by himself at the roadside, and had to wait for another police officer to arrive on the scene. As a result, it was not a realistic alternative to transport Mr.

Lomenda immediately to the RCMP Detachment to use a land line there, while waiting to take the ASD sample. [ 21 ] As I am satisfied: (1) that Sgt. Macrae was justified in waiting a total of 15 minutes before administering the ASD; and (2) that there was not a realistic possibility that Mr. Lomenda could have contacted a lawyer and received legal advice before the ASD test, I am further satisfied that the ASD sample was taken “forthwith” and in compliance with s. 254(2) .

In my view this ASD test was taken without an unreasonable or unjustified delay , applying the standard from Janzen , and as soon as possible and before there was any realistic possibility of Mr. Lomenda contacting a lawyer and getting legal advice, applying the standard from Ritchie . [ 22 ] In totality, I am not satisfied that Mr. Lomenda’s rights pursuant to ss. 8 , 9 or 10(

b) of the Charter were violated by Sgt. Macrae’s delay in administering the ASD to him. The defence application under s. 24(2) of the Charter is, therefore, dismissed. IV. IF MR. LOMENDA ’S RIGHTS UNDER THE CHARTER WERE VIOLATED, SHOULD THE EVIDENCE OF THE BREATH TEST BE EXCLUDED? [ 23 ] Because I am not satisfied on a balance of probabilities that Mr. Lomenda’s rights under the Charter were violated, this question need not be answered. V. CONCLUSION [ 24 ] Regarding the impaired driving charge, because I hold a reasonable doubt that Mr.

Lomenda’s ability to operate a motor vehicle was impaired by alcohol or a drug this day, he is found not guilty on count 1. Regarding the driving over .08 charge, on the evidence presented, I am satisfied beyond a reasonable doubt that the Crown has proven all requisite elements of this offence. Mr. Lomenda is found guilty on count 2. R. Green, J