Her Majesty the Queen - v. -, 2013 SKPC 105

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 105 Date: June 28, 2013 Information: 37292171 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ryan Stubel Appearing: Tamara Rock For the Crown Brent Little For the Accused JUDGMENT D.E. LABACH , J INTRODUCTION

[ 1 ] The accused, Ryan Stubel, was charged that he did operate a motor vehicle while his ability to do so was impaired by alcohol, contrary to section 253(1) (

a) of the Criminal Code , and further, that he was operating a motor vehicle while his blood alcohol was over .08, contrary to section 253(1)(

b) of the Criminal Code . [ 2 ] Prior to the accused’s trial date, his counsel filed a Notice of Charter Application alleging breaches of his client’s sections 7, 8, 9 and 10 Charter rights in a variety of ways. If any of these breaches were established, he asked the Court to exclude the impugned evidence pursuant to section 24(2) of the Charter or for a remedy pursuant to section 24(1) of the Charter . The Crown acknowledged receiving appropriate notice of these issues.

At the beginning of the trial, Defence advised that they would be abandoning the argument that the Crown failed to provide complete disclosure. [ 3 ] The trial commenced with a voir dire on these Charter issues. The Crown called four witnesses on the voir dire and the Defence called no evidence. Following the voir dire but before closing argument on the Charter issues, Crown and Defence asked to apply all evidence from the voir dire to the trial proper. Neither party had any further evidence to call on the trial proper and they both closed their respective cases.

They then made argument on all the issues on the voir dire and the trial proper. FACTS [ 4 ] On August 4, 2012, Carla Peters was driving on the Circle Drive freeway, heading towards downtown Saskatoon. As she was proceeding, she noticed a red Sunbird in the lane beside her. What caught her attention about this vehicle was how slow it was travelling compared to the rest of the traffic and the speed limit. [ 5 ] As she pulled up beside the Sunbird she noticed two people in the vehicle. The accused, who was driving, appeared to be tired and his eyes were droopy.

She was concerned about what she was observing so she called the police on her cell phone. As she did this, she dropped back behind the Sunbird to get its licence plate number. [ 6 ] The Sunbird proceeded north on the freeway and picked up speed. Ms. Peters continued to follow it and noticed that it was swerving within its lane and, on occasion, slightly out of its lane. Farther ahead on the freeway was an exit ramp to 1 st Avenue North. As the Sunbird and Ms. Peters approached this part of the freeway, a black Tiburon hit the barrier at this exit ramp and spun out.

Another motorist travelling behind the Tiburon stopped and called 9-1-1. [ 7 ] Darrell Palchinski was driving his white truck northbound on the freeway when he came upon the accident at the 1 st Avenue off ramp. As he continued past the accident, he noticed a vehicle with a Manitoba licence plate, stopped in the left hand lane. The vehicle looked like it had been in an accident. He stopped approximately fifteen feet behind this vehicle, put his flashers on and got out to help. [ 8 ] The driver of the Manitoba vehicle was upset and trying to get over the guardrail. She told Mr.

Palchinski that someone had rear ended her. As he was speaking with the driver, he noticed a red Sunbird come up behind him quite quickly and stop approximately a foot from his truck. [ 9 ] Mr. Palchinski went to the driver’s door of the Sunbird to speak to the driver and find out why he had pulled up so close to his vehicle. The accused driver would not look him in the eye, had his head down, was mumbling and smelled of alcohol. [ 10 ] As Mr. Palchinski was trying to speak to the accused, Ms. Peters drove up.

She had continued to follow the accused and at one point had noticed him get very close to the guardrail. Ms. Peters rolled down her window and told Mr. Palchinski that the Sunbird had been swerving while it drove down the freeway and she was on the phone with the police. [ 11 ] While they were speaking, the accused tried to back up and drive around Mr. Palchinski. Ms. Peters put the nose of her vehicle in the way so he could not drive away. After she did this, the Sunbird grazed the bumper of Mr. Palchinski’s truck and hit him in the knee. The accused began yelling at both of them to get out of the way.

As this was going on, a police officer arrived.

[ 12 ] Constable Chris Martin was on duty, working alone the evening of August 4, 2012. At 7:40 p.m. he was dispatched to a motor vehicle accident on the freeway at the 1 st Avenue off ramp. While enroute he got another dispatch indicating that one of the drivers involved in the accident may be impaired. He arrived on scene at 7:43 p.m. and noticed a damaged black Tiburon blocking the 1 st Avenue off ramp and two fellows standing beside it.

As he approached these two to speak to them about the accident, he received another call on his radio that a red Sunbird was trying to leave the accident scene and the driver may be intoxicated. [ 13 ] Constable Martin heard yelling. Looking around, he saw a red Sunbird and a fellow standing in front of it, blocking it from driving away. This fellow was yelling at the driver of the Sunbird to stay there until the police showed up.

The driver was yelling and swearing back at him. [ 14 ] Constable Martin approached the red Sunbird from the rear and observed it try to back up and go around the fellow standing in front of it. The officer yelled at the driver to put the vehicle in park, but the driver did not do so. He continued to back up almost hitting the median and then put the Sunbird in park. Constable Martin told the driver to get out of the vehicle. [ 15 ] The accused got out of the drivers door and after he got out, Constable Martin noticed that his eyes were glassy and bloodshot.

He continued to yell and swear at the people blocking his way. As he was yelling, the officer could smell beverage alcohol coming from the accused’s breath. [ 16 ] Based on what he had observed, Constable Martin entered into an impaired driving investigation. He was working alone and was also concerned that the accused would try and flee the scene so he placed him in handcuffs. At 7:48 p.m. he advised the accused why he was being detained and made an Approved Screening Device demand. [ 17 ] He placed the accused in the back of his police cruiser and had him blow into an Approved Screening Device.

The first time the accused blew, the sample was not suitable; the second time, he blew a “fail”. Given the fail result and the other observations he had made, Constable Martin arrested the accused for impaired driving and read him his right to counsel. When asked if he wished to call a lawyer, the accused responded “Yeah”. The officer read the accused the police warning and made a breath demand on him. When asked if he understood the breath demand, the accused said “Yeah, I’ll go.

Fuck it”. [ 18 ] Constable Martin called dispatch and requested that more police officers attend the scene to deal with the accident so he could take the accused to the police station for his breath tests. A few minutes later, three officers showed up and Constable Martin left with the accused. [ 19 ] Once at the Saskatoon police station, the accused was booked into detention and then taken to the phone room so he could speak with a lawyer. Constable Martin facilitated the call and left the accused in the phone room so he could speak to legal counsel in private. He checked on the accused some five minutes later.

The accused was no longer on the phone, however he was tearing out pages from the phonebook, chewing them and swallowing them. [ 20 ] Shortly thereafter, the accused provided two samples into an Intoxilyzer. The first sample was .23 and the second was .22. Constable Martin arrested the accused for driving while over .08 and served him with the appropriate paperwork. There was no one to come and pick him up from the police station so he remained in custody until he sobered up. [ 21 ] The accused’s first Court appearance on these charges was September 5, 2012.

The case was adjourned a couple of times while Crown and Defence worked through some disclosure issues. On November 20, 2012, the accused entered not guilty pleas to the charges and they were set for trial to April 23 and 24, 2013. Defence counsel set these dates even though he was asking for further disclosure. [ 22 ] Disclosure continued to be ongoing between the parties and was the subject of numerous telephone calls, telephone messages, emails and letters between Crown and Defence. It was discussed by the parties with a Judge at a case management conference on

February 8, 2013. By the middle of February, the Crown was of the view that disclosure was complete. Defence was still not satisfied and the issue was raised at another case management conference on March 22 nd . After this conference, the Crown disclosed a couple further documents and asked the Defence to identify any documents or disclosure he felt he did not have. The Defence did not respond to this Crown request and at the beginning of trial, he advised that he was abandoning his

section 7 Charter argument that disclosure was not complete. ISSUES

a) Was the accused’s

section 7 Charter right breached by the Crown not disclosing all relevant material to the Defence in a timely manner?

b) If the accused’s

section 7 Charter right was breached by disclosure not being provided in a timely manner, what is the appropriate remedy pursuant to section 24(1) of the Charter ?

c) Was there a violation of the accused’s sections 9 and/or 10 Charter rights when he was handcuffed by Constable Martin?

d) Were the accused ’ s sections 8 and/or 9 Charter rights breached by Constable Martin not having the requisite reasonable suspicion that the accused had alcohol in his body necessary to make an Approved Screening Device demand?

e) Did Constable Martin fail to perform the Approved Screening Device test forthwith, thereby violating the accused ’ s sections 8 and/or 9 Charter rights?

f) Did Constable Martin have the requisite reasonable grounds to make a breath demand on the accused?

g) Did the police fail to take samples of the accused ’ s breath as soon as practicable, thereby violating the accused ’ s sections 8 and/or 9 Charter rights?

h) If any of the sections 8, 9 or 10 Charter breaches are made out, should any evidence obtained as a result of those breaches be excluded pursuant to section 24(2) of the Charter ?

i) Were the accused ’ s breath tests taken as soon as practicable as required by section 258(1) (

c) of the Criminal Code ?

j) Is the evidence sufficient to prove that the accused ’ s ability to operate a motor vehicle was impaired by alcohol? ANALYSIS

a) Was the accused ’ s

section 7 Charter right breached by the Crown not disclosing all relevant material to the Defence in a timely manner? [ 23 ] In R. v. Pankiw , [2013] S.J. No. 169 (Sask. Prov. Ct.) I summarized the Crown’s duty to disclose as follows: [ 32] The law is clear that the Crown has a duty to disclose to the accused all information reasonably capable of affecting the accused's

ability to make full answer and defence. This includes not only information related to those matters the Crown intends to adduce inevidence against the accused but also any information in respect of which there is a reasonable possibility it may assist the accused. Thisobligation to disclose is subject to the discretion of Crown counsel to withhold evidence which is clearly irrelevant, privileged or itsdisclosure is otherwise governed by law. The timing of disclosure is also subject to Crown discretion.

While the Crown's general duty isto disclose information early enough to leave the accused adequate time to review and digest the information and to determine if andhow it will assist in making full answer and defence, the Crown has discretion to delay disclosure out of necessity to protect witnesses orto complete an investigation. See R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326 (S.C.C.) at paras. 19, 20, 28 and 29; R.v. Egger, (SCC), [1993] 2 S.C.R. 451 (S.C.C.) at para. 19; R. v.

McNeil, 2009 SCC 3 , [2009] 1 S.C.R. 66(S.C.C.) at paras. 14, 17 and 18. [24] Initial disclosure should occur before an accused is called upon to plead and/or elect their mode of trial and is triggered by arequest by the accused. However, it is important to remember that quite often the Crown’s file is not complete at an accused’s earlyCourt appearances as investigation or the gathering of material continues. As a result, the obligation to disclose is a continuingobligation and disclosure must be completed when additional information is received. See R. v.

Stinchcombe, (SCC),[1991] 3 S.C.R. 326 (S.C.C.) at paragraph 28; R. v. Athel, [2012] S.J. No. 60 (Sask. Q.B.) at paragraph 37. [25] The entitlement of an accused person to disclosure and, timely disclosure, from the Crown is a constitutional right guaranteedby

section 7 of the Charter. An accused person does not have to show that their ability to make full answer and defence was prejudicedby the Crown’s lack of disclosure or delayed disclosure. The onus is on the accused to establish the breach on a balance ofprobabilities. See: R. v. Carosella, (SCC), [1997] 1 S.C.R. 80 (S.C.C.) at paragraphs 26, 27 and 37. [26] In this case, the accused retained Mr. Little prior to his first scheduled Court appearance in Saskatoon Provincial Court. OnAugust 17, 2012, Mr. Little sent a letter to the Crown advising that he had been retained by the accused and requesting disclosure.

Thisletter itemized different pieces of disclosure he expected to receive, if they existed, and ended with the words: I further request that you continue to disclose the items above as you become aware of them. If you require any further explanationplease do not hesitate to contact my office. [27] Defence counsel received an initial disclosure package from the Crown on August 31st. Thereafter the accused’s charges were adjourned from time to time without plea.

On October 11th Defence counsel sent a follow up letter to the Crown itemizing disclosure he had requested in his earlier letter that had not as yet been provided. Despite not receiving a response to this October 11th letter, Defence entered a not guilty plea to the charges on the accused’s October 31st Court appearance. A trial date though could not beset because the trial coordinator was not available on that date. [28] On October 23rd and November 1st, the Crown sent additional disclosure to Defence.

On the accused’s next Court date, trial dates of April 23 and 24, 2013, were selected and the matter was set for case management to January 18th. [29] Sometime the week of January 14, 2013, Defence called the Crown and advised that there was still some disclosure outstanding from his initial request. The Crown responded by email on January 16th. She advised that there was no in-car camerafootage as there was no camera installed in Constable Martin’s police cruiser on the date of the incident and that the occurrence reportsrequested by Defence had already been disclosed to him.

She did indicate that requests had earlier been made to the police to providecalibration records for the Approved Screening Device and the Intoxilyzer used on the accused, for the video from the detention area,any audio recording made and any photographs taken, but to date, no response had been received. She stated that she was following upwith a further request for this information. [30] As a result of these disclosure issues, counsel agreed to adjourn the January 18th case management conference to February 8th.

At the February 8th case management, Crown provided some of the requested disclosure to the Defence, however the presidingJudge noted that the Intoxilyzer records, calibration records, detention video and photos of the accused were still outstanding. The case management was further adjourned to March 8th.

[ 31 ] On February 12 th , the Crown sent an email to Defence counsel advising that but for the further maintenance records for the Approved Screening Device and the Intoxilyzer, she was of the view that the Defence had complete disclosure. In relation to the maintenance records she had sent another request to the police to provide these.

She stated: Our position is that we have provided you with complete disclosure - but if there is something you perceive deficient in the disclosure I will try and remedy that as a courtesy to you. [ 32 ] On February 22 nd , Defence counsel sent a letter to the Crown setting forth what he perceived to be the deficiencies in the Crown disclosure. Of the eight deficiencies he noted, the Crown had previously provided two of them - a copy of the Information charging the accused and a verbal list of witnesses they intended to call at trial.

On March 4 th , the Crown provided another disclosure package to Defence addressing the deficiencies. [ 33 ] By the middle of March 2013, it appears that the only outstanding issue was in relation to the maintenance and calibration records of the Intoxilyzer and the Approved Screening Device used on the accused. The Crown had disclosed to Defence a number of documents relating to the maintenance and calibration of these instruments in accordance with their internal policy, but the Defence was asking for further instrument records beyond what the Crown had disclosed.

In an email to counsel dated March 21 st , the Crown stated: If you are asking for something other than what has been disclosed to you (or other than what I am currently seeking) please provide me with your rationale as to the relevance of the document you are requesting. [ 34 ] On April 8 th , Defence filed a Charter notice alleging, amongst other Charter breaches, that the Crown violated the accused’s

section 7 Charter right due to their refusal to provide complete disclosure of maintenance records for the Approved Screening Device and the Intoxilyzer used in this case. [ 35 ] On April 18 th , the Crown wrote the Defence a letter wherein she again advised that in her view, disclosure was complete. Wondering what further documents Defence wanted, she wrote: . . . . Given the way your initial disclosure letter is worded and the way point ii. is worded in your Charter notice, are you asking for the complete maintenance history of both the Alcotest and the Intoxilyzer?

More specifically, I ask you to particularize exactly what documents you are asking for and to indicate the relevance of these documents. The purpose of my request is twofold: I am not sure what documents you are requesting; therefore, I am not sure which documents will be the subject of the disclosure hearing on April 23 rd . Second, without understanding how you perceive these documents relevant, the Crown does not know what argument we have to meet at the disclosure hearing.

A related point, is that if you are able to articulate the relevance of the documents, it may be that the Crown will appreciate your argument and satisfy your request. Without knowing what you request and why, it is not possible to satisfy the request. [ 36 ] There is no evidence before me that Defence counsel ever responded to this April 18 th letter. No notice of a disclosure application was given to the Court and at the beginning of the trial, Defence abandoned the argument that the Crown had breached his client’s

section 7 Charter right due to their refusal to provide complete disclosure. [ 37 ] Disclosure is a fluid, ongoing process and this case is no exception. The Crown provided an initial disclosure package to Defence counsel prior to the accused’s first Court appearance. While it may not have been as complete as Defence had hoped, there is no evidence that it delayed the accused in determining how he wanted to plead. Defence counsel sent a follow up letter asking the Crown to provide the items from his disclosure letter that she had not provided in her initial package, but before any response from the Crown was

received, Defence entered not guilty pleas to the accused’s charges and set them for trial. Obviously the Crown had disclosed enough information in their initial disclosure package that the Defence had no trouble deciding how they wished to proceed. [ 38 ] Over the next number of months, the Crown sought out the further disclosure requested and continued to provide it as they obtained it from the police.

By mid-February 2013, the Crown told the Defence that disclosure was complete but to let her know if there was anything further he felt the Crown should be providing. [ 39 ] Defence counsel did provide a list of items he felt had not been disclosed. Some of these items had in fact been disclosed and other items, the Crown obtained and forwarded to Defence by early March. By mid-March, the only outstanding disclosure issue was some further maintenance and calibration records. The Crown had provided some of these records in accordance with their internal policy.

Again, they advised Defence that in their view, disclosure was complete. If Defence wanted any further maintenance or calibration records, the Crown wanted to know specifically what he wanted and why he felt they were relevant. If the Crown agreed the document was relevant they would provide it. Defence however, never responded to this Crown request. Instead they filed a Charter Notice alleging a violation of the accused ’ s

section 7 Charter right as a result of non-disclosure of these maintenance and calibration records. Despite this Notice, they did not pursue this argument at trial. [ 40 ] These facts do not satisfy me that the Crown has not disclosed material in a timely fashion and further, that the manner in which they did disclose material hampered the accused in making full answer and defence. It appears from the evidence that all disclosure was provided by the Crown at least one and one half months prior to trial, if not earlier.

As for anything else the Defence wanted, the Crown asked Defence to itemize what he wanted and why he felt it was relevant and she would consider his request. This manner of dealing with disclosure falls within the procedures set forth by Mr. Justice Sopinka, in Stinchcombe , supra . Unfortunately, Defence never identified anything further and ultimately he abandoned this argument. The trial was not adjourned or delayed, nor was a disclosure application required. [ 41 ] Defence counsel relied on Athel, supra, as support for his argument that the accused’s

section 7 Charter right was breached. But in Athel , the facts were considerably more egregious. Specifically, the accused’s preliminary hearing had to be adjourned because the Crown did not make full and timely disclosure and even then, the Defence had to make a disclosure application to get the disclosure they were entitled to. That was not the case here. The evidence in this case does not satisfy me that the accused’s ability to make full answer and defence as guaranteed by

section 7 of the Charter was breached by the manner in which the Crown provided disclosure or the time frame in which that occurred.

b) If the accused ’ s

section 7 Charter right was breached by disclosure not being provided in a timely manner, what is the appropriate remedy pursuant to section 24(1) of the Charter ? [ 42 ] Since I have determined that the accused’s

section 7 Charter right was not breached by the manner and timing of the Crown disclosure in this case, there is no need for me to consider an appropriate remedy under section 24(1) of the Charter and as such, I decline to do so.

c) Was there a violation of the accused ’ s sections 9 and/or 10 Charter rights when he was handcuffed by Constable Martin?

d) Were the accused ’ s sections 8 and/or 9 Charter rights breached by Constable Martin not having the requisite reasonable suspicion that the accused had alcohol in his body necessary to make an Approved Screening Device demand?

e) Did Constable Martin fail to perform the Approved Screening Device test forthwith, thereby violating the accused ’ s sections 8 and/or 9 Charter rights? [ 43 ] It is convenient to deal with these three issues together as their analyses are intertwined.

Section 8 of the Charter protects people from unreasonable search and seizure while

section 9 protects them from being arbitrarily detained or imprisoned.

Section 10 of the Charter gives certain rights to people who are arrested or detained, including the right to be informed promptly of the reasons for their arrest or detention and to retain and instruct counsel without delay.

[44] The police can only detain a person in accordance with the law. A lawful detention is not arbitrary within themeaning of

section 9 of the Charter unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized bylaw is arbitrary. (See: R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 (S.C.C.) at paragraph 54; R. v. Anderson, 2011 SKCA 13, [2011] S. J. No. 70 (Sask.C.A.) at paragraph 17) An investigative detention is a lawful detention as per R. v. Mann, 2004 SCC52 , [2004] 3 S.C.R. 59 (S.C.C.). Police officers may lawfully detain an individual for investigative purposes if there arereasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention isnecessary. [45] Once a person is detained,

section 10 of the Charter is immediately engaged and police have an obligation to informa person of the reasons they were detained or arrested and that they have a right to retain and instruct counsel without delay. Theimmediacy of this obligation is subject only to concerns for officer or public safety or to reasonable limitations prescribed by law andjustified under

section 1 of the Charter. This is so even on an investigative detention. See R. v. Suberu, 2009 SCC 33 , [2009] 2S.C.R. 460 (S.C.C.) at paragraphs 2, 37-42; R. v. Orbanski, 2005 SCC 37 , [2005] 2 S.C.R. 3 (S.C.C.) at paragraphs 30-33. [46] One such reasonable limit is that imposed by section 254(2) of the Criminal Code, the

section empowering the police todemand a roadside breath sample. The important role played by roadside breath testing makes the necessary limitation on the right toretain and instruct counsel at the roadside testing stage a reasonable one that is justified in a free and democratic society. Thus anindividual properly detained for the purposes of providing a sample into an approved screening device has no right to contact counselprior to performing the roadside test. See R. v.

Thomsen, (SCC), [1988] 1 S.C.R. 640 (S.C.C.). [47] In order to be detained for a roadside test, there must be compliance with the requirements of section 254(2) of the CriminalCode. These requirements are threefold: (1) a police officer must have reasonable grounds to suspect that in the preceding three hours aperson has been operating or in care and control of a motor vehicle, (2) they must have reasonable grounds to suspect that that person hasalcohol or a drug in their body, and (3) the sample must be provided forthwith.

If any of these requirements are not complied with, thedemand is unlawful and the provision authorizing the absence of a

section 10 Charter warning is not available. See R. v. Harvey, 2010SKPC 27 , [2010] S.J. 170 (Sask. Prov. Ct.) at paragraph 17; R. v. Mertins, [2012] S.J. 751 (Sask. Prov. Ct.) at paragraph 19. [48] In this case, Constable Martin’s investigative detention coincided with his handcuffing the accused. He handcuffed him toensure that the accused would not flee so that he could investigate the accused for impaired driving. Immediately thereafter ConstableMartin advised the accused that he was being investigated for impaired driving and he demanded a roadside breath sample.

All of thisoccurred very quickly and there was no significant gaps in any of these steps. [49] Constable Martin’s investigative detention of the accused for impaired driving was reasonable and objectivelysustainable on the totality of the information known to him at the time. He had received information from his dispatcher that the driverof a red Sunbird was attempting to leave the accident scene and was possibly impaired.

Immediately upon receiving this dispatch, heobserved the accused driving a red Sunbird a short distance away, trying to get around an individual who was telling him to stay put untilthe police arrived. The accused was yelling and swearing at this individual who was blocking his way. Upon attending on the accused,he noted some signs of impairment, most notably a smell of alcohol coming from his breath. He did not arrest the accused at this stage,but merely detained him.

His purpose in detaining him was to ensure he did not flee the scene so he could make a roadside screeningdemand to determine if arrest and further detention were warranted. As a result, he handcuffed the accused and immediately made theformal screening demand. [50] Defence counsel took issue with whether Constable Martin had a reasonable suspicion that the accused had alcoholin his body, and whether the roadside test was performed forthwith. A reasonable suspicion a person has alcohol in their body is a lowerstandard than reasonable grounds to believe the person is impaired by alcohol.

A reasonable suspicion is something more than meresuspicion, but less than a belief based on reasonable grounds. While this threshold is low, there nonetheless must be evidence capable ofdemonstrating that the officer had a reasonable suspicion that the person had alcohol in their body at the time and there must be objectiveevidence to support this conclusion. See: R. v. Donald, [2010] S.J. No. 567 (Sask. Prov. Ct.), aff’d at [2010] S.J. No. 683 (Sask.Q.B.); R.v. Beechinor, [2004] S.J. No. 187 (Sask. Prov. Ct.) at paragraph 23; R. v.

Kang-Brown, 2008 SCC 18 , [2008] 1 S.C.R. 456(S.C.C.) at paragraphs 164-166. [51] In the present case, at the time Constable Martin made the Approved Screening Device demand, he had received adispatch that a person in a red Sunbird was possibly intoxicated and attempting to leave the scene of the accident he was investigating. He saw the accused in a red Sunbird a short distance away from him trying to leave the scene. He observed the accused to have red,

bloodshot eyes, to be belligerent and to have an odour of alcohol coming from his breath. I reject the Defence contention that ConstableMartin could not have smelled alcohol coming from the accused’s breath, because none of the other witnesses testified that they smelledan odour of alcohol coming from the accused. Ms. Peters never spoke to the accused directly, nor got out of her vehicle. She was soconcerned about the accused’s behaviour that she rolled up her windows and simply sat in her vehicle, blocking his path. Mr.

Palchinskiattempted to engage the accused at the driver’s window of the Sunbird, but the accused would not look at him, had his head down, andwas mumbling as opposed to speaking directly at him. Mr. Palchinski was not trying to determine if the accused was impaired. Constable Martin on the other hand was a trained police officer, who specifically attended on the accused, knowing that he may beimpaired. He was focused on determining if the accused was impaired and to that end, he was paying attention to what, if any, indiciaof impairment were apparent.

He made notes of his observations and his testimony was consistent with those notes. He did notexaggerate his observations and had no motive to be untruthful. His observations supported his suspicion that the accused had alcohol inhis body. I am also satisfied that his belief was objectively reasonable. A reasonable person placed in the shoes of Constable Martinwould have no problem concluding that the accused had alcohol in his body. [52] I am also satisfied on the evidence that the roadside sample was provided forthwith. In R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 (S.C.C.), Mr.

Justice Fish said that the forthwith requirement in s. 254(2) relates both to a prompt demandby a peace officer and an immediate response by the person to whom the demand is addressed. In this case, Constable Martin attendedat the accident scene at 7:43 p.m. His attention was first focussed on the damaged black Tiburon and the individuals standing beside it. Eventually his attention was drawn to the accused and he went over to him. The accused was still behind the wheel, yelling at Mr.Palchinski and trying to back up. It took a few moments before the accused stopped and got out.

Constable Martin made someobservations that gave him the grounds for a roadside demand and at 7:48 p.m. he read the accused the formal demand from his policenotebook. He then took the accused straight back to his police vehicle and administered the test.

While it took two attempts for theaccused to provide a suitable sample, there is no evidence that the officer was doing anything else in the police vehicle except trying toadminister the roadside test. [53] The officer may not have kept detailed track of every minute of his time over this period, but irrespective of that, itwas five minutes from the time the officer showed up at the accident scene until he made the roadside demand, and immediatelythereafter the accused blew into an Approved Screening Device.

Taking into account the time the officer took to do these other things,he formulated his grounds, made the demand and administered the test within minutes. There is no evidence of any delay in this case,and I am satisfied that Constable Martin made the demand forthwith upon formulating his grounds and further that he administered thetest to the accused forthwith thereafter.

All the requirements of section 254(2) are made out on the evidence and as such, the roadsidedemand on the accused was lawful. [54] The defence argues that the act of handcuffing the accused was a de facto arrest and as such, unlawful and thereforearbitrary. They also take the position that Constable Martin arrested the accused for impaired driving when he exited his vehicle withouta basis to do so. They refer me to R. v. Vulic, 2012 SKQB 221 , [2012] S. J. No. 359 (Sask.Q.B.) and R. v. DiMaria, [2012]O.J. No. 2067 (Ont.C.J.) in support of their position. [55] In Vulic, supra, Mr.

Justice Laing found that the police suspicion that the accused was in possession of drugs was subjectivelyand objectively reasonable, however, he was not prepared to accept that it justified the officers handcuffing the accused behind his backand thereafter searching his personal possessions. At paragraph 22, he stated: [22] As noted per Iacobucci J. in R. v. Mann, supra, at paragraph 35, "The power to detain cannot ... become a de facto arrest", whichis what I conclude Cst. Schmidt effected on the accused in this matter.

It is police policy to handcuff a person upon arrest and to searchand seize all personal items on the person, which is what Cst. Schmidt did. An investigative detention does not justify interference withliberty by handcuffing the person behind his or her back in the absence of some facts justifying the handcuffing in the interests of officeror public safety, which facts are lacking in this matter... [56] Justice Laing’s decision accepts that there are occasions when handcuffing a person on an investigative detention is justified. However, the evidence before him did not support any such justification.

At paragraph 21, he stated: [21] Once the accused stepped out of his vehicle at Cst. Schmidt's request, no evidence was offered that suggested fight or flight on hispart. Cst. Schmidt attempted to justify handcuffing and searching the accused's person in the manner he did on the grounds of officersafety. However, I find this claim lacks an air of reality...

[57] In DiMaria, supra, a drinking and driving case, the trial judge did not accept the arresting officer’s testimony on a number ofkey points, most notably when and why he handcuffed the accused. On the evidence he did accept, the Judge found breaches of theaccused’s sections 8 and 9 Charter rights because Mr. DiMaria was in handcuffs for no good reason. [58] At first blush, there are a number of similarities between the DiMaria case and the accused’s case. However, there is onesignificant difference. In the present case, unlike DiMaria, there is a reason why Constable Martin handcuffed the accused.

He did so toensure that the accused did not flee the scene. His belief that the accused may try to flee was justified in the circumstances. Thedispatcher had alerted Constable Martin that the accused was trying to leave the scene, Constable Martin observed the accused trying toget around Mr. Palchinski, and Mr. Palchinski blocking his egress and telling him to stay there. The accused was belligerent and yellingand swearing at Mr. Palchinski to get out of his way and he ignored the officer’s direction to turn the vehicle off and get out.

It wasreasonable for Constable Martin to assume that the accused may try and leave and that he had to handcuff him to ensure that did notoccur. [59] If an officer has valid flight concerns, handcuffing an accused to ensure they do not run away while the officer investigates amatter is justified in the interests of both officer and public safety. This was Justice Laing’s view in Vulic, supra, and I agree.

Since Iaccept that this interference with the accused’s liberty was justified in these circumstances, the accused’s detention was therefore lawful,and not arbitrary. [60] The handcuffing of the accused and the investigative detention occurred virtually simultaneously, followedimmediately thereafter by the Approved Screening Device demand, which, as I have already found, was lawful. In these circumstances,the accused’s

section 10 Charter rights are suspended. Courts have long held that s. 254(2) is a reasonable limit on an accused’s right tocounsel, saved by s. 1 of the Charter (See: R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640 (SCC); R. v. Grant, (SCC), [1991] 3 S.C.R. 139 (SCC); R. v. Woods, supra.). Immediately after the accused failed the roadside test, he was arrested forimpaired driving and given his right to counsel. At no time prior to this did Constable Martin arrest the accused for impaired driving.

By his own admission, he did not have the grounds to arrest the accused for anything until he failed the Approved Screening Device test. [61] I am not convinced that these facts support a breach of the accused’s Charter rights. Given how quickly things moved fromthe initial handcuffing and detention to the Approved Screening Device test, to the arrest for impaired driving, the way the officerproceeded was not unreasonable.

As a result, I am not satisfied that any of the accused’s sections 8, 9 or 10 Charter rights were violated in the manner in which theaccused was detained, how the Approved Screening Device demand came to be made and how the test was administered.

f) Did Constable Martin have the requisite reasonable grounds to make a breath demand on the accused? [62] The test for whether a police officer has reasonable grounds to make a breath demand on a person has a subjective andobjective component. An officer must subjectively believe that a person has driven while impaired or over .08 in the preceding threehours, and that belief must be rationally sustainable on an objective basis. See: R. v. Gunn, 2012 SKCA 80 , [2012] S.J.

No.503 (Sask.C.A.) at paragraph 7. [63] In the present case, Constable Martin candidly admitted that without the accused’s “fail” result on the Approved ScreeningDevice, he did not have the grounds to arrested the accused for impaired driving. The information he did have at the time he made thebreath demand on the accused was as follows: - A dispatch that the driver of a red Sunbird was trying to leave the scene of the accident and was possibly impaired; - The accused was driving a red Sunbird; - The accused did not put the Sunbird in park when requested to do so. Instead, he backed up and almost hit the median;

- The accused was yelling and swearing at someone to get out of his way as it appeared he was trying to drive away; - The accused had glassy, bloodshot eyes; - There was an odour of alcohol coming from the accused’s breath; - The accused blew a fail reading on the Approved Screening Device. A fail reading means that the accused’s blood alcohol content wasover .08. [64] In R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 (S.C.C.), Mr. Justice Sopinka discussed whether a failreading per se can furnish reasonable grounds to demand a breathalyzer.

At paragraphs 49 and 50, he said: [49] It is clear that Parliament has set up a statutory scheme whereby a screening test can be administered by the police merely uponentertaining a reasonable suspicion that alcohol is in a person's body. The purpose behind this screening test is evidently to assist policein furnishing the reasonable grounds necessary to demand a breathalyzer. The roadside screening test is a convenient tool for confirmingor rejecting a suspicion regarding the commission of an alcohol-related driving offence under s. 253 of the Code.

A "fail" result may beconsidered, along with any other indicia of impairment, in order to provide the police officer with the necessary reasonable and probablegrounds to demand a breathalyzer. Normally, where a properly conducted roadside screening test yields a "fail" result, this alone will besufficient to furnish a police officer with such grounds. [50] Nonetheless, as I stated at the outset, it cannot be said that a "fail" result per se provides reasonable and probable grounds. If thatwere the case, it was open to Parliament to indicate this intention in the Criminal Code.

Yet, nowhere in s. 254 is it indicated that a "fail"result on an approved screening device is deemed to provide reasonable and probable grounds. Thus, it is necessary to determine as aquestion of fact in each case whether or not the police officer had an honest belief based on reasonable and probable grounds that thesuspect had committed an offence under s. 253 of the Code. [65] I accept that Constable Martin made the observations he testified that he made.

He was very forthright in his testimony aboutwhat he noticed and what he did not and admitted that his initial observations only justified a suspicion that the accused was drivingwhile his ability to do so was impaired. That is why he made the section 254(2) demand. He was aware that a fail reading wouldindicate that a person had a blood alcohol content greater than .08, so if the accused failed, that, along with his other observations, wouldconfirm his suspicions.

There is no evidence before me that Constable Martin improperly performed the Approved Screening Devicetest or that he had any reason to believe that the fail result was not an accurate result. Taking into account the fail reading and itssignificance, coupled with the officer’s observations, I am satisfied that a reasonable person would have concluded that the accused’sability to operate a motor vehicle was impaired. Given these findings, Constable Martin had the reasonable grounds to demand a breathsample and there is no

section 8 or 9 Charter breach.

g) Did the police fail to take samples of the accused’s breath as soon as practicable, thereby violating the accused’ssections 8 and/or 9 Charter rights? [66] The Defence is further challenging the admissibility of the breath sample results under section 254(3) of the Criminal Codeon the basis that Constable Martin’s breath demand was not made as soon as practicable and/or the breath tests were not given to theaccused as soon as practicable. If this were true, there would be a breach of the accused’s sections 8 and 9 Charter rights. [67] “As soon as practicable” does not mean immediately.

As was explained by Judge Allen in R. v. Chorney, 2008 ABPC 206, [2008] A.J. No. 794 (Alta. Prov. Ct.), it means: [37] . . . . "As soon as practicable" does not mean "as soon as possible"; rather, the phrase means "within a reasonably prompt time in

the circumstances." In meeting that standard the whole chain of events is considered and the Crown is not required to account for every minute the accused is in custody. The touchstone in determining whether the sample was taken "as soon as practicable" is "whether the police were acting reasonably." Subjective and objective matters are explored in meeting the standard. In some circumstances, some explanation may be needed for apparent delay. This evidence can be in the form of direct testimony or from inferences to be drawn from the evidence presented. [ 68 ] This phrase “as soon as practicable” also appears in section 258(1) (

c) of the Criminal Code . While this

section serves a different purpose than section 254(3) , the treatment of the phrase in both sections is the same. In R. v. Carriere , [2010] S. J. No. 499 (Sask. Prov. Ct.) , my brother, Judge Kalmakoff, defined this phrase as follows: [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 can reasonably be expected. The Crown is obligated to demonstrate, in all the circumstances, that the breath samples were taken within a reasonably prompt time.

There is no requirement that the Crown account for what happened every minute that the accused was in custody prior to the tests being taken, but as long as the delay can be explained to the satisfaction of the trial judge, the Crown is entitled to rely on the presumption in section 258(1) (c). This requires that there be some evidence from which the Court can infer an acceptable reason for the delay.

A significant delay which is completely unexplained provides no evidentiary basis upon which to find the delay is reasonable. [ 69 ] In the present case, Constable Martin testified as to the following times: 7:43 p.m. - arrived on scene; 7:48 p.m. - made an Approved Screening Device demand on the accused; 7:54 p.m. - accused failed his second Approved Screening Device test; 7:56 p.m. - made a breath demand on the accused; 8:00 p.m. - approximate time Cst.

Martin and accused arrived at Saskatoon Police Service; 8:15 p.m. - accused was placed in the phone room so he could speak to legal counsel; 8:20 p.m. - accused finished his lawyer call; 8:42 p.m. - first Intoxilyzer sample; 9:03 p.m. - second Intoxilyzer sample. [ 70 ] On these facts there was no delay in Constable Martin making a breath demand on the accused. He did not have the reasonable grounds to make a breath demand until the accused failed the roadside screening device.

That result, coupled with his other observations led Constable Martin to conclude he now had the reasonable grounds to demand that the accused accompany him back to the police station for the purposes of providing breath samples into an Intoxilyzer. Immediately after the fail reading was obtained the officer arrested the accused for impaired driving and read him his rights, the police warning and the breath demand. There was no delay in the officer making the breath demand. [ 71 ] The time frame from the officer making the breath demand until the accused provided his first breath test was forty-six minutes.

The evidence establishes that after the officer made the breath demand on the accused, he waited in his patrol car, at the accident scene, until other officers could show up to take control of the accident. The accident occurred on one of the busiest roadways in Saskatoon at a time when there was considerable traffic on the roadway. Had Constable Martin left the scene prior to other officers showing up, the public would certainly have been upset.

It only took his fellow officers some two to three minutes to arrive, and as a result I find his actions in this regard reasonable. [ 72 ] As soon as other officers arrived, Constable Martin left with the accused for the Saskatoon Police Station. The station was only a short distance from the accident and Constable Martin arrived there some time around 8:00 p.m. Once at the station, the accused was taken to the detention area and “booked in”. The booking procedure involves an accused being asked a number of questions, some forms being filled out and a number of items taken from him or her.

The accused would then have been asked again if he or she wished to contact legal counsel and if so, they would have been placed in a phone room to facilitate that call. Here, Constable Martin does not

have specific times as to when these things occurred, except that he made a note that the accused was placed in the phone room at 8:15p.m. It is reasonable that this intake period could have taken up to 15 minutes, give or take what time the officer arrived at the stationwith the accused. There is nothing unreasonable about this time frame. [73] The accused spent five minutes on the phone with a lawyer. Once the call was completed, the accused and the officer went toan interview room to wait for the breath technician to prepare the breath instrument for the first test.

Over this time period, Constable.Martin observed the accused to ensure that he did not ingest or throw up anything. At 8:39 p.m. he turned the accused over to the breathtechnician and the first breath test was performed at 8:42 p.m. Once that test was completed, the breath technician took the accused backto the interview room, where once again Constable Martin observed him until the breath technician was ready to perform the secondbreath test. The second test occurred at 9:03 p.m. [74] In my view, this time frame was adequately explained.

Not every minute that goes by must be explained in order for the teststo have occurred as soon as practicable. See R. v. Vanderbruggen (2006) (ON CA), 206 C.C.C. (3d) 489 (Ont. C.A.)at paragraph 13; R. v. Zemlak, 2013 SKQB 34 , [2013] S.J. 64 (Sask.Q.B.) at paragraph 26. The breath technician did not giveevidence in this case but Constable Martin testified that while they were waiting in the interview room, the breath technician waspreparing the Intoxilyzer. Once the machine was ready the breath technician came and got the accused.

The first test took a fewminutes and then the accused had to wait until the second test could be performed. The breath instrument will not let the second testoccur until the requisite 20 minute time period has passed. In this case, 21 minutes after the first test, the second test occurred. [75] Taking this entire time frame into account, I am satisfied that the accused’s breath tests were taken as soon as practicable, andconsequently there has been no violation of the accused’s sections 8 or 9 Charter rights.

h) If any of the sections 8, 9 or 10(

b) Charter breaches are made out, should any evidence obtained as a result of thosebreaches be excluded, pursuant to section 24(2) of the Charter? [76] Since I have concluded that none of the accused’s sections 8, 9 or 10 Charter rights have been violated in this case, there is noneed to address the issue of exclusion of evidence, and I decline to do so.

i) Were the accused’s breath tests taken as soon as practicable as required by section 258(1)(

c) of the Criminal Code? [77] For all of the same reasons set forth in paragraphs 66 to 75, I am satisfied that the accused’s breath tests were taken as soon aspracticable as the term appears in

section 258, and as such, the Crown can avail themselves of the presumption set forth in section258(1)(

c) of the Criminal Code.

j) Is the evidence sufficient to prove that the accused’s ability to operate a motor vehicle was impaired by alcohol? [78] In order to convict an accused of a section 253(1)(

a) Criminal Code offence, a trial judge must be satisfied beyond areasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairmentestablishes any degree of impairment, ranging from slight to great, the offence has been made out. See: R. v. Stellato, (ON CA), [1993] O.J. No. 18 (Ont.C.A.), aff’d (SCC), [1994] S.C.J. No. 51 (S.C.C.). [79] The evidence of impairment comes from all three witnesses in this case. Carla Peters testified that she first noticed theaccused on the freeway travelling very slowly.

She pulled up beside his vehicle and noticed that he looked tired and his eyes weredroopy. She continued to follow the accused and observed his vehicle to pick up speed, swerve within his lane and on one occasionslightly out of his lane and come very close to hitting a guard rail. [80] Darrell Palchinski had stopped his vehicle on one of the northbound lanes to assist a driver that had been in anaccident and was also now stopped on the freeway. He observed the accused, come up behind his truck quite quickly and stopapproximately a foot from his back bumper. This, despite the fact that Mr.

Palchinski had his flashers on. He thought this driving

strange and tried to speak to the accused. But the accused would not look him in the eye, had his head down, was mumbling, and hesmelled of alcohol. He observed the accused try to drive away and in the course of so doing, he grazed the bumper of his truck and hithim in the knee. The accused then began yelling and swearing at Mr. Palchinski and Ms. Peters to get out of his way. [81] Within minutes of the observations of Ms. Peters and Mr. Palchinski, Cst. Martin heard the accused yelling and swearing.

Hewent over to speak to the accused and observed him almost back into the median and ignore the officer’s comments to put the vehicle inpark. He saw the accused had red, bloodshot eyes, smelled alcohol coming from his breath. [82] There is evidence of erratic driving, erratic behaviour and some of the usual signs of impairment. While there is not evidenceof gross impairment, there is evidence of impairment that nonetheless satisfies me beyond a reasonable doubt that the accused’s ability todrive a motor vehicle was impaired by alcohol on August 4, 2012.

CONCLUSION [83] Having not found that any of the accused’s Charter rights were violated, the exhibits from the voir dire, being the AgreedStatement of Fact, and the Certificate of Qualified Technician, will be entered as full exhibits on the trial proper. [84] As such, the evidence in the Certificate of Qualified Technician is that the accused’s blood alcohol readings at 8:42p.m. on August 4, 2012, was 230 milligrams of alcohol in one hundred millilitres of blood, and at 9:03 p.m., that same day, 220milligrams of alcohol in one hundred millilitres of blood.

The Crown, having met the requirements of section 258(1)(

c) of the CriminalCode, is entitled to rely on the presumption that these readings are indicative of the accused’s blood alcohol at the time of driving. Onthat basis, I am satisfied beyond a reasonable doubt that the accused was operating a motor vehicle while his blood alcohol exceeded .08and I find him guilty of section 253(1)(

b) of the Criminal Code. [85] The evidence has also established beyond a reasonable doubt that at the same time, the accused was driving while his abilityto do so was impaired by alcohol and as a result, he is also guilty of section 253(1)(

a) of the Criminal Code. Given the accused’sconviction on the charge of driving while over .08 and considering the rule against multiple convictions set forth in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729 (S.C.C.), I will enter a judicial stay on the charge of impaired driving. ___________________________________ D. E. Labach, J