R. v. Duchominsky, 2012 MBPC 17

CITATION: R. v. Duchominsky , 2012 MBPC 17 Date: 20120201 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Derek Davidson, ) for the Crown ) and ) ) ) David Michael Duchominsky ) Mark Wasyliw, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) February 1, 2012 ) Guy P.J. DECISION ON VOIR DIRE ISSUES 1) “Reasonable Suspicion” 2) “Forthwith” 3) Calibration of ASD 4)

Section 10(a) 5) Section 24(2) Review FACTS [ 1 ] On June 12, 2011 at 2:10 a.m. R.C.M.P. Officer Tellier was in a marked police car parked on Roblin Boulevard near Hall Road facing eastbound. He noted an eastbound vehicle approaching from the rear clocked at a speed of 128 kilometres per hour in a posted 80 kilometres per hour zone. As the vehicle passed him he engaged his emergency lights and pulled the vehicle over. He conducted database checks on the licence plate (proving negative) and approached the driver’s side of the vehicle.

He approached the lone occupant and explained the reason for the stop, i.e., speeding. As the driver was giving his licence to the officer, the officer noted the smell of liquor inside the vehicle. The officer requested the driver to accompany him to the police car as he wanted to do a breath test inside the police vehicle to make sure he was okay to drive.

[2] The driver emptied his pockets and was placed in the rear of the police car. The officer indicated the driver had been pulledover at 2:10 a.m. and at 2:14 he was in the rear of the police car. The officer again noted the smell of liquor while the accused was insidethe police car. [3] At 2:17 the Approved Screening Device (“ASD”) demand was read. The officer accounted for the seven-minute delay fromthe initial stop until the ASD demand as follows: ran the licence plate through Telecoms, approached the vehicle, spoke to the driver,provided with driver’s licence.

He got him out of the vehicle, emptied his pockets, got him inside the police vehicle, ran his driver’slicence and jotted down a few notes. ASD demand was made at 2:17. [4] With respect to calibration of the ASD, the officer conceded there was an error in his notes with regard to unit initials and therewas no sticker on the instrument with respect to the date of calibration.

However, his evidence with respect to the calibration of theinstrument in question is as follows (transcript, page 29, lines 15-17): A I knew it was calibrated because I check on the white board and I also check the binders to ensure that the -- and (transcript, page 29, line 27, to page 30, line 2): A No, I knew, I knew it was good because on the white board it says the date and when the next calibration date is, andalso, like -- if I check -- we only do this once a month. I don’t need to check it every day to ensure that it’s calibrated. Once I’ve checkedonce -- Q Um-hum.

A -- for that particular time period, I know that it’s calibrated -- Q Okay. A -- up to, up to a certain date. There was no indication that the ASD was not working properly. ANALYSIS 1) Reasonable suspicion Law [5] The following cases are pertinent to the issue: • R. v. Donald, 2010 CarswellSask 626; 2010 SKPC 123 (at para. 18): The real issue is whether Cst. Lonsberry’s suspicion was objectively reasonable. While a reasonable suspicion is something more thanmere suspicion, it is also less than a belief based on reasonable and probable grounds.

It is a question of whether a reasonable person,observing the same set of circumstances, could hold the same suspicion. Reasonable suspicion of the presence of alcohol in the body is alower standard than reasonable grounds to believe the person is impaired by alcohol. Suspicion implies a belief or opinion based upon facts or circumstances which do not amount to proof. It does not need to be the only possible conclusion one could draw from theobserved factors in order to be reasonable.

The smell of alcohol on a driver’s breath alone, or evidence of consumption in any quantity isenough to base a reasonable suspicion. The officer is not required to smell alcohol on the driver’s breath or obtain evidence ofconsumption of alcohol in order to have a reasonable suspicion, but the absence of such evidence may negate the existence of reasonablesuspicion. • R. v.

Gilroy, 1987 ABCA 185 , 1987 CarswellAlta 299 (at para. 8): The essence of the offence is ascertainable, although the citizen affected might have hoped that Parliament could define, in less than 120words, a positive obligation carrying criminal consequences, for a mere failure to act. The offence does not call for proof beyond areasonable suspicion that the suspect driver has alcohol in his body, a valid demand and an invalid refusal. Legislative priority hasremoved the process from the Judge’s consideration of the degree of impairment that is displayed before the demand is made.

The test isconsumption alone and not its amount or behavioural consequence. Authority for this beyond the wording of the section, includes Hebbv. R. (1985), (NS CA), 33 M.V.R. 174, 17 C.C.C. (3d) 545, 66 N.S.R. (2d) 91, (sub nom. R. v. Hebb) 152 A.P.R. 91(N.S. C.A.); R. v. Talbourdet, (SK CA), 27 M.V.R. 46, 39 C.R. (3d) 210, [1984] 3 W.W.R. 525, 12 C.C.C. (3d) 173,32 Sask. R. 5 (Sask. Q.B.); R. v. Altsheimer (1982), (ON CA), 38 O.R. (2d) 783, 17 M.V.R. 8, 29 C.R. (3d) 276, 2C.R.R. 119, 1 C.C.C. (3d) 7, 142 D.L.R. (3d) 246 (Ont. C.A.).

As irritating and seemingly intrusive as the process may be to theconsuming but still sober driver, the requisites of the crime of refusing the demand fell to Parliament alone. • R. v. Carson, 2009 ONCA 157 (at para. 1): Leave to appeal is granted. With respect, the

Summary Conviction Appeal Judge erred in concluding that the investigating officer couldnot conclude, for purposes of making a roadside demand under s. 254(2) of the Code, that a driver has alcohol in his body by the smell ofalcohol on his breath. This court in R. v. Lindsay (1999), (ON CA), 134 C.C.C. (3d) 159 held otherwise. We affirmthe correctness of that decision. In any event, here, the officer had more than the smell of alcohol; he also had the respondent’s denialthat he had consumed any alcohol. Together, those two factors gave the officer the grounds he needed to make the s. 254(2) demand. • R. v. Nahorniak, 2010 SKCA 68 , 2010 CarswellSask 324 (at para. 26):

Mere failure to smell alcohol on a person’s breath is not fatal to forming reasonable suspicion. In this case, Nahorniak was in theback seat of a police cruiser. Knowles was not obliged to sniff various parts of Nahorniak’s body or the cruiser to eliminate allspeculative scenarios such as the smell coming from the cruiser itself or only the clothes of Nahorniak before he could have reasonablesuspicion. (See: R. v. Lindsay (1999), (ON CA), 134 C.C.C. (3d) 159 (Ont. C.A.), para. 2, R. v.

Shepherd, supra.)Whether it is necessary to isolate the accused’s breath as the source of the alcohol smell will depend on whether the source of the alcoholsmell is unclear given the circumstances. In this case it was obvious the smell was emanating from Nahorniak. • R. v. Monteyne, 2008 SKPC 20 , 312 Sask. R. 242 (at para. 30): In the case at bar, Cst. Hutchinson testified that the accused’s eyes appeared glassy and the accused was somewhat slurring hiswords. By themselves, these two subjective observations would not be sufficient to convince me of a reasonable belief that the accusedhad alcohol in his body.

However, Cst. Hutchinson also testified that he smelled alcohol coming from the accused. He testified that hefirst smelled alcohol while the accused was still seated in his vehicle. He then asked the accused to exit his vehicle and accompany himto the police vehicle. At the police vehicle, he could still smell alcohol coming from the accused, and again asked the accused aboutdrinking. Practically speaking, it seems to me that an individual will smell of alcohol for only one of two reasons: number one, someonehas spilled an alcohol-based drink upon him; or number two, he has been drinking.

It also seems to me that if the accused had a drinkspilled on him, that would have been instantly ascertained by the police officer. As a result, in my view, when a police officer smellsalcohol coming from an accused person, the only logical conclusion for the police officer to draw is that the accused person has beendrinking and as a result has alcohol in his body. In short, in my view, when a police officer testifies that he smells alcohol coming froman accused person, the police officer will most often have a reasonable suspicion that the accused has alcohol in his body, and an ASDdemand is justified.

In the case of R. v. Butchko, 2004 SKCA 159 (Sask. C.A.), our Court of Appeal adopted the Ontario Court of Appealdecision in R. v. Lindsay (1999), (ON CA), 134 C.C.C. (3d) 159 (Ont. C.A.). Both cases stand for the proposition thatan officer smelling alcohol on the breath of a driver will, without more, justify an ASD demand. [6] In analyzing the case law and facts of this case, the factors behind s. 254(2) of the Criminal Code of Canada as stated byMr. Justice Cory in the case of R. v. Bernshaw, (SCC), [1994] S.C.J. No. 87; [1995] 1 S.C.R. 254, at paragraphs 20 and21 are important.

He stated as follows: 20 To address the problem, Parliament enacted a two-stage statutory scheme set out in s. 254(2) and (3) of the Criminal Code toprovide a means of testing for driver impairment. Overly simplified, it may be said that at the first stage, a means of screening drivers isset out. It is a preliminary investigation aimed at determining whether a driver may constitute a danger to the public because of alcoholin his system. At the second stage, the statutory scheme is aimed at precisely determining the driver’s level of alcohol.

It is only at thissecond stage that it will be ascertained whether the alcohol level is over the prescribed limit, thus constituting a criminal offence. 21 The ALERT testing devices are simply tools approved by Parliament for use at the first stage of the investigation of drivers whomay be impaired. They provide a means whereby drivers can be quickly screened. The tested drivers will fall into two groups: those whohave alcohol in their systems and those who do not or only have a low level.

By this statutory scheme, Parliament has recognized theneed to balance the competing concerns of accuracy and convenience to the general motoring public. The ALERT test used as aninvestigatory tool obviously causes far less inconvenience to a driver than would a breathalyzer test.

A driver who fails an ALERT test isnot subject to criminal liability but may be required to take the more accurate breathalyzer test provided for in s. 254(3) of the CriminalCode. [7] And further, at paragraph 23: ...The two-stage investigative procedure set out in s. 254(2) and (3) and the ALERT test itself are designed to be both helpful to thepolice and convenient to the driving public. The ALERT test is a portable screening device which provides results quickly.

It enablespolice officers to rapidly confirm or reject their suspicions that a driver is impaired due to alcohol consumption.... [8] I further adopt the comments of Kovatch P.J. in R. v. Monteyne, 2008 SKPC 20 , 2008 CarswellSask 71, 312 Sask. R.242, at paragraphs 28 and 29: 28 As a result of all of the above, I do not say that no test or standard need be met by the police officer, or that a police officer isentitled to require every driver that is stopped to take the roadside screening device.

I do say, however, that the courts should fairly andappropriately interpret and apply s. 254(2) of the Criminal Code, and should not look to impose additional legal requirements on the useof the roadside screening device. Further, that on the whole, there are important policy reasons for encouraging police officers to utilizethis investigative tool, as opposed to discouraging the use of that tool. 29 In my view, this matter is best dealt with by a plain and literal

interpretation of s. 254(2). As mentioned above, under this section, apeace officer who “reasonably suspects” that the operator of a vehicle “has alcohol in his body” may demand a breath sample suitable foranalysis on the roadside screening device. Mr. H.C. Black's work, Black’s Law Dictionary, 6th ed. (St. Paul, Minn.: WestPub. Co., 1990)defines the terms “suspect” and “suspicion” as follows: • Suspect.

To have a slight or even vague idea concerning; - not necessarily involving knowledge or belief or likelihood. “Suspect”with reference to probable cause as grounds for arrest without warrant is commonly used in place of the word believe. A person reputedor suspected to be involved in a crime. • Suspicion. The act of suspecting, or the state of being suspected; imagination, generally of something ill; distrust; mistrust; doubt.The apprehension of something without proof or upon slight evidence. Suspicion implies a belief or opinion based upon facts orcircumstances which do not amount to proof. Using these

definitions and s. 254(2), in my view, any kind of reasonable belief or apprehension, without proof, “that the operator hasalcohol in his body” will be sufficient grounds to justify an ASD demand. This will not be a high or difficult standard for police officersto meet.

[9] Officer Tellier indicated as he spoke to the driver of the vehicle, the lone occupant, in order to explain the reason for the trafficstop, he noted the smell of liquor inside the vehicle.

At that point he asked the accused to exit and accompany him to the police vehiclebecause he wanted to do a breath test inside the vehicle to make sure the accused was okay to drive. [10] While the accused was in the police vehicle the officer again noted the smell of liquor (transcript, page 10, line 21, to page 11,line 5): A Well, I concluded that the smell was consistent with what I smelled initially, at the roadside, when he was in his police --with -- or in his own vehicle.

So I -- you know, basically, I determined in my mind that, yes, I suspected that he had liquor in his system,due to the fact that I was able to smell it when I first approached his vehicle -- his truck, truck driver door, as well as in the back of mypolice vehicle. There was nobody else in the, in the police vehicle that night. There was no smell of liquor in my police vehicle prior tome coming in contact with Mr.

Duchominsky, and in my experience, this was a Saturday night, I believe, it’s the weekend, it’s 2:00 in themorning, we do detect and apprehend a large number of, of drivers in this type of situation at those times of day, so, you know, my, myduties, as a traffic member, are to detect possible impaired drivers, and in our experience, you know, the time of day, at the time of day,as well as the day of week, are very consistent with us finding these types of drivers. [11] I concur with the defence in that the smell of liquor emanating from the vehicle was the sole factor on which the officer basedhis reasonable suspicion – he so testified as there were no other signs of impairment. [12] How could he not have a reasonable suspicion in the circumstances that the person had consumed alcohol and had operated themotor vehicle? [13] On the basis of Bernshaw and other cases these are circumstances in which the ASD has been legislated to meet both thepublic’s safety and the convenience of the driver.

In my view, this is exactly what this investigative tool is designed to achieve – timelyand effectual exposure of impaired drivers. [14] On the basis of the case law, the smell of alcohol alone emanating from the accused would constitute a reasonable suspicionpursuant to s. 254(2). [15] Even if I found the facts did not constitute “reasonable suspicion”, a review of the factors cited in the Grant decision, 2009 SCC32 , [2009] 2 S.C.R. 353:

a) Seriousness of the Charter-infringing state conduct;

b) Impact on the Charter-protected interests of the accused; and

c) Society’s interest in an adjudication on the merits; in the circumstances of this case would survive Charter challenge. [16] On the facts of this case I would find the alleged Charter-infringing state conduct not to be egregious in light of the officer’ssubjective and objective reasonable suspicion, there was minimal intrusion as there was no significant privacy issue impacted in thecircumstances and, finally, society’s interest in having the case decided on its merits is strong due to the nature of the charges and thereliability of the evidence. [17] In conclusion, reasonable suspicion has been established and there is no breach in these circumstances. 2) Forthwith [18] Officer Tellier testified at 2:10 a.m. he noted an eastbound vehicle travelling over the speed limit, 128 kilometres per hour in an80-kilometre per hour zone.

The officer made the ASD demand at 2:17 a.m. He explained the ensuring seven minutes as follows(transcript, page 13, line 19, to page 14, line 1): A Well, by the time I pulled the vehicle over, I go through telecoms to run the licence plate, approach the driver’s side of thevehicle, briefly talk to the driver, he provides his driver’s licence.

By the time I get him to step out of the vehicle, ask him to empty hispockets, get him back to the police vehicle, get him inside the police vehicle, quickly run his driver’s licence to ensure that he’s got avalid driver’s licence to see if there’s any outstanding warrants or anything on him, and also the time for me to, to quickly jot down a fewnotes leads me to 2:17. So from, from 2:10 to 2:17, to get all that done, is -- it’s fairly standard.

It does take a few minutes, by the timeyou go through telecoms, approach the driver’s side of the vehicle, briefly talk to the driver, ask him to exit his vehicle, by the time youget him back to your vehicle. So seven minutes is pretty standard to, to get all that done. [19] The Saskatchewan Court of Appeal in R. v.

Janzen (2006), 2006 SKCA 111 , 285 Sask.R. 296 (Sask C.A.), stated atparagraph 4: 4 Turning to the first, we note that the leading cases on the issues raised by this ground of appeal stand for the proposition that“forthwith” means without delay, or its equivalent, and demonstrate that the expression without delay is to be taken as meaning withoutunreasonable or unjustified delay": R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640; R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254; R. v. Dewald, (SCC), [1996] 1 S.C.R. 68; and R. v. Woods, 2005 SCC 42 ,[2005] 2 S.C.R. 205. (See, too, R. v.

Ritchie, 2004 SKCA 9 , [2005] 11 W.W.R. 593 (Sask. C.A.). We also note that the casesstand for the additional proposition that, in determining whether a particular roadside screening test has been administered forthwith, it isnecessary to have regard for the circumstances of the case, including the extent of the lapse of time and the reason for it, and to assessthe matter with the following considerations in mind: (

i) the balance between Parliament's objective in combating the evils of drinkingand driving, on the one hand, and the person's constitutional right to be free of unreasonable search or seizure, on the other; and (ii) thefact that a person's constitutional right to consult counsel is suspended upon demand to provide a sample of breath pursuant to section

254(4). [ 20 ] In the case of R. v. Brittain , 2000 SKQB 242 (Sask. Q.B.), the accused was stopped by police for speeding. She was placed in the back of the police cruiser and given a ticket for speeding. While she was in the back of the police cruiser, the police officer detected a smell of alcohol, and the accused then admitted that she had consumed alcohol. They made an ASD demand, and the test was administered approximately 12 minutes after she was stopped. The argument was made that the demand and test were not administered forthwith. [ 21 ] Mr.

Justice Gerein, as he then was, stated at paragraph 7: It is argued on behalf of the accused that the demand was unlawful because it was not made when the accused was actually operating the vehicle or had it in her care and control. The

section is drafted in the present tense and it is argued that this mandates that the demand be more or less contemporaneous with the operation of the vehicle. I am in general agreement with the submission with the proviso that there must be some flexibility in its application so as to take into account situations which may arise in the real world. This accords with what has been said in several cases. From my reading of the

section and the jurisprudence I consider the correct approach to be this. The

section contemplates the demand to submit to a roadside screening test being contemporaneous with the driving or the care and control. However, contemporaneous must be read to include the concept of recent. What is recent will depend on the particular circumstances, but it will be of relatively short duration. [ 22 ] In the Brittain case, the investigation was a continuous one from the time the vehicle was stopped until the accused supplied a breath sample, 12 minutes later.

As a result, the Court had no difficulty in determining that the demand and the test were properly administered inside the police vehicle, some 12 minutes after the stop was made. [ 23 ] As noted by the number of cases interpreting “forthwith”, the facts of each and every case will be crucial to the

interpretation. [ 24 ] I only note Janzen and Brittain to illustrate the proposition that “forthwith” means without delay and without delay is to be taken as without unreasonable or unjustified delay. The reason for that is clearly explained in R. v.

Woods and other cases noting lack of opportunity for contact with counsel. [ 25 ] However, each case will depend on the circumstances of the case, including the extent of the lapse of time and the reason for it. [ 26 ] On the specific facts of this case and the above-noted law, in my view, the demand was given “forthwith” and there was no Charter breach. [ 27 ] If I am wrong concerning whether or not there was a breach, in my view, any breach on these facts would survive Charter scrutiny pursuant to the Grant analysis. [ 28 ] In R. v. Grant , [2009] S.C.J. No. 32, [2009] A.C.S.

No. 32, 2009 SCC 32 , the Supreme Court of Canada stated at paragraph 71: When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [ 29 ] With respect to the seriousness of the Charter -infringing state conduct, the officer’s conduct was not egregious or undertaken with deliberate or reckless disrespect of the accused’s rights.

There was no bad faith. [ 30 ] With respect to the impact on the Charter -protected interests of the accused, the case law has noted that no significant privacy interest is violated in the circumstances of the detention or breath testing. While not trivial, such ASD testing is minimally intrusive, not demeaning or objectionable. There is a qualified nature of liberty interfered with when a motor vehicle is involved. [ 31 ] With respect to society’s interests in an adjudication on the merits, ASD tests are generally considered reliable evidence and are essential to the prosecutor proving the case.

I note the case law refers to impaired operation of a motor vehicle as a notorious threat to public safety but that the seriousness of the charge should not take on disproportionate significance. [ 32 ] In my view, the three lines of inquiry identified in Grant would allow the admission of the evidence. 3) Calibration of the ASD machine [ 33 ] In my view, this aspect became an issue because the officer admitted his error in his notes concerning the serial number of the ASD in question.

However, his evidence is quite clear in his evidence about the procedure at his detachment with regard to calibration of the Approved Screening Device, the need for accuracy and the procedure involved (transcript, page 29, lines 15-16): A I knew it was calibrated because I check on the white board and I also check the binders to ensure that the -- and (transcript, page 29, lines 27-31): A No, I knew, I knew it was good because on the white board it says the date and when the next calibration date is, and also, like – if I check – we only do this once a month.

I don’t need to check it every day to ensure that it’s calibrated. Once I’ve checked once --

[ 34 ] There was no indication from the officer’s testimony that there was any problem with the taking of the sample or with the machine operation. The officer was a certified operator since 2003 and would be aware of any malfunctioning indicated. [ 35 ] I am satisfied on the evidence before me that the ASD was functioning properly. 4)

Section 10(

a) issue [ 36 ] In my view, this issue has no factual substance. As quoted above, the accused was well aware why he was being asked to attend the police vehicle – to make sure he was okay to drive. [ 37 ] Having found that the officer had a reasonable suspicion to administer the ASD demand, the officer was still involved in a speeding investigation until the results of the demand may or may not turn into an impaired driving investigation. There was no breach in the facts of this case on this issue. [ 38 ] Officer Tellier testified as follows (transcript, page 7, line 25, to page 8, line 22): A Yeah.

When, when the driver rolled down his window, as I initially started talking to him, I noted the smell of liquor inside the vehicle. Q Okay. And you exchanged words with him? A Yes. Q Did you ask him any questions? A Well, I guess I, I told him the reason for the stop and asked -- Q What reason did you tell him? A I told him that he was speeding. He didn’t say anything about that, initially, and then as he was getting his driver’s licence, and I was standing by the window, I was, I was able to note the smell of liquor. Q Could you determine where it was coming from? A Coming from inside his vehicle.

Q And did you advise him of that? A Initially, no. I just asked him to -- after he provided his driver’s licence I asked him to step out of his vehicle and to accompany me to the police vehicle, as I told him that I could smell liquor, and I just wanted to make sure that he’s okay to drive before I let him go. Q And you indicated that in terms of his, his walking, his steady gait, things like that, there’s no signs of impairment? A There was no obvious signs of impairment at this time. He was being cooperative. He provided his driver’s licence.

I didn’t notice anything, you know, if he had a limp or nothing like that. His speech was clear. I wanted to merely assess what, if any, level of alcohol he potentially had in his body, so that’s why I, I asked him to accompany me to the police vehicle, to do a roadside screening device test in order to determine that. 5) Section 24(2) Review [ 39 ] In conclusion, I have found there to be no Charter breaches with respect to the issue of “reasonable suspicion”, “forthwith” or s. 10(

b) for the above-noted reasons. [ 40 ] As I have noted, even if a breach would have been found in the circumstances of this case, any breach would have survived the Grant analysis. [ 41 ] On balance, having regard to all the evidence, and the long-term repute of the administration of justice, the accused has failed to demonstrate that the admission of the evidence would bring the administration of justice into dispute. [ 42 ] The evidence will be admitted. Original signed by Judge J. P. Guy P.J.