Her Majesty the Queen - v. -, 2014 SKPC 207

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 207 Date: November 26, 2014 Information: 43842523 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joshua Eufemia Appearing: Darren Howarth For the Crown Ron Piché For the Accused JUDGMENT D.A. LAVOIE , J [ 1 ] The accused stands charged as follows: (1) on or about the 31 st day of August, A.D. 2013 at or near Saskatoon, Saskatchewan did while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code ; (2) on or about the 31 st day of August, A.D. 2013 at or near Saskatoon, Saskatchewan did having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle,

contrary to section 255(1) and section 253(1) (

b) of the Criminal Code . [ 2 ] Defence had given notice of Charter issues and at the commencement of trial the Court and counsel discussed technical procedural matters. It was agreed that we would first proceed by entering into a voir dire in relation to Charter issues.

The final process unfolded as follows: 1 st the Crown called all its evidence on the voir dire ; 2 nd Defence elected to call no evidence on the voir dire ; 3 rd all the evidence on the voir dire was applied by consent to the trial proper; and 4 th Defence elected to call no evidence on the trial proper. [ 3 ] Given this procedure the Court in this decision will make rulings in the following sequence: 1 st were there any violation of the accused’s Charter rights? 2 nd if yes, what is the proper remedy pursuant to s. 24(2) of the Charter ? 3 rd The Court will then rule on the issues from the trial proper and give a final determination. [ 4 ] Defence raised the following issues in the context of a Charter application: 1) Did the investigating officer have reasonable grounds to make an ASD demand pursuant to s. 254(2) of the Criminal Code ; 2) Did the investigating officer make the s. 254(2) ASD demand “forthwith” as required by jurisprudence in this area. 3) Defence argued that the police did not comply with the implementational aspect of the accused’s s. 10(

b) rights to counsel. [ 5 ] The following is a

summary of the evidence forthcoming from the witnesses. [ 6 ] Officers M. Scanlan and P. Foster were in a marked police vehicle and returning to the police station at the end of their shift on August 31, 2013. It was around 2:20 a.m., they were proceeding south on 2 nd Avenue, one of the main thoroughfares in the downtown district. They met the accused’s half ton coming towards them at a very high rate of speed. They both estimated the speed between 80 and 90 km/hr in a 50 km/hr zone.

The in car video camera recording indicated Officer Scanlan immediately activated the emergency equipment on the police car and make a u-turn to pursue the accused’s vehicle. Within a short distance the accused activated his right signal light and exited onto the immediate side street of Duchess Avenue. [ 7 ] Officer Scanlan who was driving the police vehicle took over as the main investigating officer throughout. At 2:21 a.m.

Officer Scanlan approached the accused’s driver’s door and open window. He clearly indicated the initial stop was to investigate a Traffic Safety Act violation of speeding. [ 8 ] Officer Scanlan asked for and received the accused’s driver’s license and vehicle registration. He engaged the accused in some conversation. He made some initial observations, which he interpreted as indicia of possible alcohol consumption as follows: 1) There was a heavy scent of cologne coming from within the truck and from Mr. Eufemia’s person.

He thought it might be a possible masking agent for alcohol or drug consumption; 2) The accused’s eyes were quite glossy; 3) He detected a slight slur in his speech pattern. The more the accused spoke, the heavier the slur. He asked the accused if he had consumed alcohol to which the accused said no. In order to get the accused away from the cologne smell in the vehicle and properly smell his breath for possible alcohol consumption he asked the accused to exit his vehicle.

Officer Scanlan then stated he 4) observed the accused cross step his right foot over his left foot and stumble slightly into the box of the truck; 5) then the accused stood leaning up against the truck box; 6) at that stage he detected a light odour of beverage alcohol coming from the accused’s breath and that the slight slur in his speech pattern continued. [ 9 ] During that time the accused volunteered he was very upset and depressed from just breaking up with his girlfriend and was on his way to his parents home at 43 St.

Lawrence Crescent. [ 10 ] The following excerpts from the trial transcript clarify the observations of Officer Scanlan: Transcript page 13, lines 12 - 26, page 14, lines 1 - 4 Q Okay. Continue? A Due to the overwhelming smell of cologne, I’m not getting a detection of - - or an odour of beverage alcohol at this time. Due to that fact, I ask him to step out of his vehicle. It’s not - - for him saying he’s not drinking that night, I don’t believe his behaviour is consistent with that, and I asked him to step out of the vehicle at that point.

Once out of the vehicle, he seemed to have a hard time keeping his balance as he walked towards the back of the truck, where I directed him to go, back towards the front of our PC. He actually stumbled, cross-stepped or stepped his right foot over his left, and stumbled into the box of the truck for which that he actually used the truck to lean on when he was speaking with me. Once out of the vehicle, he got away from the heavy smell of cologne that was inside of the vehicle, but he was still emitting a strong smell of cologne from his actual body. I continued conversations with him there.

The more he spoke to me, I kind of got a little closer to him, and started to detect a light odour of beverage alcohol from his breath as he spoke. Of course, his eyes were still glassy, he was still slurring when he was speaking to me. And at 0228, I then informed him that he was being detained for an impaired driving investigation. Now, I could get that light odour of beverage alcohol from his breath. Transcript page 20, lines 12 - 21

Q I guess, let me ask you, so at any point here did you then proceed with the investigation any further? Y Yes. Constable Foster, after speaking with him, kind of gives me a nod saying that he can detect it as well. That confirms my suspicions that, yeah, definitely do, with the motor skills, the driving, the glassy eyes, the slur, and now the odour of beverage alcohol, that he had been drinking even though he said he had not been. [ 11 ] At 0228 hours Officer Scanlan advised Mr. Eufemia he was being detained for an impaired driving investigation.

Officer Scanlan indicated he told the accused in layman’s terms that he was calling for an ASD instrument and when it arrived he would have to provide a sample. [ 12 ] The two police officers did not have a roadside screening device with them and had to radio police dispatch to have one delivered to their location. The video recording supports Officer Scanlan’s evidence to the effect that the following transpired. There is some discrepancy between the police officer’s watch and the times displayed on the video recording.

Accordingly the Court will use the times from the video to show the time periods that elapsed during the investigation: 02:22:05 Officer Scanlan is at the driver’s door of the accused’s truck; 02:23:10 the accused exits the vehicle; 02:25:00 a police SUV arrives at scene; 02:25:28 it appears Officer Scanlan is speaking on his police radio. The Court infers this is the commencement of calling for an ASD device to be brought to the scene; 02:26:44 the accused is placed in the back of the police vehicle the accused answers his cell phone.

The police officers notice this and some time elapses while they retrieve the cell phone from the accused; 02:28:35 the accused’s voice is recorded saying “I said I’ll take the breathalyzer”. The Court infers from this that Officer Scanlan has advised him earlier about having to provide an ASD sample; 02:29:35 The accused states words to the effect: “You can do what you want. I know I will get away with this.” “Once I pass, I can go? Right?”; 02:31:10 Officer Scanlan reads: - formal rights to counsel Q Do you understand? A Yes. Q Do you want to call a lawyer? A Not till I take the breathalyzer.

02:31:45 headlights appear in the back window of the police cruiser; The Court interprets this is the ASD being delivered. 02:32:00 the headlights leave; 02:32:25 Officer Scanlan reads a formal s. 254(2) ASD demand; Q Do you understand? A Yes Q Will you provide a sample? A Yes Then further verbal interaction takes place. 02:33:08 Officer Scanlan advised the instrument is ready; 02:33:20 The accused advises he has done this before; 02:33:43 there is a first attempt to give a sample; 02:34:03 a second attempt produces a suitable sample with a fail reading; There is further verbal exchange and the accused asks if he can have a smoke. 02:35:07 Officer Scanlan makes a formal s. 254(3)(

a) Intoxilyzer demand; The accused advised “I understand. I will blow at the station.” [ 13 ] The Court will now revert back to the times from Officer Scanlan’s watch. [ 14 ] At 02:42 the accused is booked at the detention desk. He asks to urinate and is taken to a washroom. Throughout Officer Scanlan makes observations of indicia of alcohol consumption, though they are not overtly pronounced.

Throughout the next sequence of events the accused’s demeanour fluctuates from being cooperative to being very emotional and crying. [ 15 ] After the washroom the accused at 02:48 states he wants to speak to a lawyer named Bill Campbell. He gives Officer Scanlan a phone number then immediately advises that is the phone number for his parents. He also states “I’m sorry for dicking around”: Transcript page 31, lines 24 - 26, page 32, lines 1 - 22 A . . . After he urinated, even though - - or roadside he said he didn’t want - - well, he wanted to speak with a lawyer. I again said,

you would like to speak with a lawyer, who would you like to speak to? He first said, Bill Campbell. I didn’t recognize the name as counsel in the city, but that doesn’t mean anything. I asked for the phone number so that he may contact Bill Campbell. He gave me the phone number, and then immediately informed me that he gave me an incorrect phone number. That was actually a phone number to his parents. I informed him again that, at this time, he could contact legal counsel. We wouldn’t be contacting his parents at this point, and offered him his own legal counsel if he chose to pick one.

The phone books that are in the phone rooms, and/or Legal Aid, which I offered him at roadside as well. He was kind of flip-flopping back and forth whether he wanted to contact a lawyer, or he didn’t want to contact a lawyer. I think, at one point, he said he was sorry for, excuse my French, dicking me around. So being that he was very indecisive and was changing his mind, I decided to read him the waiver to counsel to ensure that he did not want to speak with a lawyer. Transcript page 34, lines 3 - 33, page 35, lines 14 - 18 Q Okay. And can you read that for me, please? A For sure.

It’s on the second - - or back of the second page under “Waiver of right to counsel.” You have the right to a reasonable opportunity to contact a lawyer. I am obliged not to take a statement from you, or ask you to participate in any procedure that might provide evidence against you until you have either exercised your right to that reasonable opportunity to contact a lawyer, or you are certain you do not want to contact a lawyer. Do you understand? A And what was his response. Q His response was “Yep”, and that’s a quote. Upon him saying “Yep”, there’s a second question.

Are you certain you do not want to contact a lawyer? His response to that was, “Right this moment, no, but in the” - - he said, “perseeable (ph) future.” The Court: Okay. Let’s just wait. So, “Are you certain you don’t want to contact a lawyer”; is that what you asked? The Witness: Yes, your Honour. The Court: All right. Answer was? The Witness: And his answer was: Right this moment, no, but in the perseeable future. . . .

Q And so what did you do as a result of - - A After he had stated he did not want to speak with a lawyer at this time, he was then moved to an interview room where I began the investigation, such as the investigator’s check sheet. Transcript page 36, lines 21 - 26, page 37, lines 1 - 19

Q Let’s just maybe go back over that again. So what did you do as a result of that? Did you have any further conversation before reading that waiver warning? A Yeah, for sure. I informed him that he couldn’t speak to his parents at this time, that he was looking to speak with legal counsel and, again, a lawyer of his choosing. He could look in the phone book or the Legal Aid option that I read him on the street. The Court: Okay. He couldn’t speak to his parents at this time. He could speak to a lawyer. Again, repeat?

The Witness: That he could speak to a lawyer of his choice, he could look in a phone to pick a lawyer and/or the Legal Aid option that I had read him on the street. Q Did he ever indicate why he wanted to call his parents, or why he was giving that number? A Not to me, other than I think he mentioned at one point that he just wanted to call his parents so they knew where he was. Q Did he ever say to you that he wanted to call his parents to get a number for a lawyer?

A No, he did not. [ 16 ] The evidence discloses that there was a phone book in the phone room and through the rest of the proceedings the accused at no time conveyed to the police officers in any way that he now wanted to speak to a lawyer. Transcript page 46, lines 5 - 12 Q Let me ask you this. During your time in this interview room with him, talking about these things, has he ever asked to speak to a lawyer at all, or has there been any discussion with respect to speaking to a lawyer again? A No. He never brought it up after that.

He seemed quite satisfied that he didn’t want to speak with one. [ 17 ] Officer Scanlan’s partner, Officer Foster was also the Intoxilyzer technician in this instance. At 02:56 he read the accused a secondary warning of the right to remain silent. Officer Foster went through his usual Intoxilyzer procedures and presented the accused to the instrument at 03:07. The evidence discloses the accused made seven inadequate, unsuccessful attempts to provide a sample. [ 18 ] Of note is that just after the 4 th attempt the accused made the following statement: Transcript page 50, lines 11 - 18 A It was 0311 hours actually.

It was between - - we’d just finished our fourth attempt, and it was unsuccessful, of course. He stated, quote, “I sound like a bitch, and I’m drunk as hell”, unquote. So, of course, I have my notebook out at this time as we are trying to have tests done so I can record the time if it was nor was not successful. [ 19 ] The evidence discloses the police officers were very patient and took the time to explain the process and consequences to the

accused several times. Finally on the 8 th attempt at 03:22 hours he provided a suitable sample with a reading of 130 milligrams of alcohol in 100 millilitres of blood. A second reading at 03:48 hours of 110 milligrams of alcohol in 100 millilitres of blood. [ 20 ] The accused was served with a number of documents and released to the custody of his mother. Charter Voir Dire - The Law and Analysis [ 21 ] Defence on the voir dire put forth three Charter issues: 1) Reasonable suspicion to make the s. 254(2) ASD demand; 2) Was the s. 254(2) ASD demand made forthwith; 3) Implementational aspect of the accused’s s. 10(

b) rights to counsel. [ 22 ] Section 254(2)(

b) reads as follows: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that te person has, within the preceding three hours, operated a motor vehicle or . . ., operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (

a) and (b), in the case of alcohol: . . . (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [ 23 ] In R v Bush , [2010] OJ No 3452 (Ont CA) the Ontario Court of Appeal gave some direction to trial judges dealing with this concept of reasonable and probable grounds, Durno, J ( ad hoc ) speaking for the court said: . . . [56] An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test.

There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed; Censoni at para 46.

The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R v Costello (2002), 22 MVR (4 th ) 165 (Ont CA) at para 2 ; Wang , at para 21. . . . [61] A trained police officer is entitled to draw inferences and make deductions drawing on experience. . . . [66] In making his or her determination, the officer is not required to accept every explanation or statement provided by the suspect; Shepherd at para 23.

That the officer turned out to be under a misapprehension is not determinative: Censoni at para 35. The important fact is not whether the officer’s belief was accurate. It is whether it was reasonable at the time of the arrest. That the conclusion was drawn from hearsay, incomplete sources, or contained assumptions will not result in its rejection based on facts that emerge later. What must be assessed are the facts as undersood by the peace officer when the belief was formed: R v Musurichan , 1990 ABCA 170

, [1990] AJ No 418 (CA). . . . [70] The issue is not whether the officer could have conducted a more thorough investigation. The issue is whether , when the officermade the breath demand, he subjectively and objectively had reasonable and probable grounds to do so. That the belief was formed inless than one minute is not determinative.

That an opinion of impairment of the ability to operate a motor vehicle can be made in under aminute is neither surprising nor unusual. [24] In R v Gunn, 2012 SKCA 80 , [2012] SJ No 503 the Saskatchewan Court of Appeal waded in on the issue of how acourt is to approach this question of whether an officer has reasonable grounds to demand a breath sample. Mr. Justice Caldwell,speaking for the panel said: [7] . . .

This means the officer must subjectively (or honestly) believe the individual has driven while impaired or “over .08” within thepreceding three hours and that belief must be rationally sustainable on an objective basis (see: R v Bernshaw, (SCC),[1995] 1 SCR 254, at para 48).

This does not mean that the Crown has to demonstrate a prima facie case for conviction (R v Shepherd,2009 SCC 35, [2009] SCR 527, at para 23), let alone prove its case beyond a reasonable doubt (R v Bush, 2010 ONCA 554, 259 CCC(3d) 127); rather, the standard of “reasonable grounds to believe” is one of lesser probability which simply requires the reviewing courtto determine whether the factors articulated by the officer who made the breath-demand were reliable and were capable of supporting theofficer’s belief that the individual had driven while impaired or “over .08” within the preceding three hours. [25] In the recent decision of R v Flight [2014] 313 CCC (3d) the Alberta Court of Appeal thoroughly canvassed the jurisprudencein relation to “reasonable suspicion” to make a s. 254(2)(

b) ASD demand. Starting at para 31 the Court stated: (

a) Section 254, Criminal Code 31

Section 254 of the Criminal Code sets out a two-stage scheme to address the dangers of impaired driving: R v Woods, 2005 SCC 42(SCC) at paras 6 and 30, [2005] 2 SCR 205 (SCC); see also R v Bernshaw (1994), (SCC), [1995] 1 SCR 254 (SCC) at paras 20 - 21, (1994), 35 CR (4th) 201 (SCC). 32 The first stage is set out in section 254(2). This

section authorizes a peace officer to demand a roadside ASD sample if the peaceofficer has a reasonable suspicion that the driver has alcohol in his body. An ASD will show a pass, a warning, or a fail result. Thisserves an important investigatory, screening function and permits a peace officer to determine whether further, more conclusive, testingis warranted: Bernshaw at para 20.

In normal circumstances, a “fail” result from an ASD is sufficient to provide a peace officer with therequisite reasonable and probable grounds to proceed to the second stage: Bernshaw at para 49. . . . 35 The reasonable suspicion standard has both subjective and objective elements.

The Supreme Court clarified the reasonable suspicionstandard in R v Chehil, 2013 SCC 49, [2013] 3 SCR 220 (SCC) and R v MacKenzie, 2013 SCC 50, [2013] 3 SCR 250 (SCC). 36 In Chehil, Karakatsanis J emphasized that the reasonable suspicion standard is a lower standard than that of reasonable and probablegrounds, as it engages the “reasonable possibility, rather than probability” of crime: para. 27. She cautioned that courts should avoidconfusing the two standards: Chehil at para 27; see also MacKenzie at para 84.

She summarized the proper approach as follows at para29: Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation ofobjectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in thetype of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical,everyday experience [...].

A police officer’s grounds for reasonable suspicion cannot be assessed in isolation [citations omitted]. 37 However, peace officers are not under a duty to undertake further investigation to “seek out exculpatory factors or rule out possibleinnocent explanations”: Chehil at para 34. The hallmarks of the exercise are “common sense, flexibility, and practical everyday

experience”: MacKenzie at para 73 . 38 The reasonable suspicion standard is designed to strike a balance between an individual’s privacy interests and the public interest in enabling law enforcement to investigate crime: Chehil at para 22 . Any suspicion must be grounded in “objectively discernable facts, which can then be subjected to independent judicial scrutiny”: Chehil at para 26 . The requirement that a peace officer’s suspicion be objectively reasonable provides rigour to the standard, and prevents indiscriminate breaches of privacy interests: Chehil at para 25 .

See also: R v Harvey , [2014] SJ No 611 , SKQB , L.M.

Schwann J. [ 26 ] In this case the investigating officer enumerated a number of observations which gives a cumulative effect he reasonably interpreted to be indicia of impairment: 1) excessive speeding; 2) heavy odour of cologne which could be deliberately used as a masking agent to cover the consumption of alcohol or a drug; 3) glassy eyes; 4) slightly slurred speech pattern; 5) stumbled while crossing his right foot over his left foot; 6) he learned up against the truck box for support; 7) slight odour of beverage alcohol coming from his breath after the police officer removed him from the cab to facilitate that part of the investigation; and 8) the accused was emotional. [ 27 ] As stated by the Supreme Court of Canada “the reasonable suspicion standard is a lower standard that than of reasonable and probable grounds”.

The trial here establishes beyond any doubt that the investigating officer had the required subjective belief based on objective criteria to make the .s 254(2)(

b) ASD demand. There was no violation of the accused’s Charter rights in this regard. Forthwith issue [ 28 ] The accused maintains the s. 254(2)(

b) demand was not made forthwith after the investigating officer formed the requisite suspicion being a subjective belief based on objective criteria that he was going to make an ASD demand. [ 29 ] Defence cited a number of decisions interpreting the requirements of “forthwith” including: R. v. Dwayne Anderson [2011] SKCA 13; R. v. Jeffrey Anderson [2014] SKCA 32; R. v. Tuansah [2012] ONCA 123; R. v. Bergen [2014] MBQB 84. [ 30 ] In R. v. Dwayne Anderson, supra , the accused was stopped at 1:11 a.m. and at 1:14 a.m. in the back of the police vehicle, the

peace officer made a s. 254(2) ASD demand. It appears the accused was not told the reason for being placed in the back of the policevehicle, and only after the ASD demand, was he asked for his ID. He was not initially asked for his driver’s license and registration atthe driver’s door of his vehicle as is customary and required for a valid s. 209.1 Traffic Safety Act stop. Given those factors the Court ofAppeal held the requirements of “forthwith” were not met due to a three minute delay. The Court held this was an arbitrary detentionand breach of the accused’s Charter rights. However, after a s. 24(2), R. v.

Grant [2009] 2 C.C.R. 353 (S.C.C.) analysis the Courtdeclined to exclude the evidence. [31] In R. v. Jeffrey Anderson, supra, the police stopped the accused’s vehicle at 12:47 a.m. After searching the accused for safetyreasons, the police officer placed him in the back seat of the police car, and made a demand for a breath (ASD) sample. By this time itwas 1:02 a.m. The accused indicated he understood. The officer turned on the ASD and explained the procedure to the appellant whilethe ASD warmed up. The accused provided a sample and registered a fail.

Immediately thereafter, at 1:18 a.m., the officer made abreath test demand pursuant to s. 253(3) of the Code. The trial judge further held that since 31 minutes had elapsed from the time theappellant was stopped at 12:47 a.m. and until the ASD demand was made, the demand to provide breath samples was not made“forthwith” as rquired by s. 254(2) of the Criminal Code. Therefore, the police officer was required to inform the appellant of his rightto counsel pursuant to s. 10(

b) of the Charter and he failed to do so. The appellant’s right to counsel having been violated, the trial judgeexcluded the Certificate of Analyses from evidence and the appellant was found not guilty of driving while over .08 contrary to s. 253(1)(

b) of the Code. [32] At para. 24 the Court of Appeal stated: [24] It is a fact found by the trial judge that the police officer formed the intention to stop the appellant prior to the appellant turningonto private property. In my view, the police officer must be allowed sufficient flexibility in carrying out his duties to complete thelawful activity.

Interference with the appellant here was minimal and the entry onto private property, to complete the check stop, wasreasonably necessary, having regard to the nature of the liberty interfered with and the public purpose served by the interference.[underlying by the Court] [33] The Court wrote further at paras. 30, 31 and 32: [30] The Supreme Court has held that “forthwith” means “immediately” (see: R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R 205). However, this Court stated the following in R. v. Janzen, 2006 SKCA 111, 284 Sask.

R. 296: 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 cases stand forthe 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 section254(4). [31] The so-called “forthwith window”, being the time within which the police officer must require a driver to provide a breath sample,in my view, does not commence prior to the time when a police officer develops a reasonable suspicion that the accused had alcohol inhis body, as the trial judge effectively held.

Nor does it begin with the ASD demand, as the

summary conviction appeal judge held. Rather, it begins when the police officer develops a reasonable suspicion that the accused has alcohol in their body. See: R. v. Quansah,2012 ONCA 123, 286 C.C.C. (3d) 307: 45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis ofthe forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament’s intention to strike abalance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver hasalcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion. 47 Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexibleinterpretation may be given.

In the end, the time from the formation of reasonable suspicion to the making of the demand to thedetainee’s response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officerto discharge his or her duty as contemplated by s. 254(2). 48 Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonably necessary delaywhere breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed toensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty.

Anydelay not so justified exceeds the immediacy requirement. 49 Fifth, one of the circumstances or consideration is whether the police could realistically have fulfilled their obligation to implementthe detainee’s s. 10(

b) rights before requiring the sample. If so, the “forthwith” criterion is not met. [32] In R. v. Pierman; R. v. Dewald (1994), (ON CA), 92 C.C.C. (3d) 160 (C.A.), Arbour, J.A. (as she then was)stated: 5 This

section contemplates an immediate testing, and therefore it cannot accommodate the exercise of the constitutional right tocounsel. As the Supreme Court of Canada held in R. v. Thomsen, [1998] 1 S.C.R. 640, 40 C.C.C. 93d) 411, and in R. v. Grant, (SCC), [1991] 3 S.C.R. 139, 67 C.C.C. (3d) 268, and as this court held in R. v. Côté (1992), (ON CA), 6O.R. (3d) 667, 70 C.C.C. (3d) 280, the breath sample must be taken “forthwith” after the demand is made, and therefore there is noopportunity to contact a lawyer.

This infringement, however, was held to be a reasonable legislative limit on the right to counsel, and thesection was declared valid under s. 1 of the Canadian Charter of Rights and Freedoms. In light of that jurisprudence, it seems clear tome that although the

section merely requires that the sample be provided “forthwith” after the demand is made, and does not require thatdemand itself be made “forthwith” after the person is stopped, it is implicit that the demand must be made by the police officer as soonas he or she forms the reasonable suspicion that the driver has alcohol in his or her body. This is the only

interpretation which isconsistent with the judicial acceptance of an infringement on the right to counsel provided for in s. 10(

b) of the Charter. If the policehad discretion to wait before making the demand, the suspect would be detained and therefore entitled to consult a lawyer. The basisupon which the courts have held that Parliament may infringe on a suspect’s right to counsel is that there is no opportunity for the policeto accommodate that right if the breath sample must be taken “forthwith”. It follows, in my view, that for the

section to maintain itsconstitutional integrity, we must assume it also contemplates that there be no opportunity for the suspect to consult counsel before thedemand is made. [34] The Court went on to determine that all the requirements of “forthwith” and “immediacy” of both the ASD demand andadministering the test were met in this case with a total time elapse of some 31 minutes. [35] Some principles set forth in the two Anderson decisions are that meeting the requirements of forthwith is not a simple stopwatch calculation.

The Court must take all the circumstances into consideration including such reasonable time that is required for theofficer to conduct their investigation in a timely, safe, professional manner, while always being mindful of the provisions of the Codeand the accused’s Charter rights. [36] In R. v. Viernaskie [2014] O.J. No. 2236 (Ont. Ct. Of Justice) at para. 19 the Court gave a

summary of the factors to bebalanced during “forthwith” analysis: 19 The Court of Appeal set out five factors to be considered when assessing the forthwith requirement:

1. The analysis is contextual, and should balance the public interest in eradicating impaired driving and the need to protect Charterrights. 2. The demand should be made promptly once the officer has a reasonable suspicion that the driver has alcohol in his or her body. 3. There should be a prompt demand and an immediate response, albeit given some flexibility in special circumstances. “In the end, [theelapsed time] must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s.254(2).” 4.

The forthwith requirement should consider all the circumstances, including delays that may be necessary to ensure an accurate result,where an ASD is not immediately available, or where there are safety concerns. 5. If the police could realistically have provided the driver with his or her right to counsel before requiring the sample, the forthwithcriterion is not met. [37] See also a number of recent decisions being: R v Lomenda [2014] SKQB 77 (Barrington-Foote, J); R. v.

Thompson [2014] AJNo 402 (Alta PC); R v Singh 2014 ONCA 293 , [2014] OJ No 1858 (Ont CA); R v Bergen [2014] MJ No 122 (Man QB); R vBuckle 2013 SKPC 185 , [2013] SJ No 653 (Sask PC); R v Travis Vogel [2010] SKPC 036 (Sask PC); R v Turanich [2012]ONCA 123 (Ont CA); R v Bruce Rutherford [2014] SKPC 073, SPC, K. Lang, J. [38] The video establishes that Officer Scanlan approached the driver’s door at 02:22:05. The Court is satisfied that around02:25:28, within 4 minutes of the stop, he advises the accused in layman’s terms that he will be asked to provide an ASD breath sampleonce the instrument arrives.

The Court is satisfied that the accused then knew why he was being detained. His comments on the videoindicate he was not surprised when the formal demand was made at 02:31:10, some 9 minutes after the stop. [39] In this case the police officer proceeded in a safe, professional, efficient, timely, respectful manner in all the circumstances. There were no unreasonable delays and in any event they were minimal and fully explained in the circumstances. The evidence provesbeyond a reasonable doubt that the timing of the police officer’s s. 254(2)(

b) ASD demand met all the requirements of the “forthwith”,“immediacy” set forth in s. 254(2) of the Criminal Code. [40] Given the above there was no breach of the accused’s Charter rights in regards to the timing of the s. 254(2)(

b) ASD demand. Implementational Aspects of s. 10(

b) rights [41] There is no question the accused indicated he would like to exercise his right to speak to counsel at some stage of theinvestigation. The issue remains has the Crown met its evidentiary burden or proving there was an unequivocal waiver or voluntarydelay of his right to speak to a lawyer prior to his submitting samples of his breath. [42] In R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429, (S.C.C.) the Supreme Court of Canada dealt with an appeal byan accused from a finding that the police did not deprive him of his right to counsel as guaranteed to him by

section 10(

b) of theCharter. In dismissing the appeal, the Court summarized the principles they had set forth in a litany of cases preceding Willier. For thepurposes of the present case, the comments of Chief Justice MacLachlan and Madam Justice Charron at paragraphs 33 and 35 are mostinstructive: 33 Detainees who choose to exercise their

section 10(

b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioningthe detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee’s reasonablediligence in attempting to contact counsel: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; R. v. Black, (SCC), [1989] 2 S.C.R. 138; R. v. Smith, (SCC), [1989] 2 S.C.R. 368. What constitutes reasonable diligence in the

exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole. As Wilson, J stated inBlack (pp. 154-55): A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if hewishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain fromquestioning the accused are suspended: See R. v. Tremblay (SCC), [1987] 2 S.C.R. 435. . . . . 35 Should detainees opt to exercise the right to counsel by speaking with a specific lawyer,

section 10(

b) entitles them a reasonableopportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees havethe right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amountsto a reasonable period of time depends on the circumstances as a whole, it may include factors such as the seriousness of the charge andthe urgency of the investigation: Black.

If the chosen lawyer cannot be available within a reasonable period of time, detainees areexpected to exercise the right to counsel by calling another lawyer or the police duty to hold off will be suspended. R. v. Ross, (SCC), [1989] 1 S.C.R. 3; and Black. As Lamer, J. emphasized in Ross, diligence must also accompany a detainee’s exerciseof the right to counsel of choice . . . . [43] In R. v. Luong, 2000 ABCA 301 , [2000] A.J. No. 1310, The Alberta Court of Appeal set forth a useful frameworkfor determining if a person’s s. 10(

b) Charter rights have been violated. The following portion of the framework appears in paragraph 12of the judgment and is pertinent to the present case: . . . . .

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existenceand availability of Legal Aid and duty counsel. 4. The implementational duties are twofold and arise upon the detainee indicating a desire to exercise his or her right to counsel. 5. The first implementational duty is “to provide the detainee with a reasonable opportunity to exercise the right (except in urgent anddangerous circumstances)”. R. v.

Bartle (1994), (SCC), 92 C.C.C. (3d) 289 S.C.C. at 301. 6. The second implementational duty is “to refrain from eliciting evidence from the detainee until he or she has had that reasonableopportunity (again, except in cases of urgency or danger)”. R. v. Bartle, supra at 301 7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonableopportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counselwas provided with a reasonable opportunity to exercise the right. 8.

If the trial judge concludes that the first implementational duty was breached, an infringement is made out. . . . . . [44] The following statement of Meekma, J in R. v. Flasch, supra, fairly sets forth the position of the defence and how the Courtmust analyze and apply the evidence of this case in relation to the same:

[31] The Supreme Court of Canada in R. v. Prosper (1995), (SCC), 92 C.C.C. (3d) 353, held that once a detainee whohas asserted his right to counsel indicates that he has changed his mind, the police have an additional informational obligation. They arerequired to tell him of his right to a reasonable opportunity to contact the lawyer, and of the obligation on their part during this time not torequire the detainee to participate in any potentially incriminating process. [32] The burden of establishing an unequivocal waiver is on the Crown. Prosper says the standard of proof is high.

In Prosper, theCourt found that as the accused was never properly informed of his right to have the police hold off in order to provide him with areasonable opportunity to contact a lawyer, it could not be said that he was in a position to know what he was giving up when hesubmitted to the breathalyzer test. [33] Lamer, C.J.C. wrote at page 385: To conclude, I find that the appellant neither explicitly nor implicity waived his right to counsel. His s. 10(

b) rights were infringed bythe police in two ways: first, when he was not properly informed of the obligation on the part of the police to hold off upon his changinghis mind about speaking to a lawyer; and secondly, when, after asserting his right to counsel and exercising it with due diligence, thepolice did not provide him with a reasonable opportunity to contact counsel and refrain from having him participate in a potentiallyincriminating procedure until he had had this opportunity. [34] Mr.

Flasch was never informed by the police that they had an obligation to refrain from obtaining the breath sample until he had areasonable opportunity to contact a lawyer. Despite the difficulty the accused had demonstrated to Constable Davies in understandingthe rights he had previously been read, there was no further information or explanation offered to him after he said “no” when asked atthe police station if he “would like to call a lawyer now.” [35] Propser holds there is further obligation on the police at that point and in the case of Mr.

Flasch, who had already shown difficultyunderstanding his rights, in my opinion that obligation is even greater. [45] In the decision of R. v. Edgington 2010 SKQB 381, 367 Sask. R. 44, the Court stated at para. 15: [15] Absent extraordinary circumstances, in facilitating a detainee’s right to choose and communicate with a lawyer the police areentitled to give the detainee credit for being able to think and to decide. The police are entitled to give normal

interpretation to thedetainee’s words and actions. Thus if a detainee indicates that he or she chooses a particular lawyer, it is appropriate for the police toaccept that decision at face value and to conclude that the detainee’s right to choose a lawyer has been provided and exercised. In thatevent, the police are not obliged to suggest that the detainee may want to consider other choices. Indeed, the police may be wrong in sodoing, since the suggestion to consider other choices could be interpreted as an attempt to steer the detainee away from the choice that heor she has just communicated.

See also: R v Kenneth Eddington, 2010 SKQB 381, Currie J.; R v Jonathan Sherstobitoff, 2013 SKPC 16 , 2013 SKPC 016,Labach J.; R v Menkerios, 2011 SKQB 128, Keene J.; R v Caswell, 2014 ABQB 640, Veit J.; R v Fagon

(2014) OJ 2906 (Ont CJ); R vCortlen McLeod, 2010 SKPC 179, Lavoie, J; 2011 SKQB 428, Currie J.; 2013 SKCA 28, Klebuc, CJS. [46] There is no question that the investigating officer satisfied the informational duty imposed upon him by the case law. Thequestion remains, did the accused given an unequivocal waiver. The accused was “kind of flip-flopping back and forth whether hewanted to contact a lawyer,” at which stage Officer Scanlan read a clear secondary warning often referred to as a “Prosper warning”. The accused’s response was “right this moment, no, but in the perseeable (ph) future”. This statement by Mr.

Eufemia must be placed incontext. This was a clear unequivocal waiver at that moment. The police were entitled to give normal

interpretation to his words andactions. Not right now, but may be sometime in the future. Further, he had a phone book at his disposal and took no action use it. Theofficers then brought him to the Intoxilyzer room. Some considerable time elapsed while they patiently allowed him 8 attempts toprovide a suitable sample. At no time did he indicate he now wanted to consult a lawyer. [47] He clearly showed no urgency or diligence in exercising his right to counsel. Nor did he under any circumstancescommunicate his desire to exercise that right during numerous opportune moments that were available to him. The Court finds there wasno breach of his s. 10(

b) rights to counsel.

[48] Having found that there was no Charter breach of any of the three issues put forth by Defence it follows the Court need notdeal with any s. 24(2) remedy pursuant to an R v Grant analysis. [49] There will be no exclusion of any of the evidence put forth. [50] Given the above findings the Court is satisfied the Certificate of Qualified Technician may be made a full exhibit on the trialproper. [51] That Certificate sets forth two readings as follows: 1) 03:22 hours - 130 milligrams percent in 100 millilitres of blood; 2) 03:48 hours - 110 milligrams percent in 100 millilitres of blood. [52] The Court finds the accused guilty of Count #2 contrary to s. 255(1) and s. 253(1)(

b) of the Criminal Code. [53] In regard to the issue of impaired driving, count #1 in the decision of R. v. Arevalo (2001) 2004 SKQB 439 , 255Sask. R. 315 (Sask. Prov. Ct.) starting at para. 8 Kolenick, J wrote: [8] Therefore, the evidence of impairment which is alleged by the Crown must be considered in the context of the principles contained in R v.

Stellato (1994) (SCC), 31 CR (4th) 60, in which the Supreme Court of Canada approved the following, from the Ontario Court of Appeal reasons, 18 CR (4th) 127, at paragraph 14: In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [9] In the process of making this analysis, the Ontario Court of Appeal judgment made reference to the so-called “classic” signs ofimpairment, namely: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness onone’s feet.

Obviously this was not intended to be an all-encompassing list, and also, its application will very much depend on thecircumstances in the case. Further, in R. v. Landes (1997), (SK KB), 161 Sask. R. 305 (Sask. Q.B., Klebuc, J.), the Court referred to Stellato(supra) and made te following observations, commencing at para. 16: [16] An opinion as to impairment, be it by the trial judge or a nonexpert, must meet an objective standard of “an ordinary citizen” or a“reasonable person” in order to avoid the uncertainties associated with subjective standards, particularly when based inferences.

To thatend a list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’s mentalfaculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive a motor vehicle.

Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot or wateryeyes; (3) presence of a flushed face; (4) odour of alcohol beverage; (5) slurred speech; (6) lack of coordination and inability to performphysical tests; (7) lack of comprehension; and (8) inappropriate behaviour. [17] In my view, a trial judge must carefully review all of the reported tests and observations which inferentially support or negate anyimpairment of the accused’s mental and physical capabilities, and then be satisfied beyond a reasonable doubt that the reasonableinferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by ss. 253 and 255 of theCriminal Code.

A piecemeal approach supporting or negating impairment is not permissible. See: R. v. Hall at p. 66 (R. v. Hall (1994),

(SK CA), 125 Sask. R. 62) See also: R. v. Schurman (2003), SK. PCJ 168 (White, PCJ) R. v. Huot (No. 3)(2001), (SK PC), 209 Sask. R. 171(Kolenick, PCJ) R. v. Hopkie (1994), (SK KB), 126 Sask. R. 44 (Sask. Q.B.) (MacPherson, CJQB) R. v. Holman(1998), S.J. No. 711 (Sask. Q.B.) (Smith, J as she then was) R. v. Edwards (2006), Sask. P.C. 23 (Kolenick, PCJ) R. v. Debusshere(2003), Sask. P.C. 53 (Kolenick, PCJ) [54] The evidence of indicia of impairment is primarily the observations of Officer Scanlan at the roadside.

Officer Scanlanadmitted in cross-examination that absent an ASD failure he probably would not have made a s. 254(3) Intoxilyzer demand, nor arrestedthe accused for impaired driving. Clearly the evidence from the witnesses falls short of proving Count #1 beyond a reasonable doubt asset forth in the above case law. The Court finds the accused not guilty of Count #1. ________________________ D.A. Lavoie, J