Her Majesty the Queen - v. -, 2014 SKPC 34

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 034 Date: March 4, 2014 Information: 40691714 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Benjamin John Niewenhuizen Appearing: Rob Parker For the Crown Merv Nidesh, Q.C. For the Accused JUDGMENT M. GORDON , J [ 1 ] Benjamin John Niewenhuizen is charged: - On or about the 7 th day of January 2012, at or near Moose Jaw, Saskatchewan did having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code ; and - Count 2, on or about the 7 th day of January 2012, at or near Moose Jaw, Saskatchewan did while his ability to operate a motor vehicle was impaired by alcohol or a drug operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code .

[ 2 ] There was only one Crown witness, Cst. Woods, who was sworn in on the trial and a voir dire . Counsel agreed that all admissible evidence on the voir dire would be applied to the trial proper. [ 3 ] Cst. Woods had received a complaint around 2:45 to 2:55 a.m. about a vehicle driving at a high rate of speed west on Highway #1 in the eastbound lane and had turned south on 9 th Avenue. Cst. Woods was on Thatcher Drive in Moose Jaw at the time and observed a white truck proceeding south on 9 th Avenue Northwest at a high rate of speed. The officer turned around and followed this truck on 9 th Avenue.

The truck signalled and proceeded east on MacDonald; it weaved into an oncoming lane of traffic. The officer stopped the truck at the Kinsmen Sportsplex. The traffic stop was at 2:50 a.m. [ 4 ] The officer spoke to the driver, the lone occupant, who identified himself as the accused Benjamin John Niewenhuizen. Mr. Niewenhuizen produced his driver’s licence but could not locate the registration of the vehicle. The officer could smell beer in the vehicle. He noted the accused to have glassy eyes. In order to further assess the driver’s sobriety, the officer asked Mr. Niewenhuizen to exit the vehicle.

The officer noted Mr. Niewenhuizen exited without difficulty but was fairly cautious in his walking back to the police vehicle. [ 5 ] Cst. Flanagan was in the area and had stopped to see if Cst. Woods needed any assistance. Cst. Flanagan brought to Cst. Woods an open can of beer from the Niewenhuizen vehicle. When Mr. Niewenhuizen was isolated in the back of the police car, Cst. Woods could also smell a faint odour of beverage alcohol coming from him. Cst. Woods had a Draeger Alcotest 7400 in his police vehicle. The officer later corrected himself and said that it was the 7400 series Alcotest.

He was not sure of the exact model number. Mr. Niewenhuizen was placed in the back of the police vehicle at 2:57 a.m. and the ASD demand was made shortly thereafter. Mr. Niewenhuizen responded that he understood and he provided a sample. A fail result was recorded. At 3:00 a.m., Mr. Niewenhuizen was arrested for impaired driving, given his rights to counsel and at 3:01 the breath demand and the police warning were given. Mr. Niewenhuizen responded “yes” when asked if he understood these warnings and he replied he did want to speak to a lawyer. [ 6 ] At 3:03 a.m. Cst. Woods left for the Moose Jaw Police Station.

On arrival, the accused was escorted into the booking area. At 3:16 a.m. Mr. Niewenhuizen requested to speak to Legal Aid and the officer dialled the number and transferred the call to the accused, who was in a private area referred to as the phone booth. The officer noted at 3:20 a.m. Mr. Niewenhuizen concluded his conversation with lawyer John Hardy. Mr. Niewenhuizen requested to use the washroom and the officer allowed him to do this explaining that he would be observed to ensure the integrity of the tests would not be affected. At 3:42 a.m., the first test was administered and at 4:04 a.m., the second test.

Mr. Niewenhuizen was served with the notice and the Certificate of Analyses as well as a ticket before he was taken to his sister’s. The defence at this point acknowledged that there is no issue with respect to over holding. [ 7 ] The Notice and Certificate of Analyses were entered as Exhibit P-1 on the voir dire . [ 8 ] On cross-examination, defence counsel asked about the serial number of the ASD again and also asked how the officer could ensure that the machine was in proper working order. Cst.

Woods testified that there is a sticker on the side of the machine saying it had been calibrated on the second day of January 2012. He admitted that there was no expiration date. The officer also said that he wanted to clarify the number of the Alcotest, that it was the 7400 series. The officer read the demand and the police warning from his official card. The officer explained the procedure in Moose Jaw for contacting counsel. The police dial the number of the lawyer and then transfer the call to the accused once the lawyer is on the phone.

The detainee is allowed to speak to the lawyer in privacy in the “phone booth”. The officer testified that this phone booth is not locked and that there is a window where the police can observe the accused on the phone but otherwise the consultation with the lawyer is completely private. The officer was adamant that Mr. Niewenhuizen did not ask to speak to any particular lawyer and the only request he made was to talk to the Legal Aid lawyer. [ 9 ] Cst. Woods testified that he was trained on the use of the ASD in 2010. He admitted that he did not ask Mr.

Niewenhuizen when he had consumed his last drink prior to administering the ASD test. He acknowledged that mouth alcohol which is evidence of recent consumption or burping or belching can affect test results. He also acknowledged that it is plus or minus 10 milligrams percent tolerance in the ASD. [ 10 ] The matter was heard October 24, 2013 and set over to November 29, 2013 for counsel to make oral and written submissions.

The Crown filed a brief in letter form dated November 19, 2013. The defence did not file any written argument or case law. The defence filed a 13 page Charter notice alleging violation of the accused’s rights under s. 7, 8, 9 and 10 of the Charter . This was not very helpful due to the general nature of the application. However, in my view, the evidence and argument presented in this case gives rise to a number of issues.

(1) Was there a violation of Mr. Niewenhuizen’s rights under s. 10(

a) of the Charter in that he was not promptly advised of the reason for his detention?

(2) Was there a violation of Mr. Niewenhuizen’s rights under s. 8 of the Charter in relation to obtaining the breath samples; (

a) was the ASD test conducted in accordance with s. 254(2) of the Criminal Code ; and (

b) did the police officer have the necessary reasonable and probable grounds to make an Intoxilyzer demand pursuant to s. 254(3) of the Criminal Code ?

(3) Was the demand for a breath sample made using words that complied with s. 254(3) of the Criminal Code ?

(4) If there was a violation of Mr. Niewenhuizen’s rights, what is the appropriate remedy?

(5) Whether there is proof beyond a reasonable doubt that Mr. Niewenhuizen’s ability to operate his vehicle was impaired by alcohol this evening. ANALYSIS [ 11 ] The onus is on the accused person to establish any breach of his Charter rights on a balance of probabilities.

Section 10(

a) of the Charter reads: Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; ... [ 12 ] Cst. Woods stopped this vehicle at 2:50 a.m. At 2:57 a.m., the ASD demand was made. The officer said he could smell beer in the truck and observed Mr. Niewenhuizen’s eyes to be glassy. He asked Mr. Niewenhuizen to exit the vehicle and go to the police vehicle for the purpose of assessing his sobriety or in other words, whether he could drive. At that time Cst. Flanagan who was in the area brought a beer can from the truck to Cst. Woods. Cst. Woods could smell a faint odour of beverage alcohol coming from Mr. Niewenhuizen.

As a result he was of the opinion he had a reasonable suspicion to make the ASD demand. At 3:01 a.m., after a fail on the ASD, the officer read Mr. Niewenhuizen the Intoxilyzer demand. [ 13 ] I conclude on the totality of the evidence that Cst. Woods stopped this vehicle under the authority of The Traffic Safety Act . The officer had received information from his dispatch about a vehicle going the wrong way on the double lane highway. I also accept that the officer told Mr.

Niewenhuizen that the purpose of asking him to step out of the vehicle and return to the police vehicle was to assess his ability to drive or in other words, his sobriety. There was no mention of the possibility of an ASD demand and test. However I am satisfied that Mr. Niewenhuizen was aware there was concern about his sobriety. Mr. Nidesh in a previous case in front of Judge Kovatch made a similar argument based on the Alberta Provincial Court decision of R. v. Klug , 2011 ABPC 97 . I am persuaded and prepared to follow Judge Kovatch’s decision in R. v.

Glass , 2013 SKPC 31 , where he refers to the case of R. v. Gross , 2012 ABPC 286 . At paragraph 13 of Glass, Judge Kovatch quotes His Honour Judge Rosborough as follows: While it is unfortunate that Det. Steil could not accurately articulate the requirements of the Charter , s. 10 (a), this will not impugn his investigation, providing he complies with it. On these facts I find that he did so. Gross ’ Charter , s. 10(

a) right was neither infringed nor denied. The cautious and diligent police officer will verbally advise detainees why they have been stopped at roadside, why they are asked to exit their motor vehicle and why they are being taken to a police vehicle. This, even when the circumstances make those reasons obvious. The case of Klug reinforces the value of doing so. Nevertheless, the fact that this would prevent needless litigation of this issue or otherwise constitute a “best practice” does not elevate it to the status of a constitutional norm. I am satisfied on the basis of binding

authority that, where the reasons are obvious and the detainee, as here, understands the nature of the process underway, additional verbaladvice is not constitutionally mandated. [14] This is a similar approach that Judge Kalmakoff took in the case of R. v. Carriere, 2010 SKPC 118. [15] I conclude there was a brief investigative detention of Mr. Niewenhuizen prior to the ASD demand being read at 3:01 a.m. The accused was stopped at 2:50 a.m. when the police officer approached the truck and asked for the driver’s licence and vehicleregistration. After Mr.

Niewenhuizen produced his driver’s licence and spent some time looking for his registration, the police officerasked him to return to the police vehicle so that he could assess his sobriety and ability to drive. The investigative detention was briefand Cst. Woods said as soon as he had the accused isolated in his police vehicle, he could smell alcohol and made the ASD demand. Iconclude in this case that it was readily apparent to the accused the reason he was asked to accompany the police officer to the vehicle. In addition the ASD demand once given informed him of that reason.

I also note Judge Kovatch’s further comments in Glass and thinkthey bear repeating in this case. At paragraph 16, he states: Even if I am wrong in this conclusion however, I would still conclude that the police officer did not obtain any evidence by reason of thisfailure. From the time of the initial vehicle stop until the Intoxilyzer demand, he merely spoke to the accused and not in an impolite orintimidating fashion, observed her and listened to her responses. He did not compel her to submit to any sobriety tests and did notcompel her to incriminate herself.

In my view, the Supreme Court of Canada determined that this investigation and this evidence wereproper and admissible in the case of R. v. Orbanski, 2005 SCC 37. If I were to do the analysis required by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I would conclude that the officer’s evidence was admissible. [16]

Section 8 of the Charter reads as follows: Everyone has the right to be secure against unreasonable search or seizure. [17] Mr. Niewenhuizen argues that the samples of his breath violated his rights under s. 8 as the samples were obtained without awarrant and in a manner that was unreasonable. Obtaining breath samples from an accused person constitutes a search or seizure withinthe meaning of s. 8 of the Charter. As stated previously, the onus is on the accused to demonstrate a Charter breach.

However, it isalso clear once the accused has demonstrated that a search is warrantless the persuasive burden shifts to the Crown to show on a balanceof probabilities that the actual search or seizure is reasonable. The Crown must establish that the breath test is authorized by law, the lawitself is reasonable and the manner in which the search is conducted is reasonable. The search was authorized by law if Cst. Woods hadthe necessary reasonable grounds to make the Intoxilyzer demand and properly made it under s. 254(3) of the Code. Cst.

Woods statedhe relied on the fail result of the approved screening device test and therefore an examination of the observations he relied on to makethe ASD demand is necessary. [18] Section 254(2) read at the time of the offence as follows: If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within thepreceding three hours, operated a motor vehicle or vessel, ... the peace officer may, by demand, require the person to comply withparagraph (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 anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [19] Mr. Niewenhuizen suggests that the demand made by Cst. Woods was not properly worded. He also argues that the officerdid not have the necessary reasonable suspicion to make the demand. [20] The officer read the ASD demand from a card.

He admitted that the words “drug” and “accompany me” were included in thedemand he read and were not necessary as it was only alcohol that he was concerned about and Mr. Niewenhuizen was already seated inthe back of the police vehicle. However the Ontario Court of Appeal has dealt with this type of argument in R. v. Torsney, 2007 ONCA67 , [2007] 217 CCC (3d) 571 at paragraph 6:

The demand need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample of his orher breath forthwith. [21] Judge Green followed this line of reasoning in R. v. Caplette, 2010 SKPC 32. [22] I am satisfied from the evidence that a demand to provide samples into the approved screening device forthwith wassufficiently communicated to Mr. Niewenhuizen and understood by him. [23] The next issue to consider is whether at the time of making the demand under s. 254(2), Cst. Woods had the necessaryreasonable suspicion that Mr. Niewenhuizen had alcohol in his body.

The wording of s. 254(2) makes it clear that for a proper ASDdemand the officer must have a reasonable suspicion that the subject of the demand has alcohol in his body. This is not a high standardfor the Crown to meet. Again, as Judge Kalmakoff stated in R. v. Carriere, supra, at paragraph 34: A reasonable suspicion, while something more than mere suspicion, is something less than a belief based on reasonable and probablegrounds. Reasonable suspicion of the presence of alcohol in the body does not need to amount to reasonable grounds to believe theperson is impaired by alcohol.

The officer must honestly suspect the person to have alcohol in his or her body and there must bereasonable grounds for this suspicion. The smell of alcohol on a driver’s breath alone, for instance, is a sufficient basis upon which tohave a reasonable suspicion that a person has alcohol in his or her body. Even in the absence of behavioural symptoms or evidence ofquantity, evidence of consumption is enough to base a reasonable suspicion. [24] Applying the analysis stated in many cases such as R. v. Lindsay, (ON CA), [1999] 134 CCC (3d) 159(Ont. C.A.) and in many Saskatchewan cases such as R. v.

Butchko, 2004 SKCA 159, a subjective and objective analysis of the officer’ssuspicion is required. The Ontario Court of Appeal in R. v. Lindsay, supra, was of the view that s. 254(2) requires a two-fold test. Firstly the officer must adequately explain the factors that caused him to suspect that the motorist had alcohol in his body and secondlymust be determined whether a reasonable person in the place of the police officer would have believed that there was a basis for thesuspicion. [25] In the within case Cst.

Woods was advised by dispatch of a possible impaired driver travelling at a high rate of speed westbound in the eastbound lane of Highway #1 and who had turned south on 9th Avenue. This white truck was seen shortly thereafter by the officer as he was in the area. He followed the truck and noted it weaved into the oncoming lane before turning left from 9th Avenue onto MacDonald Street. He also noted a smell of beer coming from the vehicle and that the accused was the lone occupant ofthe truck. The accused fumbled and could not locate his registration.

When the officer had him isolated in the back of the policevehicle, he could smell the faint odour of beverage alcohol and he noticed Mr. Niewenhuizen’s eyes to be glassy. Cst. Woods alsotestified that the other officer had brought an open can of beer with some contents to Cst. Woods. The Crown refers in his brief to theaccused admitting he consumed four beer. I have listened to the evidence and conclude the officer did not say this at trial. However, Cst.Woods was able to articulate to the Court those factors which led him to conclude that Mr. Niewenhuizen had alcohol in his body.

I amsatisfied that the officer had good reason for his suspicion and therefore the ASD demand meets the requirements of s. 254(2). [26] The defence also suggested that the officer’s evidence with respect to the proper identification of the approved screening as anapproved instrument under the Code was problematic. This was not set out in the Charter notice but as I say it was argued by defencecounsel at trial. [27] The evidence by the officer was that he had an approved screening device with him and it was a Draeger Alcotest 7400 with aserial number that he gave in evidence.

He noted that the instrument had been calibrated January 2, 2012 but he wasn’t sure of the dateof the expiration of this calibration. He then corrected himself and said he made a mistake in his examination-in-chief and said the ASDwas a Draeger Alcotest of the 7400 series. I am satisfied that Cst. Woods adequately described the unit that he used and that it was anapproved screening device under the provisions of the Criminal Code. The cases are clear in this respect and I have ruled on this in thevoir dire decision of R. v. Binetruy, 2013 SKPC 118 and there are other cases such as R. v.

Claypool, 2003 SKPC 116 and R. v. Helm,2011 SKQB 32.

[28] Finally the defence suggested that Mr. Niewenhuizen’s rights under s. 10(

b) of the Charter had been breached.

Section 10(b)reads as follows: Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right; [29] The defence suggests that Mr. Niewenhuizen was “streamed” to Legal Aid and did not have the opportunity to contact counselof choice. Mr. Niewenhuizen did not testify on the voir dire. Cst. Woods’ evidence is that Mr. Niewenhuizen was read his rights tocounsel at 3:00 a.m. when he was in the back of the police vehicle. He indicated he understood and wanted to contact a lawyer. Shortlyafter 3:07 a.m., upon arriving at the police station, Mr. Niewenhuizen indicated he wanted to call a lawyer.

He was given a list of namesand a phone book and placed in a small private room called a phone booth. The procedure in Moose Jaw is that the police officers dialthe number of the lawyer requested and once the lawyer is on the phone, the call is transferred to the detainee. At 3:16 a.m., Mr.Niewenhuizen requested and spoke to Mr. John Hardy from Legal Aid. The call ended at 3:20 a.m. There is no evidence to indicate thatMr. Niewenhuizen asked to speak to another lawyer or that he was prevented from speaking to another lawyer.

There is no evidence Mr.Niewenhuizen was dissatisfied with the advice he received or that he felt rushed. Therefore in the within case Mr. Niewenhuizen onbeing advised of his right to counsel indicated he understood, asked to call Legal Aid at the police station and spoke to a Legal Aidlawyer. The defence argument it seems to me is that the police suggested or facilitated that Mr. Niewenhuizen contact Legal Aid andthat this is somehow streaming and automatically an infringement of the accused’s rights under s. 10(

b) of the Charter. However, that isnot the case. A Charter breach occurs when the suspect or accused has not been given a reasonable opportunity to contact counsel ofchoice. That was not the situation here on the evidence presented. It is clear a detainee must be reasonably diligent in exercising hisright to consult counsel. There is no evidence that Mr. Niewenhuizen provided the names of any other lawyers or requested to look againat the lawyer’s list or the phone book. There is no basis for this application under s. 10(

b) and accordingly it is dismissed. [30] In R. v. Stellato, (SCC), [1994] 2 S.C.R. 478, the following test for impairment was approved: 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. [31] Cst. Woods had been informed that there was a report of a possible impaired driver in the area. The officer was in the areaand noted a white truck to match the description given which was travelling at a high rate of speed. The accused, Mr. Niewenhuizenstopped when signalled to do so by the police and was identified as the driver and produced his driver’s licence. There is no otherevidence as to the actual vehicle stop. The officer specifically asked Mr.

Niewenhuizen to exit the vehicle to further assess his sobriety. The officer smelled beer in the vehicle and noted the accused had glassy eyes. Mr. Niewenhuizen exited his vehicle satisfactorily. Cst.Woods was brought an open can of beer seized from the truck by Officer Flanagan. The officer could smell a faint odour of beveragealcohol coming from the accused when he was in the back of the police vehicle. Considering the totality of the evidence, I might have aguess that Mr. Niewenhuizen was impaired but such is not the criminal standard of proof.

In other words, the Crown has failed to provebeyond a reasonable doubt that Mr. Niewenhuizen is guilty of impaired driving.

SUMMARY [32] I have concluded that Mr. Niewenhuizen has not proved on a balance of probabilities a violation of his rights under s. 8 or10(

a) or (

b) of the Canadian Charter of Rights and Freedoms. Therefore, I do not need to consider any application under s. 24(2) of theCharter. The Certificate of Analyses is admitted as Exhibit P-1. [33] The Crown has tendered as evidence the Certificate of Analyses and relies on the presumption of identity, namely that theconcentration of alcohol in Mr. Niewenhuizen’s blood at the time of driving was the same as it was at the time the breath samples weretaken. Section 258(1)(

c) of the Criminal Code creates this presumption. The Crown can rely on this presumption if the Crown provesthat the samples were taken pursuant to a demand under s. 254(3) of the Code and that each sample was taken as soon as practicable after

the time of the offence was alleged to have been committed. I have found that the demand under s. 254(3) was a proper demand under the Code . The extra words that the officer included when he read the demand from his police issued card such as “drug” and “accompany me” are merely superfluous and did not alter the requirement or the nature of the demand. Therefore, I find Mr. Niewenhuizen guilty of count 1 on the Information and not guilty of the impaired driving charge. M. Gordon, J