Her Majesty the Queen - v. -, 2015 SKPC 98

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 098 Date: July 3, 2015 Information: 24507083 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Damon James Alexander Appearing: Cory Bliss For the Crown Ron Piché For the Accused JUDGMENT B.D.

WRIGHT , J Introduction [ 1 ] Damon James Alexander (the “accused”) is charged that he did, on or about March 19, 2014 at the Rural Municipality of Colonsay, Saskatchewan, without reasonable excuse refuse to comply with a demand made to him by a peace officer pursuant to s. 254(3) of the Criminal Code to provide samples of his breath for analysis, contrary to s. 254(5) of the Criminal Code .

[ 2 ] The trial of this matter was held on January 20, 2015. The accused filed a Charter application alleging violations of ss. 8 , 9 and 10 of the Canadian Charter of Rights and Freedoms . By agreement of the parties, all evidence with respect to the trial was led on the Charter voir dire , with an agreement that all such evidence would be applied to the trial proper, subject to my rulings on the Charter application. At the conclusion of the Crown evidence on the voir dire , the defence elected to call no evidence on the voir dire .

The Crown then closed its case, and the defence elected to call no evidence on the trial proper. The matter was adjourned to March 30, 2015 to permit the parties to file written argument. The matter was adjourned on one further occasion to May 12, 2015 to permit counsel for the accused to complete and file the written argument. Facts [ 3 ] RCMP Constable Lana Beauchesene was on patrol on Highway #16 east of Saskatoon, Saskatchewan on March 19, 2014, and was operating a marked patrol car equipped with radar.

As she drove eastbound, she encountered a vehicle which was proceeding, according to the radar unit, at a speed of 124 km/hr. She immediately turned around to follow the vehicle and activated her emergency lights. [ 4 ] The vehicle she was pursuing stopped and Constable Beauchesene pulled in behind it. The time of the stop was 4:08 p.m.

Of note, a recording of the in-car video from Constable Beauchesene’s patrol vehicle was entered as Exhibit P-1 during the trial, and the recording begins with the initial encounter of the accused’s vehicle on the highway, continues on with the subsequent stop, and concludes just prior to the point when Constable Beauchesene begins transporting the accused. That recording shows the time of the stop, according to the time stamp on the video, as 15:45:15.

Constable Beauchesene explained that the time of stop that she recorded as 4:08 p.m. was from her own watch; she further explained that the in-car video time stamp is not always accurate in that while the camera is being operated the clock keeps an accurate count of time, but when the camera is not being operated the clocks in the in-car video tend to lose time.

Hence, in this case, whereas the time of stop according to Constable Beauchesene’s watch was 4:08 p.m., the time stamp on the video is 3:45 p.m., approximately 23 minutes behind. [ 5 ] Before exiting her patrol car, Constable Beauchesene completed a CPIC query of the license plate number of the vehicle, and determined that the registration for the vehicle had expired. She then approached the driver’s side of the vehicle (at 15:46 according to the time stamp on the in-car video) and spoke to the accused, who was the driver, and advised him of the reason for the stop.

The accused indicated that his wife - the front seat passenger - was having a medical emergency and was going into diabetic shock. Constable Beauchesene testified that she took this statement very seriously, and asked if the accused’s wife needed an ambulance. She was told that was not necessary, but when she explained that she could not let the accused’s vehicle be driven because the registration had expired, she was then told an ambulance would be needed. [ 6 ] Constable Beauchesene noted an odour of alcohol when she was at the driver’s window of the vehicle. She asked who had been drinking.

A third person in the vehicle, a male sitting in the rear seat, stated that he had been. [ 7 ] Constable Beauchesene decided that she needed to separate the accused from the other two passengers to ensure that he had not been consuming alcohol. She advised the accused that she needed to remove him from his vehicle to determine whether the smell of alcohol was coming from him.

In cross-examination, she confirmed that she had not already made up her mind that she was administering the ASD demand, as she needed to determine first whether the smell of alcohol was coming from the accused’s breath, or whether it was coming from the male in the backseat.

At 15:49 hours (all times are taken from the time stamp on the in-car video unless noted otherwise), she had the accused exit his vehicle and come to her patrol car where he was lodged in the rear seat. [ 8 ] At the same time as Constable Beauchesene was dealing with the accused in her patrol car, she kept a watch on the accused’s wife who continued to remain in the vehicle parked in front of her.

Constable Beauchesene wanted to ensure that the accused’s wife did not slump over due to her medical condition. [ 9 ] As soon as Constable Beauchesene began dealing with the accused in the rear seat of her patrol car, she could detect an odour of alcohol emanating from him, and told him so. Although the accused indicated he was not drinking and that his friend had spilled beer on him, Constable Beauchesene noted that the smell of alcohol was emanating from the accused’s breath.

She decided she would have to make an ASD demand, but did not make an ASD demand immediately because she was more concerned about the accused’s wife and the medical emergency that had been presented to her. She called for an ambulance. She says that she did not

deliberately choose not to do the ASD, but rather was dealing with other things related to the possible medical emergency of the accused’s wife. She felt preserving life was more important. [ 10 ] Throughout the entirety of her dealings with the accused, Constable Beauchesene was also monitoring the accused’s wife and communicating back and forth with ambulance personnel. This required her to go back and forth between the accused and his wife, who was still in the accused’s vehicle, on a number of occasions.

In fact, almost immediately after beginning to deal with the accused in her patrol car, Constable Beauchesene had to get out to tell the accused’s wife, who had exited the accused’s vehicle, to get back inside the vehicle and remain seated. [ 11 ] Constable Beauchesene then re-entered her patrol car, and at 15:53 she advised the accused that she stopped him for speeding, and then told him the following: Constable Beauchesene: I’m just waiting for a couple of minutes here because like I said I believe that you’ve had alcohol - that you’ve consumed some alcohol - but you’re not telling me that you are so I have to wait 15 minutes to make sure that it’s not in your mouth.

If we’re waiting for the ambulance anyway I guess that’s okay. Is there any liquor in that car at all? Accused: No. [ 12 ] Constable Beauchesene testified that she was concerned about the possibility of mouth alcohol. Even though the accused told her he had not consumed alcohol, she could smell it on his breath, and so believed him to be lying about his consumption.

Given that he was lying about his consumption, she could not discount recent consumption, and so felt that she had to wait 15 minutes to eliminate mouth alcohol. [ 13 ] Constable Beuchesene testified that her training as a qualified technician taught her to be wary of recent consumption, as mouth alcohol can result in a false “fail” reading. However, she also testified that it was not her practice to wait 15 minutes in every case; rather, it depended on whether the circumstances were such that there was no chance of recent consumption.

In the present case, Constable Beuchesene testified she could not rule out recent consumption because she believed the accused was clearly lying when he denied that he had not consumed any alcohol. She could smell alcohol on his breath, and concluded he had been drinking. [ 14 ] Immediately after her exchange with the accused about mouth alcohol, at 15:55:50 Constable Beauchesene had a discussion with him about what happens to his wife when she goes into diabetic shock. At 15:57, she took a call from ambulance personnel and passed along information about where she was and the condition of the accused’s wife.

The call ended at 16:00 hours, and Constable Beauchesene then exited her vehicle to check on the accused’s wife. She was out of her patrol car until 16:03. During that time, the in- car video recorded the accused conducting himself rather strangely. He appears to be purposefully trying to either hyperventilate himself, or to be breathing out strongly through his nose and mouth, as if he’s trying to force air from his lungs into his mouth.

The result is that he ends up coughing, and then spitting onto the floor of the patrol car. [ 15 ] Constable Beauchesene re-entered her patrol car at 16:03, and told the accused she was trying to watch his wife at the same time as dealing with him, and that it was not an easy thing to do. In response, the accused told Constable Beauchesene to do the breathalyzer. Constable Beauchesene responded: “Yes, that’s what I’m gonna do here. So like I said. . . she is more important to me at this moment so . . . .” [ 16 ] At 16:03 Constable Beauchesene read the ASD demand. He acknowledged he understood at 16:04.

Immediately after he did so, Constable Beauchesene took another radio call from ambulance personnel inquiring about the condition of the accused’s wife. After Constable Beauchesene finished with that call, she presented the accused with the ASD, at 16:04, for his first attempt at a roadside sample. That sample was unsuitable. [ 17 ] At 16:05 the accused was again presented the ASD, and provided a proper sample which registered a “fail”. Constable Beauchesene advised the accused that he failed. The accused disputed the accuracy of the reading and believed that he did not fail.

Constable Beauchesene showed the reading on the device to the accused, who acknowledged that it was displaying an “F”. He continued to argue with Constable Beauchesene and told her she needed to let him blow again as the reading was not right.

[ 18 ] At this point, at 16:07 hours, a first responder arrived on the scene and Constable Beauchesene exited her patrol car to deal with her. Constable Beauchesene testified that if the first responder had not arrived at that point, she would have arrested the accused for operating a motor vehicle with a blood alcohol concentration over the legal limit, but given the possible medical emergency of the accused’s wife, she exited her patrol car to deal with the first responder.

While she was gone, the accused tried in vain to open the rear doors and the silent patrolman of the patrol car. [ 19 ] Constable Beauchesene testified that when she went to the accused’s vehicle with the first responder, she discovered open liquor in the motor vehicle. This was despite the accused earlier telling her there was no liquor in the vehicle. [ 20 ] After dealing with the first responder, Constable Beauchesene returned to her vehicle at 16:09, and advised the accused that the first responder was checking his wife’s blood sugar, and that the ambulance was still on its way.

She then advised the accused she had to read some other things to him, and when he appeared unhappy about that, she told him that it was her job since the instrument showed a “fail”. The following exchange then began at 16:10:06: Accused: Well let’s go to the station and get the real one. Constable Beauchesene: Well, you know what, I’m going to, but unfortunately like I said I have to deal with her first, she’s the most important here, as you know. Accused: I know.

I understand. [ 21 ] After that, the exchange continued with the accused ultimately asking to have another opportunity to provide a further sample into the ASD. The exchange ended with the accused admitting he was drinking before he got into his car to drive his wife to Saskatoon for her medical emergency. The accused stated (at 16:11): “I had a drink before I took her to the hospital. We were sitting at home and I had a beer.

She started to get blotchy and red and I started to get worried and I wanted to get her here.” [ 22 ] Constable Beauchesene then agreed to give the accused another opportunity to blow into the ASD. At 16:12 the ASD was presented to the accused, and his first attempt to provide another sample was insufficient. The ASD was presented to him again at 16:13, and the result was once again a “fail” reading.

After the sample was given, Constable Beauchesene took another short call on her police radio, and after doing so immediately showed the accused the “fail” reading. [ 23 ] At 16:15 Constable Beauchesene advised the accused he was under arrest for driving while over .08, and advised him of his rights to counsel.

The accused acknowledged he understood and Constable Beauchesene asked: “Do you wish to call a lawyer now?” He responded “no”. [ 24 ] In cross-examination, Constable Beuchesene confirmed that it is her practice not to provide rights to counsel until after arrest, and in this case she did not consider providing this accused with his rights to counsel prior to his arrest. She did not believe those rights were triggered prior to the ASD demand.

Furthermore, she acknowledged that while she was not aware whether the accused had a cellular telephone, she assumed that everyone does. [ 25 ] Constable Beauchesene immediately made the breathalyzer demand, which the accused acknowledged he understood. He was also given the police warning, which he confirmed he understood. [ 26 ] Constable Beauchesene testified that at that point she would have transported the accused to the detachment for the purpose of breathalyzer testing, but was still dealing with the medical emergency that had been presented to her.

In fact, at that point, the accused asked if they could check his wife before they left the scene. Constable Beauchesene responded: “Of course. Well I’m not going anywhere until she is anyway.” Constable Beauchesene then exited the patrol car at 16:17 and checked on the accused’s wife.

[ 27 ] While Constable Beauchesene was away from the patrol car, the accused once again tried in vain to open the silent patrolman. He also repeated the strange breathing exercise he had been doing earlier. [ 28 ] Constable Beauchesene re-entered the patrol car and at 16:20 advised the accused that a registered nurse had just examined his wife, who was in no danger of going into a coma. Constable Beauchesene then exited the patrol car once again. The accused commented to himself that he was going to run and then made an extremely derogatory comment about Constable Beauchesene.

He again tried in vain to open the silent patrolman and even tried to punch out the glass of the silent patrolman, and to force it open with his foot. He then repeated the strange breathing exercise yet again. [ 29 ] At 16:26 Constable Beauchesene re-entered the patrol car, but exited again very shortly thereafter to deal with the male passenger from the accused’s vehicle, who had come to the patrol car to talk to the accused. At one point, the rear passenger door of the patrol car was opened so that the passenger could speak to the accused.

The accused told the passenger: “I need my phone.” The accused exited the patrol car but was almost immediately placed back in the patrol car at 16:28. The in-car video ends at 16:29:22, with the accused still seated in the back seat, still at the roadside. [ 30 ] Constable Beauchesene testified that as soon as she was advised by the registered nurse that the accused’s wife was not in any danger, she talked briefly with the ambulance personnel, who had just arrived, and left the scene with the accused to transport him to Saskatoon.

She testified that she left the scene with the accused at 4:50 p.m. (according to her watch), and drove directly to the detachment with no stops. She arrived with the accused at the detachment at 5:19 p.m., again according to her own watch. [ 31 ] Constable Beauchesene testified that, during the entire time at the roadside, the accused never asked to speak to a lawyer. [ 32 ] The accused was taken into the booking room and a 15-minute observation period was completed. When the breathalyzer technician advised that he was ready, the accused was taken by Constable Beauchesene to the breathalyzer room.

The accused then demanded to see the technician’s “certificate of qualifications”, and when the technician advised he was not required to do so, the accused then responded that he was not going to give a sample until he talked to his lawyer, Piché. [ 33 ] As a result, Constable Beauchesene took the accused from the breathalyzer room for the purpose of giving him an opportunity to contact counsel. Constable Beauchesene obtained a telephone directory to look up a number for Mr. Piché, and at 5:55 p.m. (all times according to her watch), the “after hours” number, 1-866-234-3444 was called.

She left a message with the answering service, believing it to be a messaging service that would notify Mr. Piché. At 5:57, she then tried Mr. Piché’s home number, 306-652-5980, and left a message at that number as well. In the messages she identified herself, advised that she had the accused - one of Mr. Piché’s clients - in custody, that he wanted to speak to Mr. Piché, and left a return number for Mr. Piché to call. [ 34 ] After getting no response and waiting for a period of time, Constable Beauchesene left a second message on the home number at 6:20 p.m. (according to her watch).

At 6:21 p.m., Constable Beauchesene then left a further message on the after hours number. [ 35 ] In cross-examination, Constable Beuchesene was asked why a telephone call was not attempted to Mr. Piché’s office number. Her response was that it did not make sense to try an office number outside office hours, and furthermore, in her own words: “What would be the point of calling an office number when there’s an after hours number?” [ 36 ] Constable Beauchesene testified that no return call was ever received from Mr. Piché.

She asked the accused if he wanted to call any other lawyer, told him that Legal Aid was available, and that there were other lawyers. She asked if he wanted to call any other lawyers but he declined, and wanted only to speak to Mr. Piché. He never asked to leave a message with Mr. Piché. Furthermore, the accused never provided any other numbers to Constable Beuchesene for Mr. Piché. [ 37 ] The accused was taken into the breathalyzer room to provide his first sample at 6:32 p.m. (according to Constable Beuchesene’s watch).

Constable Beauchesene confirmed no Prosper warning was given to the accused before he was taken into the breathalyzer room. She considered that it was not necessary as this was not a case where the accused had changed his mind and no longer wanted to call counsel.

[ 38 ] Constable Beuchesene further testified that a decision was made not to wait any further for a return telephone call from Mr. Piché, in consultation with the breathalyzer technician. This was because the investigation was time sensitive, and had already gone on for an extended period of time given the medical emergency she had been required to deal with at the scene. [ 39 ] After five attempts, the first breathalyzer sample was provided by the accused, with a reading of 120 milligrams in 100 millilitres of blood.

The accused was then taken back to the booking room for the observation of a further 15-minute waiting period. After that period was completed, the accused was taken back to the breathalyzer room to provide a second sample. However, according to both Constable Beuchesene and the technician, Constable Dowd, the accused never provided a suitable second sample. On his first attempt, there was no air flow, and both officers testified it was as if there was an obstruction, as if the accused had placed his tongue over the tube. He was advised not to do so. In all, there were nine failed attempts by the accused.

Constable Dowd testified that each time there was a failed attempt, the mouthpiece was replaced with a new one. Each of the mouth pieces was unobstructed. [ 40 ] At one point, the accused put his nostril over the mouthpiece and then stood up and said he was just joking. He was warned by Constable Dowd that this was a serious matter, and after each failed sample the accused was warned he could be charged with refusal.

The accused indicated he understood. [ 41 ] Constable Dowd testified that as a breathalyzer technician he is able to tell when someone is providing a suitable sample - the individual is blowing hard, he is red in the face, and is exerting himself. Constable Dowd testified the first sample provided by the accused showed that kind of effort; none of the other attempts by the accused did. He was not exerting himself, and was only blowing lightly. [ 42 ] After the accused’s ninth attempt at providing a second sample, he was advised he was being charged with refusal.

A suitable second sample was never provided by the accused. [ 43 ] After that Constable Dowd put a new mouthpiece on the breathalyzer and provided a sample himself in order to confirm the machine was working and would accept a sample. It did so. Furthermore, Constable Beuchesene testified that she did not observe anything of the accused to lead her to conclude that he was incapable of providing a proper sample.

Issues [ 44 ] The issues in this matter are as follows: 1) Was there a violation of the accused’s rights not to be arbitrarily detained and to be secure against unreasonable search and seizure, in that the ASD was not administered forthwith as required by s. 254(2) of the Criminal Code ? 2) Was there a violation of the accused’s rights to counsel at roadside? 3) Was there a violation of the accused’s rights to counsel at the RCMP detachment? 4) If there was a violation of the rights of the accused, what is the appropriate remedy? and 5) Has the offence under s. 254(5) of the Criminal Code been proven beyond a reasonable doubt? 1.

Was the ASD administered forthwith ?

[45] In R v Anderson, 2014 SKCA 32, the meaning of “forthwith” was discussed as follows: 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, 285 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 SCR 254; Rv Dewald, (SCC), [1996] 1 SCR 68; and R v Woods, 2005 SCC 42 , [2005] 2 SCR 205.(See, too, R v Ritchie, 2004 SKCA 9 , [2005] 11 WWR 593 (Sask CA).

We also note that the cases stand for the additionalproposition that, in determining whether a particular roadside screening test has been administered forthwith, it is necessary to haveregard for the circumstances of the case, including the extent of the lapse of time and the reason for it, and to assess the matter with thefollowing considerations in mind: (

i) the balance between Parliament’s objective in combating the evils of drinking and driving, on theone hand, and the person’s constitutional right to be free of unreasonable search or seizure, on the other; and (ii) the fact that a person’sconstitutional right to consult counsel is suspended upon demand to provide a sample of breath pursuant to section 254(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 CCC (3d) 307: 45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysisof the 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 driverhas alcohol 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 necessarydelay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay isneeded to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safetyconcerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or herduty.

Any delay not so justified exceeds the immediacy requirement. 49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation toimplement the 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 CCC (3d) 160 (CA), 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, (SCC), [1988] 1 S.C.R. 640, 40 CCC (3d) 411, and in R

v Grant, (SCC), [1991] 3 SCR 139, 67 CCC (3d) 268, and as this court held in R v Côté (1992), (ONCA), 6 OR (3d) 667, 70 CCC (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 to methat 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 police haddiscretion to wait before making the demand, the suspect would be detained and therefore entitled to consult a lawyer. The basis uponwhich the courts have held that Parliament may infringe on a suspect’s right to counsel is that there is no opportunity for the police toaccommodate 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. [46] In the present case, the accused argues the ASD was not administered forthwith due to Constable Beuchesene waiting for 15minutes to ensure there was no mouth alcohol present. The accused suggests that Constable Beuchesene testified that it is her practice towait 15 minutes in each case, and that this violates the “forthwith” requirement. [47] However, that was not the testimony of Constable Beuchesene.

She did not say that she waits 15 minutes in each case; rather,her testimony was that she waited 15 minutes because the accused had deceived her about his consumption of alcohol. The accused toldher he had not consumed any alcohol; yet she could smell alcohol on his breath and concluded he was clearly lying. Given that he waslying about alcohol consumption, she did not feel that she could discount mouth alcohol.

Furthermore, her testimony was that she waitedto administer the ASD not only due to her concerns about possible mouth alcohol, but also due to having to deal with the medicalemergency that was presented to her - that the accused’s wife was going into diabetic shock. [48] It is clear from the evidence that this medical issue was presented to Constable Beuchesene immediately in her dealings withthe accused. It is also clear that she took the potential emergency very seriously, and that it was her primary concern.

This wasconveyed to the accused on more than one occasion. [49] The purported emergency occupied a great deal of her time at the roadside. Shortly after she had placed the accused in therear of her patrol car, at approximately 15:50 hours, and determined the odour of alcohol was emanating from the accused’s breath, shehad to exit her patrol car to deal with the accused’s wife. When she returned to the patrol car at 15:53, she told the accused she believedshe needed to wait 15 minutes for any mouth alcohol to dissipate, but also told him she was waiting for an ambulance for his wife.

Immediately after that exchange, and a brief discussion with the accused about his wife’s condition, Constable Beuchesene took a radiocall from ambulance personnel and had to exit the patrol car once again to check on the accused’s wife’s condition. She is out of thepatrol car until 16:03 at which point she then read the ASD demand to the accused.

The ASD was presented to the accused at 16:04 andhe subsequently provided a suitable sample at 16:05, resulting in a “fail”. [50] The accused began to argue with Constable Beuchesene about the accuracy of the reading, but at 16:07 a first responderarrived and Constable Beuchesene exited her patrol car to deal with the first responder. In the course of attending with the firstresponder to the accused’s wife, Constable Beuchesene discovered open liquor in the accused’s vehicle.

When she returned to her patrolcar at 16:09, she had an exchange with the accused where he acknowledged that he had, indeed, been lying about consuming alcohol, andhad been drinking immediately before he got into the car to drive his wife to the hospital for her medical emergency.

In thecircumstances, Constable Beuchesene agreed to let the accused blow into the ASD a second time, at his request. [51] The ASD was presented again to the accused, and at 16:13 he provided another sample which again resulted in a “fail”reading. [52] The above recitation of events at roadside clearly demonstrates that the bulk of Constable Beuchesene’s time was spent indealing with the medical emergency that had been presented to her.

Clearly, as she testified, preserving life was more important to her inthese circumstances. [53] In such circumstances, I cannot conclude that the ASD was not administered forthwith. First, Constable Beuchesene wasjustified in focussing on the medical emergency. In R v Mertins, 2013 SKQB 252, it is noted at para. 43:

43 Where circumstances justifying delay exist, the so described implicit “immediacy” requirement necessarily evolves into “forthwith”meaning without unreasonable or unjustified delay. Take for example the situation of a police officer attending upon an automobileaccident scene where people are injured and there are continuing risks that need to be dealt with.

While it may be immediately apparentto the police officer that one of the drivers was under the influence of alcohol, the requirements of such a situation would necessarilyrequire the police officer to deal first with the risks and attend to the injured persons before making the demand. [54] Furthermore, in R v Athanasopoulos, 2013 SKPC 79 , 2013 SKPC 079, a scenario similar to that which occurred herewas commented on by Jackson, PCJ at para 29: [29] Chief Mochuruk admitted he had a reasonable suspicion that the driver had alcohol in his body immediately upon encountering himfrom the smell of alcohol on his breath and other physical observations.

He did not however proceed with the ASD demand as this wasnot his first priority based upon the scenario as presented to him. Rather, his first concern was for the safety and well-being of the fourindividuals, all of whom to varying degrees were in medical distress. In particular, the individual in the rear passenger seat was injuredseverely enough to warrant immediate transport and ultimate hospitalization in Kindersley.

It is difficult to criticize Chief Mochuruk inthe circumstances and indeed would expect he would have been more severely and rightly chastised if he would have ignored hisresponsibilities in this respect and proceeded immediately with the impaired driving investigation.

His actions are well explained andsuch delay is therefore reasonable and commendable in the circumstances. [55] With respect to the suggestion of the accused that the delay here was entirely due to Constable Beauchesene engaging in apractice of waiting 15 minutes in each case before administering the ASD, I note, again, that was not the evidence of ConstableBeauchesene. She testified that whether she waits for the 15-minute period depends on whether the circumstances are such that therewas no chance of recent consumption.

Here, she concluded that she could not discount recent consumption, given that the accused hadclearly lied to her about not consuming any alcohol whatsoever. She could smell the alcohol emanating from his breath. [56] The accused suggests the situation here is the same as occurred in R v Lomenda, 2014 SKQB 77 (aff’d 2015 SKCA 40). However, in Lomenda, the police officer was not dealing with a medical emergency as was the case here. Furthermore, thecircumstances in Lomenda are distinguishable from the present case.

In Lomenda, the Court concluded that the ASD was not administered forthwith because the peace officer had engaged in a standard practice of waiting 15 minutes in every case.[1] Here,Constable Beauchesene testified that she does not wait 15 minutes in every case; it is only where she cannot discount recent consumptionthat she undertakes the observation period. [57] The accused suggests that Constable Beauchesene’s stated reason for not being able to discount mouth alcohol is insufficient,and relies on R v Bergen, 2014 MBQB 84 .

In that case, the peace officer made a deliberate decision not to inquire of theaccused as to the time of his last drink, believing that since people lie about when they had their last drink, there is no point in asking. That was clearly not the case here. Constable Beauchesene specifically did ask the accused whether he had been drinking, and he deniedany consumption at all.

This was despite Constable Beauchesene clearly being able to detect the odour of alcohol emanating from hisbreath. [58] As was noted in R v Bernshaw, (SCC), [1995] 1 SCR 254, a police officer is justified in delaying the ASD ifhe or she is of the opinion that a breath sample provided immediately will not allow for a proper analysis of the breath. In concludingthat the “forthwith” requirement must be given a flexible

interpretation, Sopinka, J. stated as follows: 71 This conclusion is also supported by two recent cases from the Ontario Court of Appeal. In R. v. Pierman; R. v. Dewald(1994), (ON CA), 19 O.R. (3d) 704, the court considered whether police officers are entitled to wait 15 minutes priorto taking a breath sample under s. 254(2) of the Code in order to ensure proper functioning of the machine. After reviewing thejurisprudence, Arbour J.A. stated that whether or not one can delay 15 minutes cannot be determined in the abstract.

If the police couldnever wait 15 minutes, then the officer would be faced with the choice of disregarding the "fail" result due to the suspicion of itsunreliability, or taking the suspect for a breathalyzer test and overlooking the concern that the screening result may have been falselyhigh. On the other hand, Arbour J.A. noted that if the officer is entitled to wait 15 minutes before administering the test, this undulyexpands the detention without access to counsel. Arbour J.A. concluded as follows at p. 711:

In my view, a police officer cannot delay the taking of a breath sample, when acting pursuant to s. 254(2) of the Criminal Code , unless he or she is of the opinion that a breath sample provided immediately will not allow for a proper analysis of the breath to be made by an approved screening device. The officer is not required to take a sample that she or he believes is not suitable for a proper analysis. The expression "proper analysis" incorporates an element of accuracy.... If there are facts which cause the officer to form the opinion that a short delay is required in order to obtain an accurate result, I think that the officer is acting within the scope of the

section in delaying the taking of the breath sample. In such a case, as I indicated earlier, I do not think that it matters whether the officer postpones making the demand or postpones administering the test after having made the demand. [Emphasis added.] 72 Therefore, because in that case there was evidence that Pierman might have consumed alcohol just prior to being stopped by the police, it was legitimate to delay the test. Whereas, in Dewald's case, the police had no information as to when the accused last consumed alcohol and so delaying the test was not justifiable.

Arbour J.A. held that the police can only detain a suspect for an extra 15 minutes where there is some factual basis upon which to suspect that the screening device would yield an inaccurate result. [ 59 ] In the present case, given the deception of the accused, I am satisfied that there was some factual basis for Constable Beauchesene to suspect that the screening device would yield an inaccurate result.

In my view, it is not an unreasonable conclusion that the alcohol consumption which resulted in the smell of alcohol on the accused’s breath, and which he lied about, would have occurred immediately before the medical emergency arose. This supports Constable Beauchesene’s conclusion that she could not rule out recent consumption. Constable Beauchesene’s decision to undertake a waiting period was appropriate. As a result, and considering the medical emergency Constable Beauchesene was dealing with at the same time, I conclude the ASD was administered forthwith. 2.

Was there a breach of the accused ’s right to counsel at roadside ? [ 60 ] If the ASD is not administered “forthwith”, a detainee must be given an opportunity to consult counsel.

Although a person’s constitutional right to consult with counsel is suspended upon demand to provide a sample pursuant to s. 254(2) , the constitutional validity of s. 254(2) depends on the “forthwith” requirement. [2] [ 61 ] So long as the demand is validly made pursuant to s. 254(2) - that is, so long as it is made “forthwith” - for Charter purposes there is no breach of the requirement to advise the detainee of his or her right to counsel. [3] [ 62 ] A peace officer can delay the taking of a sample pursuant to an ASD demand if there are facts which cause the officer to form the opinion that a short delay is necessary to obtain an accurate result and it matters not whether the officer postpones making the demand or postpones administering the test after making the demand. [4] [ 63 ] Where there is a 15 minute delay for the purpose of obtaining a proper screening device sample, the demand is valid and the delay is a justified limitation on the right to counsel.

The fact that a detainee or the officer had cell phones is therefore irrelevant. [5] [ 64 ] Furthermore, a chance to make a phone call is not the same as a realistic opportunity to consult counsel. [6] There is no measure of privacy in a patrol car, and so no realistic opportunity to consult counsel when the peace officer and accused are both in the patrol car. [7] [ 65 ] In the present case, I have already concluded the ASD was administered forthwith. Accordingly, I further conclude there was no breach of the accused’s rights to counsel at roadside.

As I have noted, while Constable Beauchesene may have assumed everyone has a cell phone, the evidence is that she was not aware the accused actually did. The in-car video clearly features the accused asking his male passenger for his cell phone shortly before his transport to detention, and makes it clear that the accused did not have a cell phone on him when in the patrol car. There was no evidence that the accused wanted to call counsel; he never asked to do so at roadside and, in fact, when he was provided his rights to counsel by Constable Beauchesene at roadside, he indicated he did not want to call counsel.

Finally, there is nothing in the evidence to suggest there was a realistic opportunity for the accused to consult with counsel. Constable Beauchesene testified she did not consider the backseat of the patrol car as somewhere that would provide the accused with the privacy required to consult counsel, which is entirely understandable given both her presence in the patrol car and the fact that the accused was being recorded on the in-car video. In the circumstances, there was no violation of the accused’s rights to counsel at the roadside.

3. Was there a violation of the accused’s right to counsel at the detachment? [66] The accused argues that he was not afforded a reasonable opportunity to contact counsel of choice, thereby violating his s.10(

b) rights. [67] In R v Willier, 2010 SCC 37, the Supreme Court of Canada outlines the law with respect to the situation when counsel ofchoice is unavailable. The Court notes at para. 35: 35 Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(

b) entitles them to 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, and may include factors such as the seriousness of the chargeand the urgency of the investigation: Black.

If the chosen lawyer cannot be available within a reasonable period of time, detainees areexpected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R v Ross, (SCC), [1989] 1 SCR 3; and Black.

As Lamer J. emphasized in Ross, diligence must also accompany a detainee’s exerciseof the right to counsel of choice, at pp. 10-11: Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R v Tremblay, (SCC), [1987] 2 SCR 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, the correlativeduties imposed on the police and set out in Manninen are suspended. Reasonable diligence in the exercise of the right to choose one’scounsel depends upon the context facing the accused or detained person.

On being arrested, for example, the detained person is facedwith an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyerto conduct a trial, the accused person faces no such immediacy.

Nevertheless, accused or detained persons have a right to choose theircounsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should beexpected to exercise the right to counsel by calling another lawyer. [68] What constitutes a “reasonable opportunity” will depend on all the circumstances, including whether duty counsel services areavailable.

This may affect what constitutes “reasonable diligence” of a detainee in pursuing his or her right to counsel, which in turn affects the length of time the authorities are required to hold off before pursuing the investigation.[8] [69] The availability of duty counsel is a crucial factor to consider in determining whether the accused exercised his or her right to counsel with reasonable diligence.[9] [70] In Richfield, the police left a message with a live answering service, but counsel did not return the call.

After one hour andforty-five minutes from the time of arrest, the accused was advised his lawyer had not called back. He did not ask to make a further callto his counsel of choice, or to other counsel. He was offered duty counsel and declined. The Court held that the accused was not reasonably diligent in exercising his right to counsel.[10] [71] The accused relies on R v Brouillette, 2009 SKQB 442, in support of his position that the police did not act diligently infulfilling his right to contact counsel of choice.

In Brouillette, the Court held that simply placing a phone call to the office of the lawyerof choice at 3:00 a.m. does not fulfil the implementational duties imposed on the police, and that the police must make at least someefforts to locate counsel of choice. [72] However, that is not analogous to what occurred in the present case. Here, as it was after hours, Constable Beauchesene triedboth an after hours number and the home number listed for Mr. Piché, and left messages.

After receiving no response after 25 minutes(which was already, by that time, over two hours beyond the time of driving, and approximately one hour and forty-two minutes afterarrest), further messages were left at both numbers. No call back was ever received from counsel of choice. Constable Beauchesenethen asked the accused if he wanted to call any other lawyer, and reminded him Legal Aid was available. The accused declined andwanted only to speak with counsel of choice. However, he never asked to leave a message himself with his counsel of choice; nor did heprovide any other numbers to reach that counsel.

The accused was eventually taken to the breathalyzer room to provide his first sample,over 35 minutes after the original messages were left for his counsel of choice.

[ 73 ] In all the circumstances, I am satisfied the accused was given a reasonable opportunity to contact counsel of choice. I am further satisfied he was given a reasonable period of time for his counsel of choice to respond. When that period of time passed, he was given the opportunity to contact another lawyer, and was reminded of the availability of duty counsel. The accused declined either option, and accordingly, in my view, was not diligent in exercising his right to counsel. The police, therefore, were no longer required to continue to hold off on pursuing their investigation. 4.

If there was a violation of the rights of the accused, what is the appropriate remedy ? [ 74 ] The accused seeks exclusion of all evidence following the alleged breach of the accused’s rights under ss. 8 , 9 and 10 of the Charter . However, having found there was no breaches of the accused’s rights, it is unnecessary to consider whether any remedy is appropriate. [ 75 ] In the event this Court is in error with respect to the existence of a breach, s. 24(2) will be considered in accordance with R v Grant , 2009 SCC 32 , which requires the Court to consider: (

i) the seriousness of the state conduct which infringed the Charter rights; (ii) the impact on the Charter -protected interests of the accused; and (iii) the interest in society of having the matter adjudicated on the merits. [ 76 ] With respect to the issue of the seriousness of the Charter -infringing state conduct, if the Court had found a breach here, first with respect to the allegation the ASD had not been conducted forthwith, such breach was on the lower end of the scale.

Constable Beauchesene was not acting pursuant to a standard practice of delaying the ASD for 15 minutes in every case; rather she had turned her mind to whether or not there had been recent consumption by the accused. She decided to wait in order to ensure an accurate result, as she could not rule out recent consumption given the deception of the accused.

This turned out to be a wise decision given not only her subsequent discovery of open liquor in the accused’s vehicle, but also the accused’s subsequent admission that he had lied about his consumption and that he had been drinking immediately before his wife’s medical emergency arose. Constable Beauchesene was also trying to deal with the medical emergency of the accused’s wife at the same time as she dealt with the accused, and felt it was more important to attend to the accused’s wife and preserve life. In these circumstances, any breach of the accused’s rights under ss. 8 , 9 or 10(

b) of the Charter from failing to administer the ASD forthwith, was of an inadvertent or minor nature, and the minor nature of the breach weighs in favour of admission of the evidence sought to be excluded. [ 77 ] Furthermore, with respect to the alleged breach of the accused’s right to counsel at the detachment, it is to be noted that the officer made efforts to contact counsel of choice, using an after hours number and a home number for the accused’s counsel of choice, when it was indeed after hours. She left messages at both numbers, and after waiting for a period of time left further messages.

If there was a breach in facilitating contact with counsel of choice in such circumstances, such breach cannot be considered deliberate or severe, and nothing more than inadvertent or minor in nature.

It was not conduct from which the Court should be concerned to dissociate itself, and, once again, the minor nature of the breach would weigh in favour of admission of the evidence sought to be excluded. [ 78 ] With respect to the affect of the breach on the accused, first with respect to the delay in administering the ASD and the alleged breach of his right to counsel flowing therefrom, such breach, if I had found one, was not profoundly intrusive.

Breath sample evidence is relatively non-intrusive, and the taking of those samples is not a significant state intrusion into one’s personal privacy. [11] [ 79 ] Furthermore, the ASD demand to which the accused was subjected was delayed because of the officer’s concern about ensuring an accurate result, and also because of the medical emergency of the accused’s wife.

During the delay, the accused never made any indication he wanted to talk to counsel, and he even acknowledged the propriety of Constable Beauchesene prioritizing his wife’s medical emergency. [ 80 ] In assessing the impact on the accused of the alleged breach of his right to counsel at the detachment, the accused’s own conduct must be considered. He made no effort to provide a telephone number for his counsel of choice, and declined to contact any other lawyer or Legal Aid duty counsel when his counsel of choice was unavailable.

In such circumstances, it is hard to conclude he was negatively impacted given that he did not feel the need to obtain any legal advice at all when counsel of choice was unavailable. He had other options, but chose not to utilise them.

[81] In the view of this Court, the above considerations with respect to the impact on the accused of the alleged Charter breaches,favours the admission of the evidence sought to be excluded. [82] With respect to society’s interest in having the matter adjudicated on the merits, the inquiry is “whether the truth-seeking function of the criminal trial process would be better served by the administration of the evidence, or by its exclusion”.[12] In this case,the evidence sought to be excluded, including the results of the ASD and the subsequent refusal of the accused to provide breathsamples, is significant to the case of the Crown.

The evidence of the refusal in this particular case is compelling and highly reliable, andwas not challenged. [83] Numerous cases have commented on the death and destruction caused by drinking and driving and in curbing such criminal conduct. There is a strong public interest in having cases such as this adjudicated on the merits.[13] [84] All three arms of the Grant analysis in this case favour inclusion of the evidence. Accordingly, I would not have excludedsuch evidence had I found any violation of the accused’s rights under ss. 8, 9 or 10 of the Charter as alleged by the accused. 5.

Has the offence under s. 254(5) of the Criminal Code been proven beyond a reasonable doubt? [85] Given that I have not found any Charter violations, and that I would not have excluded any evidence even if I had found thereto have been the breaches alleged by the accused, all evidence from the voir dire is applied to the trial proper. [86] That evidence clearly establishes that the accused never provided a suitable second sample into the breathalyzer. He wasgiven nine opportunities to attempt to do so; on each of those attempts he never gave the effort required to provide a proper sample.

Infact, at one point, he put his nostril over the mouthpiece. He was cautioned that this was a serious matter, and after each failed sample hewas warned that he could be charged with refusal. He never provided a suitable second sample, even though Constable Dowd ensurednot only that the mouthpieces were all unobstructed, but also that the instrument was working and would accept a sample. [87] In the circumstances, I am satisfied beyond a reasonable doubt that the accused intentionally refused to comply with thedemand to provide samples of his breath for analysis, and had no reasonable excuse for doing so.

Accordingly, the accused is foundguilty as charged. _______________________ B.D. Wright, J [1] Lomenda, supra, at paras. 34 - 37. [2] R v Thomsen, (SCC), [1988] 1 SCR 640; R v Woods, 2005 SCC 42 , [2005] SCJ No 42; R v Quansah, 2012ONCA 123 , [2012] OJ No 779. [3] R v Quansah, supra, at para. 22. [4] R v Pierman; R v Dewald (1994), (ON CA), 19 OR (3d) 704 (Ont CA); R v Bernshaw, supra. [5] R v Bell, [2009] OJ No 1551 (CA).

[6] R v Torsney, 2007 ONCA 67 , [2007] OJ No 355 (CA). [7] R v Schnurr, 2015 SKPC 68 , 2015 SKPC 068. [8] See R v Prosper, (SCC), [1994] 3 SCR 236. [9] See R v Richfield, (ON CA), [2003] OJ No 3230 (CA). [10] See Richfield, supra, at para 12. [11] R v Grant, 2009 SCC 32 , [2009] 2 SCR 353, at para 111; R v Rudd, [2012] OJ No 2662 (SCJ), at para 18. [12] See Grant, at para 79. [13] R v Grant, supra; R v Du, (ON SC), [2009] OJ No 3194 (SCJ) at para. 24.