Her Majesty the Queen - v. -, 2013 SKPC 90

IN THE PROVINCIAL COURT OF SASKATCHEWAN Date: May 24, 2013 Citation: 2013 SKPC 090 Information: 45562401 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Bartley H. By Appearing: Mr. D. Brule For the Crown Mr. J. Williams For the Accused TRIAL DECISION M. HINDS , J INTRODUCTION [ 1 ] Bartley By is charged that on or about the 5th day of March A.D. 2011 at or near Regina, Saskatchewan, he operated a motor vehicle while impaired by alcohol, contrary to section 253(1)(a), and also that he operated a motor vehicle while over .08, contrary to section 253(1) (

b) of the Criminal Code .

[ 2 ] In R. v. By, 2013 SKPC 29 , I found that the verbal statements made by the accused to the police at the roadside were statutorily compelled in violation of his rights under

section 7 of the Charter (use immunity). As a result I determined that his initial verbal statements to police would be inadmissible at trial. I also found that the accused’s rights pursuant to sections 8, 9 and 10(

b) of the Charter were breached at the roadside. However, following a section 24(2) analysis, I determined the Certificate of Analyses respecting the accused’s breath samples was admissible evidence at trial. It was marked as Exhibit P-1. I also granted the Crown’s application to have the evidence it adduced at the voir dire (minus the accused’s initial verbal statements to the police) applied to the trial proper.

The voir dire evidence will include police evidence on the “over hold issue”. [ 3 ] Pursuant to section 258(6) of the Criminal Code I granted the defence application requiring the qualified technician, Constable Jason Wilkinson, to attend trial for the purpose of cross-examination. The trial resumed before me on April 10, 2013. [ 4 ] The Certificate of Analyses reveals that Constable Jason Wilkinson received two samples of Mr. By’s breath directly into an Intoxilyzer 5000C, an approved instrument as defined in subsection 254(1) of the Criminal Code .

The first breath sample was taken at 4:56 a.m. on March 5, 2011 and contained 160 mg of alcohol in 100 ml of blood. The result of the second breath sample taken 22 minutes later at 5:18 a.m. was also 160 mg of alcohol in 100 ml of blood. [ 5 ] On cross examination Constable Jason Wilkinson testified that proper breath testing requires a qualified technician to follow certain procedures which are made up of 5 phases: (1) observation period (2) information gathering (3) data entry (4) breath test analysis and (5) final check/completion of Certificate of Analyses.

Constable Wilkinson testified that he received his training for the Intoxilyzer 5000C in September, 2003. He was trained that the arresting officer was responsible for the observation of the accused for at least 15 minutes prior to the first and second breath test. He agreed that, as the qualified technician, it was ultimately his responsibility to ensure that the observation of breath testing was done by someone and that this responsibility could be delegated.

The officer observing the subject had to keep the subject in close proximity and within his field of view. [ 6 ] Constable Wilkinson agreed that the purpose of the observation period was to ensure there was no alcohol in the accused’s mouth prior to breath testing, as mouth alcohol could falsely elevate the result of the breath sample. A qualified technician must ensure a subject does not use any sources of mouth alcohol such as recent beverage alcohol consumption, breath-freshener sprays, inhalers or mouth washes within 20 minutes of a test. Burping, belching and vomiting are also sources of mouth alcohol.

If the subject does any of these things, the technician is to delay testing for 20 minutes in order for the mouth alcohol to dissipate. [ 7 ] Constable Wilkinson admitted that he did not personally keep Mr. By under observation for at least 15 minutes prior to the breath tests. Constable Wilkinson testified that his notes indicate that Constable Hooker was the arresting officer. However, he could not say whether or not Constable Hooker observed Mr. By for 15 minutes prior to the breath tests or kept Mr. By in close proximity or within his field of view.

Constable Wilkinson also agreed that if an observation period was not conduced before each breath sample, then the proper procedure was not followed. [ 8 ] Lastly, on cross examination Constable Wilkinson testified that: (1) he did not note any problems with Mr. By’s balance or coordination. Mr. By’s actions were normal. In addition, he did not observe Mr. By to sway, or support himself on a counter or against a wall.

(2) Mr. By’s attitude and word choice were good.

(3) Mr. By’s speech was fair (not slurred) and he did not repeat words or a sentence.

(4) Mr. By did not appear to have any difficulty pronouncing words.

(5) Mr. By did not appear to have a dry mouth or smack his lips. [ 9 ] On re-examination, Constable Wilkinson testified that he had no concerns about Mr. By burping, belching or having mouth alcohol that could falsely elevate blood alcohol readings. [ 10 ] The defence did not call any evidence at trial.

ISSUES [ 11 ] The circumstances of this trial give rise to the following issues: 1. Identity. Has the Crown proved beyond a reasonable doubt that the accused was the driver of the motor vehicle which ran a red light? 2. Were the breath samples taken as soon as practicable as required by section 258(1) (

c) of the Criminal Code ? If not, can the Crown rely on the presumption of identity? 3. As the court has previously found the breath samples were taken without a lawful demand as required by section 254(3) of the Criminal Code , can the Crown make use of the presumption of identity set out in section 258(1) (

c) of the Criminal Code? 4. If the Court finds the presumption of accuracy set out in section 258(1) (

g) of the Criminal Code has been engaged, has the defence rebutted this presumption? 5. Has the Crown proved beyond a reasonable doubt that Mr. By's ability to operate a motor vehicle was impaired by alcohol at the relevant time? 6. Were Mr. By ’ s rights under sections 9 of the Charter violated by being held in police custody after the breath tests were completed; and if so, is a remedy warranted pursuant to section 24(1) of the Charter ? ANALYSIS 1. Identity.

Has the Crown proved beyond a reasonable doubt that the accused was the driver of the motor vehicle which ran a red light? [11] Shortly before 4:00 a.m. on March 5, 2011 Brendon Stenz was driving his 1992 Chevrolet Cavalier southbound on Albert Street in Regina. His friend, Jordan Ozipko was a passenger in the vehicle. As Mr. Stenz neared the intersection of Albert Street and 25 th Avenue he saw that the traffic light signal was green and he continued driving southbound. When Mr. Stenz was in the intersection he saw a “white flash” to his right (west) and immediately collided with a white truck. Mr.

Stenz’s car struck the truck just behind the driver’s door. [12] After the collision Mr. Stenz’s car ended up south of the intersection on a meridian on Albert Street, which separates the south and north bound lanes. The entire front end of Mr. Stenz’s vehicle was crushed. The white truck ended up east of the intersection in the parking lot of a Safeway with the passenger side of the truck pushed up against a billboard sign and the front end of the truck facing north. [13] After the collision Mr. Stenz and his passenger Mr. Ozipko got out of the car. Mr.

Stenz testified in chief that he saw the driver of the truck come out of the truck and walk towards him and Mr. Ozipko. He did not notice anybody else in the area. Mr. Stenz further testified that the driver of the truck asked if they were all right. Mr. Stenz testified that it was less than a minute from the time he got out of his car to the time the police showed up.

[14] Constables Hooker and Klyne came upon the two vehicle accident at approximately 3:55 a.m. Mr. Stenz told the police that the truck ran a red light and he hit him. At the scene of the accident and in court Mr. Stenz identified Mr. By as being the driver of the white truck that he hit. I found Mr. Stenz to be a credible and reliable witness. I am satisfied that the Crown has proved beyond a reasonable doubt that Mr. By was the driver of the white truck that ran a red light at the intersection of Albert Street and 25 th Avenue. 2. Were the breath samples taken as soon as practicable as required by section 258(1) (

c) of the Criminal Code ? If not, can the Crown rely on the presumption of identity ? [15] Section 258(1) (

c) of the Criminal Code states as follows: 258(1) In any proceedings under s. 255(1) in respect of an offence committed under s. 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2), .... (

c) where samples of the breath of the accused have been taken pursuant to a demand made under section 254(3), if .... (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least 15 minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, [16] The defence contends that the breath sample were not taken as soon as practicable.

The evidence at trial reveals the following chronology of events: 3:55 a.m. approximate arrival of police at the scene of the accident. 4:17 a.m. Constable Hooker arrests Mr. By for impaired driving. 4:20 a.m. Constable Hooker makes a breath demand of Mr. By. 4:40 a.m. The police and Mr. By leave the scene of the accident. 4:47 a.m. The police and Mr. By arrive at police cells. 4:58 a.m. The first sample of breath is taken from Mr. By. 5:18 a.m. The second sample of breath is taken from Mr. By

[17] In particular, the defence contends there is an unexplained delay of 20 minutes, between the demand for breath samples at 4:20 a.m and when the police left the scene of the accident and departed for the police station at 4:40a.m. [18] In R. v. Carrier, 2010 SKPC 118 my colleague Judge Kalmakoff succinctly summarized the law pertaining to as “soon as practicable” as follows at paragraph 58: 58 "As soon as practicable" is a standard which must be applied with reason. It does not mean as soon as possible, but as soon as canreasonably be expected.

The Crown is obligated to demonstrate, in all the circumstances, that the breath samples were taken within areasonably prompt time. There is no requirement that the Crown account for what happened every minute that the accused was incustody prior to the tests being taken, but as long as the delay can be explained to the satisfaction of the trial judge, the Crown is entitledto rely on the presumption in section 258(1)(c). This requires that there be some evidence from which the Court can infer an acceptablereason for the delay.

A significant delay which is completely unexplained provides no evidentiary basis upon which to find the delay isreasonable. [19] In this case, the twenty minute delay between 4:20 a.m. and 4:40 a.m has been explained to my satisfaction. The evidence reveals that a significant two-vehicle accident occurred at the intersection of Albert Street and 25th Avenue shortly before 4:00 a.m. Both vehicles had extensive damage and had to be towed from the scene. One individual, Mr. Stenzwas injured to the extent that Emergency Medical Services were dispatched.

There is evidence which indicates that Constable Hookerremained at the scene of the accident for a brief time prior to departing to the police station; (1) to ensure that Mr. Stenz receivedmedical attention, (2) to speak with Sgt. Smith who photographed the scene, (3) to sign the accident report which Constable Klyne wascompleting, and (4) to deal with the scene of the accident. Under these circumstances there is some evidence from which I can and doinfer an acceptable reason for a delay of 20 minutes. 3.

As the court has previously found the breath samples were taken without a lawful demand as required by section 254(3) of theCriminal Code, can the Crown make use of the presumption of identity set out in section 258(1)(

c) of the Criminal Code? [20] In R. v. By, 2013 SKPC 29 , 2013 SKPC 029 at paragraphs 44 to 55, I found that Constable Hooker honestly believed that the accused committed the offence of impaired driving or driving “over .o8" in the preceding three hours. However, I alsodetermined that his subjective belief was not supported on an objective consideration of the evidence. Hence, the breath samples weretaken without a lawful demand as required by section 254(3) of the Criminal Code. [22] In R. v. Rilling, (SCC), [1975] S.C.J.

No. 72, the Supreme Court of Canada held that despite the absence of sufficient reasonable and probable grounds for a breath demand, if the accused complied and provided samples, theCertificate of Analyses is admissible. Rilling is considered good law to this day. [23] The related issue of whether the presumptions of identity and accuracy followed from admission of the Certificate into evidence was not expressly discussed by the majority in R. v. Rilling, supra. Section 258(1)(

c) of theCriminal Code presumes the blood alcohol reading at the time of the testing to be the same as at the time of the driving (offence). Thispresumption is called the presumption of identity. Section 258(1)(

g) of the Criminal Code presumes that the blood alcohol reading at

the time of testing is accurate. This is called the presumption of accuracy. [23] Counsel for the Defence urges the court to adopt the position of the New Brunswick Court of Appeal in R. v. Searle, 2006 NBCA 118, which held that where the officer lacked the proper grounds for the demand and theCertificate of Analyses is admitted into evidence, the Crown could not rely on the presumption of identity set out in section 258(1)(c). In R. v. Searle, supra the court stated as follows at paragraph 25: Since the demand was not made in strict compliance with s. 254(3) of the Code, it is unlawful. The Crown cannot rely on thepresumption found in s. 258(1)(

c) unless the officer had reasonable and probable grounds to make the breathalyzer demand in the firstplace. Without this presumption, there is no evidence of the concentration of alcohol in the accused's blood at the time the offence wasalleged to have been committed. Thus, the Crown has failed to prove the element of the offence under s. 253(

b) of the Code. Tosummarize: the certificate is still admissible but the prosecutor is not, however, entitled to use the presumption under s. 258(1)(c). Theaccused must, therefore, be acquitted of the charge under s. 253(

b) of the Code. [24] There are two decisions of the Ontario Court of Appeal that have declined to follow R. v. Searle, supra. [25] In R. v. Gundy (2008), 2008 ONCA 284 , 231 C.C.C (3d) 26 (Ont. C.A), Mr. Justice Rosenberg held that reasonable and probable grounds for the demand are not required for admission of the Certificate of Analyses and the effect of Rillingis that the presumption of identity set out in subsection 258(1)(

c) and the presumption of accuracy in subsection 258(1)(

g) applied. [26] In R. v Charette, 2009 ONCA 310, Moldaver JA (now of the Supreme Court of Canada) held at paragraph 35 that in sustaining Mr. Rilling’s “over 80" conviction, it was apparent that the majority of the Supreme Court ofCanada applied the presumptions of identity and accuracy. Moldaver JA also stated as follows at paragraph 37: In Spence J.'s [dissenting in Rilling] view, by virtue of the opening words of both provisions, Parliament intended to limit the availabilityof the presumptions in both s.258(1)(

c) and s. 258(1)(

g) to those cases where the arresting officer had reasonable and probable grounds.In contrast, the majority in Rilling must be taken to have concluded that just as reasonable and probable grounds for making a demandare irrelevant for purposes of s.258(1)(

g) where an accused has acceded to the demand and provided samples, so too are those wordsirrelevant for the purposes of s.258(1)(c). The only other possibility, in the circumstances, is that the majority sustained an unlawfulconviction, a proposition that I refuse to accept. [27] I prefer the reasoning of the Ontario Court of Appeal in Gundy and Charette to that of the New Brunswick Court of Appeal inSearle. As a result, after considering the Charter arguments and ruling that the Certificate of Analyses is admissible evidence at trial, Ifind that the presumptions of identity (s. 258(1)(

c) and accuracy (s. 258(1)(g)) apply and there is presumptive proof that theconcentration of alcohol in Mr. By’s blood was 160 mg in 100 ml of blood at the time he was driving. 4. If the Court finds the presumption of accuracy set out in section 258(1)(

g) of the Criminal Code has been engaged, has thedefence rebutted this presumption? [28] In R. v. Redford, 2012 ABQB 768 , [2012] A.J. No. 1328, (Q.B.) Justice Macklin provides a helpful

summary of thehistory of recent Parliamentary amendments to

section 258 of the Criminal Code and the Supreme Court of Canada’s treatment of thesame in R. v. St.-Onge Lamoureux, 2012 SCC 57 and R. v. Dinely, 2012, SCC 58 as follows at paragraphs 21 - 28:

21. The Tackling Violent Crime Act, SC 2008, c 6 came into force on July 2, 2008. As a result, new ss. 258(1)(c), 258(1)(d.01) and258(1)(d.1) of the Criminal Code eliminated the so called "Carter defence" by limiting what constitutes "evidence to the contrary”. In R.v. Carter (1985), (ON CA), 19 CCC (3d) 174 (Ont CA), the Court held that “evidence to the contrary” includedtestimony about the accused’s quantity of alcohol consumption, in addition to expert toxicological evidence indicating the rate at whichthe accused metabolized alcohol.

The combination of the two were available to raise a reasonable doubt as to the accuracy of thebreathalyzer test. 22. The 2008 amendments limit the accused's ability to rebut the presumption of accuracy of the breathalyzer test.Additionally, the amendments restrict the type of evidence available to the accused to rebut this presumption. Section 258(1)(

c) requiredthe accused to show the following to rebut the presumption of accuracy: 1. that the approved instrument was malfunctioning or was operated improperly; 2. that the malfunction or improper operation resulted in the determination that the accused's blood alcohol concentration exceeded thelegal limit; and 3. that the accused's blood alcohol concentration would not in fact have exceeded the legal limit at the time when the offence wasalleged to have been committed. 23. Section 258(1)(d.01) restricts the evidence the accused can rely on to establish the requirements of section258(1)(

c) and rebut the presumption of accuracy. The following evidence is not permissible: 1.the amount of alcohol that the accused consumed; 2. the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused'sbody; and 3. a calculation based on that evidence of what the concentration of alcohol in the accused's blood would have been at thetime when the offence was alleged to have been committed. 24.

Section 258(1)(d.1) provides that where the accused's blood alcohol level exceeds the legal limit at the time of the breathalyzer, it ispresumed to have also exceeded the legal limit at the time of the offence. 25 The majority in Dineley held that the amendments affected substantive rights, as opposed to affecting only the manner in which theevidence was presented. 26 The constitutional validity of the amendments was considered in St-Onge.

All three provisions (ss. 258(1)(d.01), 258(1)(d.1) and258(1)(c)) were found to infringe the accused's right to be presumed innocent, as they created a statutory presumption whereby theaccused could be convicted even if the trier of fact was left with a reasonable doubt as to the accuracy of the breathalyzer test. However,ss. 258(1)(d.01) and 258(1)(d.1) were saved under s. 1 of the Charter, as was the requirement in s. 258(1)(

c) that the accused show thatthe instrument malfunctioned or was operated improperly. The requirements under s. 258(1)(

c) that the accused show a connectionbetween the malfunction or improper operation and failed breathalyzer test, and that the accused show that his or her blood alcohol levelwould not in fact have exceeded the legal limit, were struck down as unconstitutional. 27 As a result of the amendments, and as confirmed by St-Onge, the only way for an accused to rebut the presumption of accuracy of thebreathalyzer test is to call evidence that the instrument was functioning improperly or was operated improperly. The Carter defence hasbeen eliminated by s. 258(1)(d.01).

It is therefore no longer open to the accused to present evidence regarding his or her alcoholconsumption, or the rate at which the body metabolizes alcohol in order to rebut the presumption of accuracy of the breathalyzer test.Lastly, s. 258(1)(d.1) provides the presumption whereby the accused's blood alcohol concentration is presumed to have exceeded thelegal limit at the time of the offence if it did so at the time of testing. 28 St-Onge and Dineley confirmed that the amendments affected substantive rights, and created a statutory presumption whereby anaccused can be convicted even if the trier of fact is left with a reasonable doubt as to the accuracy of the breathalyzer test.

As themajority pointed out, s. 258(1)(d.1) exempts the prosecution from having to establish the guilt of the accused beyond a reasonable doubtbefore the accused must respond. The only way the accused can then respond is by showing that the approved instrument malfunctionedor was operated improperly. [29] I have previously determined that the presumption of accuracy has been engaged in this case. The defence takes the position that it has rebutted the presumption of accuracy on the basis that the evidence at trial establishesdeficiencies in the breath testing procedure.

In particular, the defence takes the position that the procedural requirement of anobservation period was not followed.

[30] Constable Wilkinson did not personally observe Mr. By for at least fifteen minutes prior to each breath test. He assumed Constable Hooker conducted the observation period. [31] Exhibit D-2 consists of six video streams of varying durations taken from three different locations within the Regina Police Station on March 5, 2011. One video stream (V1) shows detention hallway #3 for the period of time 4:47:09 a.m. to 4:53: 43 a.m. A second video (V2) stream shows detention hallway #3 for the period of time 4: 53: 43 a.m. to 5:21:55. Constables Hooker and Klyne and Mr.

By appear in each of these video streams. [32] V1 shows the three men to enter the detention hallway together and walk towards the camera. Mr. By takes a seat on a wooden bench situated in the hallway outside the breath test room. Constable Klyne stands approximately 4 feet to the right of where Mr. By is seated and appears to be over-seeing Mr. By. It is apparent that Constable Klyne, not Constable Hooker was conducting the observation period on Mr. By. At times Constable Klyne makes notes in a notebook and talks to Mr. By and to passers-by in the hallway. At 4:53:03 a.m.

Constable Klyne leaves his post in the detention hallway beside Mr. By. Constable Klyne is not seen in the detention hallway for 43 seconds. V2 shows Constable Klyne return to his post approximately 4 feet to the right of where Mr. By is seated at 4:53:46 a.m. V2 shows Constable Klyne and Mr. By going into the breath room at 4:56:34 a.m. The two men return to their former positions in the hallway at approximately 4:58 a.m. Constable Klyne remains next to Mr. By in the hallway until the next breath test at 5:18 a.m. [33] The video streams show that Constable Klyne was within approximately four feet of Mr.

By for the vast majority of time prior to each of the breath tests. There is, however, a period of forty three seconds, between 4:53:03 a.m. and 4:53:46 a.m. where Constable Klyne is not in the hallway beside Mr. By. There is no evidence before the court as to where Constable Klyne went during this period of time. Whether he was several feet away or some considerable distance away from Mr. By is not known. Under these circumstances, I am satisfied that the defence has established that for 43 seconds Constable Klyne did not keep Mr. By in close proximity or within his field of view .

Otherwise, I am satisfied that Constable Klyne properly conducted the observation period. [34] However, on the whole of the evidence before me, I am not satisfied that the defence has rebutted the presumption of accuracy, based on the 43 seconds Constable Klyne did not observe Mr. By. In this case the police employed another method of observing Mr. By prior to breath testing. That method involved the use of a video camera which recorded Mr. By. A review of the entire video recording of Mr. By, including the 43 seconds period of time when Constable Klyne was not present, reveals that Mr.

By remains seated on the wooden bench in detention hallway #3 outside the breath test room. The video does not show Mr. By to burp, belch or vomit during this time. Nor does the video observation show Mr. By to use any source of mouth alcohol. [35] In R. v. So, [2013] A.J. No. 426 , the accused was charged with impaired and driving ‘ over .08'. At trial Mr. So testified that he consumed 9 alcoholic drinks between 6 p.m. and 2 a.m. on the morning of the offence. After consuming 2 slices of donair pizza he drove and was pulled over by police. Mr.

So testified that he was burping while in the police car and also in a holding room where he was placed before the first breath test and between the first and second tests. The burping was described as discreet and fairly quiet. Mr. So did not tell any police officer that he had burped, nor was he asked by any police officer if he had burped. There was no police officer in the holding room with Mr. So on either occasion, and nobody (apparently) watching Mr. So during his periods in the holding room. [36] In R. v.

So , supra, Provincial Court Judge Tyndale considered the issue of what constitutes “ evidence to the contrary ” following the Supreme Court of Canada ’ s decision in R. v. St.-Onge Lamoureux and stated as follows at paragraphs 17 to 19: "Evidence to the Contrary" post- St-Onge 17 At the time of writing this decision, there have been no higher Court decisions that provide conclusive (or binding) guidance on this issue. 18 The history of Parliamentary amendments is set out in St-Onge and Redford , above. It is important to remember that the amendments to s. 258(1)(

c) were intended to limit the nature of the evidence upon which the breath test results could be challenged. In striking down portions of those amendments, the Supreme Court was not defining what evidence to the

contrary was but, rather, was removing some of the limitations imposed. 19 The real issue is whether the test results are reliable (St-Onge para. 48). The SupremeCourt in St-Onge reaffirmed the scientific value to be given to the test results. It confirmed the statutory presumption of accuracy and thetwo presumptions of identity.

It is clear that the intention of the Supreme Court in St-Onge was to set the bar high for evidence to thecontrary (para. 79): [79] It should be noted that the defence created by Parliament is not illusory simply because accused personswill rarely succeed in raising a reasonable doubt that the instrument was functioning or was operated properly. The existence of a defence must not be confused with how often those presenting it are successful.

As JudgeDuncan noted in Powichrowski (para. 69): While it may be that the defendant, having explored every avenue, will be unable to meet the requirements of thesection and rebut the presumption, that is what often happens when a defendant is faced with credible and reliable evidence against him. [37] I adopt the reasons set forth above. In the present case there is no evidence of alcohol consumption, vomiting, belching orburping, giving rise to mouth alcohol and unreliable breath tests. As a result I am of the view that the defendant has not rebutted thepresumption of accuracy. 5.

Has the Crown proved beyond a reasonable doubt that Mr. By's ability to operate a motor vehicle was impaired by alcohol atthe relevant time? [38] R. v. Stellato, (ON CA), [1993] O.J. No. 18 (C.A.), affd. (SCC), [1994] 2 S.C.R. 478(SCC), provides the test to be applied in determining whether the offence of impaired driving has been established. If the Crown has proven beyond a reasonable doubt that the ability of an accused to operate a motor vehicle is even slightly impaired by drug or alcohol, there is sufficient proof of the offence. This does not mean that only slight evidence will be adequate.

Rather, the evidence as a whole must establish that such an inference can reasonably be drawn from conduct which is a departure from the norm. That departure may fall upon a continuum from slight to great, but it must lead to no other reasonable conclusion but that the accused’s ability to operate a motor vehicle was impaired to some degree by the consumption of alcohol and/or drugs. [39] After considering the evidence as a whole, including the testimony of Constables Hooker and Klyne and the video, I find myself left with a reasonable doubt as to whether Mr.

By’s ability to drive was impaired. [40] Constable Klyne spent considerable time with Mr. By, however, he did not observe any signs of impairment, apart from the smell of beverage alcohol coming from him. Constable Hooker made various observations respecting Mr.By’s impairment, however, on cross examination these observations were considerably weakened. For instance: 1. While Mr. Stenz told him Mr. By ran a red light before the accident, Constable Hooker acknowledged on cross-examination that inhis experience both sober and impaired drivers run red lights in the middle of the night. 2.

While he thought the accused had been speeding prior to the accident, he conceded on cross-examination that he had no personalknowledge as to what happened prior to the accident, he was not an accident reconstructionist and he could not say what the speed ofeither vehicle was. 3. While he detected an odour of alcohol coming from the accused, he acknowledged on cross-examination that an odour of alcohol

coming from a person is a sign that the person has been drinking in the past, but it is not a sign of impairment. 4. While he observed that the accused ’ s eyes were dilated, he acknowledged on cross-examination that dark lighting conditions which existed at the time also causes dilated pupils. 5. While he observed the accused ’ s eyes were glassy, he acknowledged on cross-examination that he did not record this observation in his notebook, he investigates many driving offences and that his memory of an event will fade over time.

In addition, he acknowledged that he was aware that glassy eyes can be caused by conditions other than alcohol. 6. While he observed that the accused ’ s mouth was cottony, he did not elaborate on how he determined that the accused ’ s mouth was dry. 7. He agreed that the accused did not exhibit any physical signs of impairment. Rather, he observed that the accused produced his driver ’ s licence without difficulty, and walked to and got into the patrol car without difficulty. 8.

He also agreed that the accused appeared to understand and respond to his questions and the rights and warning provided to him. [41] There is also the evidence of Constable Wilkinson as set out in paragraph 8 above. [43] Lastly there is the video evidence set out in Exhibit D-2 which shows Mr. By to be responsive to police questions and directions, well balanced and physically coordinated. [44] In the end result, I am left with a reasonable doubt as to what, if any, symptoms of impairment the accused demonstrated and how, if at all, his consumption of alcohol impacted on his ability to drive. Hence, I acquit Mr.

By of operating a motor vehicle while impaired by alcohol.

Summary of Trial Decision on the Merits [45] In this case I find that the Crown has established beyond a reasonable doubt that Mr. By was the driver of a truck that ran a red light shortly before 4:00 a.m. on March 5, 2011. His driving actions lead to a motor vehicle collision with another vehicle. Police made a demand for samples of Mr. By ’ s breath. I found that Mr. By ’ s breath samples were taken as soon as practicable as required by section 258(1) (

c) of the Criminal Code and that the presumptions of identity and accuracy were engaged. I determined that the defence did not rebut the presumption of accuracy. The breath tests reveal Mr. By ’ s blood alcohol concentration to be 160 mg in 100 ml of blood. Accordingly, I find Mr. By guilty of the offence of operating a motor vehicle while over .08, contrary to section 253(1) (

b) of the Criminal Code . 6. Were Mr. By ’ s rights under

section 9 of the Charter violated by being held in police custody after the breath tests were completed; and if so, is a remedy warranted pursuant to section 24(1) of the Charter ? [46] The evidence reveals that after the breath tests were completed at 5:18 a.m. Constable Hooker took Mr. By to the phone room for the purpose of calling someone to pick him up. Constable Hooker was prepared to release Mr By, provided someone came to the police station and took responsibility for Mr. By. Mr. By was unable to contact anyone to pick him up. Constable Hooker then took Mr. By to the booking desk. Mr.

By was subsequently lodged in a cell at 5:37 a.m. Constable Hooker testified that he made the decision to lodge Mr. By because he had been drinking alcohol and was double the legal limit. Mr. By was released from custody approximately 8 hours later around 1:30 p.m. [47] Mr. By takes the position that he was detained longer than was necessary, contrary to the provisions of sections 497 and 498 of the Criminal Code , and in violation of his rights under

section 9 of the Charter . [48] Where an individual is arrested without warrant, as was the case with By, sections 497 and 498 of the Criminal Code require that he be released as soon as practicable upon the issuance of an appropriate release document, unless the peace officer believes on reasonable grounds as follows: (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt

with under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according tolaw. [49] In R. v. Simpart, [2012] S.J. No. 774 Kalmakoff J. considered an “over hold” argument and provided this helpful

summary of the law at paragraph 61: 61 Sections 497 and 498 of the Criminal Code direct prompt release of a person who has been arrested, and permit continueddetention of an individual only if the peace officer dealing with the person believes on reasonable grounds that the detention is necessaryin the public interest. The public interest includes those factors specifically listed in sections 497 and 498, but is not limited to thosefactors. The public interest can include continued detention of an individual who is arrested for impaired driving, until that individual issober or can be picked up by a sober person. Such a detention is authorized by

section 497, and does not violate

section 9 of the Charterif the police officer's actions in so detaining have a reasoned basis and are not capricious (R. v. Pashovitz (1987), (SKCA), 59 Sask. R. 165 (C.A.); R. v. Williamson (1986), (AB KB), 25 C.C.C. (3d) 139 (Alta. Q.B.)). When detention isnecessary in the public interest, but not on one of the listed grounds in

section 497 or 498, it is justified if it can be shown that the policeacted reasonably in the circumstances (R. v. Wilcox (12 June 2008) Prince Albert Information #31591420 (Sask. Prov. Ct.); R. v.Pashovitz, supra). [50] In this case there is no evidence to suggest that it was necessary to detain Mr. By to ensure his attendance in Court. His identity had been established and the necessary breath sample evidence had been obtained and there was no indication that Mr. By would be a danger to any victim or witness of the offence. In addition, there is no evidence that Mr.

By’s detention was necessary to prevent the continuation or repetition of a drinking and driving offence or the commission of another offence. Constable Hooker admitted on cross examination that he did not think Mr. By was going to go into the street and cause more trouble. Constable Hooker testified that Mr. By was calm and collected. [51] Exhibit D-2 video shows Mr. By in the detention hallway and at the booking desk. While Mr. By’s blood alcohol readings were high, he appears coherent and able to understand what was going on. [52] I am of the view that the decision to detain Mr.

By was based on his blood alcohol readings and the fact that Mr. By could not contact some one to pick him up at 5:30 in the morning. While I am satisfied that the initial detention of Mr. By was reasonable in the circumstances and as such authorized by sections 497 and 498 ofthe Criminal Code, I am of the view that it would have been reasonable for police to have checked on Mr. By later that morning anddetermined if he could be released on his own or have someone pick him up. On the whole of the evidence I find a violation of Mr.By’s rights under

section 9 of the Charter has been established. [53] In R. v. Salisbury, 2011 SKQB 153, (affirmed 2012 SKCA 32) an accused was detained for over nine hours after providingbreath samples. Gerein J. reviewed several of the authorities in this regard and determined that a stay of proceedings was not anappropriate remedy. Gerein J. stated as follows at paragraph 11: With respect, I hold the opinion that the cases cited do not correctly set out the law as it exists in this jurisdiction and as it should be

applied in the instant case. It is accepted that there was a breach of s. 9 of the Charter. However, it occurred after the commission of the offences and after the investigation had been completed. There was no connection between the breach and the charges. That being so, the remedy in this case was disproportionate to the violation of the Charter. That is not to say there should be no remedy; only that the remedy should be different. [54] In this case the breach of Mr. By ’ s

section 9 Charter right occurred after the drinking and driving investigation was completed. There is no connection between the breach and the charges before the court. As a result, I will not entertain a stay of proceeding as a remedy at the sentencing stage of this trial. I will entertain the possibility of a reduction in sentence. ________________________________ M. Hinds, J