Her Majesty the Queen - v. -, 2018 SKPC 57

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 057 Date: October 30, 2018 Information: 24520168 Location: Assiniboia _____________________________________________________________________________ Between: Her Majesty the Queen - and - De nis James Bellefleur Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Ian McKay For the Accused DECISION ON A CHARTER VOIR DIRE D. KOVATCH, J Background [ 1 ] The accused was charged with impaired driving and driving while over .08 on May 19, 2018.

Constable Surette testified that on May 19, it being the long weekend, he set up a check stop near the access to the Willow Bunch campground. At minutes past 7:00 p.m., he stopped a vehicle being driven by the accused. This led to an ASD fail result and the intoxilyzer demand. The accused was taken to Assiniboia and the intoxilyzer test administered.

[ 2 ] The trial commenced on September 13, 2018 in Assiniboia. The Crown immediately entered into a Charter voir dire. The only person to testify on the Charter voir dire was Constable Surette, the investigating officer. The defence led no evidence on the Charter voir dire. [ 3 ] Following a full argument of the Charter issues, I reserved my decision. This is that decision. I will set out more detailed and specific facts as I deal with each of the issues on the Charter voir dire . Analysis and Discussion I. Did the officer have a reasonable suspicion the accused had alcohol in his body?

Was the seizure of breath in the approved screening device authorized by law? [ 4 ] Constable Surette had testified that there was nothing remarkable or untoward about the accused’s driving. He stopped the accused’s vehicle to check for sobriety. He asked the accused if he had anything to drink. The accused said yes, he had one drink. The officer then asked the accused to come to the police car for the ASD.

He told the accused that he had to make sure the accused was safe to drive. [ 5 ] Later in his evidence, the officer testified that the accused told the officer he had a drink, and “I knew he had alcohol in his body.” [ 6 ] Defence counsel argued that in order for the ASD demand and the seizure of breath in the ASD device to be authorized by law, the officer must have a reasonable suspicion that the accused has alcohol in his body. This reasonable suspicion has both a subjective and objective component. Here the officer lacked the objective component.

His suspicion was not a reasonable one or based upon reasonable grounds, in that the officer did not ascertain when the accused had this drink. Because the officer did not ascertain the time of the drink and there were no reasonable grounds for the suspicion, the seizure of breath was not authorized by law and the accused’s Charter rights were infringed. Defence counsel relied in particular on R v Lytle , 2008 SKPC 156 , 327 Sask R 148 [ Lytle ] where His Honour Judge White concluded the officer did not have a reasonable suspicion.

His Honour said the officer had had “to identify objectively proven facts to support the belief. This is sometimes referred to as articulable cause.” [ 7 ] In my view, the Lytle case has been overtaken by the Saskatchewan Court of Appeal decision in R v Yates , 2014 SKCA 52 , 438 Sask R 78 [ Yates ]. In that decision, the Court of Appeal made it clear that the Crown need not prove that the detained person in fact had alcohol in his or her body. The reasonable suspicion required only a possibility of an offence having been committed.

The reasonable suspicion need be only one of the reasonable possibilities based upon the certain facts. Further, the Crown or officer need not negate or refute other exculpatory, neutral or equivocal information. [ 8 ] In this case, the police officer asked the accused if he had been drinking, and the accused said he had a drink. A reasonable person would believe that the accused had a drink reasonably contemporaneously with the question and answer, and that was why he answered in the way he did.

As a result, in my view, the officer’s conclusion that the accused had alcohol in his body was one of the reasonable possibilities. Simply stated, the officer had a reasonable suspicion the accused had alcohol in his body, as that test was defined in the Yates decision. Because that officer had that reasonable suspicion, the demand and the seizure of breath in the ASD were authorized by law and there was no Charter breach in this regard. II.

Was the ASD demand made forthwith? [ 9 ] Defence counsel argued that the police officer took the accused back to the police vehicle, and only once back at the police vehicle made the ASD demand. As a result, the demand was not made forthwith, was not authorized by law, and there was a Charter breach. [ 10 ] In my view, this issue has been dealt with many times before by various Saskatchewan courts. I have dealt with this issue on a number of occasions. I begin by noting that the officer testified he asked the accused if he had anything to drink at about 7:05 p.m.

When the accused said he had one drink, the officer immediately asked him to come to the police vehicle for the ASD, and advised he needed to make sure the accused was safe to drive. The officer testified that at 7:08, he read the formal ASD demand in the police

vehicle. He then readied the machine for a test, and explained how the accused should use the machine. At 7:13, an ASD fail result was registered. As far back as R v Brittain , 2000 SKQB 242 ,194 Sask R 26 Mr.

Justice Gerein, as he then was, stated that “the demand must be more or less contemporaneous with the operation of the vehicle, with the proviso that there must be some flexibility in its application so as to take into account situations which may arise in the real world.” He found no difficulty with the fact that the officer moved the accused to the police vehicle, continued his investigation and then made the ASD demand. [ 11 ] In R v Janzen , 2006 SKCA 111 , 285 Sask R 296, the Court of Appeal held that the ASD demand must be made forthwith as in “without delay” and “without unreasonable or unjustifiable delay.” Further, that these determinations must be made having regard for all of the circumstances of the case.

They referred to their own decision in R v Ritchie , 2004 SKCA 9 , 241 Sask R 155 where the court held that an ASD test after 11 minutes was made within the forthwith requirement. [ 12 ] In the cases of R v Morrison , 2008 SKPC 19 , 315 Sask R 202 and R v Monteyne , 2008 SKPC 20 , 312 Sask R 242 defence counsel argued that because the police officer did not make the ASD demand at the accused’s vehicle, but took the accused back to the police vehicle before making that demand, the demand was not made forthwith.

In both cases, I held that the officer was entitled to detain the accused for the ASD test, and require the accused to accompany him to the police vehicle. Where he did so, and then made the ASD demand fairly quickly thereafter, the test was administered forthwith. [ 13 ] Much more recently, I dealt with the same issue in R v Weinbender , 2018 SKPC 15 . In that case, the facts were virtually identical in that the officer detected a smell of alcohol and asked the accused if he had been drinking. The accused said he had one drink.

The officer asked the accused to come back to the police vehicle for the ASD demand, and said “Let’s be sure you are okay to drive.” I determined that the accused was immediately detained and asked to return to the police car. This was the standard police practice utilized by that officer. It was a legitimate practice, and there was no Charter breach. [ 14 ] On the basis of the facts of this case and the case law cited above, I am of the view that there is no requirement that the police officer make the ASD demand at the accused’s vehicle.

The officer was entitled to detain the accused and take him to the police vehicle to make that demand. In so doing, there was no Charter breach. The test was made within a very reasonable time. The test was made forthwith. III. Did the police officer have a subjective belief that the accused was committing or had committed an offence under

section 253 within in the preceding three hours? Did the officer have a subjective belief that the accused was impaired by alcohol? [ 15 ] Defence counsel argues that the officer required reasonable grounds to believe that the accused had committed an offence under

section 253 of the Criminal Code to make a lawful demand that the accused supply breath samples in the intoxilyzer. He says that the reasonable belief has an objective and subjective component. The officer himself had to subjectively hold the belief that the accused was impaired. Defence counsel argues that the officer did not testify that he believed, on the basis of the ASD results, that the accused was impaired.

As a result, the subjective test was not met, the demand was not lawful, and the seizure of breath samples in the intoxilyzer was a breach of the accused’s Charter rights. [ 16 ] In this case, the officer made the ASD demand. The accused supplied a breath sample which registered a fail. The officer then immediately advised the accused that he was under arrest for impaired driving. As a matter of law, the officer could only place the accused under arrest for impaired driving if he reasonably believed that to be the case.

The officer then read the police warning to the accused, following which he read the formal breath test or intoxilyzer demand. He read the formal intoxilyzer demand in Court. In making that demand, the officer said he had reasonable grounds to believe that the accused committed an offence under

section 253 within the preceding three hours, as a result of the consumption of alcohol. [ 17 ] However, the officer did not say that the Approved Screening Device is calibrated to register a fail result if it calculates the accused’s blood alcohol content as being over .1. Defence counsel says this is fatal. He says that as a result of this not being testified to, there is no sworn testimony to the effect that the officer subjectively held this belief. [ 18 ] In my view, there is sufficient sworn evidence. The officer placed the accused under arrest.

To do so, he had to hold a reasonable belief the accused was impaired. Am I to conclude on the basis of the evidence that the officer did not hold this belief, and was knowingly acting contrary to law? I think not. [ 19 ] The officer read in Court the formal demand that he made on May 19. As part of that demand, he said that he had reasonable

grounds to believe that the offence had been committed. Am I to conclude that he was lying when he read that demand on May 19 andlying again in Court when he read that same demand? Again, I think not. [20] Most importantly however, in preparing this decision, I discovered another Saskatchewan decision which dealt with the exactsame argument raised by defence counsel. I refer to the decision of Mr. Justice Chicoine in R v Pavey, 2015 SKQB 40. At paragraphs29 to 31 of that decision, Mr. Justice Chicoine stated as follows: [29] In this case, counsel for Mr. Pavey argues that Cst.

Lonsberry failed to articulate his understanding of a “Fail” reading and morespecifically, he failed to state that he reasonably believed that Mr. Pavey’s ability to operate a motor vehicle was impaired by alcohol. The transcript of the voir dire discloses that Cst. Lonsberry did testify to the fact that he was aware that a “Fail” reading on the ASDindicates that the subject’s blood alcohol level is over 100 milligrams percent. When he was asked whether he had formed an opinionwith respect to the accused’s state of sobriety he replied: “That the accused was impaired.” Cst.

Lonsberry also testified that he informedMr. Pavey that he was under arrest for impaired driving. The Trial Judge was satisfied that Cst. Lonsberry had the requisite subjectivebelief for making the breathalyzer demand. He was also satisfied that there was other evidence to support that belief, such as the illegalleft turn, watery eyes, the smell of alcohol and the admission that he had consumed alcohol with his meal. [30] In my view, counsel for Mr. Pavey has interpreted the authorization granted under s. 254(3) too narrowly.

A peace officer maymake a breathalyzer demand if he has reasonable grounds to believe that a person is committing, or at any time within the previous threehours has committed, an offence under s. 253 as a result of the consumption of alcohol. There are two methods of committing an offenceunder s. 253: (1) by operating a motor vehicle while the person’s ability is impaired by alcohol, or (2) by operating a motor vehicle afterhaving consumed alcohol in such quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in onehundred milliliters of blood. In this regard, the fact that Mr.

Pavey registered a “Fail” on the ASD in a test administered by the officerwho made the breathalyzer demand makes the entire issue of subjective belief and objectively reasonable grounds somewhat moot. In Rv Arthurs (1981), (SK CA), 12 Sask R 95 (CA), the Saskatchewan Court of Appeal put into perspective the effect of afailure reading on an “alert machine”.

Hall J.A. stated unequivocally at para. 5: 5 In my opinion, by enacting s. 234.1, Parliament intended that the result of “Fail” indicated by an Approved Roadside ScreeningDevice should by itself be sufficient, reasonable and probable grounds to enable the peace officer to make a demand pursuant to s. 235(1) [31] In my view, it would be an absurdity to hold that a peace officer who testifies that he administered an ASD test that resulted in a“Fail” reading would be required to articulate that he honestly believed that the subject’s ability to operate was impaired by alcohol inorder to justify the making of a breathalyzer demand.

It is not necessary for the peace officer in these circumstances to choose between“driving while impaired by alcohol or “driving while over.08”. The “Fail” result on the ASD is sufficient evidence of reasonable andprobable ground to enable the peace officer to make the breathalyzer demand under s. 254(3). I would therefore dismiss this ground ofappeal. [21] I completely adopt the comments of Mr. Justice Chicoine. I am satisfied the officer had reasonable grounds for theintoxilyzer demand. That demand was lawful. There was no breach of the accused’s Charter rights by the officer making that demand. IV.

Was the accused denied his right to consult with counsel of his choice, contrary to

section 10(

b) of the Charter? Was theaccused confused about the information he received from the police officer? Was the police officer obligated to take further steps toexplain the right to the accused? [22] At the Assiniboia detachment of the RCMP, on more than one occasion, the officer clearly advised the accused of his rights tocounsel. He clearly advised the accused that he could call any lawyer he wished to call, and that he could call Legal Aid if he wished. On more than one occasion, the police officer asked the accused if he wished to call a lawyer.

On each and every occasion the accusedanswered with a question to the effect of what would that do? The officer correctly, in my view, stated he could not advise the accused. He again advised the accused that he could call a lawyer if he wished. Once again, the accused questioned what would that do. Finally,the officer stated: I’ll take that as a no. He then proceeded with the observation period and testing. He also immediately advised,however, that the accused could change his mind and call a lawyer at any time. At no time did the accused invoke his rights to counsel. He never asked to call any lawyer.

He never asked to call any particular lawyer. He never asked to speak to Legal Aid. He simplyproceeded with the testing. [23] The argument, as stated by defence counsel, was that the accused was confused about his rights. As a result, the officer wasobligated to explain the right further, and to hold up on the investigation unless and until the accused spoke to a lawyer or indicated hedid not wish to do so. [24] In my view, the evidence clearly establishes that the officer fully met the informational obligation to advise the accused of hisCharter rights.

The evidence also clearly establishes that at no point in time did the accused invoke those Charter rights.

[ 25 ] The onus is on the accused to establish a breach of his Charter rights and entitlement to relief under section 24(2) of the Charter . It is true that there is some case law to the effect that if the accused clearly does not understand the information being given to him about his Charter rights, that the officer must then take further steps to explain and advise of those rights. However, as just mentioned, the onus is on the accused to establish the Charter breach. As a result, the accused must provide sufficient evidence for the Court to conclude that he did not understand the information given to him.

The accused gave no evidence. He did not testify that he did not understand, and he certainly did not testify that he did not exercise his Charter rights because he was confused and believed he was not able to do so.

As I understand defence counsel’s argument, it is to the effect that I can infer this confusion from the accused repeatedly asking the officer “What will calling a lawyer do?” However, I do not believe that I can infer or draw any such conclusion from this conversation with the police officer. [ 26 ] I conclude that the information provided to the accused was very straightforward and perfectly understood by the accused. His words do not indicate to me any confusion regarding the rights that had been given him.

Rather, the accused felt that legal advice would not change anything or help him in the situation, and he was stating that as a reason for not exercising his right. He was perfectly entitled to draw these conclusions and decline legal advice if he wished to do so. The result is that the defence argument is, in reality, a complaint and argument that the police officer did not convince the accused that he should exercise his rights to counsel. With all due respect, the officer was not required to convince or even argue with the accused that he should exercise his right to counsel.

In my view, the entire answer to this argument is contained in the Saskatchewan Court of Appeal decision in R v Knoblauch , 2018 SKCA 15 . At paragraph 51 of that decision, Madam Justice Ryan-Froslie stated as follows: [51] In

summary, both the trial judge and the appeal judge concluded Cst. Tyndall had properly fulfilled his informational duty by informing Mr. Knoblauch of his right to counsel as described by the Supreme Court of Canada in Brydges and Bartle . In accordance with judicial authority, no further duties were imposed on Cst. Tyndall with respect to Mr. Knoblauch’s s. 10(

b) right to counsel, unless and until Mr. Knoblauch invoked that right. The trial judge found as a fact that Mr. Knoblauch did not invoke the right and Mr. Knoblauch has not suggested that finding constituted a palpable or overriding error. Indeed, that finding was well supported by the evidence. In the circumstances, Mr. Knoblauch’s s. 10(

b) right to counsel was not infringed and the appeal judge erred in concluding that it was. [ 27 ] There was no breach of the accused’s

section 10(

b) right to counsel. Conclusion [ 28 ] I conclude that no breach of the accused’s Charter rights has been established on the Charter voir dire . As a result, all evidence led in the Charter voir dire will now be applied in the trial proper. Dated at the City of Moose Jaw, the Province of Saskatchewan this ___ day of October 2018. ___________________ D. Kovatch, J