Her Majesty the Queen - v. -, 2011 SKPC 97

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 097 Date: June 28, 2011 Information: 242994333 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jonathon Robert Spilde Appearing: B. Pashovitz For the Crown R. Piché For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused is charged that:

(1) On or about the 9 th day of May, 2010, at Kindersley in the Province of Saskatchewan, did while his ability to operate a motor vehicle was impaired by alcohol or a drug, did operate a motor vehicle, contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code of Canada ;

(2) On or about the 9 th day of May, 2010, at Kindersley in the Province of Saskatchewan, having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did operate a motor vehicle, contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code of Canada . [ 2 ] The Crown called the arresting officer, Constable Gill, as well as the Intoxilyzer operator, Sergeant Wale. The trial proceeded by way of a voir dire concerning various Charter issues with agreement by counsel to apply admissible evidence from the voir dire to the trial proper to avoid duplication of evidence. The Defence called no evidence on the voir dire or the trial proper. [ 3 ] At the conclusion of the trial, the Crown advised it was not making submissions on count #1 regarding the impaired driving.

Upon review of the evidence the Court finds that the Crown has not proven beyond a reasonable doubt that the accused operated his vehicle while his ability to do so was impaired by alcohol. Accordingly, the accused is found not guilty on count #1 of the Information. II ISSUES [ 4 ] The remaining issues to be determined are:

a) Whether the Crown has established that the instrument utilised by the arresting officer was an approved screening device within the meaning of the Criminal Code ;

b) Whether the evidence objectively supports the officer’s reasonable suspicion of alcohol in the body of the accused at the time of the ASD demand pursuant to s. 254(2) of the Criminal Code ;

c) Whether the accused was arbitrarily detained because the arresting officer “trespassed” on private property at the time the ASD demand was given, and if so, what the appropriate remedy would be regarding such arbitrary detention;

d) Whether the breath samples on the Intoxilyzer were taken as soon as reasonably practicable pursuant to s. 258 of the Criminal Code ;

e) Whether the Court is satisfied beyond a reasonable doubt that the accused was provided with a copy of the Notice of Intention to produce the Certificate of Analyses pursuant to s. 258(7) of the Criminal Code . III DECISION [ 5 ] Upon careful review of the evidence and applicable statutes, and case law authority, the Court is satisfied that no Charter breaches have been established by the accused and that the accused did receive a copy of the Notice of Intention to produce the Certificate of Analyses pursuant to s. 258(7) of the Criminal Code .

IV REASONS Approved Instrument [ 6 ] Constable Gill described the instrument used as 7410 GLC and also provided the serial number for the device from his notes. He further testified that his reference to ASD meant “approved screening device”. In the recent decision R. v. Helm [1] , Mr.

Justice Popescul held on remarkably similar facts to the present case at para. 24: [24] It is an error in law to hold that the use of a shorthand description of the device employed, in the absence of any other evidence that the device was not approved, means that the device was not approved and cannot be used as the basis for the officer’s requisite reasonable and probable grounds. This amounts to applying the wrong legal approach to the proof of the charge that was before. The court is entitled to draw reasonable inferences from all of the facts.

The officer referred to the device as an “ASD”, which, in all of the circumstances, could only mean that she used that term as an abbreviation for an “approved roadside device”. Furthermore, the fact that the officer described the machine as an “Alcotest 7410”, rather than using the full trade name used in the regulations, such as the “Alcotest ® 7410 PA3” or “Alcotest ® 7410 GLC”, is of no legal consequence. To hold that the officer must use terminology that precisely matches the gazetted regulations is an error in approach that amounts to an error in law. See R. v.

MacLeod , 2009 YKCA 5 , 79 M.V.R. (5 th ) 171, where in similar circumstances, the Yukon Court of Appeal held that a trial judge’s finding that the screening device used must precisely match the devices listed in the regulations is an error in law. [ 7 ] Mr. Justice Popescul further states at para. 26: [26] The regulations list a number of screening devices that have been approved, two of which are the “Alcotest ® 7410 PA3” and the Alcotest ® 7410 GLC”.

The only reasonable conclusion that can be drawn from the uncontroverted evidence called at trial is that the “Alcotest 7410” described by the officer was either the “Alcotest ® 7410 PA3” or the “Alcotest ® 7410 GLC”. [ 8 ] In reaching his conclusions, Popescul, J. considered and relied upon the Ontario Court of Appeal decision in R. v.

Gundy [2] , paragraphs 47 and 48 of which state as follows: 47 In my view, cases holding that the officer did not have reasonable and probable grounds because, although the officer referred to the device as an approved screening device, he or she used a shorthand reference to the device or transposed some of the numbers of letters are wrongly decided. In the absence of some credible evidence to the contrary, it is not reasonable to infer that an officer who says that he or she used an approved screening device actually used an unapproved device. That was the holding of this court in R. v.

Kosa (1992), 42 M.V.R. (2d) 290 (Ont. C.A.), at 291 : We are of the view that the manufacturer’s model number given by the officer in evidence as Model JA3 rather than Model J3A as set forth in the regulations was no more than an innocent transposition of a number and letter and that the unchallenged assertion by the officer that it was an approved screening device is sufficient proof thereof .

If such is the case, there is no need to look further to justify the finding of reasonable and probable grounds. [Emphasis added.] 48 Of course the question of whether the officer had reasonable and probable grounds depends on the circumstances of each case.

My only point here is that the trial judge is not confined to direct evidence and is entitled to and should draw reasonable inferences from the proven facts. [ 9 ] Accordingly, in all the circumstances, the Crown has proven beyond a reasonable doubt that the instrument used in the present case was an approved screening device within the meaning of the Criminal Code .

Whether the grounds for the ASD demand objectively supportable [ 10 ] Defence counsel conceded he was not taking issue with the arresting officer’s subjective belief to make the ASD demand however, asserts that the demand cannot be objectively supported on the evidence available to the Court. [ 11 ] In this regard, Constable Gill testified in chief that:

a) the accused was the lone occupant of the vehicle;

b) when he first approached the vehicle he detected an odour of alcohol coming from the vehicle and that he could not see any beverage containers in the vehicle;

c) that he asked the accused prior to the ASD demand how many drinks he had tonight and that the accused answered “a couple”. [ 12 ] In cross-examination Constable Gill testified no signs of impairment were detected including fumbling for driver’s license, slurring of speech or bloodshot eyes and that without the “F” reading on the ASD, he would not have made a formal Intoxilyzer demand. [ 13 ] The question then is whether on this evidence taken as a whole, the Court can conclude on an objective basis that sufficient evidence existed for Constable Gill to reasonably suspect that the accused had alcohol in his body at the time of the demand.

The Defence cites R. v. Thompson [3] , a decision of this Court, as an analogous to the present case. In Thompson , the only reliable evidence found by the Court was that:

a) the accused had been speeding;

b) she had bloodshot eyes;

c) there was an odour of alcohol coming from the vehicle however, there were two other individuals in the vehicle as well as the driver and there was a plastic bag on the floor containing a half dozen empty beer bottles.

In these circumstances, the Court found the officer’s conclusion could not be objectively supported since the smell of alcohol could be reasonably emanating from the other two individuals and/or the beer bottle empties on the floor of the car. [ 14 ] By contrast, the accused in the present case was the lone occupant of the vehicle and Constable Gill did not see any beverage containers in the vehicle upon initial encounter with the accused (a fact which was subsequently confirmed prior to leaving the scene).

Further, it was roughly 2:30 a.m. and when asked by the officer how much he had to drink “tonight” the accused answered “a couple”. This was clarified post-demand when the accused advised he had consumed his last drink about an hour earlier.

Although Constable Gill did not have this additional information until after the demand was made, the Court is of the view that a reasonable person considering the evidence available to Constable Gill at the time of the demand as cited above, would undoubtedly support his suspicion that the accused, as encountered, had alcohol in his body. [ 15 ] Similar decisions cited by Defence, R. v. Neuberger [4] , R. v. Sood [5] and R. v. Hay [6] are fact specific and, like Thompson , are distinguishable from the present case.

In Neuberger and Sood , the accused denied consumption of alcohol and the smell was noted to be coming from the vehicle. In Hay , although there was an admission of drinking five and one-half hours earlier, the officer could not determine whether the smell of alcohol was coming from the accused or a beer can behind the seat. In the instant case, Constable Gill noted specifically that the accused was the lone occupant and that there were no liquor beverage containers in the vehicle which might otherwise have explained the odour of alcohol coming from the truck cab.

[ 16 ] Having regard then to the test of whether Constable Gill’s suspicion that the accused had alcohol in his body at the time of the ASD demand could be objectively supported, the answer on the evidence before the Court must be in the affirmative. Arbitrary Detention [ 17 ] Constable Gill noted the accused to travel through a Yield sign directly in front of him coming onto the roadway without slowing. As a consequence, Constable Gill activated the emergency lights immediately while the accused was still driving on the public road.

Thereafter the accused immediately turned off the road and into the parking stall of his apartment residence. [ 18 ] In R. v. Anderson , [7] Kalmakoff, J. found that the stop of the accused on his private property amounted to trespass by the arresting officer since no lawful authority to stop or detain the accused was demonstrated.

The evidence in that case disclosed that the accused had been followed on a public roadway and there appeared to be no overt reason for making a stop nor attempt to do so prior to the accused entering onto his property. [ 19 ] By contrast, in the present case Constable Gill testified that the accused drove onto the roadway directly in front of him, passing through a Yield sign known to him at this location without slowing. He immediately commenced pursuit engaging the emergency lights and followed the accused into a parking lot of a four-plex which he ascertained subsequently was where the accused resided.

He also noted however that the parking lot appeared to be an area where visitors could park as well. Accordingly, on both counts, the instant case is distinguishable from the facts as set out in Anderson . [ 20 ] Further the Court in Anderson states at paragraph 17 : [17] If authorized by a law which is itself not arbitrary, a detention is not arbitrary. See Grant at para. 54 : [54] The s. 9 guarantees against arbitrary detention is a manifestation of the general principle, enunciated in s. 7, that a person’s liberty is not to be curtailed except in accordance with the principles of fundamental justice.

As this Court has stated: “This guarantee expresses one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law” ( Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 , [2007] 1 S.C.R. 350 at para. 88 ).

Section 9 serves to protect individual liberty against unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 ( Mann, at para. 20), unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9. [ 21 ] Accordingly the Court finds the stop and subsequent detention of the accused lawful and not arbitrary.

Even if the Court is wrong in reaching such a conclusion, the Court would not be inclined on these facts to exclude evidence pursuant to s. 24(2) of the Charter having due regard to the Grant analysis. [ 8] Breath Samples taken as soon as practicable [ 22 ] The accused was first observed at 2:24 a.m., stopped immediately thereafter and subsequently given an ASD demand at 2:26 a.m.

Between that time and 2:42 a.m. when the arresting officer and the accused arrived at the detachment, Constable Gill testified that ASD testing was completed, rights, warnings and so forth given to the accused, vehicle secured and searched briefly, and thereafter transported directly to the detachment. Sergeant Wale, the Intoxilyzer operator, testified that there was a twenty minute wait period before the first test thereafter could be administered at 3:02 a.m. to ensure that there was no residual mouth alcohol. At 3:02 a.m. the machine experienced an ambient “fail” requiring a restart.

Sergeant Wale explained that the ambient “fail” meant that there were traces of alcohol still remaining in the air probably from a testing previous to the one involving the accused. Following a restart the test was successfully completed roughly three minutes later at 3:05 a.m. The usual twenty minute wait then between tests had to be extended due to the accused belching thereby possibly contaminating the process by the presence of residual mouth alcohol. Accordingly the second test could not be completed until 3:37 a.m., some 32 minutes later.

[ 23 ] The Defence maintains there is significant unexplained delay [9] and therefore the samples were not taken as soon as practicable as required disentitling the Crown to rely upon the statutory presumption contained in s. 258(1) (

c) of the Criminal Code . [ 24 ] In the present case, the Court is satisfied however that the times referenced have been adequately explained such that the samples were taken as soon as reasonably practicable. Proof of Service of Certificate of Analyses [ 25 ] This issue was essentially determined in R. v.

Longley [10] which held that the Crown can rely upon the Affidavit of Service of the Certificate of Analyses without anything further required to prove service of a copy pursuant to s. 258(7) of the Criminal Code . [11] Only if a “discovered difference” [12] was noted, would supplemental evidence be necessary to prove service. The issue of whether the officer actually compared the copies to the original could have been asked by Defence counsel in cross-examination, Mr. Justice Kyle noted in Longley [13] . [ 26 ] In R. v.

Vogel [14] , a decision of this Court, Defence counsel had such opportunity to cross-examine the officer who served the documents on the accused. Regarding making any comparisons between the original Certificate of Analyses and the served document, he stated unequivocally that he did not and that it was not his practice to do so. [ 27 ] The act of such comparison is not onerous or difficult and would be the reasonable step to take as was inferentially acknowledged by Mr. Justice Kyle in Longley [15] to ensure that indeed a copy of the original has been served.

The Court is of the opinion that this is so even where the document is produced by way of carbon copy. Otherwise, the Court would have to take judicial notice that the top document of a carbon will always be accurately reflected, without fail, in the subsequent reproductions, which cannot be correct. [ 28 ] The admission in Vogel that comparison was definitely not done and is never done raised a reasonable doubt that the accused had received a copy as required by s. 258(7) of the Criminal Code .

In the present case however the evidence was the converse in that the officer who served the Certificate of Analyses stated it was his usual practice to make such comparisons and although he believed that he did so, he could not say positively that he had on this occasion. In R. v. Camden [16] and R. v. Mowery [17] the Court relied upon evidence of “usual practice” where there was no evidence to suggest otherwise. [ 29 ] The Court is inclined to agree that this is sufficient. The proof required for s. 258(7) is beyond a reasonable doubt, not any doubt.

Accordingly, based upon all of the evidence, the Court does not have a reasonable doubt in this case that the requirements of s. 258(7) Criminal Code have been met. IV RESULT [ 30 ] The accused is found guilty on count #2 of the Information, that he operated his motor vehicle while over .08 per cent. _______________________ R.D. Jackson, J

[1] 2011 SKQB 32 (Sask. Q.B.) [2] 2008 ONCA 284 (57 C.R.) (6th) 369 (Ont. Ct. of Appeal) See also: R. v. Donald, 2010 SKPC 123 (Sask. Prov. Ct.), R. v. Usselman, 2010 SKPC 83 (Sask. Prov. Ct.); R. v. Caplette, 2010SKPC 32 (Sask. Prov. Ct.) [3] 2003 SKPC 56 (Sask. Prov. Ct.) [4] (2007) 2007 ABPC 66 , A.J. No. 282 (Alta. Prov. Ct.) [5]

(2005) A.J. No. 1660 (Alta. Prov. Ct.) [6]

(2008) ABPC 74 (Alta. Prov. Ct.) [7]

(2011) SKPC 001 (Sask. Prov. Ct.) [8] R. v. Grant, 2009 SCC 32 , 2009 S.C.C. 32, [2009] 2 S.C.R. 353; See also R. v. Anderson, 2011 SKCA 13 (Sask. C.A.) [9] See: R. v. Huot (M.) (No. 3) (2001) (SK PC), 209 Sask. R. 171; R. v. Hiebert 2003 SKPC 89 , [2003] S.J.No. 398, 237 Sask. R. 41 (Sask. Prov. Ct.) [10]

(1997) S.C.J. No. 207 (Sask. Q.B.) [11] Section 258(7): No Certificate shall be received in evidence pursuant to paragraph (1)(e)(f)(g)(

h) or (i), unless the party intending toproduce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the Certificate. [12] See: Longley at para. 9 [13] See: Longley at para. 5 [14] 2010 SKPC 185 [15] See Longley at para. 5 [16] (2010), 1 M.V.R. (6th) 218 (Sask. Q.B.) [17] (2008), 2008 SKPC 27 , 328 Sask. R. 1 (Sask. Q.B.)