Her Majesty the Queen - v. -, 2013 SKPC 42

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 042 Date: June 7, 2013 Information: 24408081 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert Wade Stevenson Appearing: Daryl Bode For the Crown Ronald Piché For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] Mr. Stevenson is charged with operating a motor vehicle while impaired by alcohol and while his blood alcohol content was over 80 mg%, in Yorkton on November 4, 2011. The only witnesses at the trial were called by the Crown: Cst. Lendvoy, Cpl.

Hyggen and Cst. Neumiller. Their evidence was applied, by agreement, to the Charter and trial issues, identified by counsel as:

(1) Were Mr. Stevenson’s rights under s. 10(

b) of the Charter violated by the manner in which the police dealt with him at the

detachment? If so, should evidence of his breath samples be excluded under s. 24(2) of the Charter ?

(2) Was the Crown required to give notice of expert testimony to the defence under s. 657.3 of the Criminal Code , and then to qualify the breath technician Cst. Neumiller as an expert, to allow him to testify about what constituted a suitable sample for the Intox EC/IR II breath instrument?

(3) Was there proof beyond a reasonable doubt that Mr. Stevenson’s ability to operate a motor vehicle was impaired by alcohol? II. BACKGROUND [ 2 ] At 3:10 a.m. this morning, Cpl. Hyggen and Cst. Lendvoy were at Robin’s Donuts in Yorkton. They received a radio message about a suspected impaired driver leaving from Holly’s Nightclub, next door. The officers got into their police vehicle and followed a silver pickup truck, matching the description given them, east on Broadway Street for a block and then south for a short distance on 7 th Avenue. Cst.

Lendvoy said the truck made a large right-hand turn onto Broadway from Holly’s, straddled the two driving lanes, and then made another large turn onto 7 th Avenue. The officer activated his emergency lights and stopped the vehicle. The pickup truck’s reverse lights were on after he stopped behind it. He spoke on the loud speaker and directed the driver to put the vehicle in park. The reverse lights remained on as the driver shut the engine off. [ 3 ] Both officers approached the vehicle. Mr. Stevenson was driving and handed Cst. Lendvoy his driver’s licence before the officer asked for it. Cst.

Lendvoy then asked for his registration and Mr. Stevenson produced it. The officer asked him to remove the registration from the plastic case. Mr. Stevenson was not able to do so, and handed it all to the officer. The officer said Mr. Stevenson lit a cigarette either during this discussion or as he approached the vehicle on foot. [ 4 ] Cst. Lendvoy could smell a strong odour of liquor from Mr. Stevenson’s breath, and said that Mr. Stevenson was slurring his words as he spoke to him. He detained Mr. Stevenson for an impaired driving investigation and asked Mr.

Stevenson to exit his vehicle and accompany him to the police vehicle. The officer said Mr. Stevenson stumbled on the way back to the police vehicle and fell into the side of his pickup truck. He said Mr. Stevenson was still slurring his words inside the police vehicle and the officer could smell a stronger odour of alcohol coming from him. When asked what words Mr. Stevenson was slurring, the officer responded “all of them”. [ 5 ] Cpl. Hyggen described Mr. Stevenson as unsteady on his feet.

He made inquiries of the passengers in the vehicle, determined that they were not sober enough to drive, and made arrangements to have the vehicle moved from its current location, at Mr. Stevenson’s request. [ 6 ] Cst. Lendvoy arrested Mr. Stevenson at 3:24 a.m., and read him his rights to counsel, police warning and the breath demand. In response to the question of whether he wished to call a lawyer, Mr. Stevenson said “yes, sir”. The officers then drove Mr. Stevenson to the Yorkton RCMP Detachment. III. WERE HIS RIGHTS UNDER

SECTION 10(

b) OF THE CHARTER VIOLATED? [ 7 ] Mr. Piché argued that Mr. Stevenson was denied the opportunity to contact a lawyer of his choosing and that this contravened his right to retain and instruct counsel without delay under s. 10(

b) of the Charter . For the reasons that follow, I agree that his rights were violated, but I will not exclude evidence of his breath samples under s. 24(2). [ 8 ] At the detachment, Mr. Stevenson again advised that he wanted to contact a lawyer, and provided the officers with the name of Rob Peach, or Robert Peach. Cst. Lendvoy, Cpl. Hyggen and Cst. Neumiller all made inquiries trying to locate a lawyer by this name, without success. Cst. Lendvoy advised Mr. Stevenson that they could not find a lawyer by that name and Mr. Stevenson said it could be Richard Peach.

The officers again tried, without success, to find a listing for a lawyer by that name. The officers then suggested to Mr. Stevenson that perhaps it was Ron Piché of Saskatoon he wished to contact, but Mr. Stevenson was adamant that it was not Ron Piché, because his lawyer was not French.

[ 9 ] Mr. Stevenson then agreed to speak to Legal Aid duty counsel. His phone call to duty counsel began at 3:50 a.m. and ended at 3:59 a.m. Mr. Stevenson at no time indicated he was dissatisfied with his call to the Legal Aid lawyer. [ 10 ] After Mr. Stevenson was allowed to use the washroom, Cst. Neumiller, the breath technician, brought him into the breath testing room. The officer said, shortly before attempting to take a first sample from him, Mr. Stevenson said he wanted to call Ron Piché. Cst. Neumiller refused Mr. Stevenson’s request.

The officer explained why: It was my understanding that he had already exercised his right to counsel, he had already sought legal advice, and he had already obtained legal advice, and therefore I did not believe I needed to provide him with the opportunity at that time to contact any other lawyer, because he had already spoken to Legal Aid duty counsel and obtained legal advice. (page 176, transcript) [ 11 ] When asked whether the accused was only entitled to one phone call to a lawyer, Cst. Neumiller said he was satisfied that Mr.

Stevenson had exercised his right to counsel and, if he wanted to call other lawyers at a later date, that was not his decision. He also said allowing another call would have delayed the process and this could have affected the accuracy of the blood alcohol analysis, given that alcohol is being absorbed and eliminated. He, however, admitted that there was no rush in having the samples taken from Mr. Stevenson, in terms of the statutory time limits. [ 12 ] I find that Cst. Neumiller was not entitled to disregard this request as it raised a reasonable prospect that Mr. Stevenson had not exercised his s. 10(

b) rights. In the absence of any time pressure in proceeding with the tests, I am satisfied that the officer was not diligent in ensuring that Mr. Stevenson had a reasonable opportunity to exercise his rights. [1] [ 13 ] Despite that breach of Mr. Stevenson’s s. 10(

b) rights, I will not exclude the evidence of his breath tests under s. 24(2) of the Charter . [2] While any lack of diligence by police in ensuring these rights are respected is serious, I am not satisfied that the impact of the breach on the Charter -protected rights of Mr. Stevenson was significant. That is because: (1) after his arrival at the detachment the police clearly suggested to Mr. Stevenson that it was Mr. Piché he should contact, and not Mr.

Peach, and he refused, saying this was not his lawyer; (2) he spoke to Legal Aid duty counsel for nine minutes and indicated no displeasure with that consultation; and (3) there was no other evidence tendered of an adverse impact on him. As well, society’s interest in the adjudication of the case on its merits favours inclusion of this evidence. Taken together, a balancing of these factors satisfies me that inclusion of evidence of Mr. Stevenson’s breath samples would not bring the administration of justice into disrepute. IV. DID THE QUALIFIED TECHNICIAN NEED TO BE QUALIFIED AS AN EXPERT? [ 14 ] Mr.

Piché argued that portions of Cst. Neumiller’s evidence, related to what in the officer’s view qualified as a suitable sample on the Intox EC/IR II breath instrument, constituted expert evidence, and as a result were inadmissible. This was because the Crown failed to (1) provide the advance notice of expert testimony (in s. 657.3 of the Code) to the defence , and (2) qualify the officer as an expert at the trial. In particular, he submitted that Cst. Neumiller, in assessing the suitability of samples provided by Mr.

Stevenson into the instrument and the effects of him coughing during the testing procedure, was involved in making a subjective judgment. This judgment, he argued, was a function of the officer’s experience and training and, as a result, constituted an expert opinion. For the reasons that follow, I disagree. [ 15 ] Section 254(1) of the Criminal Code defines “qualified technician”, for breath testing, as a person designated by the Attorney General as being qualified to operate an approved instrument. Based on Cst.

Neumiller’s evidence, I am satisfied he became a qualified technician for this approved instrument, the Intox EC/IR II, in January 2011. [ 16 ] This is a case where the Crown sought to prove the breath test readings, and their application to the time of driving via the presumption in s. 258(1)(

c) of the Code , through the evidence of a qualified technician and not by way of a Certificate of Analyses. [3] I am satisfied that the actions Cst. Neumiller took, the observations he made and the opinions he formed, this day, about operating the Intox EC/IR II, fell within the core functions of a qualified technician. As a result, his designation as such entitled him to testify to these

actions, observations and opinions, without separately being qualified as an expert. [17] Cst. Neumiller’s evidence, which I accept, is that:

(1) He did routine checks on the instrument and satisfied himself that it was working normally this day.

(2) He took a first breath sample of 210 mg% from Mr. Stevenson at 4:09 a.m.

(3) He asked Mr. Stevenson to sit outside the room and wait fifteen minutes for the next test. During that waiting period, Mr. Stevensoncoughed aggressively and, as a result, the officer waited a further fifteen minutes from the coughing to allow any mouth alcohol todissipate.

(4) He proceeded to take a second sample. Mr. Stevenson’s first two attempts at providing a second sample failed as he did not continueblowing continuously but, on the third try, the officer obtained a sample of 170 mg% at 4:39 a.m.

(5) Based on his training on this point, because of his understanding that a proper breath test on this instrument required at least twosamples of breath from the subject within 20 mg% of each other, and because the first two samples taken in this case were 40 mg%apart, he took a third sample from Mr. Stevenson, which was 160 mg% at 4:59 a.m. [18] That Cst. Neumiller did not need to be qualified as an expert is in my view self-evident by the words of s. 254(3).

Thatsubsection empowers a police officer to demand from a subject a sample of their breath “that in a qualified technician’s opinion willenable a proper analysis to be made” of the level of alcohol in that person’s blood. In this case, Cst. Neumiller was testifying about suchopinions, which supported his decision: (1) to wait a further fifteen minutes before the second sample after Mr. Stevenson coughed, and(2) to take a third sample given the difference in readings between the first two samples. I, as well, note that Judge Allen, of the Alberta Provincial Court, in R. v.

Nethery[4], reached a similar conclusion - that a qualified technician need not be qualified as an expert in a s. 253 prosecution.[5] [19] Finally, I do not accept Mr. Piché ’s submission that there is a legal connection between this question, on the one hand, andwhether an officer needs to be qualified as an expert to testify about using the Horizontal Gaze Nystagmus field sobriety test on a subject[6], on the other. Nor do I accept that the comments made in the Ontario case of R. v.

Gardashnik[7], which dealt with the Crowndisclosure obligations for a Drug Recognition Expert under ss. 254(3.1) - (3.4) of the Code, by implication and extension require a breathtechnician to be qualified as an expert in a drinking and driving prosecution. V. WAS THERE PROOF BEYOND A REASONABLE DOUBT OF IMPAIRMENT? [20] Mr. Piché argued that the Crown failed to prove beyond a reasonable doubt that Mr. Stevenson’s ability to operate a motorvehicle was impaired by alcohol. For the following reasons, I disagree. [21] The Supreme Court of Canada in R. v.

Stellato, (SCC), [1994] 2 S.C.R. 478, approved the following test forimpairment: If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must beacquitted. If the evidence of impairment established any degree of impairment ranging from slight to great, the offence has been madeout.

[22] The defence called no evidence at the trial. Disregarding the evidence of Mr. Stevenson stumbling into the box of his truck after being detained but before being arrested[8], taken together the evidence of the two officers who had extended dealings with Mr.Stevenson this night - which I accept and summarise below - satisfies me beyond a reasonable doubt that the offence of impaired drivinghas been made out:

(1) Cst. Lendvoy said Mr. Stevenson made two wide turns and straddled two lanes of Broadway Street after departing from the parkinglot of Holly’s Nightclub. He said, after the stop,

(1) Mr. Stevenson left his reverse lights on; (2) had a strong odour of alcohol comingfrom his breath; (3) produced his driver’s licence before being asked to, and then could not remove his registration from its case; (4)slurred his words to the officer; and (5) lit a cigarette just before or when the officer came to driver’s window. He said Mr. Stevenson,whom he had never spoken to before this day, continued to slur his words at the detachment, and began to get angry towards the officer.

(2) Cst. Neumiller said Mr. Stevenson was confrontational and was verbally taunting the officer saying such things as he could coughall night to affect the tests. This led Cst. Neumiller to believe that Mr. Stevenson was impaired by alcohol. VI. CONCLUSION [23] Because I am satisfied beyond a reasonable doubt that two samples of breath of greater than 80 mg% were taken from Mr.Stevenson after a lawful breath demand and that the presumptions under s. 258(1)(

c) apply, I am satisfied to that standard that Mr.Stevenson operated a vehicle while his blood alcohol content was over 80 mg%. He is found guilty on count #2. [24] Although I am satisfied beyond a reasonable doubt that Mr. Stevenson’s ability to operate a motor vehicle was impaired byalcohol, given my decision on count #2, I direct a conditional stay on count #1. R. Green, J [1] See R. v. Badgerow (2008), 2008 ONCA 605 , 237 C.C.C. (3d) 107 (Ont. C.A.) at para. 46. [2] Following the analysis from R. v. Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1. [3] See R. v.

Lightfoot, (SCC), [1981] 1 S.C.R. 566. [4] 2004 ABPC 198. [5] See para. 22 - 25. [6] As argued and considered in R. v. Thorsteinson,

(2004) Unreported (Sask. Prov. Ct.) and R. v. A.R.H., 2004 S.J. 557. [7] (2011), 2011 ONCJ 256 , 14 M.V.R. (6th) 299. [8] As evidence of the stumble was properly admissible towards the officer’s grounds for a breath demand but not to the substantiveissue of impairment (see R. v. Demers, 2007 SKQB 348 at para. 9).