Her Majesty the Queen - v. -, 2014 SKPC 50

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 050 Date: February 27 , 2014 Information: 24407267 Location: Wynyard _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cody Wade Chasky Appearing: Darren Grindle For the Crown Michael W. Owens For the Accused JUDGMENT J.A. PLEMEL, J INTRODUCTION [ 1 ] When Constable Hill saw a vehicle back away from the area of a tavern in Foam Lake on the evening of April 24, 2013, he noticed that it crossed a solid centre line before going down Main Street.

He decided to stop it to check the driver for driver’s licence, vehicle registration and sobriety. On doing so, he found the accused, Mr. Chasky, to be the driver and sole occupant.

[ 2 ] The driver’s window was already down when Constable Hill arrived at the driver’s door. He initially smelled alcohol coming from the vehicle but soon realized Mr. Chasky had alcohol on his breath. He testified that when the accused produced his licence he held it to his chest and was shaking so he reached in and took it from him. He described his eyes as bloodshot, watery, glossy and having a distant stare as if he was having trouble focusing. In response to questions about drinking, Mr.

Chasky stated he had consumed one or two beer while in the bar and that his last drink was 20 or 30 minutes earlier. [ 3 ] Constable Hill told him he could smell alcohol on his breath and that he would have to come to the police vehicle. While walking there he described the accused as stumbling at one point, but not falling. When asked what he meant by stumbling at one point he stated he walked from right to left in a manner that was not normal. [ 4 ] The investigation into the accused’s blood alcohol content continued.

It ended with the accused providing breath samples and being charged with the two offences now before this Court. He is charged in count 1 with operating a motor vehicle while impaired by alcohol and in count 2 with operating a motor vehicle with an alcohol concentration in his blood of over eighty milligrams of alcohol in one hundred millilitres of blood. The charges are pursuant to Criminal Code subsections 253(1)(

a) and 253(1)(

b) respectively. FURTHER EVIDENCE [ 5 ] Constable Hill and Constable Rana were the only two witnesses for the Crown.

The defence did not call evidence. [ 6 ] Below are times which are important to consider in reaching a decision in this case: 23:16 - The accused was stopped by Constable Hill. 23:17 - He was read an ASD demand. 23:21 - The accused provided a breath sample which resulted in a fail reading on the ASD after which he was arrested and read rights to counsel. 23:23 - He was read a breath demand. 23:30 - He was given the private use of a phone to call legal counsel from the Foam Lake RCMP Detachment; Constable Hill observed the accused through a window and saw that he was again shaking while on the phone. 23:35 – The telephone call ended and a 15 minute observation period of the accused started; the purpose was to ensure the accuracy of the readings.

During this observation period Constable Hill also began preparing the instrument for the breath tests. 00:16 (April 25) - The first test was taken; note the passage of 41 minutes from the time the observation period began as Mr. Chasky argues that anything over 15 minutes contributed to the tests not being taken as soon as practicable. 00:37 hours - The second test was taken. [ 7 ] Constable Hill was not only the arresting officer but also the qualified breath technician who took the breath samples.

He contacted Constable Rana who arrived to continue observing the accused while Constable Hill readied the instrument for the breath tests. While Mr. Chasky was on the phone with counsel, Constable Hill noticed that a solution required in the instrument to perform the two breath tests would expire at midnight. He felt it would take about 30 minutes to change the solution and ready the instrument.

Therefore he could not complete the two tests using this solution since the combination of the observation period before the first test and the requirement to wait at least 15 minutes between samples would mean the second test would be taken after midnight. He had the option of driving to the RCMP Detachment in Wadena and using the breath testing instrument there but, due to the distance, that would not have saved any time. He therefore conducted the tests in Foam Lake. [ 8 ] A certificate of a qualified technician, signed by Constable Hill has been filed by the Crown as Exhibit P-1 at trial.

The readings shown in the certificate are both 110 milligrams of alcohol in 100 millilitres of blood. However, this conflicts with what Constable Hill initially testified to orally when he stated that the first test taken at 00:16 hours showed a reading of 100 milligrams of alcohol in 100 millilitres of blood.

COUNT ONE [ 9 ] The Crown must satisfy the Court beyond a reasonable doubt that Mr. Chasky’s ability to operate a motor vehicle was impaired to some degree by alcohol before he can be found guilty of this offence. [ 10 ] While the symptoms observed by Constable Hill might be indicia of impairment by alcohol which could affect his ability to operate a motor vehicle, it is quite possible they were indicative of something else. Alcohol on one’s breath is evidence of drinking but not impairment. Shaking, observed by Constable Hill at roadside and again while Mr. Chasky was on the phone, may be due to nervousness.

Tripping slightly can happen to anyone. Constable Rana did not notice anything unusual about Mr. Chasky’s eyes or balance so those symptoms observed by Constable Hill at roadside were not apparent under normal interior lighting conditions. [ 11 ] The Crown has not proven beyond a reasonable that the accused’s ability to operate a motor vehicle was impaired by alcohol. I therefore find him not guilty of count 1.

COUNT 2 FIRST ISSUE IN COUNT 2 [ 12 ] Given Constable Hill’s initial evidence that the first reading was 100 milligrams of alcohol in 100 millilitres of blood, though the certificate shows a reading of 110 milligrams of alcohol in 100 millilitres of blood, can or should the Court rely on the certificate? SECOND ISSUE IN COUNT 2 [ 13 ] Since there was a delay in taking the samples due in large part to the officer having to prepare the instrument, were the tests taken “as soon as practicable” as required by section 258(1) (c)(ii) of the Criminal Code ?

ANALYSIS OF FIRST ISSUE [ 14 ] I find that Constable Hill misspoke during his testimony when, without the certificate in his hand, he testified that the first reading was 100 milligrams of alcohol in 100 millilitres of blood. This was clarified in his later testimony which I am satisfied shows the correct readings as being 110 milligrams of alcohol in 100 millilitres of blood for each sample. [ 15 ] I am satisfied that he misspoke because I accept his testimony that after obtaining the second reading at 00:37 hours he waited for the certificate and test results to print off.

He then reviewed the certificate making sure that everything was correct on it before he signed it. This certificate is in evidence as Exhibit P-1. While referring to the certificate in Court he stated that it indicates that the time of the first test was 00:16 hours with a resultant reading of 110 milligrams of alcohol in 100 millilitres of blood. He went on to state that the second reading was at 00:37 hours with a resultant reading of 110 milligrams of alcohol in 100 millilitres of blood. He then stated that those were the readings on the night in question.

I am satisfied beyond a reasonable doubt that those were his readings and that they accurately reflect Mr. Chasky’s blood alcohol level at the time the tests were taken. ANALYSIS OF SECOND ISSUE

[16] The presumption in section 258(1)(c)(ii) of the Criminal Code, that the blood alcohol readings at the time they weretaken are the same as the blood alcohol readings at the time of operation of a motor vehicle only applies if each sample was taken as soonas practicable after the alleged offence. In addition, the first sample must be taken not later than two hours after that time and there mustbe an interval of at least 15 minutes between the times when the two samples were taken. If the Crown does not satisfy the Court thatthe samples were in fact taken as soon as practicable the presumption does not apply.

R. v. Carter (1981), (SK CA),59 C.C.C. (2d) 450 at 452 (Sask. C.A.). [17] If Constable Hill did not have to stop and change the solution, the first test could have been conducted at 23:50 hours. However, it was not conducted until 00:16 hours. Therefore, the delay caused by having to change the solution was 26 minutes. Inaddition, the officer waited 21 minutes, rather than 15 minutes between the taking of the two samples.

The Crown did not lead anyevidence to explain that 6 minute delay. [18] The defence argues that the Court must look at these two delays in the context of the total time elapsed from the timeof the initial stop. I point out here that the time from the initial stop to the time of the first sample was one hour. The time of stop to thesecond sample was one hour and twenty-one minutes. [19] Mr. Chasky argues that the delay in taking the first test was preventable as the solution should be changed before someone isarrested, not while they are waiting to provide samples.

Waiting for 21 minutes between the two tests added an unexplained 6 minutesto the overall delay. As a result, he argues that the samples were not taken as soon as practicable, and the Crown therefore cannot relyon the presumption in section 258(1)(c)(ii) of the Criminal Code. Without the presumption, there is no evidence of the blood alcoholcontent at the time the accused was stopped and, he argues, he must be found not guilty of count 2. [20] Constable Hill admits he could have come into the detachment and changed the solution at 17:00 hours on April 24 when hestarted his shift.

However, since he had a police vehicle at his home, he did not go to the detachment then. His first trip to thedetachment during that shift was when he brought the accused in. He also admits that the instrument starts to flash a reminder, hebelieves five days before the solution expires, telling officers when the solution will expire. His first day back on shift was April 23 sohe could have taken note, or other RCMP personnel could have notified him, to change the solution prior to April 24. [21] Mr.

Chasky’s counsel argues strenuously that when a qualified technician patrols in the area of a bar late at night, he shouldanticipate that he might arrest a driver for impaired operation of a motor vehicle. Under those circumstances, if the solution needs to bechanged, it should be done before an accused is sitting waiting at the detachment. [22] It is certainly preferable for police to have their equipment ready for use when the need arises.

However, the question is notwhat is preferable but whether or not the tests were taken as soon as practicable as that phrase has been judicially defined. [23] Among the many cases cited by defence counsel is one in which he appeared as counsel. It is R. v. Burwell, adecision of this Court. [2012 CarswellSask 459; 2012 SKPC 114.] Referring to this decision which resulted in an acquittal, he arguedthat the police should have a system in place “to make sure the machine is set up and ready to go as per Burwell”.

Not mentioned,however, was that the acquittal at trial was overturned on appeal and a conviction was entered. [R. v. Burwell (2013), S.J. No. 25, 2013SKQB 20.] [24] In R. v. Burwell the trial judge held that the tests were not taken as soon as practicable. One delay, as here, wasbecause the qualified technician had to change the solution while the accused waited as it had expired.

The learned trial judge held thatthe reason for this delay was less than satisfactory and, along with other delays, resulted in the breath tests not being taken as soon aspracticable. [25] In his decision, overturning that acquittal, Laing J. stated “It is not realistic to expect perfection in the control of the expirationdates on the Intoxilyzer solution.” (para. 18)

[26] Moreover, Laing J. dealt with this same issue about one month later in R. v. Zemlak (2013), S.J. No. 64, 2013 SKQB34, another case that was not brought to my attention in which Mr. Owens was again defence counsel. In that case, the Intoxilyzersolution had expired and required a change resulting in a delay of 20 to 25 minutes. Again, Justice Laing found that this delay did notresult in the tests not being taken as soon as practicable. He referred to R. v. Burwell in reaching that conclusion. [27] In R. v.

Carter, supra, Culliton C.J.S. held in paragraph 9 that “as soon as practicable” is a phrase which must beapplied with reason. If a delay is explained to the satisfaction of the trial judge then there may be reliance on the presumption as long asthe samples are taken within the two hour limit. If the delay is not satisfactorily explained or if the delay prejudices the accused then theCourt would deny the prosecution the right to rely on the presumption. That view was again expressed by Cameron J.A. in our Court ofAppeal in R. v. Tarr, (SK CA), [1998] 10 W.W.R. 333, 168 Sask.

R. 161. [28] Laing J. referred to both Carter and Tarr with approval in Burwell. In paragraph 9 of R. v. Burwell he also cited R.v. Vanderbruggen (2006), (ON CA), 206 C.C.C. (3d) 489, [2006] O.J. 1138 (Ont.

C.A.) which states that the phrase“as soon as practicable” means “nothing more than that the tests were taken within a reasonably prompt time under the circumstances...” [29] Defence counsel also argued that, in the present case, Constable Hill could have taken the first sample before midnight withthe solution which was about to expire, and then changed the solution between the first and second samples, resulting in a shorter delay. Constable Hill was not questioned about this possibility and I have no evidence that this is an acceptable practice on the instrument inquestion.

On the evidence I have before me, I find it reasonable that the solution was changed before the first sample was taken. [30] I find that the delay caused by Constable Hill changing the solution did not result in the samples of breath not being taken assoon as practicable as required by section 258(1)(c)(ii) of the Criminal Code. [31] Mr. Chasky also argues that there is no explanation for waiting 21 minutes between the two samples when theCriminal Code only requires 15 minutes.

The Crown is not required to lead detailed evidence of what occurred every minute from thetime the accused is stopped to the time of the last test. (See R. v. Vanderbruggen, supra; R. v. Carter, supra.) An unexplained delay ofsix extra minutes between samples does not in this case result in the tests not being taken as soon as practicable. [32] I find that the two samples were taken from Mr. Chasky as soon as practicable after the time when the offence was alleged tohave been committed.

The presumption in subsection 258(1)(c)(ii) of the Criminal Code applies and the certificate of the qualifiedtechnician is presumptive proof that the accused’s blood alcohol content at the time he was stopped was 110 milligrams of alcohol in 100millilitres of blood. I am satisfied beyond a reasonable doubt the accused is guilty of count 2. CONCLUSION [33] Mr. Chasky is acquitted of count 1 and convicted of count 2. J.A. Plemel, J