Her Majesty the Queen - v. -, 2013 SKPC 79

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 079 Date: May 7, 2013 Information: 24308354 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - George Athanasopoulos Appearing: C. Bliss For the Crown C. Moustarah For the Accused JUDGMENT R.D. JACKSON , J [ 1 ] RCMP Constable Bowey received a dispatch call in the early morning hours of July 3, 2011 regarding a large brawl outside the Kindersley Inn - possibly involving 30 to 40 people.

He confirmed this upon his arrival. [ 2 ] As he was the only member on patrol at the time in Kindersley he radioed several satellite detachments in the vicinity for assistance. He was informed that several individuals in a black truck bearing an Alberta license had fled the scene and that the driver may be impaired. This information was imparted to the outlying detachments.

[ 3 ] Police Chief Jason Mochuruk from nearby Luseland responded to Constable Bowey’s request and proceeded southbound on Highway 21 towards Kindersley. En route the black truck earlier described passed by Chief Mochuruk going north roughly twelve miles from Kindersley. He immediately turned around and effected a traffic stop. The time was 02:24 hours.

By the time he exited and encountered the driver (the accused in these proceedings) the time may have progressed to 02:25 or 02:26. [ 4 ] He confirmed this to be the subject vehicle from initial observation and immediately made preliminary inquiries concerning the incident in Kindersley. The four men seated in the truck were all shirtless, dishevelled and to varying degrees bleeding and evidencing blood on their faces and bodies. One rear occupant appeared in greater distress as he was bleeding profusely from a large gash on his head.

Chief Mochuruk was informed that he had been “bottled” in the altercation. [ 5 ] Questioning continued to ascertain what had in fact occurred and principally to assess the level of injuries and necessity for medical assistance. The aforementioned “bottled” victim was in fact transported back to the Kindersley Hospital by another attending RCMP constable where he was admitted for the evening for observation and to attend to his injuries. [ 6 ] Chief Mochuruk also noted the accused driver to be smoking a cigarette when he first approached at roadside and further that an alcohol odour was emanating from his breath.

He took no immediate action concerning these matters as his primary concern was to satisfy himself as to the well-being and remedial action required concerning the obvious injuries presenting by the four individuals. [ 7 ] Constable Bowey arrived shortly thereafter. He too noted the accused to be smoking a cigarette when he first approached. [ 8 ] Upon assuaging his concerns regarding the medical issues, Chief Mochuruk then advised the accused to exit and return to the patrol car with him in regard to an “impaired operation investigation”. The time according to Chief Mochuruk was 02:35 hours.

He testified that the accused was also asked to extinguish his cigarette at this time. [ 9 ] The accused testified on the voir dire that he was indeed smoking at the time of the stop but that he finished the cigarette and did not smoke another. He estimated it usually took him approximately five minutes to finish a cigarette.

In cross-examination the accused acknowledged he was engaged in dialogue answering Mochuruk’s questions while he smoked and that he could not smoke and answer questions at the same time. [ 10 ] Accordingly, the Court finds that throughout the roadside encounter the accused smoked for a good portion, if not all of the nine to ten minutes (02:25 or 02:26 to 02:35 hours). [ 11 ] Chief Mochuruk’s notes referenced “once in the back of the car I read him the ASD demand and waited fifteen minutes, then obtained the breath sample because he was smoking at the time of the stop”.

His reason, he stated, was that he was trained that the test had to be delayed at least 15 minutes where there was evidence of recent alcohol consumption or cigarette smoking, or in fact, anything taken orally. [ 12 ] The rationale for this he explained was to avoid a false positive on the ASD i.e. for the benefit of the accused. [ 13 ] The ASD registered a fail at 02:53 and the accused was subsequently given rights to counsel, the formal breath demand and police warning.

He acknowledged he understood all three and declined to avail himself of the right to contact legal counsel, which he reiterated subsequently at the detachment. [ 14 ] Chief Mochuruk then departed the scene with the accused at 03:02 and drove back to the Kindersley detachment. [ 15 ] The accused ultimately provided two samples of his breath registering 110 milligrams and 100 milligrams, respectively.

[ 15 ] The accused ultimately provided two samples of his breath registering 110 milligrams and 100 milligrams, respectively. ISSUES [ 16 ] The Defendant raised several issues:

a) There was no evidence that Chief Mochuruk formed the opinion that the accused ’s ability to operate the motor vehicle was impaired by alcohol - rather only that he was impaired by alcohol;

b) Breach of the accused ’s s. 10(

a) Charter rights because Chief Mochuruk did not immediately advise the accused he was conducting a dual investigation regarding a possible assault as well as impaired driving;

c) The Crown did not meet its onus to establish the ASD demand and the subsequent tests were taken “forthwith ” as required by s. 254(2) Criminal Code thereby breaching the accused ’s s. 8 and s. 9 Charter rights;

d) As a consequence of the Charter breaches, the evidence of the fail and subsequent Intoxilyzer readings ought to be excluded pursuant to s. 24(2) of the Charter. DETERMINATION

a) There was no evidence that Chief Mochuruk formed the opinion that the accused ’s ability to operate the motor vehicle was impaired by alcohol - rather only that he was impaired by alcohol; [ 17 ] At the conclusion of trial, Defence counsel raised this issue in oral argument but made no reference to it in his written brief filed subsequently with the Court.

Whether by implication, this argument is abandoned or not, the Court finds it to be without merit. [ 18 ] It was clear from the evidence that Chief Mochuruk advised the accused upon him exiting his truck that he was required to accompany Chief Mochuruk in regard to an “impaired operation investigation”. [ 19 ] Further, Chief Mochuruk gave the formal breath demand after the accused had registered a “fail” reading on the ASD. In his evidence at trial he explained this meant to his understanding the accused’s blood alcohol content was at least 100 milligrams of alcohol in 100 millilitres of blood. [ 20 ] In R. v.

Shepherd [1] our Court of Appeal held that “ . . . the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving “over 80” before making the demand. [ 21 ] It is therefore apparent on the evidence that Mochuruk was directing his mind initially to “impaired operation” and to the accused operating the motor vehicle while over .08, not simply that the accused was impaired by alcohol.

b) Breach of the accused ’s s. 10(

a) Charter rights because Chief Mochuruk did not immediately advise the accused he was conducting a dual investigation regarding a possible assault as well as impaired driving; [ 22 ] Upon effecting the stop, Chief Mochuruk testified he engaged the driver regarding the incident that just occurred in Kindersley as well as an impaired driving investigation, in accordance with the information he had received from Constable Bowey’s

callout. [ 23 ] Defence counsel maintained that because of the “dual” nature of the investigation it was incumbent upon Mochuruk to advise the accused of his potential jeopardy at the outset, failing which the accused’s s. 10(

a) Charter rights were infringed. [ 24 ] The Court is unable to accede to this submission in the circumstances of this case. Chief Mochuruk testified he was simply trying to assess what happened in Kindersley and to, in effect, get his bearings. He was confronted with four extremely dishevelled and injured individuals who had obviously been involved in a recent physical altercation. His inquiries were mostly, if not solely, for the purpose of determining their well-being and need for medical assistance.

No assault charges were ever laid nor was there anything in the evidence which even hinted at the potential for same regarding the driver or any of the occupants of the vehicle. [ 25 ] A police officer is entitled to make preliminary inquiries during a traffic stop to assess matters and to determine what investigation or infractions need be pursued, if any. [2] Further, the accused would have been immediately alerted to the nature of the investigation from the dialogue and interaction with Chief Mochuruk concerning the altercation and his consumption of alcohol.

No precise wording is required in this regard to satisfy s. 10(

a) of the Charter just that the general intent and nature of the investigation is conveyed such that the accused is put on reasonable notice as to the investigative purpose. [3]

c) The Crown did not meet its onus to establish the ASD demand and the subsequent tests were taken “forthwith ” as required by s. 254(2) Criminal Code thereby breaching the accused ’s s. 8 and s. 9 Charter rights; [ 26 ] Section 254(2) mandates that the investigating officer proceed expeditiously to make the ASD demand once reasonable suspicion that the subject has alcohol in his or her body has been made and thereafter to have the ASD test administered forthwith. [4] [ 27 ] This

section does not operate in a vacuum however, rather it is contextual depending on the circumstances of the situation. Accordingly, it is not the length of time between the demand and the test but rather what transpires in the interim and whether such time lag can be reasonably explained. [5] [ 28 ] In the instant case, there are two episodes of delay - the first surrounding the discussion from the time of the stop to the time when the accused was asked to exit his vehicle, and the second being the delay in administering the ASD test once the accused was seated in the patrol cruiser.

In total, from the time of the first encounter at 02:25 or 02:26 hours to the time of the fail result at 02:53, roughly 27 minutes had elapsed. [ 29 ] Chief Mochuruk admitted he had a reasonable suspicion that the driver had alcohol in his body immediately upon encountering him from the smell of alcohol on his breath and other physical observations. He did not however proceed with the ASD demand as this was not his first priority based upon the scenario as presented to him. Rather, his first concern was for the safety and well-being of the four individuals, all of whom to varying degrees were in medical distress.

In particular, the individual in the rear passenger seat was injured severely enough to warrant immediate transport and ultimate hospitalization in Kindersley. It is difficult to criticize Chief Mochuruk in the circumstances and indeed would expect he would have been more severely and rightly chastised if he would have ignored his responsibilities in this respect and proceeded immediately with the impaired driving investigation.

His actions are well explained and such delay is therefore reasonable and commendable in the circumstances. [6] [ 30 ] The second portion of the delay from 02:35 hours until the ‘fail’ result obtained at 02:53 hours, some 18 minutes, Mochuruk explained, was due to the fact that the accused had been smoking during the roadside encounter.

He testified that he was trained to wait at least 15 minutes from when alcohol, cigarettes or in fact anything taken orally to avoid a false positive on the ASD. [ 31 ] Much was made in argument as to when precisely the accused was smoking and that, in essence, the Court would have to determine with precision when the smoking commenced and ceased. Not only is this difficult, if not impossible to ascertain on the

evidence, but in any event misses the point in the Court’s view. [ 32 ] Firstly, the time of the first encounter lasted nine to ten minutes. The accused stated he took five minutes on average to smoke a cigarette but acknowledged he could not smoke and talk at the same time so inferentially, would have taken several minutes longer. Therefore on the evidence as found previously, the smoking would have lasted a considerable portion of the roadside encounter. Further, it would be unreasonable in these circumstances, given what Mochuruk was confronted with, to be focusing on when the cigarette was actually finished.

Rather, he acted upon “recent consumption” of the cigarette which he was trained to do and was reasonable in the circumstances. Therefore the wait of at least 15 minutes was appropriate particularly considering this was for the accused’s benefit to avoid a false positive on the ASD.

d) As a consequence of the Charter breaches, the evidence of the fail and subsequent Intoxilyzer readings ought to be excluded pursuant to s. 24(2) of the Charter. [ 33 ] Although not required to determine since no Charter breaches have been established, the Court would have been disinclined on the Grant [7] analysis in these circumstances to exclude the evidence pursuant to s. 24(2). Seriousness of the Charter infringing state conduct [ 34 ] Chief Mochuruk acted in good faith throughout. He focused his initial investigation on determining the extent of the injuries which all four occupants presented with.

He delayed the ASD testing to ensure fairness and accuracy in the testing process. This alone could potentially save a detained motorist several hours of unwarranted delay for formal Intoxilyzer testing at the detachment. Further, he was courteous and professional throughout even to the extent of driving the accused several miles to his rural work site location once all matters had been completed at the Kindersley detachment.

Impact of the breach on the Charter protected interests of the accused [ 35 ] Evidence from both the Crown and Defence did not disclose any issues of concern in relation to the accused, beyond delay. Certainly delay is always a concern where roadside testing is involved because the process entails a suspension of the detainee’s right to seek counsel pursuant to s. 10(

b) since there generally is no realistic opportunity to seek legal advice in such circumstances. [8] Mr. Athanasopoulos in this case however declined both at roadside and the detachment to exercise such rights thus underscoring the conclusion that the overall impact of any breach of Charter protected interests of the accused would have been minimal in these particular circumstances.

Society ’s interest in the adjudication of the case on its merits [ 36 ] The Court in this arm of the analysis must look at the seriousness of the offence and reliability of the evidence as well as the long term effects on the administration of justice when considering whether or not to exclude evidence. [9] Numerous decisions have spoken to the reliability of Intoxilyzer evidence [10] as well as the gravity and seriousness of these types of cases when considering the carnage wrought annually on our public highways due to alcohol related incidents. [11] [ 37 ] Accordingly, all three of the Grant arms of analyses in this particular case favour inclusion of the evidence rather than exclusion pursuant to s. 24(2). [ 38 ] All evidence having been applied from the voir dire to the trial proper by consent and no further evidence being called by either party on the trial proper, the Court finds the accused guilty of operating a motor vehicle while his blood alcohol exceeded .08 per

cent. _______________________ R.D. Jackson, J [1] 2009 SCC 35 , [2009] S.C.J. No. 35 at para. 23; see also R. v. Vandal, 2009 SKCA 79 [2] See R. v. Birnie 2013 SKPC 173 at para. 23 citing with approval R. v. Ostropolskyi 2013 SKPC 17 and R. v. Ellis 2011 SKPC 148 [3] R. v. Anderson 2011 SKCA 13 [4] R. v. Dewald (1994) (ON CA), 19 O.R. (3d) 704 at para. 5 (S.C.C.); R. v. Anderson, supra; R. v. Janzen, 2006SKCA 111 [5] R. v. Ostropolskyi, supra, at para. 9 citing with approval R. v. Quansah, 2012 ONCA 123 at paras. 45 - 49; in R. v.

McMahon, 2002 SKPC 139, 34 M.V.R. (4th) 254, this court held that a 15 minute delay between forming reasonable suspicion and demand was not“forthwith” because the investigating officer utilized this time to make notes and make innocuous conversation. [6] In R. v.

Ostropolskyi, supra, the 20 minute delay in making the demand was determined to be forthwith due to the police having todeal with unruly passengers. [7] 2009 SCC 32, [2009] 2 S.C.R. 353 where the Court mandated a tripartite analysis to assess whether evidence ought to be excludedpursuant to s. 24(2): 1) the seriousness of the Charter infringing state conduct; 2) the impact of the breach on the Charter protectedinterests of the accused; 3) society’s interest in the adjudication of the case on its merits. [8] R. v. Pierman (1994), 19 O.R. (3d) 204 (S.C.C.); R. v.

Woods 2005 SCC 42 , 2005 S.C.C. 42, [2005] 2 S.C.R. 205 [9] R. v. Parry [2009] O.J. 4919 (Ont. C.J.) [10] See R. v. Grant, supra [11] See R. v. Bernshaw (SCC), [1995] 1 S.C.R. 254 (S.C.C.)