Her Majesty the Queen - v. -, 2013 SKPC 50

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 050 Date: March 25, 2013 Information: 38865451 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ryan Paul Birnie Appearing: Ryan Snyder For the Crown Merv Nidesh, Q.C. For the Accused RULING ON CHARTER APPLICATION J.D. KALMAKOFF , J [ 1 ] Ryan Birnie is charged with refusing to comply with a demand for a roadside breath sample, contrary to section 254(5) of the Criminal Code . He argues that any evidence relating to the refusal ought to be excluded on the basis of violations of his rights under sections 9, 10(

a) and 10(

b) of the Charter . [ 2 ] For reasons that follow, I am satisfied on a balance of probabilities that Mr. Birnie’s rights under sections 9, 10(

a) and 10(

b) of the Charter were violated. However, in the circumstances of this case, I am not satisfied that the remedy of exclusion of evidence is warranted pursuant to section 24(2) of the Charter .

FACTUAL BACKGROUND [3] The incident in question occurred in Regina on April 5, 2011. Police received a complaint relating to a possible impaireddriver leaving the Casino. Constables Jeremy Kerth and Scott Ash responded to the dispatch, as they were in their police car not faraway. Within minutes, they observed a vehicle that matched the description of the suspect vehicle, and initiated a traffic stop. Mr.Birnie was the driver of that vehicle. [4] Cst. Kerth initiated the traffic stop at 12:30 a.m., at which point Mr. Birnie was detained. By 12:32 a.m., Cst. Kerth hadapproached Mr.

Birnie’s vehicle and observed that Mr. Birnie had slightly slurred speech and glossy eyes. Mr. Birnie also admitted,when asked, that he had consumed 4 or 5 beers and a couple of drinks of vodka. Cst. Kerth then returned to the police car to check Mr.Birnie’s licence and registration. He also discussed his observations of Mr. Birnie with Cst. Ash. While Cst. Kerth ran the licence andregistration checks, Cst. Ash approached Mr. Birnie’s vehicle, spoke to him briefly, and directed Mr. Birnie to come back to the policecar. Neither officer noticed any problems with Mr. Birnie’s gait or physical coordination. [5] Mr.

Birnie got into the police car, and the officers continued to speak with him and ask questions about the evening. Mr.Birnie was never advised of the precise reason that he was stopped or why he was required to come to the police car; nor was he advisedof his right to counsel, but the officers continued to ask him questions, as Cst. Kerth testified (Transcript of Proceedings, p. 41, ll. 14-15)“Just to continue our investigation and determine - - if he is, in fact, intoxicated.” [6] At 12:42 a.m., other police officers arrived on scene. Those officers had not been called to the scene by Csts. Kerth andAsh.

They just happened to be in the area, and saw that Csts. Kerth and Ash had stopped a vehicle, so they came by to see if they could assist in some way[1]. The other officers had an Approved Screening Device (ASD) in their car. After some conversation with thoseofficers, Cst. Kerth decided to use the ASD. At 12:47 a.m., Cst. Kerth made an ASD demand on Mr. Birnie. According to the evidence,this is the first point at which Mr. Birnie was specifically advised of the reason he was being detained. [7] After a number of unsuccessful attempts to provide a sample, Mr.

Birnie was told, at 1:02 a.m., that he would be chargedwith refusal. Csts. Kerth and Ash served Mr. Birnie with an appearance notice, called a taxi for him, and made arrangements to have hisvehicle towed. ANALYSIS [8] Mr. Birnie is charged with failing or refusing to comply with a demand to provide breath samples into an approved screeningdevice (ASD). [9] In order for a demand of this nature to be lawful, it must comply with section 254(2)(

b) of the Criminal Code. That meansthe police officer who makes the demand must: (1) have reasonable grounds to suspect that the subject of the demand (

a) has been operating a vehicle within the preceding threehours, and (

b) has alcohol in his or her body; and (2) make a demand that the person provide the breath sample forthwith. [10] In a case of refusal, the Crown must prove the lawfulness of the demand beyond a reasonable doubt. A person who refuses tocomply with a demand which does not itself comply with section 254(2)(

b) is entitled to an acquittal, because there is no obligation tocomply with an unlawful demand: R. v. Grant, (SCC), [1991] 3 S.C.R. 139; R. v. Lytle, 2008 SKPC 156. In such a case,no Charter application is required: R. v. Luider-Grebnev, 2013 SKPC 22.

[11] Furthermore, if the demand is not lawful, then (

i) a breath sample obtained in connection with it is an unlawful search andseizure, which violates

section 8 of the Charter; (ii) the detention necessary to obtain the breath samples is arbitrary, and violates section9 of the Charter, and (iii) the accused’s rights under

section 10(

b) are not suspended during the period of detention, and obtaining breathsamples without informing the accused of, and implementing, the right to counsel violates

section 10(

b) of the Charter: R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640; R. v. Grant, supra. The accused is required to establish a Charter breach on a balance ofprobabilities. [12] I am satisfied that, at the time of making the ASD demand, Cst. Kerth had reasonable grounds to suspect that Mr. Birnie hadalcohol in his body, and that he had recently been operating a motor vehicle. Csts. Kerth and Ash received a complaint of an impaireddriver, and very shortly after that, they saw Mr. Birnie operating a vehicle which matched the description and plate number provided inthe complaint.

Within the first two minutes of their interaction, Cst. Kerth observed that Mr. Birnie had glassy eyes, slurred speech, andhad admitted to consumption of a significant amount of alcohol. [13] Therefore, the only real question to be resolved with respect to the lawfulness of the demand is whether it met the “forthwith”requirement. [14] In the context of a demand under section 254(2), “forthwith” means “immediately” or “without delay”, and connotes a promptdemand by the police and an immediate response by the accused.

Because a demand under section 254(2) involves detention inconnection with a suspension of the right to counsel, this requirement of immediacy is crucial to its constitutionality: R. v. Woods, 2005SCC 42, [2005] 2 S.C.R. 205. [15] This does not mean that any delay, no matter how slight, fails the “forthwith” test: See R. v. Giesbrecht, 2005 SKQB 314,267 Sask. R. 158. Police must act diligently, but cannot be expected to act so quickly as to put themselves at undue risk of harm, orotherwise into a situation where they cannot properly discharge their duties: R. v. Megahy, 2008 ABCA 207; R. v. Orbanski, R. v.

Elias,2005 SCC 37, [2005] 2 S.C.R. 3. [16] The Saskatchewan Court of Appeal has interpreted “forthwith” as meaning “without unreasonable or unjustified delay”: R. v.Janzen, 2006 SKCA 111, 285 Sask. R. 296 at para. 4, or “as soon as possible and before there is any realistic possibility that the subjectcould successfully contact counsel and get legal advice”: R. v. Ritchie, 2004 SKCA 9, 241 Sask. R. 155 at para. 17.

The Court mustconsider the length of the delay and the reasons for it in the context of the circumstances of the case, while balancing Parliament’sobjective in combating the dangers of drinking and driving against the constitutional right to be free from unreasonable search or seizureand the fact that a person’s right to consult counsel is suspended upon a demand for a screening sample pursuant to section 254(2): R. v.Janzen, supra, at para. 4. [17] Section 254(2)(

b) requires that a sample of breath be taken forthwith after the demand is made. While the sectiondoes not specify that the demand itself be made forthwith, it must be made as soon as the police officer has reasonable grounds to suspectthat the driver has alcohol in his or her body: R. v. Anderson, 2011 SKCA 13. As Madame Justice Arbour of the Ontario Court of Appeal(as she then was) said in R. v. Pierman, (R. v. Dewald) (1994), (ON CA), 19 O.R. (3d) 704 (affirmed by S.C.C.,(1996), 103 C.C.C. (3d) 102), that is the only

interpretation which is consistent with the judicial acceptance of an infringement on theright to counsel provided for in s. 10(

b) of the Charter. [18] In R. v. Quansah, 2012 ONCA 123, at paragraphs 45 - 49, Mr. Justice Laforme noted that the immediacy requirement beginsat the stage of reasonable suspicion. He said that the time from the formation of reasonable suspicion to the making of the demand andthe detainee’s response must be no more than is reasonably necessary to enable the officer to carry out his or her duty under section254(2). Delays such as those necessary to ensure accurate results, or due to articulated and legitimate investigative or safety concerns areexamples of justifiable delay.

Any delay not justified exceeds the immediacy requirement. In Anderson, supra, the Saskatchewan Courtof Appeal also noted that if the ASD demand is not made as soon as the police officer forms a reasonable suspicion, the resultingdetention is arbitrary and in violation of

section 9 of the Charter. [19] Greater flexibility in the forthwith requirement may be tolerated in situations where the accused person is not detainedbetween the time when the officer forms the grounds and when the demand is actually made: R. v. MacMillan, 2013 ONCA 109. Thatdoes not apply in this case, however, as Mr. Birnie was detained from the point of his initial contact with the police.

[ 20 ] In this case, the issue of time is critical. I accept that both Csts. Kerth and Ash were credible witnesses, and doing their best to tell the truth. However, there are discrepancies of significance in their evidence relating to the times at which certain things happened. Where there are discrepancies, I accept the evidence of Cst. Kerth, for the reason that he made and kept written notes of the significant events. Cst. Ash made no notes, was testifying from memory, and was estimating times. Clearly, on the crucial issue of times, I must defer to the evidence of Cst.

Kerth, because he made precise recordings. It is also Cst. Kerth’s evidence that is crucial in determining when reasonable grounds existed to suspect that Mr. Birnie had alcohol in his body, for the purpose of making the ASD demand. [ 21 ] Cst. Kerth may not initially have been certain that Mr. Birnie had alcohol in his body, but I am satisfied he had a suspicion, which was objectively reasonable. It is clear that Cst. Kerth formed his suspicion within minutes of his initial interaction with Mr. Birnie, and before Mr. Birnie was asked to come to the police car (See pages 82 - 83 of the Transcript of Proceedings).

Mr. Birnie was detained throughout the relevant time. [ 22 ] Despite having formed reasonable grounds to suspect that Mr. Birnie had alcohol in his body, Cst. Kerth did not take steps to demand or administer an ASD test. Based on the fact that he and Cst. Ash did not have an ASD in their car, Cst. Kerth considered simply giving Mr. Birnie a 24-hour suspension, or continuing the investigation by speaking to Mr. Birnie to try to formulate grounds for an evidentiary breath test demand. While they were doing that, other officers arrived, and Cst. Kerth learned that they had an ASD available.

It was only at that point that Cst. Kerth decided to make the ASD demand, and advised Mr. Birnie of the reasons for his detention. [ 23 ] There is no question that police need to have time to properly investigate matters. In some cases, where legitimate reasons exist, significant delays from a vehicle stop or first contact with the accused until an ASD demand is made have been authorized. Examples include R. v.

Ostropolskyi , 2013 SKPC 17 , where a delay of nearly 20 minutes was held to meet the “forthwith” requirement, because much of the delay in making the demand was caused by the police having to deal with unruly passengers; and R. v. Ellis , 2011 SKPC 148 , where there were legitimate investigative reasons for the delay, and a demand was made immediately upon reasonable suspicion being formed. Those cases, in my view, are distinguishable. [ 24 ] In R. v. Harvey , 2010 SKPC 27 , I held that a delay of 15 minutes from the initial stop until the demand was made did not violate the “forthwith” requirement.

But in that case, unlike this one, the initial stop was for speeding, and not in relation to an impaired driving complaint. The police officer in Harvey did not make observations that led to reasonable grounds to suspect the accused had alcohol in his body until some time after the initial stop, and made the ASD demand as soon as the reasonable grounds to do so existed. [ 25 ] While police must be given time to properly investigate cases and make observations, and cannot be required to make snap decisions, it is also incumbent upon them to conduct investigations with reasonable diligence.

In this case, the single purpose for which the police stopped Mr. Birnie’s vehicle was to investigate an impaired driving complaint. The complaint was made only minutes before the stop, and provided information which identified Mr. Birnie’s vehicle. Cst. Kerth clearly had grounds to make an ASD demand within minutes of stopping Mr. Birnie. Given the reason for the stop, and considering Cst. Kerth’s observations and Mr. Birnie’s admission that he had been drinking, it should have been immediately apparent that an ASD was required. If necessary, one should have been requested and a prompt demand made. Instead, Mr.

Birnie was detained, without being informed why, until by chance an ASD made its way to the scene, and Cst. Kerth decided to make use of it. Prior to the arrival of the ASD, the police detained Mr. Birnie for more than 15 minutes without explaining why, and without any clear purpose. During that 15 minute period, Cst. Kerth observed nothing which gave him any more grounds to make an ASD demand than he had at 12:32 a.m. Furthermore, Mr.

Birnie did nothing to contribute to the delay, and there were no other aspects of the investigation which complicated it. [ 26 ] Where the delay is unexplained or unjustified, it need not be lengthy before the “forthwith” requirement is violated. In R. v. McCullough , 2007 ABQB 423 , an unexplained 7 minute delay was seen as too long, while in R. v. Marshall , 2011 ABPC 188 , it was 9 minutes. In R. v. Anderson , supra , the Court of Appeal held that a 3 minute delay without advising the accused of the reasons for his detention violated the “forthwith” requirement. [ 27 ] In R. v.

Gunningham , 2011 SKPC 110 , 11 minutes passed from the suspicion being formed until the demand was made, and Judge Scott found that the “forthwith” requirement was violated. In my view, the delay in Gunningham was even less problematic than the delay in this case because it was shorter, and the officer in Gunningham turned his mind to an ASD demand and requested that one be brought to the scene in an effort to proceed as quickly as possible, rather than detaining the accused without any clear plan, and simply having an ASD fall into his lap.

Despite finding a violation of the “forthwith” requirement, and corresponding breaches of sections 8 and 9 of the Charter, the breath test results were admitted as evidence.

[28] In R. v. Mertins, 2012 SKPC 183, the accused was stopped and detained for 16 minutes before an ASD demand was made,although the observations which gave rise to the reasonable suspicion for the demand existed within a few minutes of the initial stop. Judge Labach found that the 16 minute delay, 10 minutes of which was unexplained, violated the “forthwith” requirement. [29] The circumstances of the case before me are similar to R. v. Shire, 2007 SKQB 28. In that case, police officers stopped theaccused’s vehicle in response to a complaint of an erratic driver, possibly with alcohol in the vehicle.

After stopping the accused, policedirected him to get out of his car. At that point, an officer noticed signs of alcohol consumption. However, rather than proceedingdirectly to an ASD demand, the officer placed the accused in the police car and proceeded with other aspects of the investigation,including searching the accused’s vehicle. The accused was detained for 17 minutes before the officer made the ASD demand.

The trialjudge found that the “forthwith” requirement was violated, because the officer ought to have concluded, upon taking the accused fromhis vehicle, that there were grounds for the demand, and the resulting delay of 17 minutes from the point of when the demand shouldhave been made until it was actually made was not reasonable. [30] I am satisfied on a balance of probabilities that the ASD demand in Mr. Birnie`s case was not made in compliance withsection 254(2)(

b) of the Criminal Code, because it was not made forthwith. I find that the 15 minute delay from the time whenreasonable suspicion existed until the demand was made is excessive, and does not meet the requirements of section 254(2)(b), especiallyin the absence of a reasonable explanation for that delay. Applying R. v. Anderson, supra, I am satisfied that there has been a violation ofMr. Birnie’s rights under

section 9 of the Charter. [31] Furthermore, given that finding, the corresponding suspension of Mr. Birnie’s

section 10(

b) right to counsel does not apply,and I am satisfied that his right to counsel was violated. [32] I am also satisfied on a balance of probabilities that Mr. Birnie’s rights under

section 10(

a) of the Charter were violated in thiscase. Individuals who are detained for investigative purposes must be promptly advised, in clear and simple language, of the reasons fortheir detention: R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59. The information provided to the detainee must be sufficient topermit him to make a reasonable decision as to whether or not to submit to the arrest or detention: R. v. Evans, (SCC),[1991] 1 S.C.R. 869, and also to exercise his right to counsel in a meaningful way: R. v. Nguyen, 2008 ONCA 49. In assessing whetherthe

section 10(

a) requirement has been met, it is the substance of the interaction, not the formal wording used that is important. Thepertinent question is whether the accused can reasonably be supposed to have understood the basis for the investigation: See R. v. Evans,supra; R. v. S.E.V., 2009 ABCA 108; R. v. Carrier, 2008 ABCA 134; R. v. Lund, 2008 ABCA 373. [33] While it may have been apparent to Mr.

Birnie from the initial interaction that the police were investigating somethingrelating to his driving or consumption of alcohol, the officers detained him for nearly 15 minutes without telling him anything specificabout the reason. This is not a case where the reason for his detention evolved as the investigation progressed, from a simple traffic stopto something more serious. The police stopped Mr. Birnie to investigate a complaint of a specific criminal offence, impaired driving, andtook investigative steps while he was detained that went beyond merely making passive observations: they tried to engage Mr.

Birnie inconversation to further assess whether or not he was impaired. Until the ASD demand was made, the police told Mr. Birnie nothingabout the reasons for his detention. In fact, Cst. Ash testified that he told Mr. Birnie to come back to the police car because it was coldoutside, and made no mention that the police were conducting further investigation. In all the circumstances, I find that the combinationof misinformation and lack of information provided amounts to a violation of Mr. Birnie’s rights under

section 10(

a) of the Charter. However, parenthetically, I would note that the violation of this right does not appear to have resulted in the police gathering anyadditional incriminating evidence. [34] Having found breaches of Mr. Birnie’s rights under the Charter, I must consider whether the evidence gained in connectionwith those breaches, namely the failure or refusal to provide samples, ought to be excluded pursuant to section 24(2) of the Charter. Todo so, I will consider the three avenues of inquiry outlined in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. [35] With respect to the first line of inquiry, the seriousness of the breaches, I consider the breaches of sections 9, 10(

a) and 10(b)in this case to be relatively serious. While I am satisfied that these were not deliberate breaches, they were negligent breaches, andignorance of Charter standards is not to be encouraged. Analysis of this factor weighs in favour of exclusion of the evidence.

[ 36 ] In considering the second line of inquiry, I do not find the impact of the breaches on Mr. Birnie’s Charter -protected interests to be particularly serious. I note that, in the end, Mr. Birnie was detained for a little more than a half hour. He was not arrested and held in custody, but rather released on an appearance notice and sent on his way. Also, although I find that the police failed to promptly advise Mr. Birnie of the reason for his detention, in violation of

section 10(

a) of the Charter , he was advised of those reasons before the ASD tests were administered, and hence before the evidence of failure or refusal to provide samples was gathered. Furthermore, the evidence obtained from Mr. Birnie did not involve any intrusive procedures, violation of bodily integrity, or gathering sensitive personal information.

Analysis of this factor, in my view, weighs in favour of admission of the evidence. [ 37 ] In considering the third factor, society`s interest in adjudication of the case on its merits, I am mindful of the fact that alcohol- related driving offences are a significant problem in Saskatchewan. This was not a random stop; the police were responding to a specific complaint of an impaired driver, and located him driving on one of the busiest streets in the city. The grounds existed for an ASD demand, as it was clear that Mr. Birnie was driving after he had reportedly consumed a significant quantity of alcohol.

The police were simply dilatory, in my view, in making the demand. Analysis of this factor weighs in favour of admitting the evidence. [ 38 ] Balancing the three factors, I am of the view that this is a case where admission of the evidence would not bring the administration of justice into disrepute. CONCLUSION [ 39 ] The evidence of Mr. Birnie`s failure or refusal to provide breath samples will be admitted on the trial. J.D. Kalmakoff, J [1] On this point, I accept the evidence of Cst. Kerth over that of Cst. Ash, who said that he called other officers to request an ASD be delivered to the scene. I accept Cst.

Kerth’s evidence (see, in particular, pages 42 - 44 of the Transcript of Proceedings ) because he made precise notes, and Cst. Ash did not.