Her Majesty the Queen - v. -, 2016 SKPC 157

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 157 Date: December 1, 2016 Information: 36657854 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Darlene Josephine Weichel Appearing: C. Bliss For the Crown J. Watson and Bruce Gordon (student-at-law) For the Accused JUDGMENT M.M.

BANIAK , J [ 1 ] The accused, Darlene Josephine Weichel, stands charged that on or about the 19 th day of March, A.D. 2016 at or near Saskatoon, Saskatchewan did: 1) while her ability to operate a motor vehicle was impaired by alcohol or a drug, have the care or control of a motor vehicle, contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code ; and

2) having consumed alcohol in such quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, have the care or control of a motor vehicle, contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code . Evidence [ 2 ] The Crown’s first witness was Constable Brent Vanthuyne, a six year member of the Saskatoon Police Service. He presented as a qualified technician who attended on the accused to administer the breath tests. The result of the tests are contained in the Certificate of Qualified Technician (Exhibit P-1). [ 3 ] He testified that the accused arrived at the detachment at 6:21 a.m. and was escorted to the phone room by Constable Erickson. The observation period commenced at 6:45 a.m. At 6:47 a.m. Constable Vanthuyne entered the observation room.

According to his testimony, the accused told him that she had two shots that night. [ 4 ] After the observation period, the accused was taken to the breathalyzer room. She provided a suitable sample after eight attempts. [ 5 ] The test report sheet (Exhibit P-2) indicates that the testing started at 7:05 a.m. and the first suitable sample was obtained at 7:14 a.m. The second test started at 7:35 a.m. and the second suitable sample was obtained at 7:38 a.m. [ 6 ] The second Crown witness was Constable Richard Erickson, a six and one-half year member of the Saskatoon Police Service.

On March 19, 2016, he was on duty. With him was Constable Davis, a recent recruit. [ 7 ] Constable Erickson arrived at the scene (Circle Drive and Avenue

C) at 5:20 a.m. A light standard had been knocked over. He first approached and spoke with a male individual named Istifo. At 5:24:40 Constable Erickson approached the truck where the accused and another female were sitting. At 5:24:57 he said to the females: “I can already tell you’ve been drinking”. He testified that the vehicle was running; the signal light was on, and the accused was behind the wheel. He could smell alcohol emanating from the cab. According to his testimony, he observed that the accused had glassy red eyes and that she had “trouble keeping eye contact with me”.

He could not remember if the accused admitted to drinking, but he suspected that she was drinking. [ 8 ] At 5:25:29 he asked Constable Davis to get the ASD. The breath sample into the ASD was provided at 5:35 a.m. The accused was arrested at 5:36 a.m. Thereafter, Constable Erickson provided the rights to counsel at 5:39 a.m., right to silence caution at 5:39 a.m., breath sample demand at 5:41:30 and another reading of the breath sample at 5:42:30 (after explaining to the accused that they would have to wait to clean the place up before leaving).

According to Constable Erickson, he was unable to get another police unit to attend at the scene. [ 9 ] During cross-examination, Constable Erickson acknowledged that another police unit, driven by Constable Wiebe arrived at the scene at 5:30 a.m. and enquired if he could do anything. He was advised to assist recruit Davis.

At some point the individual known as Istifo, who was also being investigated for impaired operation of a vehicle, was placed in Constable Wiebe’s vehicle. [ 10 ] Constable Erickson testified that he proceeded to fill out some paperwork required by SGI and that he wanted to wait for a tow truck. Finally, he left the scene at 6:12 a.m. In his words, “I could not have left the scene any sooner”. [ 11 ] Arrival time at the detachment was 6:17 a.m. and the “booking” process began at 6:18 a.m. The accused then used the bathroom facility after which she was taken to the phone room at 6:29 a.m.

She spoke with Legal Aid duty counsel from 6:39 a.m. to 6:44 a.m. The observation period commenced at 6:45 a.m.

[ 12 ] As testified to by Constable Vanthuyne the testing started at 7:05 a.m. Essentially, therefore, the time elapsed from arrival at the detachment (6:17 a.m.) To time of testing (7:05 a.m.) was 48 minutes. [ 13 ] The time spent at roadside, when the accused was detained, 5:28 a.m. to 6:12 a.m., was 44 minutes. Position of Parties [ 14 ] Defence advance a two pronged argument. Firstly, it argued that the police officer lacked the reasonable suspicion grounds to make an ASD demand pursuant to s. 254(2) of the Criminal Code .

Without the ASD results there would not be, therefore, the reasonable grounds for a breath test demand. [ 15 ] In support of its argument, defence points out that the police officer essentially decided that he had the reasonable suspicion grounds after interacting with the accused for a mere 14 seconds. He came to that conclusion without taking the time to properly ascertain the indicia of impairment. Within 45 seconds of coming upon the accused he made the demand.

In support of his suspicion, the police officer testified that there was a smell of beverage alcohol emanating from the truck, that the accused worked in the Sardinia restaurant and that she had glassy eyes and that she did not maintain eye contact with him. [ 16 ] The accused had no difficulty walking or talking and there was no evidence of the accused’s drinking history prior to the demand or, for that matter, any admission of drinking prior to the ASD demand. [ 17 ] Secondly, defence argued that the breath tests were not taken as “soon as practicable” and as such the Crown cannot rely on the presumption in s. 258(1) (c)(iv) of the Criminal Code . [ 18 ] The accused was arrested at 5:36 a.m. and the police officer did not leave the scene till 6:12 a.m., some 36 minutes later.

This delay was not satisfactorily explained. Once at the police station the pace did not pick up. The arrival time was 6:21 a.m., the first test taken at 7:14 a.m., some 53 minutes later. [ 19 ] This delay was also unreasonable according to the defence. [ 20 ] The Crown takes the position that the reasonable suspicion argument fails on two grounds. [ 21 ] Firstly, if defence maintains that Constable Erickson lacked the reasonable suspicion to make the ASD demand that would result in a s. 8 Charter breach. In order to argue the s. 8 breach, it was necessary to state this in the Charter notice.

Defence failed to do so. [ 22 ] Secondly, Crown submits that the reasonable suspicion standard is very low and , having regard to the evidence, and the existing law, that threshold has been met. [ 23 ] With respect to the issue of whether the tests were taken as soon as practicable, Crown takes the position that there are two time periods that have to be considered - the period from arrest to departure to the police station, and the time from arrival at the station to the time the tests were taken. [ 24 ] The delay in departing the scene is attributed, according to the Crown to the following:

- dealing with two suspects at the scene; - the need to immobilize the vehicles; and - completion of paper work for SGI. [ 25 ] The delays, if any, at the police station are satisfactorily explained. The accused had to be booked, she wished to use the washroom, she spoke with Legal Aid duty counsel, and it was necessary to comply with the observations periods.

Analysis [ 26 ] Police are not entitled to embark on an investigation into criminal activity unless they are acting, at the very least, on a reasonable suspicion that a person is involved or engaged in criminal activity. [ 27 ] Various courts, including the Supreme Court, have held that “reasonable” suspicion means something less than a belief based upon reasonable and probable grounds. [1] [ 28 ] P. Sankoff and S.

Perrault, in their commentary entitled “Suspicious Searches: What’s So Reasonable About Them?” describe the concept as follows: [T] he fundamental, distinction between mere suspicion and reasonable suspicion has in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent assessment . . .

What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [ 29 ] The Supreme Court in R v Chehil [2] stated clearly that the reasonable suspicion standard is much lower or less demanding than a reasonable grounds one: A reasonable suspicion means something more than a belief based upon reasonable and probable grounds. (para 26) [ 30 ] However, although the Court acknowledged the lower standard, it did not hold that reasonable suspicion could be grounded or based on speculation or a mere hunch. [ 31 ] Karakatsanis J. articulated that objective facts are necessary to support reasonable suspicion: [45] The requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent after-the-fact review by the court and protects against arbitrary state action.

Under the Collins framework, the onus is on the Crown to show that the objective facts rise to the level of reasonable suspicion, such that a reasonable person, standing in the shoes of the police officer, would have held a reasonable suspicion of criminal activity. [46] Rigorous judicial scrutiny is an independent review that ensures that the suspicion relied on by the police is supported by factors that are objectively ascertainable, meaning that the suspicion is based on “ factual elements which can be adduced in evidence and permit

an independent judicial assessment ” : P. Sankoff and S. Perrault, “ Suspicious Searches: What ’ s so Reasonable About Them? ” (1999), 24 C.R. (5th) 123 , at p. 125 . The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour. If the link between the constellation and criminality cannot be established by way of a logical inference, the Crown must lead evidence to connect the circumstances to criminality.

This evidence may be empirical or statistical, or it may be based upon the investigating officer ’ s training and experience. [ 32 ] At para 47, Madam Justice Karakatsanis made reference to a police officer’s training and experience on the Court’s evaluation of reasonable suspicion: [47] An officer ’ s training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion.

However, this is not to say that hunches or intuition grounded in an officer ’ s experience will suffice, or that deference is owed to a police officer ’ s view of the circumstances based on her training or experience in the field: see Payette , at para. 25. A police officer ’ s educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard. [ 33 ] In this case, Constable Erickson concluded within seconds of encountering the accused that he had reasonable suspicion for an ASD demand. He had no opportunity to observe the accused.

He made the demand before asking the accused if she consumed any liquor. He failed, in my view, to articulate the grounds for reasonable suspicion. The reasonable suspicion standard may be law, but it requires something more than a mere hunch. [ 34 ] Normally, therefore, this would result in the breach of the accused’s s. 8 Charter right and possibly result in the exclusion of the evidence derived, namely the ASD test result. [ 35 ] The difficulty in the instant case, however, is that, as the Crown has pointed out, defence did not mention the s. 8 violation in its Charter notice.

As such, defence should not be allowed to argue it at the conclusion of the trial. [ 36 ] In my view, if a Charter issue arises during the course of a trial that was not apparent or easily discernible by defence from all of the disclosure provided by the Crown then it is appropriate and proper for the Court to consider, analyse and rule on it. Fairness demands it. [ 37 ] In this instance, that is not the case. A rudimentary, or even a perfunctory perusal of the disclosed material would have shown the video-taped interaction between Constable Erickson and the accused at the outset.

The issue, as it pertains to reasonable suspicion, was glaringly apparent. The Charter Notice was deficient in this regard and I will not consider the possible breach and conduct an analysis to determine the exclusion of evidence. [ 38 ] The second argument advanced by defence is that the breath tests were not taken as soon as practicable.

Section 258(1) (c)(ii) of the Criminal Code requires that where a breath sample of the accused has been taken pursuant to a demand made under s. 254(3) : . . . (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, . . . [ 39 ] Section 258(1)(c)(iv) states that: . . . evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused ’ s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed . . . [ 40 ] In order for the Crown to rely on the presumption in paragraph (iv), it has to establish compliance with paragraph (ii).

[41] The relevant times are as follows: 5:19 a.m.: arrival at scene; 5:37 a.m.: arrest of accused for impaired driving; 6:12 a.m.: departing scene; 6:21 a.m.: arrival at Detention centre; and 7:14 a.m.: first sample taken. [42] Simply put, from the time of arrest to the first sample, ninety seven minutes elapsed. This time frame, in my view, needs to beanalysed at two interval segments. The first time frame was from time of arrest (5:37 a.m.) to time of departure from the scene (6:12a.m.) - 35 minutes.

The second period was the time from arrival at the detention centre (6:21 a.m.) to the taking of the second sample(7:38 a.m.) - 77 minutes. [43] The term “as soon as practicable” has been addressed on numerous occasions.[3] In R v Vanderbruggen the Ontario Court ofAppeal (para 12) held that “the touchstone for determining whether the tests were taken as soon as practicable is whether the police actedreasonably”. [44] Our Court of Queen’s Bench in R v Beaton relied on the Court of Appeal’s decision in R v Carter (para 9): The requirement that the samples be taken as soon as practicable is one which must be applied with reason.

As I read the section, as longas the delay, if there is one, is explained to the satisfaction of the judge, there may be reliance on the presumption in paragraph (iv) aslong as the samples are taken within the two hour limit.

It would only be when the learned trial judge concluded there was a delay notsatisfactorily explained, or such delay prejudiced the accused that the court would deny the prosecution the right to rely on thepresumption in paragraph (iv). [45] In Beaton, the Court held that the 15 minute delay was satisfactorily explained and as such “was not objectively unreasonable” (para 34); however, it did cite a number of decisions (para 40) where undue delay was arguedsuccessfully: . . .

For example, in R v Prior, 2011 SKPC 193 , the delay was 56 minutes and, in the words of the trial judge at para. 24,“…was so lengthy that, without satisfactory, reasonable explanation, it must result in the loss of the presumption [that the test resultswere proof of the accused’s blood alcohol level at the time of driving].” In R v Carrier,2010 SKPC 118 , 363 Sask R 76, 63minutes had elapsed, and, finding that 39 of those minutes was an “unexplained delay,” the prosecution could not rely upon thepresumption.

In R v Dion, 2010 SKPC 76 , the trial judge found a delay of 57 minutes as “unreasonable” and the Crown failedto sufficiently explain the delay. . . . [46] The sequence of events once the accused was brought to the detention centre is as follows: 6:21: accused brought to detention centre; 6:29: accused uses washroom (with assistance of a female escort); 6:36: accused enters phone room; 6:39 - 6:45: accused speaks to counsel; 6:45: commencement of first observation period; 7:04: accused moved from observation room to breathalyzer room; 7:14: first successful sample taken;

7:30: second successful sample taken. [ 47 ] Even though this entire process took approximately an hour to complete, I do not see any undue or unexplained delays. The accused spent some seven minutes in the washroom; she spoke for six minutes with counsel; it took nine minutes to take the first sample as there were several unsuccessful attempts to provide a suitable sample (Exhibit P-2). These 22 minutes added to the observation periods account for most of the time at the police station.

At any rate, I do not find that the police acted unreasonably or that they failed to explain any minor delays. [ 48 ] The first time frame, following the accused’s arrest, is more problematic. In this instance, after Constable Erickson arrested the accused (5:37 a.m.) the police vehicle remained at the scene for 35 minutes before proceeding to the police station (6:12 a.m.). [ 49 ] Let us first examine the reasons provided for the delay. Constable Erickson was partnered up with Constable Davis, a young recruit who was taking

part in his first impaired investigation. Once they arrived at the scene, they had to deal with two drivers, the accused and an individual named Istfo, who was also suspected of impaired driving. Mr. Istfo’s vehicle collided with a light standard, which blocked part of the roadway. The two officers placed pylons around the light standard to alert other motorists of a possible hazard. Within minutes another police cruiser, operated by Constable Wiebe, arrived at the scene. [ 50 ] Apparently this was a busy part of the day and no other cruisers were available.

In addition to administering the ASD test, Constable Erickson occupied himself by completing paper work (SGI forms and Vehicle Impoundment Forms) and calling City of Saskatoon services and tow trucks. Constable Erickson testified that he could not leave the scene any sooner than he did. [ 51 ] He testified that suspect Weichel and suspect Istfo could not be put in the same vehicle for transport to the police station as he did not want to compromise the investigation, and, secondly, he doesn’t like to have male and female prisoners together.

There was no information provided as to whether this is the Saskatoon Police Service policy in place, or if this is simply his practice. At any rate, this explanation is less than satisfactory when one considers that Constable Wiebe arrived at the scene at 5:30 a.m. and that it was Wiebe who transported Istfo to the police station. [ 52 ] Constable Erickson testified that Constable Davis was a recent recruit and this was his first impaired investigation. What was not explained was whether Constable Davis could not have remained at the scene - if it was necessary to do so - until the tow truck or trucks arrived.

From the video it appeared that the traffic flowed smoothly and that the pylons placed around the fallen light standard were seen by the other motorists. There were no injuries; the accused’s vehicle was driveable and she was cooperative. The location, or the scene, has several businesses around and adjacent to it. The vehicle could easily have been parked in one of the parking lots and left there until the tow truck arrived. The Traffic Safety Act (s. 148) requires that a motor vehicle be “immobilized or impounded”. It does not mean that it has to be towed away.

Parking a vehicle in a safe place, locking it, and seizing the keys amount, in my opinion, to immobilization. [ 53 ] I find that there was no compelling reason, or need, to wait for the tow truck especially when there was no indication when one was expected to arrive. [ 54 ] There was an apparent lack of a sense of urgency. Constable Erickson was told by the accused that she only had two shots; she did not display multiple signs or indicia of impairment and, therefore, if the Crown was to rely on the presumption, it was important to get the accused to the breathalyzer room as soon as practicable.

That does not mean that the police have to act at break neck speed, but something more is required that what we saw here. I am mindful that sometimes police have to engage in a balancing act. When there is a hectic accident scene with injuries, ambulances and multiple witnesses the police have to be permitted more leeway. This was not the situation in this case. There were two squad cars and three officers on the scene. I believe the officers could have acted in a more expeditious manner.

Constable Erickson’s explanation for not being able to leave the scene till some thirty-five minutes after he arrested the accused is not satisfactory. [ 55 ] Secondly, the delay may have prejudiced the accused. The need to take the tests as soon as practicable is to ensure that the accused’s blood alcohol content was as accurate as possible at the time of driving. This is particularly important when the readings are slightly above the legal limit.

[56] The importance of samples being taken as soon as practicable was addressed by our Court of Appeal in R v Burwell, 2015SKCA 37 at para. 118, [2015] 5 WWR 448: The purpose of s. 258(1)(

c) of the Criminal Code is to provide the Crown an evidentiary shortcut to proving impairment. It is a fairstatement that the “as soon as practicable” criterion was enacted to ensure that the presumption created by the

section operates fairly andthat the breath testing leads to accurate results. As such it protects against the manipulation or skewing of the results by delaying testingto allow for the absorption of alcohol into the accused’s blood. [57] Having regard to all of the above, I find that the officer’s explanation for the delay was not satisfactory, and further, that thedelay prejudiced the accused. [58] That being the case, the Crown is not entitled to rely on the presumption in s. 258(1)(

c) of the Criminal Code. [59] The merits of count #1 in the Information were not argued, and, in any event, having regard to the finding in count #2, couldnot be proven. ____________________ M.M. Baniak, J [1] Kang-Brown, 2008 SCC 18; [2008] 1 SR 456 [2] 2013 SCC 49 (SCC) [3] R v Vanderbruggen (2006), (ONCA), 206 CCC (3d) 489; R v Beaton, 2015 SKQB 58 [Beaton] (approvedVanderbruggen); R v Carter, (1981) 2063 (SKCA).