Her Majesty the Queen - v. -, 2015 SKPC 31

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 031 Date: May 11, 2015 Information: 32303538 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Nicolas Christian Wolf Appearing: Brian Hendrickson, Q.C. For the Crown Merv Nidesh, Q.C. For the Accused DECISION ON CHARTER VOIR DIRE M. GORDON , J [ 1 ] Nicolas Christian Wolf is charged on or about the 20 th day of September 2013, at or near Moose Jaw, Saskatchewan did, while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code . And, Count 2, on or about the 20 th day of September 2013, at or near Moose Jaw, Saskatchewan did, without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer pursuant to s. 254(2) of the Criminal Code to provide a sample of his breath to enable analysis to be made by means of an approved screening device contrary to s. 254(5) of the Criminal Code . [ 2 ] All of the Crown’s evidence was entered on a Charter voir dire . The evidence for the Crown was from the investigating

officer Cst. Murray Rice and also a video recording of the events was entered as Exhibit P-1. The accused did not give evidence on the Charter voir dire . THE EVIDENCE [ 3 ] On September 20, 2013, Cst. Rice had just entered the police station and received information from his dispatch. The officer was advised of a complaint relating to a motorcycle that had left Champs Bar in Moose Jaw with a passenger. There were concerns raised with respect to the safety of the passenger due to the driving actions observed.

A second call was received from dispatch that the motorcycle was in the area of 3 rd Avenue Northwest and Caribou. Cst. Rice left immediately for the area where the motorcycle was last seen. The dispatch call came in at 2:30 a.m. and within two or three minutes from leaving the police station, the officer noted an orange motorcycle at the corner of Algoma and Caribou. The motorcycle was stopped and a woman was standing on the south side in the traffic lane. The officer recognized the driver of the motorcycle as the accused, Mr. Wolf.

The officer also recalled seeing this motorcycle in front of the Champs Bar earlier in the evening. [ 4 ] At 2:33 a.m., Cst. Rice stopped the motorcycle. The driver of the motorcycle, Mr. Wolf, was standing beside the vehicle. The officer could smell beverage alcohol coming from Mr. Wolf and asked him how much he had to drink. Mr. Wolf replied “two beer”. It was at this point the officer said he formed a reasonable suspicion that Mr. Wolf had alcohol in his body and that he was going to make an ASD demand. [ 5 ] Upon questioning by the officer, Mr. Wolf says his last drink was 15 minutes ago. Cst. Rice asks Cst.

Binaris if he has an ASD. Cst. Binaris says “no” and Cst. Rice asks him to run and get one. Mr. Wolf volunteers that he was at Champs longer than he should have been. It was a bad day at work. Cst. Rice says “do you remember I stopped you when you were going a little too fast in the school zone?” Mr. Wolf agrees. Cst. Rice tells Mr. Wolf to get you to come over here for a second and places him in the back seat of the police vehicle. During this time, Cst. Rice also gets a report back on his radio that Mr. Wolf has a valid licence and registration except that an old prohibition is still showing and Mr.

Wolf says that he had already dealt with that in Ontario. Mr. Wolf sits in the back of the police vehicle and asks the officer to give him a break. He says I’ve had a few beer. Mr. Wolf was placed in the back of the police vehicle at 2:38 a.m. [ 6 ] Cst. Rice sits in the driver’s seat of the police vehicle and the video shows the officer making some notes and doing paperwork. There is some additional conversation between the officer and Mr. Wolf and at one point Mr. Wolf’s cell phone rings. Mr. Wolf answers it and tells the person he would call them back. Mr.

Wolf tells the officer that he has friends that care about him and that Montreal was not like that. He also volunteers that he has turned his life around and has been sober for a year and a half. [ 7 ] Cst. Rice testifies that Cst. Binaris very quickly delivered to him the approved screening device. This is not seen on the video and the officer did not note the exact time that this equipment was received. Cst.

Rice checked the serial number and wrote it down and also checked the calibration to make sure it was within the proper range noting that it had been last calibrated September 9, 2013. [ 8 ] At 2:40 a.m., Cst. Rice read Mr. Wolf the approved screening device demand from a card that he carries with him. Cst. Rice is a qualified approved screening device operator. He explained that the ASD requires a short time to warm up after it is turned on. It depends on the temperature - this can take one to four minutes.

He described the beep sound would indicate that the machine was ready and this was clearly seen in the video as well. Cst. Rice took the wrapper off the mouthpiece and explained to Mr. Wolf the procedure for blowing into the mouthpiece to provide an adequate sample. Mr. Wolf says at that time “give me a break”. He says that he understands but he is not going to provide a sample. On the video we see and hear Mr. Wolf telling the officer that he had been sober for one and a half years and that he needed to get to work and again asked the officer for a break. Mr.

Wolf also said he had his last drink approximately 15 minutes ago and that he was on his way home. Mr. Wolf acknowledged he knew how the ASD worked but that it was no use blowing because this was going to ruin his life. He stated he had a few beer and it was a mistake to drive. Shortly thereafter Mr. Wolf refused. [ 9 ] At 2:47 a.m., Cst. Rice says that he was satisfied that Mr. Wolf was refusing to provide a sample of his breath. [ 10 ] Mr. Wolf was arrested for refusal, taken to the police station and charged.

[11] On cross-examination, the officer stated once again that he had made up his mind that he had the required suspicion that Mr.Wolf had alcohol in his body when he asked Cst. Binaris to get him an approved screening device. The officer also admitted that he didnot outright tell Mr. Wolf that he wanted him to accompany him to the police vehicle for the purpose of providing a sample into anapproved screening device. The officer also agreed that the card reads “alcohol or drugs” and that he only suspected alcohol in thiscase. As well the card has the words “accompany me” and when the demand was read, Mr.

Wolf was already in the back seat of thepolice car. ARGUMENT AND ANALYSIS [12] I will deal with Count 1 first; the impaired operation of a motor vehicle. At the conclusion of the proceedings, the Crowncandidly admitted that there was scant evidence to support a conviction on this charge. I agree and therefore find Mr. Wolf not guilty onCount 1. [13] With respect to Count 2, defence counsel made two arguments; namely (1) the approved screening device demand was notmade in compliance with s. 254(2) of the Criminal Code and therefore Mr.

Wolf was not required to comply and he should be found notguilty of the charge, and (2) the second argument was a Charter application alleging that Mr. Wolf’s rights under s. 9, 10(

a) and 10(b)were breached because the approved screening demand was not made forthwith and Mr. Wolf was not advised of the reason for hisdetention. As a result, the defence asks that all evidence of events occurring after Mr. Wolf was unlawfully detained at roadside shouldbe excluded. [14] Section 254(2)(

b) of the Criminal Code reads:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, withinthe preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment orhad the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officermay, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (

a) and (b),in the case of alcohol: ... (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [15] Pursuant to s. 254(2)(

b) of the Criminal Code, the police officer who makes the demand must: (1) have reasonable grounds to suspect that the subject of the demand has been operating a motor vehicle within the preceding threehours and has alcohol in his or her body; and (2) make a demand that the person provide a breath sample forthwith. [16] The Supreme Court of Canada in R v Pierman, (SCC), [1996] 1 SCR 68 confirmed this approach.

This isthe approach taken in R v Houle, 2013 SKPC 216 and in R v Birnie, 2013 SKPC 50, 416 Sask R 197 [Birnie] where at paragraph 10,Judge Kalmakoff states: In a case of refusal, the Crown must prove the lawfulness of the demand beyond a reasonable doubt. A person who refuses to complywith a demand which does not itself comply with section 254(2)(

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

[17] And, at paragraph 11, the judge goes on to state: Furthermore, if the demand is not lawful, then (

i) a breath sample obtained in connection with it is an unlawful search and seizure, whichviolates

section 8 of the Charter; (ii) the detention necessary to obtain the breath samples is arbitrary, and violates

section 9 of theCharter, and (iii) the accused’s rights under

section 10(

b) are not suspended during the period of detention, and obtaining breath sampleswithout 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. [18] Cst. Rice had formed the suspicion and had grounds to make the approved screening device demand on Mr. Wolf atroadside. At that point the officer had detained Mr. Wolf. [19] I will first consider the question of whether the approved screening device demand made by Cst. Rice meets the “forthwith”requirement pursuant to s. 254(2) of the Criminal Code. [20] In R v Anderson, 2011 SKCA 13 [Anderson], the situation is very similar to the case at hand.

Mr. Anderson was stopped bythe police and required to enter a police vehicle without being told why. His vehicle was stopped at 1:11 a.m. and it was only after Mr.Anderson was seated in the police car that he was asked for his name and at 1:14 a.m., the officer made a s. 254(2) demand. Mr.Anderson complied with the demand but it is noted that when he was in the police vehicle, he asked why he had been stopped and thepolice told him it was for weaving and speeding. In Anderson, the Crown argued that the accused knew in the circumstances why hewas being detained.

It is noted that ASD demand was made within three minutes after the respondent was moved to the police car andthus made promptly. [21] The Court of Appeal noted the question to be determined was whether this detention of Mr. Anderson was arbitrary. TheCourt reviews the requirements of s. 254(2) and the obligations on police before administering an approved screening device test. Forthe purposes of the case, the most important consideration was the making of the ASD demand by the police officer. The Court ofAppeal stated it is not until after the officer makes the demand that the accused becomes lawfully detained.

And, at paragraph 18, theCourt states: ... The demand must be made by the police officer as soon as the police officer forms the reasonable suspicion the driver has alcohol inhis or her body. [22] At paragraph 19, the Court notes: Assuming all the requirements of s. 254(2) are met, the detention would not be arbitrary and there would be no infringement of theRespondent’s constitutional rights.

However, in the case before us, the officers did not demand an ASD when the accused was asked togo to the back of the police car. [23] At paragraph 20, the Court goes on to say: The Appellant argues the demand was not necessary in the circumstances because it was clear to the Respondent why he was beingdetained and he knew in these circumstances a demand would be made. However, the Respondent’s Charter rights cannot so easily bedispensed with. As the Supreme Court of Canada has affirmed, the “Charter must not be seen as something to be swept away in theinterests of expediency” (R. v.

A.M., 2008 SCC 19 , [2008] 1 S.C.R. 569 at para. 97). The requirement that a demand be madedoes not impose an onerous obligation on the officer. The failure to make the demand makes the detention unlawful, arbitrary, andtherefore contrary to s. 9 of the Charter. [24] Judge Kalmakoff in Birnie at paragraphs 14, 15, 16 and 19 has this to say about the forthwith requirement:

In the context of a demand under section 254(2), “forthwith” means “immediately” or “without delay”, and connotes a prompt demand by the police and an immediate response by the accused. Because a demand under section 254(2) involves detention in connection with a suspension of the right to counsel, this requirement of immediacy is crucial to its constitutionality: R. v. Woods , 2005 SCC 42 , [2005] 2 S.C.R. 205. 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, or otherwise 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. 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 subject could successfully contact counsel and get legal advice”: R. v.

Ritchie , 2004 SKCA 9 , 241 Sask. R. 155 at para. 17 . The Court must consider the length of the delay and the reasons for it in the context of the circumstances of the case, while balancing Parliament’s objective in combating the dangers of drinking and driving against the constitutional right to be free from unreasonable search or seizure and 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 .

Greater flexibility in the forthwith requirement may be tolerated in situations where the accused person is not detained between the time when the officer forms the grounds and when the demand is actually made: R. v. MacMillan , 2013 ONCA 109 . That does not apply in this case, however, as Mr. Birnie was detained from the point of his initial contact with the police. [ 25 ] Judge Kovatch put it this way in R v Anderson , 2006 SKPC 18 (no relation to the Court of Appeal 2011 Anderson case) at paragraphs 15 and 16: Detention of the accused for an ASD test was not an option available to Cpl.

Waldo under Section 254(2) of the Criminal Code . He was entitled to make the demands referred to above, and the effect of making such demands would be that the accused was detained. However, a simple detention for a demand at a later point and time is not an option established under 254(2). It follows then that this detention was unlawful and contrary to the Charter . Secondly, the accused having been detained, should normally and without delay be advised of her right to retain and instruct counsel as required by

Section 10(

b) of the Charter . As mentioned above, this is not required when a demand is made under Section 254(2) of the Criminal Code . However, in this case, no such demand had been made. The accused was only advised that she was being detained, and a request was made that another officer attend with an ASD unit. Under such circumstances where there would be some inevitable delay for another officer to attend, then the police were required to advise of the right to retain and instruct counsel. Clearly this did not happen. [ 26 ] However, Mr.

Justice Scherman in R v Martins, 2013 SKQB 252 , says that it should not matter when the delay occurs. At paragraph 44 he states: The logic that lead the Court of Appeal in R. v. Janzen , supra , to hold that “forthwith” is to be taken as meaning without unreasonable or unjustified delay necessarily applies equally to time frame 1, between the officer forming an opinion that a driver is under the influence of alcohol and the making of a demand, and to time frame 2, the period between the making of the demand and the provision of the sample.

There is no need for, and indeed it would be illogical, to define “forthwith” differently for these two periods. In the application of the requirement for an immediate or forthwith demand, reasonable and justified delays will be accommodated in both situations, consistent with the guidance of the Court of Appeal in R. v. Janzen . However, as demonstrated in the reasons of Lane J.A. in R. v.

Anderson , the requirements of an immediate or forthwith demand can be breached by as little as a three-minute delay between the commencement of the detention and the demand where there is no justification for the delay. [ 27 ] In the within case, counsel agreed that Cst. Rice had a reasonable suspicion that Mr. Wolf had alcohol in his body when the officer detected the smell of alcohol on Mr. Wolf’s breath. This was when Mr. Wolf was standing beside his motorcycle at roadside and the police officer was facing him and in fairly close proximity. In addition, the police officer asked Mr.

Wolf if he had anything to drink that night. Mr. Wolf responded “two beer”. Mr. Wolf volunteered he had come from Champs and his last drink was about 15 minutes prior. [ 28 ] It is noted there was no explanation given by Cst. Rice as to why he did not make the approved screening device demand either at roadside or even when Mr. Wolf was placed in the back of the police vehicle. It is clearly seen on the video that the officer had

Mr. Wolf in the back of the police vehicle for a few minutes and had conversation with him but chose not to make the demand. I canunderstand the demand not being made at the roadside when both individuals are standing late at night on a dark street. There is a realproblem in this case that Cst. Rice did not give any indication he understood that the demand should be made forthwith once Mr. Wolfwas seated in his police vehicle. There was no evidence of officer safety, legitimate investigative concerns or any belligerence oruncooperative attitude by the accused or any interference by the female passenger.

The delay was unexplained. [29] Therefore I am satisfied that the approved screening device demand was not made in compliance with s. 254(2)(

b) of theCriminal Code because it was not made forthwith. Seven minutes had elapsed and the demand was no longer immediate or forthwithand thus it is not a proper demand. It is not the number of minutes that elapsed but the fact that Mr. Wolf’s rights had been breachedduring the intervening time interval. Therefore I am also satisfied there was a violation of Mr. Wolf’s rights under s. 9 and 10(

b) of theCharter. [30] The next issue is whether Mr. Wolf’s rights under s. 10(

a) of the Charter were breached. In paragraph 32 of Birnie, JudgeKalmakoff summarises the law: I am also satisfied on a balance of probabilities that Mr. Birnie’s rights under

section 10(

a) of the Charter were violated in this case. Individuals who are detained for investigative purposes must be promptly advised, in clear and simple language, of the reasons for theirdetention: 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. [31] In this case it is noted that the initial interaction between Cst. Rice and Mr. Wolf concerns Mr. Wolf’s alcohol consumption. Mr.

Wolf volunteers he was at Champs, had his last drink 15 minutes ago, he answers the police officer and says he had two beer andthen says “I probably had more than I should have”. It is reasonable to infer at that stage that Mr. Wolf knew the reason that he wasasked to come back and sit in the back of the police car. In other words he was detained. The difficulty is that Mr. Wolf is seen sitting inthe back of the police car, there is some further conversation between the officer and Mr. Wolf, Mr. Wolf’s cell phone rings and thenjust prior to the approved screening device demand, the officer tells Mr.

Wolf that someone phoned in about his driving behaviour. TheCrown points out that Mr. Wolf likely overheard Cst. Rice ask Cst. Binaris to get him an approved screening device. However, in thesecircumstances, I am not prepared to draw that conclusion given the fact that Cst. Rice did not make the approved screening devicedemand immediately on getting in the police vehicle. The Crown concedes this in its brief. It does not appear Cst. Rice informed theaccused as to the nature of the detention nor did he explain what he was being detained for. This is not an onerous task. As a result, Ifind that Cst.

Rice did not inform the accused as to the nature of the detention nor did he explain what he was being detained for. SECTION 24(2) CHARTER ANALYSIS [32] Of course the final matter on this voir dire is whether the evidence gained in connection with the Charter breaches namelythe failure or refusal to provide samples ought to be excluded pursuant to s. 24(2) of the Charter.

I will consider the three avenues ofinquiry outlined in R v Grant, 2009 SCC 32 [Grant], which are: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits. [33] Grant points out there is a range of seriousness from inadvertent or minor violations to wilful or reckless disregard of Charterrights.

Therefore good faith on the part of the police can be a mitigating factor but “ignorance of Charter standards must not be rewardedor encouraged and negligence or wilful blindness cannot be equated with good faith” (R v J.K., 2010 ONCJ 232 , 2010 OJ No2675 (ONCJ)).

[ 34 ] The within Charter breaches show a lack of understanding by the officer with respect to the importance and the application of the Canadian Charter of Rights and Freedoms . I do not know whether it was out of ignorance or whether the officer just got sidetracked as to why he failed to tell Mr. Wolf the reason for his detention and make the ASD demand immediately. As Judge Kalmakoff points out in Birnie , this information is crucial so the detainee has sufficient information so he or she can make a reasonable decision as whether or not to submit to the arrest or the detention. The Crown argued that Mr.

Wolf should have known from the circumstances why he was being detained and therefore any breach was not serious. Of course my view on this is that it would have been very easy for the officer to tell Mr. Wolf why he was being detained while they were walking to the police vehicle. Therefore, on the first branch of the Grant test I would find the breaches moderately serious. [ 35 ] Considering the second ground; being the impact on Mr. Wolf, I find the impact was minimal. The evidence indicates from the onset that Cst. Rice questioned Mr. Wolf about his drinking and when he had his last drink. During Mr.

Wolf’s detention in the back of the police vehicle before the ASD demand was made no evidence was obtained by the officer. There was no violation of Mr. Wolf’s bodily integrity or dignity. In this situation the factors do not weigh in favour of exclusion of any evidence. [ 36 ] Under the third ground, of course society is always interested in adjudication of a case on its merits. The delay was not extremely lengthy and the officer was explaining the procedure when Mr. Wolf refused. In addition, Cst. Rice appeared from the video to be pleasant, professional and patient with Mr. Wolf.

Therefore when analysing the third factor in Grant , it weighs in favour of admission of the evidence. CONCLUSION [ 37 ] Therefore when I balance the three factors in Grant , I am of the view that this is a case where the admission of the evidence would not bring the administration of justice into disrepute. [ 38 ] In conclusion the evidence of Mr. Wolf’s failure or refusal to provide a breath sample into the approved screening device will be admitted on the trial proper. [ 39 ] Of course that is not the end of the matter.

As I stated at the beginning of my decision, the defence also argued that the Crown has not proved beyond a reasonable doubt one of the essential elements or preconditions of making the approved screening device demand. The requirement is that the demand be made forthwith upon the officer forming the reasonable suspicion. I have given my reasons in this decision and while I am not prepared to exclude the evidence, I find that the Crown has not proven beyond a reasonable doubt that the demand was made forthwith as required in law. [ 40 ] In

summary, I am not satisfied that the Crown has met its burden pursuant to s. 254(2) (

b) in that the approved screening device was not made forthwith by the officer after he had formed a reasonable suspicion and detained Mr. Wolf at roadside. Therefore I find Mr. Wolf not guilty. M. Gordon, J