Her Majesty the Queen - v. -, 2012 SKPC 182

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 182 Date: December 11, 2012 Information: 24297472 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Heather Dawn Birdsell Appearing: Mr. Jeffrey Crawford For the Crown Mr. David Kreklewich For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] Heather Dawn Birdsell is charged with impaired driving and operating a motor vehicle while her blood alcohol content exceeded .08 percent. It is alleged that these offences occurred on May 21, 2011, at Estevan, Saskatchewan. THE EVIDENCE

[ 2 ] There is little controversy or dispute respecting the evidence in this matter. Sergeant Murray Cowan of the Estevan Police Service testified that in the early morning hours of May 21, 2011, he was called to deal with a disturbance at Eddie Webster’s Lounge in Estevan. He dealt with the accused, who identified herself, and another male. They had been involved in an altercation. He noticed at that time that the accused was noticeably intoxicated. He testified that she had a strong odour of alcohol, was noticeably swaying, and had noticeably slurred speech. She admitted that she had been drinking.

The officer testified that he offered to give the male and Ms. Birdsell a ride home. The male accepted the offer of the ride and was placed in the back seat of the police car. Ms. Birdsell indicated that she would also accept, but she had to go back inside the lounge for something. The officer testified that they waited for her for awhile but she did not return.

When she did not return, he then drove the male home. [ 3 ] Sergeant Cowan testified that approximately one hour later, he heard a call from dispatch on the radio, advising of a complaint that Heather Birdsell had left the lounge and was driving home while impaired. Sergeant Cowan recalled that Ms. Birdsell had advised that she resided on the 17 block of 3 rd . Other officers were directed to watch for her on route to that location. At approximately 2:05 a.m., Ms. Birdsell was then stopped by Cst. Jeff Fry, who also testified.

The officer approached the accused who was in the driver’s seat, and asked for her licence and registration. She was crying. Her speech was slurred. She had a strong odour of alcohol. The officer immediately concluded that she was probably impaired and asked her to return to the police car. The officer stated that he was intent upon making the ASD demand. She was placed in the police car and the ASD demand was made at 2:13 a.m., just eight minutes after the stop. However, either immediately before or immediately after the ASD demand, the officer asked Ms. Birdsell when her last drink was.

She indicated that the last drink was one hour ago. The officer testified that she smelled so strongly of alcohol, that he did not believe that her last drink was one hour ago. He was concerned that her last drink was much more recent, and perhaps within 15 minutes of the demand. As a result, he decided to wait for 15 minutes before administering the ASD test. Under cross- examination by Mr.

Kreklewich, the officer admitted that he had no basis for concluding the last drink was within 15 minutes, except for the strong smell of alcohol from the accused, which caused him to disbelieve her answer. [ 4 ] As mentioned above, the ASD demand was made at 2:13 a.m. The officer waited 15 minutes before receiving the breath sample in the approved screening device. There was an ASD fail and at 2:32 a.m., he made the Intoxilyzer demand.

She was then taken to the Estevan Police Station where she was given an opportunity to consult with counsel following which two samples of breath were obtained and analysed in the Intoxilyzer. THE ARGUMENT [ 5 ] Mr. Kreklewich argues that the ASD demand and test must be made forthwith. In this case, the officer chose to wait 15 minutes before administering the test, and thus the test was not administered forthwith.

He concedes that if the officer has a subjective and objective belief that the ASD test may be inaccurate by reason of mouth alcohol due to a recent drink, he will be justified in delaying the administration of the test. However, there must be some objectively verifiable evidence of mouth alcohol before the police officer will be justified in delaying the administration of the test. Mr. Kreklewich argues that there is no objective evidence in this case and thus the test is not obtained forthwith.

Because the test is not obtained forthwith, it is not authorized under the Criminal Code and the accused’s Charter rights have been violated. More specifically, he says that her s. 8 and 9 rights have been violated. [ 6 ] The Crown relies upon the Supreme Court of Canada decision in R. v. Bernshaw and says that the police officer must act with bona fides . Because of the police officer’s concern about mouth alcohol, the police officer could not acquire reasonable and probable grounds for the Intoxilyzer demand even in the event of an ASD fail.

Thus, the police officer was justified in waiting for 15 minutes and there was no breach of the Charter rights. Alternatively, the Crown says that if there was any breach, it was technical and minor in nature, and on the basis of R. v. Grant , the evidence should be admitted in any event. ANALYSIS [ 7 ] Mr. Kreklewich argued that there was an eight minute delay from the time of the stop until the ASD demand, and that this delay was also not reasonable and prevented the demand from being made forthwith. However, in the case of R. v.

Janzen , 2006 SKCA 111 , the Court of Appeal concluded that forthwith means without delay and that in turn means without any unreasonable or unjustified delay. In my view, the officer properly testified as to the steps and the conversation that took place between the time of the stop and the

time of the ASD demand. There was no unjustified delay here. [8] However, the delay of 15 minutes to administer the ASD test is another matter. Mr. Kreklewich has properly referred me tothe cases of R. v. Gebhart, 2007 SKPC 62 and R. v. Szafron, 2008 SKPC 76. In the Gebhart case at paragraph 15, His Honour JudgeMatsalla stated as follows: It has been held in R. v. Bernshaw that section 254(2) imposes on a police officer the responsibility to require a person to forthwithprovide a sample of breath “as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made”.

Sopinka J. referring favourably to R. v. Pierman; R. v. Dewald held that if there was evidence that a person might have consumed alcoholjust prior to being stopped by the police, a short delay could be justified for the sake of undertaking an accurate analysis.

He went on tosay, at paragraph 86, that there must be “some factual basis upon which to suspect that the screening device would yield an inaccurateresult”. [9] In the Gebhart decision, Judge Matsalla went on to conclude that the officer had evidence to support his concern and as aresult the officer was justified in waiting an appropriate period so that an accurate ASD result could be obtained. [10] In the Szafron decision, His Honour Judge Koskie did a similar analysis.

At paragraph 26, he stated: This approach does not meet the reasonableness test or the objective standard that is required of an officer in deciding to delay theroadside screening test pursuant to s. 254(2) of the Criminal Code. There needs to be a factual basis to suspect that the ASD wouldprovide an inaccurate result as Mr. Justice Sopinka stated in R. v. Bernshaw at paragraph 85.

In other words, it is not enough for anofficer to have an honest belief, it must also be based on reasonable grounds. [11] In the Szafron case, His Honour Judge Koskie concluded that the police officer did not have a reasonable basis to concludethat an inaccurate ASD result would be obtained.

As a result, Judge Koskie concluded that the delay was not justified and that theaccused’s Charter rights had been infringed by the delay. [12] On the basis of these two decisions, I conclude that in order to justify a delay in administering the ASD test, the officer mustsubjectively believe that an inaccurate ASD result may be received, and there must be an objectively verifiable factual basis for theofficer to reach this conclusion. If both aspects of this test are not met, then the delay will not be justified and the accused’s Charterrights will have been breached.

In the case at bar, the police officer testified that he believed there might be a problem. I accept that. However, there is no objectively verifiable evidence to support this conclusion. The objective standard is not met. As a result, the delaywas not justified and this accused’s Charter rights were breached by the delay prior to administering the test. [13] His Honour Judge Koskie rendered his decision in the Szafron case prior to the Supreme Court of Canada rendering itsdecision in R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353.

As a result, Judge Koskie decided to exclude the evidence on thebasis of the Supreme Court of Canada decisions in R. v. Collins, (SCC), [1987] 1 S.C.R. 265, R. v. Stillman, (SCC), [1997] 1 S.C.R. 607 and subsequent Court decisions analysing these two decisions. However, the Supreme Court ofCanada decision in R. v. Grant has further defined and substantially altered the tests to determine whether evidence should be excludedunder s. 24(2) of the Charter. I now must utilize the method of analysis set out in R. v. Grant to determine whether the evidence shouldbe excluded in this case.

THE GRANT ANALYSIS [14] In the Grant decision, the Supreme Court of Canada provided direction on the

interpretation and use of s. 24(2) of the Charterand a method of analysing and determining whether evidence should be excluded under s. 24(2). At paragraph 67 to 69, the Courtprovided the following general directions: The words of s. 24(2) capture its purpose to maintain the good repute of the administration of justice. The term “administration of

justice” is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. The phrase “bringing the administration of justice into disrepute” must be understood in the long term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case.

Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. Section 24(2)’s focus is not only long term, but prospective. [ 15 ] At paragraph 70, the Court stated: Finally, s. 24(2)’s focus is societal.

Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long term repute of the justice system. [ 16 ] The Court then sets out three lines of inquiry. The first is the seriousness of the Charter -infringing state conduct. At paragraph 74, the Court states: State conduct resulting in Charter violations varies in seriousness.

At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through wilful or reckless disregard of Charter rights will inevitably have a negative affect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. [ 17 ] At paragraph 75, the Court states that good faith on the part of the police will reduce the need for the Court to disassociate itself from the police conduct.

However, wilful or flagrant disregard of Charter rights may support exclusion of the evidence. [ 18 ] In this case, I would characterize the breach of the Charter right as being relatively minor. There is no evidence of a flagrant disregard of a Charter right. Perhaps more importantly, there was evidence of the police officer acting in good faith.

Clearly the officer declined to immediately take the ASD test to ensure that an accurate reading was obtained so that the accused would not be wrongfully and further investigated by being required to provide breath samples in the Intoxilyzer. [ 19 ] The second line of inquiry requires a look at the impact on the Charter -protected interests of the accused. At paragraph 76, the Court states: This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused.

It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. [ 20 ] In this case, the Charter -protected rights are the rights against an unlawful detention and unlawful search and seizure. Once again, in this respect, the impact upon the accused is minimal. It must be noted that the officer had a legal right, one might even say an obligation, to obtain a breath sample from the accused. There was no breach of obtaining it per se.

The complaint is that the sample as not obtained quickly enough, as a result of which the accused was detained for an unreasonable length of time. However, if the sample had been obtained more quickly, it is clear that the same ASD fail result would have been obtained, which would then have resulted in the further detention of the accused to provide breath samples in the Intoxilyzer. I accept that it is qualitatively different to be detained in a police car pending investigation through an ASD test, than it is to be arrested and immediately conveyed to the police station for an Intoxilyzer test.

However, in this case the accused’s readings from the Intoxilyzer were very high, and no doubt she was detained for some period of time thereafter, before being released by the police or a justice of the peace. The net result is this. As mentioned above, the Charter rights that are protected are freedom from unreasonable search and freedom from against unlawful detention.

However, as a result of this breach, I am not able to conclude that the police received a sample of breath that they weren’t ultimately entitled to receive, or that the accused spent one minute in custody more than would have been required if everything had been done right. I can only

conclude that the breathe sample was not taken as quickly as possible and was not taken forthwith. I must conclude that the breach hadonly a fleeting or technical impact upon the accused’s Charter protected rights. [21] The third line of inquiry is society’s interests in the adjudication on the merits. At paragraph 79, the Court stated: Society generally expects that a criminal allegation will be adjudicated on its merits.

Accordingly, the third line of inquiry relevant to thes. 24(2) analysis asks whether the truth seeking function of the criminal trial process would be better served by admission of theevidence, or by its exclusion ...

Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only thenegative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit theevidence. [22] At paragraph 81, the Court also noted that the reliability of the evidence is an important factor in this line of inquiry. [23] I begin analysis of this aspect by raising the question of what evidence should be excluded by reason of the Charter breach. The Charter breach is primarily in relation to the ASD.

But the ASD fail result is really no evidence at all against this accused regardingthe charges for which she is presently being tried. The ASD fail result merely gives the police officer reasonable and probable groundsto make the Intoxilyzer demand. Defence counsel seeks to overcome this by arguing that everything after the breach ought to beexcluded. I really question whether this is the case however. As far back as 1981 in the case of R. v.

Arthurs (1981), (SK CA), 63 CCC (2d) 572, the Saskatchewan Court of Appeal ruled that failure of a roadside screening device test in and of itselfprovided reasonable and probable grounds for an Intoxilyzer demand. As a result, I would hold that even though the ASD test was notadministered forthwith or as quickly as possible, the failure of the ASD test still provided the police officer with reasonable and probablegrounds for the Intoxilyzer demand, and made that demand proper and lawful.

Stated just a little bit differently, I would hold that animproper ASD demand does not automatically result in the exclusion of all evidence thereafter. To the contrary, an ASD fail result afteran improper demand may still result in a proper and lawful demand for tests for the Intoxilyzer and prosecution for driving while over.08. [24] Perhaps more importantly, however, with respect to this line of inquiry, I would conclude that the ASD result obtained after15 minutes was highly reliable, and the results of the Intoxilyzer tests performed later were even more reliable evidence against theaccused.

I would conclude that a reasonably informed person, looking at this matter as a whole, would conclude that the police have notobtained any evidence here that they were not legally entitled, or perhaps even obligated to obtain. The only complaint is that they didnot obtain some of the evidence as quickly as possible. As a result, in my view a reasonable and fair minded individual would determinethat exclusion of the evidence in this case only serves to punish the police for not obtaining the ASD sample quickly enough and in factundermines the truth seeking function of this trial.

As a result, I would conclude that failure to admit this evidence brings theadministration of justice into disrepute. [25] For all of the above mentioned reasons, I conclude that relief under s. 24(2) of the Charter must be denied and the evidence ofthe police officer following the traffic stop and the Certificate of Analyses are all properly admitted in evidence in this trial. On the basisof that evidence, there is no doubt that Ms. Birdsell was operating a motor vehicle when the concentration of alcohol in her bloodexceeded 80 milligrams of alcohol per 100 millilitres of blood.

Accordingly, I find her guilty of count 2 on the Information. I impose ajudicial stay with respect to count 1, the charge of impaired driving. [26] Dated at Estevan, Saskatchewan this 11th day of December, 2012. D. Kovatch, J