Her Majesty the Queen - v. -, 2016 SKPC 148

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 148 Date: November 15, 2016 Information: 36657673 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Oliver Justin Masse Appearing: Barbara Herder For the Crown Mark Brayford, QC For the Accused JUDGMENT M.M. BANIAK , J [ 1 ] Mr. Masse was charged as follows: 1) on or about the 6 th day of February, A.D. 2016 at or near Saskatoon, 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 2) on or about the 6 th day of February, A.D. 2016 at or near Saskatoon, Saskatchewan did having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor

vehicle, contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code . [ 2 ] Mr. Masse was the operator and sole occupant of a vehicle involved in an accident during the early evening of February 6, 2016. Police were called. [ 3 ] The Crown’s first witness was Garvin Netmaker. He was the driver of the other vehicle involved in the accident. He testified that he and his sister, Tanzie Sutherland, were proceeding down Avenue G in Saskatoon when they were hit by Mr. Masse. He estimated that Mr. Masse was travelling at about 60 kph when he came out of the alley and struck his vehicle on the driver’s side. Mr.

Netmaker, by his own admissions, was very angry and did not want to speak with Mr. Masse who was trying to see if he was alright and to apologize - “I was mad, he could have killed me.” [ 4 ] He was of the opinion that Mr. Masse was intoxicated. He wanted police called. When the police arrived they handcuffed him right away - they didn’t even give him a chance to explain. [ 5 ] During cross-examination, Mr. Netmaker indicated that his vehicle was driveable after the accident, that the air bags did not deploy, that the road was snowy and icy, and that Mr.

Masse’s vehicle locked its brakes and slid across the ice. [ 6 ] According to Mr. Netmaker, two female officers arrived first and two male officers a little later. The one female officer went directly to Mr. Masse and handcuffed him. Mr. Netmaker gave his statement to the male officers. [ 7 ] The Crown’s second witness was Tanzie Sutherland, who was the passenger in the vehicle driven by her brother, Garvin Netmaker. [ 8 ] She testified that the suspect vehicle came out of nowhere and hit them. The other driver came over and said he was sorry and that he couldn’t stop.

Her brother was “really mad”. [ 9 ] In her opinion the other driver was intoxicated. He had poor balance, was slurring his words and smelled like he had been drinking. [ 10 ] During cross-examination, she acknowledged that Mr. Masse had an accent but could not tell “what kind”. She did not personally see Mr.

Masse drinking, and the case of beer in his vehicle was strapped in the passenger seat with a seat belt. [ 11 ] Crown’s third witness was Constable Melanie McNeil, a four and one-half year member with the Saskatoon Police Service. [ 12 ] She testified that on February 6, 2016, at 18:29 hours she and Constable Primeau were dispatched to an accident at the intersection of Avenue H and 35 th Street. They arrived at 18:33 hours. [ 13 ] She characterized Mr. Masse as being polite and “extremely cooperative”. By contrast, she described Mr. Netmaker as being very upset, aggressive and yelling. She dealt with Mr.

Netmaker, while Constable Primeau arrested and handcuffed Mr. Masse. According to Constable McNeil, she did not have any interaction with Mr. Masse at the roadside. Other than some slurring of words, which may have been “because of intoxication or his French accent” she did not notice any other indicia of impairment. [ 14 ] At 18:57 they departed for the detachment. Once there, Constable McNeil, in due course, administered the breath test.

The first successful reading of 120 milligrams of alcohol in 100 millilitres of blood was obtained at 19:55 hours and a second reading of 110 milligrams in 100 millilitres of blood was obtained at 20:24 hours.

[ 15 ] Constable McNeil prepared the Certificate of Qualified Technician and the Notice of Intention to Produce Certificate (Exhibit P-1 on voir dire ) and served it on Mr. Masse. [ 16 ] During cross-examination, Constable McNeil testified that she did not discuss the grounds for a breath test with her partner. Similarly, she did not discuss with Constable Primeau what Mr.

Netmaker may have said to her and “if I did discuss what the other driver said it would have been after the demand was made”. [ 17 ] She had no explanation as to why the in car video was not turned on at the outset: “I just didn’t turn on the video”. [ 18 ] The Crown’s last witness was Constable Heather Primeau, who is a seven year member of the Saskatoon Police Service. She testified that during her career as a police officer she conducted “about half a dozen” impaired investigations. [ 19 ] On the incident date she was partnered up with Constable McNeil. When they attended the accident scene, she dealt with Mr.

Masse and Constable McNeil attended on the other driver. Their time of arrival was 18:33 hours. [ 20 ] She testified that when she approached Mr. Masse she “wanted to check for sobriety, driver’s licence, registration, any injuries”. [ 21 ] Constable Primeau stated that she was looking for any signs of impairment: “I noticed blood shot eyes and I could smell beverage alcohol from his breath”. [ 22 ] At 18:37 hours she arrested Mr. Masse for impaired driving and handcuffed him. He was escorted to the police car. At this point the video is engaged and a few seconds later the audio.

I will return to the audio-video recording later on when I examine it in relation to Constable Primeau’s testimony. [ 23 ] When asked in-chief as to her grounds for the breath demand, she answered “glassy eyes, not answering my questions, smelled alcohol, fumbling with his licence and my experience dealing with intoxicated persons”. [ 24 ] She testified that she read the breath demand and the police warning to Mr. Masse from her card. When asked if he understood he said yes. With respect to rights to counsel “I gave them verbally, but I probably read them off a card”. According to her, Mr.

Masse indicated that he wished to speak to a lawyer. They departed for the detachment at 18:57 hours, some twenty minutes after arresting Mr. Masse. The explanation given by Constable Primeau for the twenty minute delay was that they were waiting for another police officer “to come and look after the accident”. [ 25 ] Time of arrival at the detachment was 19:04 hours. Once at the detachment, in the booking area, Mr. Masse was being asked questions. When questioned about this practice, having regard to the fact that Mr.

Masse had indicated he wanted to speak to a lawyer, Constable Primeau replied: “Our policy in detention is what it is”. [ 26 ] The booking sheet itself contains three choices as it relates to a suspect condition or sobriety: 1) drinking; 2) impaired; and 3) intoxicated. Mr. Masse was slotted into the drinking category. [ 27 ] At 19:24 hours Mr. Masse was put in touch with the Legal Aid duty counsel. By 19:28 hours he was already moved to another room. When asked if he was satisfied with his call he indicated that he was.

[ 28 ] The video recording was played and entered into evidence as Exhibit P-2. Mr. Masse appeared in the video to be alert, coherent and polite. He spoke clearly although with an accent. He did not slur his words. His entry into the police vehicle (a Ford Taurus) was effected smoothly even though he was handcuffed behind his back and the road surface was snow covered. There was no apparent problem with his balance or manual dexterity. [ 29 ] The interaction between Mr. Masse and the police officers in the police vehicle may be summarized as follows: Constable Primeau tells Mr.

Masse that he is under arrest for impaired driving and that he has the right to retain and instruct counsel without delay. She does not complete her advisory function before she starts to read the approved screening device (ASD) demand - using the words that she reasonably “suspects”. Before completing the ASD demand, Constable Primeau switched to reading the demand for a breath sample. Then she reads Mr. Masse the rights to silence. She does not advise Mr. Masse of his counsel rights but asks him if he wishes to call a lawyer and receives an affirmative reply.

Then she proceeds to read him the rights to silence again. She continues asking Mr. Masse questions. [ 30 ] I am not attempting to intentionally portray this

summary as being confusing and disjointed. In the interest of fairness, therefore, I will reproduce the exchange between Constable Primeau and Mr. Masse verbatim: Constable Primeau: Okay, so right now, just got to read you this, okay? Just listen up and answer my questions please. So, right now you’re being arrested for impaired driving. You have - have the right to retain and instruct counsel without delay. Also just got to read you this other thing first.

So, I have reasonable grounds to suspect - (brief inaudible exchange between Constable McNeil and Constable Primeau) - I have reasonable grounds to believe that your ability to operate a motor vehicle is impaired by alcohol and according to - with the Criminal Code . Demand that you provide me samples of your breath for analysis and that you accompany me for the purpose of providing such samples. These samples will be analyzed on an approved instrument. Do you understand? O. Masse: Yes. Constable Primeau: Do you wish to speak to a lawyer? O. Masse: Yes Constable Primeau: You need not say anything.

You have nothing to promise of any favour, nothing to fear from any threat. Anything you do say may be used as evidence. Do you understand? O. Masse: Yes Constable Primeau: Have you ever been in trouble in Saskatoon here? . . .

[ 31 ] Both constables continued to ask Mr. Masse questions after this point. [ 32 ] Once the applicant was finished speaking to the Legal Aid duty counsel he was asked if he was satisfied with his call and he said “yes”. He was taken to another room and the observation period commenced.

Prior to providing the breath sample, the applicant was asked again if he was satisfied with his lawyer call and he said “no”. [ 33 ] When defence counsel asked Constable Primeau why, once she became aware that the applicant was not satisfied with his call she did not read him the Prosper waiver from the card she carries she replied: “I made the mistake of not reading the card to him after he said he wasn’t satisfied with his lawyer call”. [ 34 ] When asked by Crown counsel during re-examination as to why she did not read the Prosper warning she answered that she did not feel that she had to read it because the accused had already spoken to a lawyer. [ 35 ] The accused filed an affidavit (Exhibit D-1) wherein he deposed that the reason he spoke with the police about the accident is because he believed that he had a legal obligation to do so. [ 36 ] He was cross-examined on his affidavit.

He testified that he has been a resident in Saskatoon since October of 2015. [ 37 ] When asked if he was familiar with legislation in Saskatchewan, he replied that he was not. [ 38 ] When asked what the Traffic Safety Act requires of drivers, he answered “driver’s licence”. [ 39 ] With respect as to what occurred at the accident scene, and why he chose to cooperate with police, he answered: You have to cooperate with law officers. As the accident happened, I tried to get an understanding with the driver - if not successful then I had to report the accident for insurance purposes.

Position of Parties Defence [ 40 ] Defence argued that there were four issues that needed to be considered. [ 41 ] First, the information that was provided to Constable Primeau about the accident was critical. She arrested the accused and made the breath demand. In other words, the information provided afforded her the grounds for both the arrest and the demand. This violated ss. 7 and 11(

d) of the Charter . [ 42 ] Defence argued that the Crown cannot rely on the statement to establish driving, and the doctrine of “use immunity” prevents the Crown from relying on the breath samples as the grounds for the breath demand were derived from the accident statement.

[ 43 ] Secondly, defence takes issue with how the applicant was treated during the investigative stages of the impaired driving charge. He was handcuffed behind his back and searched. [ 44 ] Nothing in his demeanour - he was described as being polite and extremely cooperative - warranted such conduct on the part of the police. This type of behaviour during the investigative detention stage violated the applicant’s ss. 8, 9 and 12 Charter rights. [ 45 ] Thirdly, defence takes the position that Constable Primeau lacked the reasonable grounds for a demand pursuant to s. 254(3) of the Criminal Code . She may have had grounds for a screening demand. In any event, pursuant to s. 10(

a) of the Charter , Constable Primeau had an obligation to clearly and succinctly advise the applicant as to the reason for his detention. [ 46 ] Fourthly, defence submits that the applicant’s s. 10(

b) Charter rights were breached - not once but twice. The rights, as provided at roadside were incomplete, confusing, and delayed. Even after this version of counsel rights was provided, and after being advised by the applicant that he wished to speak to a lawyer, Constable Primeau continued to ask questions. Secondly, once Constable Primeau became aware that the applicant was not satisfied with his call she neglected to read him the Prosper waiver from her card. [ 47 ] Applying the Grant test, it would be appropriate to exclude the evidence.

Crown [ 48 ] Crown submits that the police officer did not rely on the applicant’s accident statement to formulate her grounds for the breath demand. As such, the use of the immunity argument does not apply. Moreover, the accused’s testimony did not establish that he believed that he was legally obliged or compelled to make a statement in relation to the accident.

The most that can be gleaned from his testimony is that he understood that he had to cooperate with the police. [ 49 ] With respect to the reasonable and probable grounds issue, it is the Crown’s position that Constable Primeau subjectively believed that she had the grounds, and, secondly, that this belief was supported on an objective basis. The test as set out in Gunn [1] was met. [ 50 ] Insofar as the rights to counsel were concerned, the Crown acknowledged that there were some technical problems.

The officer may have been somewhat pedestrian in the way she advised the applicant of his rights to counsel, but she acted in good faith and any minor breach would survive a Grant analysis.

Analysis Firstly, does “use immunity ” apply in this case having regard to the totality of the evidence? [ 51 ] Since the Supreme Court decision in R v White [2] , it has been accepted that an accused’s initial statements, if made under honest and reasonable belief that he was under a statutory duty to report and answer an investigator’s questions regarding the accident, were inadmissible in relation to establishing the reasonable suspicion justifying the initial detention or the reasonable grounds for the breath demand.

The Court in White also held that compulsion, by its way of definition, implies the absence of consent. White also held that before an accused can rely on “use immunity” he bears the onus of establishing on a balance of probabilities that he subjectively believed that he was compelled or under an obligation to speak to the police about the accident. [ 52 ] In this case, Constable Primeau testified that she and her partner, Constable McNeil, were dispatched to a motor vehicle accident. According to her, the dispatch information was that one driver was belligerent and one may have been intoxicated.

Apparently, one of the drivers did not want any police involvement. They arrived at the accident scene at 18:33 hours. Constable

McNeil approached one of the drivers, Mr. Netmaker, and Constable Primeau walked towards Mr. Masse. According to Constable Primeau, shortly after arriving at the scene Constable McNeil told her that according to Mr. Netmaker the accused was the other driver. However, a little later, she testified that “I didn’t speak with MacNeill before the arrest for impaired”. The arrest took place at 18:37 hours. [ 53 ] Constable Primeau acknowledged during cross-examination that the accused tried to tell her about the accident at the outset, and before he was advised about his counsel rights.

She also acknowledged that she had a limited amount of information from dispatch and that it was her interaction with the accused at the scene that formed the basis for the arrest and breath demand. [ 54 ] She was not sure as to what was said during the four minutes between the time of arrival and the arrest. When asked if she advised Ms. Masse that he did not have to make an accident report statement she responded: “I might have”. [ 55 ] Mr.

Masse filed an affidavit (Exhibit D-1), wherein he deposed that “the reason that I spoke to the police and provided them with the accident information is because I believed that I had a legal obligation requiring me to do so”. [ 56 ] He was cross-examined on his affidavit. He came to Saskatoon from Quebec in October of 2015 - some four months before this incident. [ 57 ] When asked, “are you familiar with legislation in Saskatchewan?” He answered, “no”.

When asked about the Traffic Safety Act , more specifically, “do you know what it requires of a driver?” he answered “a driver’s licence”. [ 58 ] He was finally asked why he cooperated with the police when they arrived at the accident scene. He answered: “You have to cooperate with the law officers. As the accident happened, I tried to get an understanding with the driver; if not successful then I had to report the accident for insurance purposes”. [ 59 ] This evidence, in my view, falls short of establishing that the accused believed and felt compelled to make a statement.

He testified that one has to cooperate with police and that accidents have to be reported for insurance purposes. There is no testimony from him to suggest that Constable Primeau asked him any questions about the accident. She testified that the information she received from dispatch was limited, but that she learned that there were two male drivers and when she arrived at the scene Constable McNeil approached one driver and she walked directly to Mr. Masse. There were no other males at the accident scene other than the elderly couple who stopped by and called the police.

The interaction between Constable Primeau and the accused was brief prior to him bring handcuffed and placed under arrest. [ 60 ] Mr. Netmaker’s testimony, much of which I found to be emotional and exaggerated, on this point seems to corroborate the fact that Constable Primeau’s interaction from the time of arrival to the time of arrest was brief: “Police arrived and handcuffed him right away. They didn’t even give him a chance to explain”. [ 61 ] Taking the totality of the evidence, particularly the evidence of Constable Primeau and Mr.

Masse, I am not satisfied that the accused established on a balance of probabilities that the statement, whatever its nature, was compelled. [ 62 ] Further, I find that, based on the totality of the evidence Constable Primeau did not rely on the applicant’s accident statement to formulate her grounds for the breath demand. She came to the conclusion that he was one of the drivers as soon as she arrived at the scene and, further, concluded that he was impaired as soon as she encountered him.

There was, in fact, other evidence indicating that the applicant was the driver. [ 63 ] It may be argued that this is not the best type of an investigative approach, but, in this case, it has the affect of negating the “use immunity” defence.

Secondly, did the search and handcuffing of the applicant - with his hands cuffed behind his back - during the investigative stagecontravene his Charter rights? [64]

Section 7 of the Charter reads as follows: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [65]

Section 8 of the Charter reads as follows: Everyone has the right to be secure against unreasonable search or seizure. [66]

Section 9 of the Charter reads as follows: Everyone has the right not to be arbitrarily detained or imprisoned. [67]

Section 12 of the Charter reads as follows: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [68] The dispatch indicated two male drivers, only two males at the accident scene and that Mr. Netmaker was yelling that theaccused was intoxicated. [69] Arguably, once the accused was handcuffed and searched during the course of Constable Primeau’s investigation, all of thesesections were contravened. A closer examination of the evidence reveals that the facts of this case may come closer to contravening oneof these sections than another. [70]

Section 12, for example, is generally triggered when the punishment is not only excessive but grossly disproportionate (R vSmith, (SCC), [1987] 1 SCR 1045, 34 CCC (3d) 97). [71] The question most often asked in the context of s. 12, is whether the punishment prescribed is so excessive as to outrage thestandard of decency. [72] Having regard to the facts of this case, I do not find that s. 12 of the Charter was contravened. [73]

Section 9, in order to be contravened, requires that a person be arbitrarily detained or imprisoned. [74] In this case, the detention (and I must note that Constable Primeau used the terms detention and arrest interchangeably) has tobe considered, firstly, as it occurred prior to the arrest. This covered a period of some four minutes. [75] Recently, the Alberta Court of Appeal considered a case (R v Rowson, 2015 ABCA 354 [Rowson]; appeal to SCC dismissed,R v Rowson 2016 SCC 40), where issues arose with respect to use immunity and arbitrary detention, among others.

In Rowson theaccused was involved in a motor vehicle accident. He sought to exclude certain statements he made to the police following the accident,the most important being his admission that he was the driver. [76] Secondly, Mr. Rowson was place in the back of the police car while the police officers were attending to collecting evidenceat the scene. He was not advised of anything and told to stay put. This led to the arbitrary detention issue.

[77] The trial judge found that the accused was arbitrarily detained, but the Charter infringing conduct of the police was notserious, the impact on the accused’s Charter-protected interests was minimal and the conduct of the police was not so egregious as tobeing the administration of justice into disrepute. [78] The Court of Appeal agreed and, even further, went on to suggest that exclusion of the evidence on the basis of minorbreaches would bring the administration of justice into disrepute.

At paras 44 - 54 it states: [44] For example, the seriousness of the arbitrary detention (from which the right to counsel infringements flow) must be looked at fromthe perspective of the fact that the appellant himself had a duty, separate and apart from the criminal law, to remain at the scene of theaccident. Contrary to what was argued by the appellant, there is no ability to choose not to cooperate with the police if one is the driverof a car involved in an automobile accident.

The appellant was not free to go. . . . [51] Of course, the use immunity which the Traffic Safety Act confers upon accident reports cannot affect evidentiaryadmissibility in federal criminal prosecutions. However, the Supreme Court in R v White, (SCC), [1999] 2 SCR 417,174 DLR (4th) 111 has likewise held that statements made under this sort of statutory compulsion are subject to use immunity in criminalproceedings.

But the use immunity or the protection against self-incrimination inherent in that use immunity does not eliminate thestatutory compulsion to remain at the scene, render assistance and provide an accident report to the police, including answering policequestions about the accident. A driver is not detained for the purpose of the Charter when he is statutorily required to remain at the scene of the accident. Of course, once the police began to suspect a criminal offence had been committed and once he was told that he was no longer free to usehis cell phone, a detention has taken place.

The seriousness of the detention must take into account the regulatory regime, and when one does so, the seriousness of the detentionwanes. [79] Having regard to the above, I find that the application was not arbitrarily detained. Moreover, even if he was, the breach was not serious enough to warrant exclusion of evidence following a Grant[3] analysis. [80] Once Mr. Masse was arrested, other issues arose and I will address those in due course.

Thirdly, did the police officer have reasonable grounds to make a breath demand? [81] Section 254(3) of the Criminal Code states as follows: If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, or . . .

[82] This section, therefore, authorizes a warrantless search if the police officer had reasonable grounds to believe that the accusedhad within the preceding three hours operated a motor vehicle while his ability to do so was impaired by alcohol. [83] Another requirement under this

section is that the samples be taken as soon as practicable. [84] Mr. Justice Caldwell in R v Gunn, 2012 SKCA 80, at paras 7 and 8 states the law as follows: [7] A police officer may not demand a breath sample of an individual unless the officer has “reasonable grounds to believe” theindividual has, within the preceding three hours, driven while impaired or while over the proscribed limit.

This means the officer mustsubjectively (or honestly) believe the individual has driven while impaired or “over .08” within the preceding three hours and that beliefmust be rationally sustainable on an objective basis (see: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 48). Thisdoes not mean that the Crown has to demonstrate a prima facie case for conviction (R. v. Shepherd, 2009 SCC 35 , [2009] 2S.C.R. 527, at para. 23), let alone prove its case beyond a reasonable doubt (R. v.

Bush, 2010 ONCA 554 , 259 C.C.C. (3d) 127);rather, the standard of “reasonable grounds to believe” is one of lesser probability which simply requires the reviewing court todetermine whether the factors articulated by the officer who made the breath-demand were reliable and were capable of supporting theofficer’s belief that the individual had driven while impaired or “over .08” within the preceding three hours. [8] Where an individual challenges the validity of a breath-demand on the basis that the police officer’s belief was not reasonable, thequestion for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officerwould have believed the individual’s ability to operate a motor vehicle was impaired (see: R. v.

Storrey, (SCC), [1990]1 S.C.R. 241, at p. 250; and R. v. Restau, 2008 SKCA 147 , 314 Sask. R. 224 at para. 17). This is a question of law and a trialjudge’s answer to it is measured on appeal against the yardstick of correctness (see: R. v. Shepherd). [85] At para. 10 in Gunn, supra, the Court of Appeal states what the police officer needs to do in order to support his confirmationthat his belief was objectively reasonable: . . .

Where the reasonableness of the officer’s belief is challenged in court, the officer must be in a position to clearly articulate sufficientobservations and to point to other evidence which would rationally and reliably sustain the officer’s belief of impairment on an objectivebasis. [86] Against this background, let us examine what Constable Primeau observed with respect to the accused when she arrived at thescene. She testified that “I noticed bloodshot eyes and I could smell beverage alcohol from his breath”.

Asked if she noticed anythingelse about the accused she stated that he was not answering her questions and fumbling with his licence. [87] The accused was handcuffed, patted down and escorted to the police car. The in-car camera, which was not turned on whenofficers McNeil and Primeau arrived on the scene, was now on. Constable Primeau started to read the demand: “I have reasonablegrounds to suspect - then after an inaudible exchange with Constable McNeil - reasonable grounds to believe. . .” She testified that “. . . Ihad no intention to do an ASD, so I corrected myself and made a breath demand.

I never meant to read the ASD demand”. [88] Constable McNeil, when asked what she observed about Mr. Masse, testified that he was extremely cooperative. Hetranslated his conditions from French to English. She thought that he may have been slurring his words, but was not sure if that was dueto intoxication or his French accent. She did not notice any other indicia of impairment. [89] My observation of the accused on the video did not reveal any difficulty walking and getting into the police car.

Keeping inmind that he was walking on a snowy surface with his hands cuffed behind his back, he displayed impressive balance and dexterity. Further, listening to his conversation with the police officers in the car, I noticed that he spoke with an accent, but I did not notice anyslurring of words.

[ 90 ] Therefore, even if we start from the premise that Constable Primeau held an honest and subjective belief that she had reasonable grounds to make a breath demand, the next question to determine is whether that subjective belief can be verified objectively. Put another way, would a reasonable person, put in place of Constable Primeau, conclude that there were reasonable grounds for the arrest and breath demand. [ 91 ] One indicia of impairment was the applicant’s bloodshot eyes.

Blood shot eyes may be the result of, or caused by, tiredness, exposure to dust or smoke, contact lens irritation or eye infection - alcohol consumption may be another reason. [ 92 ] The second indicia of impairment that Constable Primeau relied on was the smell of alcohol. She admitted that the smell of beverage alcohol is equivocal on the issue of impairment. She did not ask, nor was she provided information, about the accused’s alcohol consumption prior to her involvement with him. [ 93 ] As already stated, there were no physical symptoms or indicia of impairment.

I further find that the accused was alert, coherent and articulate - especially when it is apparent that English is not his first language. [ 94 ] After considering the totality of the evidence, I find that Constable Primeau’s grounds for the demand are not objectively verifiable.

The smell of alcohol and bloodshot eyes may support a suspicion that the accused had alcohol in his body, and therefore allow for an ASD demand but they do not support the higher standard of reasonable grounds. [ 95 ] The Supreme Court in R v Chehil , 2013 SCC 49 and the companion case of R v McKenzie , 2013 SCC 50 , explained the difference between the “reasonable suspicion standard” and the “reasonable and probable grounds standard”.

Karakatsanis J. (at para 26) quoted with approval Binnie J’s definition of reasonable suspicion in Kang-Brown [4] at para 7 : The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

Because sniffer dog searches are conducted without prior judicial authorization, the after the fact judicial scrutiny of the grounds for the alleged “reasonable suspicion” must be rigorous.

Here, the police action was based on speculation. [ 96 ] She went on to state at para 28: The fact that reasonable suspicion deals with possibilities, rather that probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. [ 97 ] Having found that the indicia of impairment relied on in this case supports a suspicion that the accused had alcohol in his body, but not the higher standard required for reasonable grounds, I find that the evidence, namely the breath samples, were not lawfully obtained. [ 98 ] Another issue that needs to be addressed is the timelines of the breath test as well as the accused’s access to legal counsel. [ 99 ] 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) : . . . 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. . . [ 100 ] The relevant times are as follows: 18:33 hours - arrival at scene 18:37 hours - arrest of accused, for impaired driving 18:40 hours - rights and warning

18:57 hours - departing scene 19:04 hours - arrival at police station 19:24 hours - access to telephone room 19:55 hours - first breath sample obtained [ 101 ] Simply put, from the time of arrest to the first sample, seventy-eight minutes elapsed.

From time of arrest to the accused’s first opportunity to speak to counsel forty-seven minutes elapsed. [ 102 ] The terms “as soon as practicable” has been addressed on numerous occasions. [5] In R v Vanderbrugeen the Ontario Court of Appeal (para 12) held that “the touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably”. [ 103 ] 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 long as the delay, if there is one, is explained to the satisfaction of the judge, there may be reliance on the presumption in paragraph (iv) as long as the samples are taken within the two hour limit.

It would only be when the learned trial judge concluded there was a delay not satisfactorily explained, or such delay prejudiced the accused that the court would deny the prosecution the right to rely on the presumption in paragraph (iv). [ 104 ] In Beaton , the Court held that the 15 minute delay was satisfactorily explained and as such “was not objectively unreasonable” (para 39); however, it did cite a number of decisions (para 40) where undue delay was argued successfully: . . .

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 results were proof of the accused’s blood alcohol level at the time of driving].” In R v Carrier , 2010 SKPC 118 , 363 Sask R 76, 63 minutes had elapsed, and, finding that 39 of those minutes was an “unexplained delay,” the prosecution could not rely upon the presumption.

In R v Dion , 2010 SKPC 76 , the trial judge found a delay of 57 minutes as “unreasonable” and the Crown failed to sufficiently explain the delay. . . . [ 105 ] In this instance, after Constable Primeau arrested the accused the police vehicle remained at the scene for some 20 minutes before proceeding to the police station.

When asked to explain this delay, Constable Primeau testified that she did not want to leave the accident scene unattended and was waiting for another police cruiser to arrive before departing. [ 106 ] Having regard to the evidence, including the in-car video which clearly showed Constable Davis’ police car at the scene from the outset, her explanation is not satisfactory and her testimony on this point not accurate. [ 107 ] Further, it took another 51 minutes after arriving in detention before the first sample was obtained. It appears moreover that it took a long time to book the accused.

While in the detention area, the accused continued to be questioned. Constable Primeau’s explanation for this was “our policy in detention is what it is”. [ 108 ] If there was a reason why the booking took so long it was not explained. [ 109 ] I find, therefore, that the delay was not satisfactorily explained. I further find that this delay prejudiced the accused. The presumption allows the Crown to rely on the test results to prove the accused’s blood alcohol level at the time of driving.

Undue delay, coupled with readings which were just slightly above the legal limit, brings into question the accused’s actual blood alcohol content at the time of driving. [ 110 ] Accordingly, I find that the presumption cannot be relied upon.

[111] It may also be useful to address the Charter right of “without delay” as it pertains to the accused’s right to counsel. [112] In R v Debot [1989] 2 SCR 1140, (SCC) at p 147, Wilson J stated:

Section 10(

b) also instructs the police to inform a detainee of his or her rights to counsel “without delay”. As I have stated elsewhere, thephrase “without delay” does not permit of internal qualification: R v Strachan; R v Simmons; R v Jacoy.

As I pointed out in R v Jacoyand R v Strachan, the phrase does not mean “at the earliest possible convenience” or “after police get matters under control” or even“without reasonable delay”; to which I add here that “without delay” likewise does not mean “after police have had a chance to search thesuspect. [113] By this measure, Constable Primeau did not inform the accused of his right to counsel “without delay”. Or, in the alternative, ifshe did so inform him, he certainly was not afforded an opportunity to consult with counsel in a timely manner having regard to all thecircumstances. Were the accused’s s. 10(

b) Charter rights violated? [114]

Section 10(

b) of the Charter reads as follows: 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; and . . . [115] Subsection 10(

b) of the Charter imposes both an “informational” and “implementational” duty on the police. The informationalcomponent requires the detainee to be informed both of the right to retain and instruct counsel without delay and of the existence ofLegal Aid duty counsel within the jurisdiction (R v Bartle, (SCC), [1994] 3 SCR 173). If there are any specialcircumstances where it may be inferred that the detained person may not understand the s. 10(

b) caution - such as language difficulties,or cognitive impairment - the police are required to take additional reasonable steps to ensure that the detainee understands theinformation provided (R v Baig, (SCC), [1987] 2 SCR 537). [116] Once the accused indicates that he understands his counsel rights, and invokes his right to counsel the implementationalcomponent kicks in.

The police have to provide a reasonable opportunity - including privacy - for that consultation to take place. [117] Moreover, the police are obliged at that point to refrain from gathering or eliciting evidence from the detainee until he has had areasonable opportunity to consult counsel. (R v Manimen (1987), (SCC), 58 CR (3d) 97, SCC). [118] In this case, Constable Primeau did not properly advise the applicant of his counsel rights - “you have, you have the right toretain and instruct counsel without delay. Also just got to read you this other thing first”.

After reading only a portion of the counselcaution she proceeded to read the breath demand, which also was not without its technical difficulties. Then she asks the accused if hewishes to speak to a lawyer and he said yes. She did not at any time complete the counsel caution to the accused in its entirety.

She did,however, read him his right to silence twice. [119] Even after the accused had indicated his wish to speak to a lawyer, Constable Primeau continued to question him - albeit,according to her “I didn’t ask too much more as I thought he wanted to talk to his lawyer”. [120] Despite the accused’s stated wish that he wanted to speak to a lawyer, it took some time - approximately twenty minutes - afterarriving at the police station before he was afforded that opportunity.

[ 121 ] After speaking to Legal Aid duty counsel for about four minutes, the accused indicated that he was satisfied with his call. However, once the applicant was in the breathalyzer room he advised Constable Primeau that he was not satisfied with his call but that he did not wish to call another lawyer.

Once it became apparent to Constable Primeau that the accused was not satisfied with his call and that he was having second thoughts about the legal advice he received, it would have been prudent to read the Prosper warning to the accused. [ 122 ] She acknowledged this during cross-examination: “I made the mistake of not reading the card to him after he said he wasn’t satisfied with his lawyer call”. [ 123 ] Based on the totality of the evidence, I find that the accused’s s. 10(

b) right was violated. Having found that the accused ’s s. 8 and s. 10(

b) Charter rights were breached, should the evidence derived - namely the Certificate of Qualified Technician - be excluded pursuant to s. 24(2) of the Charter ? [ 124 ] According to R v Grant [6] three factors have to be considered: 1) the seriousness of the Charter -infringing state conduct which led to the discovery of the evidence; 2) the impact of the breach on the Charter rights of the accused; and 3) society’s interest in the adjudication of the case on its merits. [ 125 ] The right to be free from unreasonable search and seizure is something that has been recognized by all courts in Canada. [ 126 ] Accordingly, there would have to be extraordinary or compelling reasons to admit evidence obtained in contravention of this right.

No such reason existed in this case: the accused was co-operative, there were no time constraints and Constable Primeau had alternate screening measures available to her. It seems that she did not even direct her mind to the option of using the approved screening device. The Supreme Court clearly stated in Grant that the more serious the breach and the greater the state misconduct, the more likely the exclusion of evidence obtained in violation of the Charter . Here, Constable Primeau was unable to articulate reasonable grounds for the accused’s detention and arrest.

This resulted in an unlawful seizure of evidence. [ 127 ] Further, the informational component of the right to counsel was performed in a perfunctory and pedestrian manner. Even more concerning was the officer’s ongoing questioning of the accused after he indicated to her that he wished to speak to counsel. [ 128 ] This suggests that she either does not fully understand what the right to counsel provision in the Charter means, or, if she does understand it, that she takes a very cavalier attitude towards it.

At no time did her testimony suggest that she was obliged to respect the accused’s right to counsel in anything more than a superficial manner. This was not a trivial or technical breach, and it favours exclusion. The fact that there was a compounding of violations makes the case for exclusion even stronger. [ 129 ] Secondly, I must consider the effect of the Charter -infringing conduct on the accused. He was detained and arrested on the basis of questionable grounds. He was handcuffed behind his back, placed in the police car, and kept that way for nearly half an hour.

Further consequences, such as loss of driving privileges, the stress and cost of mounting a legal defence also impact the accused significantly. [ 130 ] Consideration of the second factor also favours exclusion of the evidence. [ 131 ] The third line of inquiry in Grant focuses on society’s interest in the adjudication of the case on its merits. As stated in Grant (para 79 ), the question is whether “the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion”. [ 132 ] Usually breath samples are reliable and critical to the Crown’s case.

However, if they are not obtained in a timely manner, and in accordance with prescribed rules, they may not be.

[133] One cannot deny that society is well served when drinking and driving offences are prosecuted vigorously. By the same token,no one can deny that society benefits greatly when its citizens’ Charter rights are respected and protected. It is also true that quite often -and this case is no exception - that the two interests are not mutually exclusive. [134] In this case, if the police officer had followed the accepted practice and investigative technique of requesting the accused totake

part in a roadside screening test, and if the detained driver was properly advised of his rights to counsel and afforded a reasonableopportunity to exercise same, we would not be analysing and scrutinizing these issues. [135] Whatever her reason, Constable Primeau’s hasty decision to proceed with the breath demand resulted in the s. 8 breach. Shelargely disregarded the accused’s s. 10(

b) rights. Both of these breaches warrant exclusion of the breath test, as the admission wouldbring the administration of justice into disrepute. ____________________ M.M. Baniak, J [1] R v Gunn, 2012 SKCA 80 [2] R v White, (SCC), [1999] 2 SCR 417 [3] R v Grant, 2009 SCC 32 [4] 2008 SCC 18; [2008] 1 SCR 456 [5] R v Vanderbruggen (2006), (ONCA), 206 CCC (3d) 489; R v Beaton, 2015 SKQB 58 (approved Vanderbruggen);R v Carter, (1981) 2063 (SKCA) [6] 2009 SCC 32, [2009] 2 SCR 353 [Grant]