Her Majesty the Queen - v. -, 2013 SKPC 77

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 077 Date: July 10, 2013 Information: 39985210 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jonathan Sherstobitoff (No. 2) Appearing: John Knox For the Crown Michael Owens For the Accused JUDGMENT D.E. LABACH , J INTRODUCTION [ 1 ] The trial for the accused, Jonathan Sherstobitoff, on charges that he was dangerous driving, driving while impaired and driving while over .08 began on November 13, 2012. At the commencement of trial Defence counsel advised that he would be making an application that the accused’s sections 8, 9 and10(

b) Charter rights had been violated and that as a result, all evidence obtained as a result of these breaches should be excluded from evidence pursuant to section 24(2) of the Charter. Following a lengthy voir dire , I rendered a written decision wherein I found no breaches of the accused’s Charter rights and I dismissed counsel’s application. See R.v. Jonathan Sherstobitoff , [2013] S.J. No. 236 (Sask. Prov. Ct.) .

[ 2 ] The accused’s trial continued on April 26, 2013. At that time, by agreement of counsel, the Crown evidence from the voir dire was applied to the trial proper. All Crown exhibits from the voir dire , being some photographs from the accident scene and the Certificate of Qualified Technician became full exhibits in the trial and it was agreed by counsel that the Defence exhibit, a CD containing video footage of the accused at the Saskatoon Police station, would also become a full exhibit in the trial.

Once that had been done, the Crown advised that they had no further witnesses to call on the trial and they closed their case. [ 3 ] Defence counsel was not prepared to consent to defence evidence from the voir dire being admitted on the trial proper. Instead, they chose to put the accused on the witness stand again to give evidence. Other than the accused, they had no further witnesses to call on the trial. [ 4 ] The issues that remain to be determined are:

a) Has the Crown proven beyond a reasonable doubt that the accused was driving his vehicle in a manner dangerous to the public?

b) Has the Crown proven beyond a reasonable doubt that the accused was driving his vehicle while his ability to do so was impaired?

c) Has the Defence provided some evidence to the contrary capable of raising a reasonable doubt that the breath technician did not operate the breath instrument properly?

d) Was the accused ’s

section 9 Charter right breached by the decision to hold him in police cells?

e) If the accused ’s

section 9 Charter right was breached, what is the appropriate remedy pursuant to section 24(1) of the Charter? FACTS [ 5 ] On August 26 and 27, 2011, the accused, Jonathan Sherstobitoff, drank twelve Molson Canadian beer over a fourteen hour time frame.

He drank six cans of beer between 11:07 a.m. and 4:30 p.m. or 5:00 p.m. while playing golf; he drank another four bottles of beer between 5:00 p.m. and 7:30 p.m. or 8:00 p.m. while having supper at Boston pizza; he went to a couple of bars between 7:30 p.m. or 8:00 p.m. and 1:45 a.m. and had two more bottles of beer. [ 6 ] After leaving the last bar at 1:45 a.m., the accused got in his truck and drove northbound on McEown Avenue. As he was driving, he dropped a lit cigarette onto the floor of his truck. He panicked and reached down to pick it up.

The next thing he recalled was looking up and getting hit in the face with an air bag. To use his words, “It was like getting punched in the face”. [ 7 ] At this same moment, Scott Naccarato and Austin Smith were driving westbound on Taylor Street East. They saw the accused’s truck go through a stop sign at McEown Avenue and Taylor Street, hit a blue Cobalt parked in the driveway of a house and push the car into the residence. [ 8 ] They stopped and got out of their vehicle to see if anyone was hurt. The truck was up against the Cobalt and the car was up against the house.

They observed the accused get out of the truck. He stumbled, appeared to be unaware of what had occurred and seemed to be in pain. They heard him talking to someone and felt that he was slurring his words and having trouble talking. Mr. Smith also noticed that the accused was having trouble standing at the back of his truck.

[ 9 ] Nicolette Gorgichuk and Melissa Harding were sitting on the couch in Nicolette’s basement suite at 2619 Taylor Street East, visiting and watching television. Suddenly they heard a crashing noise followed by a loud bang and then Ms. Gorgichuk’s living room window came crashing in. [ 10 ] Ms. Gorgichuk started screaming. There was debris everywhere. Ms. Harding noticed the wheel of a vehicle poking through the living room window so she ran upstairs to see if anyone was injured. When she got outside, she saw that a red truck had struck Ms.

Gorgichuk’s car that had been parked at the end of the driveway and had pushed it into the window of the basement suite. The red truck was up against the car. [ 11 ] Ms. Harding saw the accused behind the steering wheel of the truck punching an air bag. As she approached the passenger side of the truck, he started to get out. She opened the passenger door and told him to stay put. The accused was the only person in the truck and she noticed an overwhelming smell of alcohol. Despite her comments, the accused got out of the truck and stumbled towards the tailgate.

He said, “I guess I ruined your evening, didn’t I?” and she noted his speech was slurred. Ms. Gorgichuk came outside and Ms. Harding told her to call 911. She did this and at 2:08 a.m., Constable John Broadbent and Constable Sven Talic arrived on scene. [ 12 ] The two officers were working together in a marked patrol car that evening. At 2:05 a.m. they were dispatched to a motor vehicle accident at 2619 Taylor Street East. According to the dispatch, a vehicle had driven into a house. When they arrived at the residence, they noticed a red truck pinning a car up against the front wall of the residence.

It appeared that the truck had failed to stop at the intersection of Taylor Street and McEown Avenue, had hit the car and pushed it into the house. [ 13 ] There were a number of people standing by the truck. As the officers walked up the driveway, Constable Broadbent asked if everyone was okay and who had been driving. Some of the people pointed out the accused as the driver. He was standing by the truck box with his hand on the box. The officers went over to the accused and Constable Broadbent began speaking with him.

The accused advised that his name was Jonathan Sherstobitoff and he admitted to having been in the accident. As he spoke with the accused, Constable Broadbent made the following observations: - the accused was not focusing on him; - the accused had, what he called, a 30 metre stare.

He explained this to mean that the accused appeared to be looking 30 metres past him; - the accused appeared to be using the truck for support; - the accused had bloodshot, glossy eyes; - the accused had a cut on his arm; - he could smell alcohol coming from the accused’s breath. [ 14 ] Constable Talic just stood there with his partner and listened to what the accused had to say.

As Constable Broadbent and the accused were talking he made note of the following: - a strong odour of alcohol was coming from the accused’s breath; - the accused’s eyes were bloodshot; - the accused’s cheeks were red and flushed; - the accused swayed from side to side as he walked and as he stood in one spot talking to them; - the accused was slurring some words; - it took the accused awhile to process his partner’s questions and give answers; - the accused was cooperative and answered his partner’s questions. [ 15 ] At approximately 2:10 a.m.

Constable Broadbent arrested the accused for impaired driving and handcuffed him. He then turned the accused over to Constable Talic so that he could secure the scene and speak to any witnesses. Although he did not review his reasons for arresting the accused with Constable Talic, he told him that the accused was intoxicated.

[ 16 ] Constable Talic took the accused to their police cruiser, patted him down and placed him in the backseat. Once the accused was in the backseat, he again advised him that he was under arrest for impaired driving. At 2:13 a.m. he read the accused his right to counsel and the police warning and at 2:19 a.m. he read the accused a breath demand. He then left his partner at the scene and drove to the Saskatoon Police station so that the accused could be processed and provide breath samples.

In the fifteen minutes it took to drive to the police station, he noted a strong, overpowering odour of alcohol in the police car that was not present before he put the accused in the backseat. [ 17 ] At the police station, the accused was booked in by detention staff and then taken to a phone room so he could speak to legal counsel. After his call to Legal Aid was finished, Constable Talic took the accused to an interview room and began filling out his Investigator’s Check Sheet. The accused continued to be cooperative but he noted a strong smell of alcohol coming from the accused’s mouth.

He observed that the accused was really swaying and on one occasion he had to grab the wall to steady himself. He noted that the accused had bloodshot eyes, red cheeks, some of his speech was slurred, it took him awhile to process questions and some of his answers did not make sense. He described the accused’s level of intoxication as extreme. [ 18 ] While Constable Talic and the accused were in the interview room, Constable Flogan, the breath technician, came in and briefly spoke to the accused.

After satisfying himself that the accused did not want to speak to another lawyer, he left to prepare the Intoxilyzer EC/IR II for the breath tests. He did a visual inspection of the breath machine and found nothing the matter with it. After going through the pre-testing procedure he had no reason to believe that the Intoxilyzer was not working properly. The Intoxilyzer did not give him any error reports and the machine appeared to be working within its standards and limits.

Consequently, he felt that the breath test results would be accurate and reliable. [ 19 ] At 3:10 a.m., Constable Talic brought the accused into the breath testing room and turned him over to Constable Flogan for the first breath test. The accused provided a sample and the result was .31 milligrams of alcohol in 100 millilitres of blood. After the first test was completed, Constable Talic took the accused to the bathroom to urinate. At 3:30 a.m.

Constable Talic took the accused back to the breath room where he provided a second breath sample with a reading of .32. [ 20 ] While performing the breath tests on the accused, Constable Flogan noted that: - the accused appeared to have trouble with his equilibrium; -the accused had trouble standing straight; - the accused was concentrating on his movements; - the accused was wavering; - although he could understand the accused, he was slurring his words; - there was a smell of alcohol coming from the accused when he blew into the Intoxilyzer; - the accused was cooperative and easy to deal with. [ 21 ] Constable Flogan prepared a Certificate of Qualified Technician and gave it to Constable Talic.

Constable Talic advised the accused that he was now also under arrest for driving while over .08 and dangerous driving. He re-read the accused his rights and served him with a copy of the Certificate of Qualified Technician and other documents. [ 22 ] At this time, the accused appeared to Constable Talic to be more intoxicated. In addition to the overpowering smell of alcohol and his continued balance problems, the accused’s speech was becoming progressively worse. The accused was not able to advise Constable Talic of someone who could come and pick him up because he did not want to wake anyone up.

As a result, the officer told him he would have to spend the night in jail. According to Constable Talic he advised the officer-in-charge of the detention area there was no responsible person who could come and pick up the accused, that he was worried that the accused was extremely intoxicated and making bad decisions and, as a result he may continue the offence by driving again. [ 23 ] Shortly after 4:00 a.m., the accused was lodged in a cell. The cell had a rubber mat, a blanket and a toilet without accessories. After being placed in the cell he fell asleep.

He estimated that he slept for approximately four hours before he was woken up for breakfast. He was offered something from McDonald’s restaurant but did not eat it because it turned his stomach. He went back to sleep and next woke up when someone came and offered him lunch. Again it was from McDonald’s and again he declined. He did not go back to sleep after this.

[24] Shortly thereafter, a female emergency medical technician showed up to see if he was okay. He was not feeling that good buthe told her that he was “as good as could be expected” so she left. His nose was sore from hitting the air bag, his head hurt and hisstomach wasn’t feeling that good but he did not mention this to her. [25] The accused recalled a commissionaire walking by his cell approximately four times while he was there, but thecommissionaire did not stop or say anything to him. He never said anything to the commissionaire either. [26] The accused was quiet and compliant while in custody.

Eventually a police officer got him out of his cell, he signed somepapers and was released. He was released at 9:09 p.m. on August 27th. Up until this officer came and got him out of his cell, no otherofficer ever came to check on him or speak to him. He had never been in a situation like this before.

He did not ask any officer about hisrelease because no officer came around for him to ask. [27] On October 31, 2012, Constable Flogan prepared a new Certificate of Qualified Technician for the accused’s breath testresults as he had made a mistake when he filled in the date the tests were performed on the first Certificate he had prepared. He served atrue copy of this new Certificate with the amended date on the accused at his home on October 31st. ANALYSIS

a) Has the Crown proven beyond a reasonable doubt that the accused was driving his vehicle in a manner dangerous to the public? [28] It was the Crown’s position that the accused’s speed and alcohol use combined with him looking down to try to find his litcigarette resulted in the accused driving through a T- intersection and colliding with a parked car.

In their view, this conduct was amarked departure from the standard of care that a reasonable person would observe in the accused’s position and as such, the accusedwas driving in a manner dangerous to the public. [29] The Supreme Court of Canada in the recent case of R. v. Beatty, 2008 SCC 5 , [2008] 1 S.C.R. 49 (S.C.C.) reviewedthe test for dangerous driving they had set out fifteen years prior in R. v. Hundal, (SCC), [1993] 1 S.C.R. 867 (S.C.C.)and concluded that it was necessary to re-state the elements of the test.

The Court clarified that the actus reus of dangerous driving wasdriving in a manner dangerous to the public having regard to all the circumstances including the nature, condition and use of the place atwhich the vehicle was being operated and the amount of traffic that at the time, is or might reasonably be expected to be at that place. The mens rea was that the conduct of the accused amounted to a marked departure from the standard of care that a reasonable personwould observe in the accused’s circumstances.

The care exhibited by the accused is assessed against the care exhibited by a reasonablyprudent driver in the circumstances and will only be made out if that care constitutes a marked departure from that norm. See also R. v.Roy, 2012 SCC 26 , [2012] 2 S.C.R. 60 (S.C.C.). [30] In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, wasdangerous to the public in all the circumstances. The focus of this inquiry must be on the risks created by the accused’s manner ofdriving, not the consequences, such as an accident.

A manner of driving can be qualified as dangerous when it endangers the public. Itis the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. See R. v.Beatty, supra, at paragraphs 45 and 46; R. v.

Roy, supra, at paragraphs 34 and 35. [31] In determining the question of mens rea, the trier of fact should first ask whether a reasonable person would have foreseen therisk and taken steps to avoid it if possible and if so, the second question is whether the accused’s failure to foresee the risk and take stepsto avoid it was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.

Simplecarelessness may give rise to civil liability or to a conviction for careless driving but it will not usually obtain the level of a markeddeparture required for a conviction for dangerous driving. See R. v. Beatty, supra, at paragraphs 47 to 49; R. v. Roy, supra, at paragraphs36 and 37. [32] The accused drove through a stop sign at a T- intersection shortly before 2:00 a.m. Taylor Street, the road the accused drove

across when he failed to stop for the stop sign, is a main thoroughfare on the east side of Saskatoon. While the evidence is that therewas very little traffic on Taylor Street at the time this occurred, the accused’s driving was dangerous to at least Mr. Naccarato and hisfriend, Mr. Smith, who were travelling down this street when they saw the accused’s vehicle shoot across in front of them. Viewedobjectively, going through a stop sign at a major thoroughfare is dangerous to the public, even at 2:00 a.m. when traffic would be lighterbut not altogether non-existent.

The actus reus of the offence of dangerous driving is made out in this case. [33] I am not however convinced that the accused had the mens rea to commit the offence. There is no evidence that the accusedwas driving inappropriately or in a dangerous fashion prior to his going through the stop sign. There is no evidence as to how fast theaccused was travelling when he went through the intersection. Mr. Naccarato and Mr. Smith thought that the accused was speeding butthey were unable to give any accurate estimate of that speed. The accused testified that he was going the speed limit.

No accidentreconstruction evidence was tendered that would have assisted the Court in understanding how fast the accused was travelling. It wouldbe inappropriate for me to conclude that the accused was speeding simply because he hit a parked car with sufficient force to push it intoa house without an expert’s opinion in that regard. [34] The only evidence before me is that the accused had been out drinking and while driving home, dropped a lit cigarette on thefloor of his new truck and his attention was momentarily diverted to that problem.

There was no deliberate intention on the accused’spart to drive through a stop sign. This was a simple act of carelessness not unlike many other such acts that regularly occur on ourroadways. This was not a marked departure from the norm. At best the accused was guilty of careless driving but not the more seriouscriminal offence of dangerous driving.

b) Has the Crown proven beyond a reasonable doubt that the accused was driving his vehicle while his ability to do so was impaired? [35] The test to be applied in order to convict an accused of impaired driving is found in the oft quoted words of Labrosse J. atparagraph 14 of R. v. Stellato, (ON CA), [1993] O.J. No. 18 (Ont. C.A.) aff’d by the Supreme Court of Canada at (SCC), [1994] S.C.J. No. 51 (S.C.C.): [14] In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered.

Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [36] Many of the witnesses in this case testified to noticing signs of impairment in the accused. Ms.

Harding came upon theaccused immediately after the accident and noted an overwhelming smell of alcohol in the cab of the accused’s truck as the accused wastrying to extricate himself from the air bag. She said the accused’s speech was slurred and he stumbled as he walked towards the tailgateof the truck. [37] Mr. Naccarato and Mr. Smith observed the accused drive through a stop sign and hit a vehicle for no apparent reason. Whenthe accused got out of his truck after the accident they saw him stumble and he appeared to be unaware of what had occurred.

They felthe was slurring his words, having trouble talking and having trouble standing at the back of his truck. [38] Constable Broadbent attended the scene with Constable Talic shortly after the accident occurred and noted the accused wasnot focusing on him when he was speaking to him and appeared to be looking past him, was using his truck for support, had bloodshot,glossy eyes and had a smell of alcohol coming from his breath. [39] Constable Talic made his own observations as his partner spoke to the accused.

He noted a strong odour of alcohol comingfrom the accused’s breath, his eyes were bloodshot, his cheeks red and flushed and he was slurring some of his words. The accused wasswaying from side to side as he walked and when he stood and spoke to them, it appeared to take him awhile to process questions andrespond. [40] The longer Constable Talic dealt with the accused, the more pronounced some of these signs got. For example, once the

accused was in the back of the police cruiser and they were on their way to the police station, the officer described the odour of alcoholin the car to be strong and overpowering. At the police station after the accused had been booked in and was waiting for the breathtechnician to ready the Intoxilyzer, Constable Talic further noted that the accused was really swaying and on one occasion had to grabthe wall to steady himself and that some of the answers to the questions he was being asked did not make any sense.

By the time thetests were completed, Constable Talic noted in addition to the signs he had previously seen, that the accused’s speech was becomingprogressively worse. In his view, the accused’s level of intoxication was extreme. [41] Constable Flogan, the breath technician, also made note of indicia of impairment he observed when the accused wasperforming the breath tests.

He made note that the accused had trouble with his equilibrium and with standing straight, was wavering,was concentrating on his movements, was slurring his words and had a smell of alcohol coming from his breath. [42] The accused tried to explain away many of the observations made by the witnesses. He said that he worked in a potash mineand that the salt in the air made his eyes red. He last worked the day before this incident and said that this redness lasts for a couple ofdays. He said that the accident was caused when he dropped his cigarette and tried to pick it up and he denied speeding.

After theaccident he felt dizzy and disorientated for about half an hour and his balance was off from getting hit in the face with the air bag. Hiscounsel urged me to look at the video footage from the police station which in his view, did not substantiate the observations of theaccused made by the witnesses. [43] Unfortunately I find the accused’s testimony in this regard unconvincing. He made much about the effects of the accident onhis balance and suggested that it accounted for his confusion, but he said this only lasted for a half hour.

I note that the police witnessesall testified that the accused’s balance problems and comprehension issues continued from the scene to the station and seemed to getmore pronounced as time went by. If I accept what the accused said about his red eyes, I would assume that the redness would havebegun to dissipate over time. But here, some thirty hours after he last worked, his eyes were noticeably glassy and bloodshot. Theaccused had no explanation for his slurred speech or red, flushed cheeks and admitted to consuming at least a dozen beer over a fourteenhour period.

The video from the police station is of limited assistance. The clips of the accused are not lengthy, there is no audio andmuch of the time, the accused is seated or leaning up against a counter. There is very little opportunity to view the accused walking ordoing much of anything. [44] All of the witnesses that had any contact with the accused noted signs of impairment and the signs they noted were consistentamongst them.

Taking their evidence as a whole, and accepting that the accused drank twelve beer, I have no doubt that at the time theaccused was driving his truck, his ability to do so was significantly impaired.

c) Has the Defence provided some evidence to the contrary capable of raising a reasonable doubt that the breath technician did notoperate the breath instrument properly? [45] During the cross-examination of the breath technician, Defence counsel asked him a number of questions about the AlcoholStandard Test that is supposed to be done on the breath instrument before any tests are taken. Constable Flogan explained that anAlcohol Standard Test must be done before any breath testing to ensure that the breath machine is operating properly.

If the breathmachine is operating properly the Test will give him a reading of 100 milligrams percent. In this case, he said that he did an AlcoholStandard Test before each sample provided by the accused but he did not recall the results. He then said that if the results of the AlcoholStandard Tests were outside the acceptable parameters he would not have proceeded with the accused’s breath tests.

Since he did goahead with the accused’s tests he was satisfied that the Alcohol Standard Test was within the parameters set by the machine even thoughhe could not now recall the specific results during his cross-examination. He also said that he had the results in his notes, but Defencecounsel did not ask him to refresh his memory from his notes and tell the Court what the results were nor did Crown re-examine on thispoint. [46] As a result of these responses, Defence argues that I cannot be satisfied that the Intoxilyzer results are reliable. In his view,the recent Supreme Court of Canada decision in R. v.

St.-Onge Lamoureux, 2012 SCC 57 , [2012] 3 S.C.R. 187 (S.C.C.) haschanged the law such that now, if an accused can show any deficiency in the functioning or proper operation of the breath instrument,that will automatically cast reasonable doubt on the accuracy of the test results and must lead to an acquittal. This, he says, is theconclusion reached by Mr. Justice Danyliuk in R. v. Greenough 2013 SKQB 208 (Sask.Q.B.).

Since Constable Flogan could not testifyas to the results of the Alcohol Standard Tests he did in this case, I should have a reasonable doubt that the Intoxilyzer was beingoperated properly and as such, the Crown cannot rely on the accused’s breath test results. [47] This argument attacks the presumption of accuracy contained in section 258(1)(

c) of the Criminal Code. That is the

[47] This argument attacks the presumption of accuracy contained in section 258(1)(

c) of the Criminal Code. That is thepresumption that relates to the accuracy of the breath tests at the time the tests were taken. In R. v. St.-Onge Lamoureux, supra, theSupreme Court found that two of the three new requirements to rebut the presumption of accuracy in section 258(1)(

c) wereunconstitutional. Specifically, the majority found that Parliament was justified in requiring that any evidence adduced to cast doubt onthe test results be directed at the functioning or operation of the breath instrument. As a result, the only way for an accused to rebut thepresumption of accuracy was to provide evidence that the breath instrument was malfunctioning or was operating improperly. [48] Speaking for the majority, Madam Justice Deschamps said: [37] . . . It is clear from the words of s. 258(1)(

c) and s. 258(1)(d.01) Criminal Code that evidence relating directly to theinstrument itself or to its operation is now required in order to cast doubt on the reliability of breathalyzer test results. A mereinference based on an individual’s rate of absorption or elimination of alcohol, which is what was required for a Carter defence, is nolonger enough.

The accused must now raise a doubt that the instrument was functioning or was operated properly. [38] In my opinion, the requirement that the accused adduce evidence concerning the functioning or operation of the instrument isrationally connected with Parliament’s objective. According to the scientific evidence on which Parliament relied, if the instrumentfunctions properly and all the relevant procedures are followed, the results should be reliable.

It is therefore logical to provide that theresults can be challenged only by raising problems that can be objectively identified and that relate to possible deficiencies in theinstrument itself or in the procedure followed in operating it. (Highlights are mine.) [49] These words of Madame Justice Deschamps cannot be interpreted as the Defence urges me to find, that is, that the results ofthe breath tests must automatically be excluded as unreliable if he can point to any evidence of a malfunction or improper operation ofthe breath instrument. To do so would be, as Judge Tyndale found in R. v. So, [2013] A.J.

No. 426 (Alta. Prov. Ct.), “to convert over .08trials from the real issue of whether the accused’s blood alcohol concentration can reliably be shown to have exceeded the legal limit,into trials of the minutiae of testing procedures undertaken by the officers involved.” This surely could not have been the intended resultand Madame Justice Deschamps as much as says so. [50] At paragraph 16 of the judgment she confirms that the standard of proof to rebut the presumptions of accuracy and identityhas always been, and continue to be, reasonable doubt.

Within the judgment, she affirms the scientific reliability of breath testinginstruments as long as they are maintained and operated properly. At paragraph 41 she states: [41] It should also be mentioned that the new provisions do not make it impossible to disprove the test results. Rather, Parliament hasrecognized that the results will be reliable only if the instruments are operated and maintained properly, and that there might bedeficiencies in the maintenance of the instruments or in the test process.

What the new provisions require is that evidence tending to castdoubt on the reliability of the results relate directly to such deficiencies. [51] The implication is that if the evidence to the contrary relied upon by the Defence raises a reasonable doubt as to the accuracyor reliability of the breath testing results, then the Crown cannot rely on the presumption of accuracy and the Certificate is not proof ofthe accused’s blood alcohol readings at the time of the test. The operative words here are “raises a reasonable doubt”. In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320 (S.C.C.) Mr.

Justice Cory said that “a reasonable doubt is not an imaginary or frivolousdoubt”. Thus, if the arguments of defence are imaginary or frivolous they will not cast any doubt on the accuracy of the breath testingresults. As Madame Justice Deschamps went on to say at paragraphs 47 and 48: [47] What remains to be determined is whether the advantages of this requirement outweigh its disadvantages. For this, it is necessaryto examine the consequences of the measure.

The limits that flow from the requirement have a significant effect on the defencesavailable to the accused, as it is now more difficult to rebut the presumptions. The evidence to be adduced is more complex. Theaccused must retain a technician or an expert to determine whether the instrument malfunctioned or was operated improperly. It isimpossible for a lay person to do this.

However, it should be borne in mind that the Carter defence also required the accused to retain anexpert. [48] The prosecution gains a clear, albeit limited, advantage from the requirement, since evidence to the contrary is limited to the real

issue: whether the test results are reliable . . . . [52] In this case, the argument of the Defence that because Constable Flogan could not testify to the specific results of the AlcoholStandard Tests he performed prior to the accused’s breath tests therefore the results are not reliable is nothing more than a possibility andignores the rest of the evidence of the officer.

Not only did Constable Flogan say that he would not have proceeded with the breath testshad either of the Alcohol Standard Tests he did been outside the acceptable parameters of the Intoxilyzer, he also testified that when heprepared the Intoxilyzer for the tests it was working within appropriate standards and limits, he got no error reports from the machine andhe had no reason to believe the Intoxilyzer he was using that night was not working properly or the results were not accurate andreliable.

Moreover, there was no expert or other evidence called by the Defence to show how this would affect the accuracy of theaccused’s breath tests, if it would have affected them at all. [53] The Defence argument in this case is similar to the argument made in the case of R. v. Crosthwait, (SCC),[1980] 1 S.C.R. 1089 (S.C.C.). In that case, Defence argued that the results of the breath tests on his client were not reliable because thebreath technician did not confirm that there was less than a one degree difference between the air temperature and the temperature of thesolution.

In overturning the lower court’s decision to acquit the accused on the basis that this evidence left the breath test results open touncertainty, Pigeon J. said: . . . . Mere possibility of some inaccuracy will not assist the accused.

What is necessary to furnish evidence to the contrary is someevidence which would tend to show an inaccuracy in the breathalyzer or in the manner of its operation on the occasion in question ofsuch a degree and nature that it could affect the result of the analysis to the extent that it would leave a doubt as to the blood alcoholcontent of the accused person being over the allowable maximum. There is no such evidence before the Court in the case at bar. Dr.Newlands’ testimony, taken at its face value, does not supply it.

It merely affords evidence of a mere possibility of some inaccuracy inthe check test, but no evidence as to the extent of such an inaccuracy in the case at bar or as to the possibility or probability of the effectwhich any such inaccuracy might have had upon the results of the breath analysis. The certificate therefore remains uncontradicted. . . . .

In my view in order to conclude that there was no evidence before the Magistrate to rebut the certificate, it is enough to note that the onlyevidence was merely of a possibility of a temperature difference without any indication that this could have affected the results to asignificant extent. While it is for the trier of fact to weigh the evidence, the question whether there is any evidence is a question of lawand an acquittal based on doubt resting on a conjectural possibility will be set aside: Wilde v.

The Queen, (SCC),[1971] S.C.R. 101. [54] As in Crosthwait, supra, all the Defence in the present case has raised is a possibility the Intoxilyzer was not being operatedproperly by Constable Flogan. There is no evidence that the Alcohol Standard Test results were not within the appropriate parameters,or even if they were not, what effect this would have on the accuracy of the results. As a matter of fact, the evidence is to the contrary.

The evidence is that the Alcohol Standard Tests were within acceptable parameters even though the Alcohol Standard Test results werenot read into evidence. [55] Therefore I am not satisfied the Defence has raised evidence to the contrary which would raise a reasonable doubt that theaccused’s breath tests were not reliable or accurate. The Crown can rely on the Certificate of Qualified Technician as proof of theaccused’s blood alcohol content at the time of the taking of the breath tests. [56] Before I move on to the next issue, I should comment on the Defence argument that the Greenough case supports hisposition.

The Greenough case says nothing different than Madam Justice Deschamps concluded in R. v. St.-Onge Lamoureux. Applying the dicta in the St.-Onge Lamoureux case, the

summary conviction appeal judge in Greenough found that there was evidenceto the contrary suitable at raising a reasonable doubt and overturned the trial judge’s decision. He pointed out that the trial judge did nothave the benefit of the St.-Onge Lamoureux decision at the time she rendered her judgment and he was simply applying the state of thelaw as it now was.

d) Was the accused’s

section 9 Charter right breached by the decision to hold him in police cells?

[57] Sections 497 and 498 of the Criminal Code require a peace officer to release a person arrested without warrant as soon aspracticable unless the officer has reasonable grounds to believe that they will fail to attend court or that their detention is necessary in thepublic interest to establish their identity, to secure or preserve evidence, to prevent the continuation of the offence or the commission ofanother offence or to ensure the safety of a victim or witness. Courts in this province have held that a failure to comply with one of theseexceptions is a breach of a person’s right not to be arbitrarily detained or imprisoned as guaranteed by

section 9 of the Charter. See R. v.Holbrook, 2008 SKPC 133 , [2008] S.J. No. 615 (Sask. Prov. Ct.); R. v. Paquette, 2002 SKQB 427 , [2002] S.J. No.613 (Sask. Q.B.); R. v. Charles, (SK CA), [1987] S.J. No. 489 (Sask. C.A.); R. v. Fox, 2007 SKPC 61 , [2007]S.J. No. 307 (Sask. Prov. Ct.). [58] In the present case, the accused was arrested for impaired driving around 2:10 a.m. He was taken to the Saskatoon Policestation where he provided two samples of his breath being .31 and .32. At 4:04 a.m. he was re-arrested by Constable Talic for dangerousdriving and driving while over .08.

After providing the accused his rights in relation to these new charges, the officer explained andserved a number of documents on the accused. He asked the accused if there was anyone who could come and pick him up. Theaccused did not provide any names to Constable Talic because he did not want to wake anyone up due to the lateness of the hour.

As aresult, the accused was lodged in cells and not released until 9:09 p.m. that evening, some nineteen hours after he was first arrested. [59] Constable Talic testified that the accused did not need to be held in custody for any reason except to prevent the continuationof the offence. He said that taking into account the severity of the accident, what had happened earlier on, the fact that he was makingbad decisions and that he was extremely intoxicated, he felt that if released the accused may try to drive.

He thought he had spoken tothe officer-in-charge of the detention area about his concerns but it was the officer-in-charge who made the decision about whethersomeone would be held and if so, when they would be released. The officer-in-charge did not testify in this case. [60] Based on Constable Talic’s evidence it is safe to infer that he passed along his concerns to the officer-in-charge and there wasconcurrence to hold the accused for those reasons.

Constable Talic admitted in cross-examination that the accused did not need to beheld in custody to ensure his attendance at court, to establish his identification, to preserve any evidence or to protect any victims orwitnesses. According to Constable Talic, the only reason to hold the accused was to prevent the continuation of the offence. However,the reasons he gave for believing that the accused would continue the offence do not, in my view, support this belief. I see no connectionbetween the severity of the accident or what happened before that would indicate that the accused would go out and drive again.

At thetime the decision was made to hold the accused, Constable Talic did not know if the accused’s truck was driveable or if it had beentowed from the accident scene or whether the accused had another vehicle but he never made any inquiries and he never heard theaccused say anything about driving. The accused had no prior criminal record, was cooperative and understood the documents that wereserved on him.

I accept that the accused’s level of intoxication led him to make a bad decision and drive home that night but looking atall the evidence as a whole, there was nothing to indicate that the accused was going to continue to make bad decisions and drive whilehe was still impaired and over .08. Constable Talic was at the accident scene and was aware the accused had run into a parked vehicleand pushed it into a house. He saw the damage to the accused’s truck, the other vehicle and the house. To think that the accused’svehicle was driveable was unrealistic.

Even on the remote chance that it was driveable, the accused’s truck would have been towed toeither a towing company’s compound or the police compound and not left in the front yard of 2619 Taylor Street. However you look atit, the accused was not going to be able to drive his vehicle if released nor was there any reason to believe that the accused had access toanother vehicle. [61] It is obvious from the testimony of Constable Talic that had the accused called a sober person to come and pick him up, theofficer would have released him.

I am surprised that he would have done this if he had a reasonable belief that the accused was going todrive again in the state that he was in. For all these reasons, I can only conclude that this belief was not reasonable. [62] Had Constable Talic testified that the accused was kept in cells because of his Intoxilyzer readings and his level ofintoxication, I would have found that it was reasonable to keep him in cells for awhile while he sobered up but I still would not havefound that it was acceptable to keep him in custody until 9:00 p.m. that evening. When initially lodged in cells, the accused fell asleep.

He was awakened for breakfast but declined and went back to sleep. He woke again when they brought lunch. There is no evidenceabout what time this was but common sense says it must have been somewhere between noon and 1:00 p.m. He was then awake until hewas released shortly after 9:00 p.m. that evening. Over this time period the undisputed evidence is that not one police officer came tocheck on his sobriety or inquire if there was someone he could call to come and get him. The only people who came to check on himwas an emergency medical technician and she did not apparently note anything the matter with him.

A commissionaire also came by buthe appears to have been doing rounds and never said a word to the accused. There was no apparent reason on the facts before me whythe accused could not have been released sometime in the afternoon. [63] Irrespective of these obiter comments, I am satisfied that the accused’s

section 9 Charter right not to be arbitrarily imprisonedwas violated in this case.

e) If the accused’s

section 9 Charter right was breached, what is the appropriate remedy pursuant to section 24(1) of the Charter? [64] In the years immediately following implementation of the Charter, courts struggled with what remedies were available undersection 24(1) of the Charter. In R. v. Mills, (SCC), [1986] 1 S.C.R. 863 (S.C.C.) the Supreme Court stated the followingabout section 24(1) remedies: [279] What remedies are available when an application under s. 24(1) of the Charter succeeds? Section 24(1) again is silent on thequestion.

It merely provides that the appellant may obtain such remedy as the Court considers “appropriate and just in thecircumstances”. It is difficult to imagine language which could give the Court a wider and less fettered discretion. It is impossible toreduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre-empt or cut down this wide discretion. No court may say, for example, that a stay of proceedings will always be appropriate in a giventype of case.

Although there will be cases where a trial judge may well conclude that a stay would be the appropriate remedy, thecircumstances will be infinitely variable from case to case and the remedy will vary with the circumstances. [65] Since this decision in Mills, case law has developed that a stay of proceedings, a reduction in sentence or civil damages forsection 9 Charter breaches in which a section 24(1) remedy is warranted is the norm. It has also become clear that the threshold forgranting a stay of proceedings is high and should only be granted in the clearest of cases. For example, see R. v.

Cutforth (1987), (AB CA), 40 C.C.C. (3d) 253 (Alta. C.A.); R. v. Paquette, supra; R. v. Hall, 2012 SKQB 233 , [2012] S.J. No. 382(Sask. Q.B.); R. v. Regan, 2002 SCC 12 , [2002] 1 S.C.R. 297 (S.C.C.); R. v. Iseler, (ON CA), [2004] O.J.No. 4332 (Ont. C.A.). [66] In R. v. Salisbury, 2011 SKQB 153 , [2011] S.J. No. 259 (Sask. Q.B.) aff’d at 2012 SKCA 32 , [2012] S.J.No. 159 (Sask. C.A.), Mr. Justice Gerein, sitting on a

summary conviction appeal, agreed with the trial judge that the accused’soverholding in police cells for some nine and a half hours was an arbitrary detention but disagreed that a stay of proceedings was theappropriate remedy. In setting aside the stay, he stated: [11] . . . It is accepted that there was a breach of s. 9 of the Charter. However, it occurred after the commission of the offences and afterthe investigation had been completed. There was no connection between the breach and the charges. That being so, the remedy in thiscase was disproportionate to the violation of the Charter.

That is not to say there should be no remedy; only that the remedy should bedifferent. [67] In this case, the breach of the accused’s

section 9 Charter right occurred after his drinking and driving investigation wascomplete and charges had been laid. There was no connection between the breach by overholding and the obtaining of evidence. Whileit was not acceptable that the accused was held this long, it did not impact the fairness of the trial. As such, this is not the clearest ofcases in which to order a stay of proceedings. The accused however is entitled to a remedy. In my view, an appropriate remedy in thesecircumstances is a reduction in sentence.

This reasoning is consistent with the decision of my brother, Judge Hinds in the case of R. v.By, [2013] S.J. No. 347 (Sask. Prov. Ct.) wherein he was faced with a similar situation. CONCLUSION [68] On the basis of the above analysis, I acquit the accused of dangerous driving but find him guilty of the offences of impaireddriving and driving while over .08. Considering the rule against multiple convictions set forth in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729 (S.C.C.), I will enter a judicial stay on the charge of impaired driving. [69] I am satisfied on the evidence that I heard, that the accused’s

section 9 Charter right was violated by a decision to hold theaccused in custody for some nineteen hours. Pursuant to section 24(1) of the Charter, a reduction in sentence would adequately reflectthe seriousness of the breach and the Court’s view that a detention or imprisonment for no valid lawful reason is inexcusable.

___________________________ D.E. Labach, J