Her Majesty the Queen - v. -, 2014 SKPC 30

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 030 Date: February 26, 2014 Information: 43832538 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gerard Michael Hogan Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Merv Nidesh, Q.C. For the Accused JUDGMENT M.

GORDON , J [ 1 ] Gerard Michael Hogan is charged on or about the 30 th day of May A.D. 2010, at or near Moose Jaw, Saskatchewan, did: - having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code ; and - 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 .

INTRODUCTION [ 2 ] Mr. Hogan was not present. The Crown has proceeded summarily and the defence is prepared to admit identity. Therefore, the matter proceeded to trial. By agreement all the evidence was given on a Charter voir dire and all admissible evidence on the voir dire will be applied to the trial proper. [ 3 ] Cst. Adrian was on general patrol duty on May 30, 2010 in Moose Jaw. He observed a vehicle’s headlights coming towards him at such a speed that the headlights bounced in the dark.

He saw this vehicle, which turned out to be a white Ford truck, drive over the centre line into oncoming traffic and then back to its own lane. The truck paused about five seconds, too long in the officer’s opinion, at an intersection before turning. He followed the vehicle about two or two and a half blocks and then signalled for it to pull over. At this point, the officer activated the lights on his patrol car and pulled the vehicle over as he had suspicions about the sobriety of the driver due to the driving actions he had observed.

The vehicle pulled over without incident and the officer noted at 2:25 the subject vehicle stopped as required. [ 4 ] Constable Adrian approached the driver’s side of the truck and through the open window the officer could smell beverage alcohol when speaking with the accused. The officer noted what appeared to be a brown liquor store bag on the passenger side truck floor. However, the officer did admit that was an assumption on his part. The police officer made two requests of the driver, namely for the driver to produce his driver’s licence and registration. Mr.

Hogan produced his driver’s licence without difficulty but the officer had to ask again for the registration. The female passenger obtained the registration from the glove box and handed it to Mr. Hogan, who dropped it before retrieving the registration and giving it to the officer. [ 5 ] At the request of Constable Adrian, Mr. Hogan exited his truck and walked to the patrol car. The officer described Mr. Hogan’s walk as “pretty good”, but he did notice a slight sway. The officer also noted that Mr. Hogan was very difficult to understand. He had either a very thick accent or his speech was slurred. [ 6 ] Mr.

Hogan was sitting in the back of the police vehicle with the safety patrol open. The officer noted a smell of beverage alcohol coming from Mr. Hogan. At 2:28, the officer made the ASD demand which he read from a card. The officer has been a qualified operator of the approved screening device since 2002. [ 7 ] The officer checked the sticker on the ASD device to ensure it was within the calibration time. The officer admitted he did not record the expiration date or the make and model of the approved screening device in his notebook.

The officer was aware these devices require maintenance as he was a technician, and his only concern is that he was within the time for use according to the sticker. [ 8 ] The officer admitted in cross-examination he read the ASD demand exactly from his card and used the words “alcohol or drugs” even though the officer had no suspicion that the accused had drugs in his system. The officer also used the words “accompany me” even though Mr.

Hogan was already in the back of his police vehicle. [ 9 ] The officer concluded that he made the ASD demand relying on the following observations; the smell of beverage alcohol when Mr. Hogan sat in the police vehicle; the slight sway when walking; the very noticeable speed of the vehicle and the slurred speech which the officer admitted could have been a thick accent. The officer showed Mr. Hogan the “fail” on the screen and as a result of the fail, at 2:31 Mr. Hogan was placed under arrest for impaired driving. [ 10 ] The officer read Mr. Hogan his Charter rights and police warning. Mr.

Hogan responded that he understood but he did not know a lawyer. [ 11 ] At 2:55 a.m., Constable Adrian arrived at the police station with Mr. Hogan. At 3:03 a.m. Mr. Hogan used the washroom, was booked in and searched. The technician, Constable Coglin, had been contacted ahead of time. Constable Adrian heard the accused

tell Constable Coglin that he did not want to contact a lawyer. [ 12 ] Constable Adrian admitted that he had not included in his police report that he had heard this discussion about counsel between Constable Coglin and the accused. The Certificate of Analyses was entered as Exhibit P-1 on the voir dire . The defence called no evidence. DEFENCE POSITION [ 13 ] The defence has made a Charter application alleging breaches of ss. 7, 8, 9, 10 and 11 of the Charter and citing many well- known cases in support.

The defence asked for a remedy pursuant to s. 24(1) or s. 24(2) of the Charter of Rights and Freedoms as the case may be. [ 14 ] This is not the first time the matter has been set for trial. The Crown at one point gave notice objecting to the general nature and other deficiencies of the defence Charter notice.

The Crown requested further written particulars so the Charter notice would conform with the Practice Directives from this Court that require the defence provides sufficient particulars so as to allow the Crown to determine the nature of the alleged violation and the evidence which the Crown may need to call to refute such alleged violations. [ 15 ] Mr. Nidesh maintains his Charter notice is sufficient in that it states that the accused was subject to a warrantless search and is prepared to rely on his notice.

In particular he states that the ASD demand was not made forthwith, the ASD demand was deficient as it contained words that were not necessary and therefore, there is a resulting breach as the officer was relying on the fail result from the ASD to make the breathalyzer demand. As well, the defence submitted that the accused is from Australia and there was no valid waiver of counsel choice. Finally, the defence argued there was a breach of s. 10(

a) of the Charter as Mr. Hogan was not told of the reason for his stop and what was required of him. [ 16 ] At the conclusion of this discussion and the urging of this Court, counsel agreed that the trial should proceed as this was the fifth time this matter had been set for trial. I should be clear that not all the adjournments were defence requests and the defence did waive delay. [ 17 ] The defence advanced several arguments and requested either a stay of proceedings or exclusion of evidence pursuant to ss. 24(1) or 24(2) of the Charter . The arguments can be summarised as follows: 1. Breach of s. 10(

a) of the Charter . The police officer did not articulate to Mr. Hogan sufficiently the reason for his detention and why he should accompany the officer back to his police vehicle. 2. Lack of reasonable grounds to make the demand under s. 254(3) of the Criminal Code . The police officer relied on the ASD “fail” result. The Crown has not proven that this was a valid ASD demand; that this was an approved device, and; that it was operational. 3. The failure by the police officer to disclose vital information to the defence.

Example: The exchange between Constable Coglin and the accused when the accused said he did not want to contact a lawyer and the notes made by the police officer on a police check list were not disclosed. [ 18 ] The Crown’s response can be summarised as follows: 1. The warrantless search. The police officer had the necessary grounds to make the ASD demand and as a result of the “fail” was the demand pursuant to s. 254(3) of the Criminal Code lawful?

The Crown noted the observations that the officer testified to were sufficient to establish that he had a subjective belief that the accused had alcohol in his body and objectively there was evidence to support this;

2. A judicial stay should only be granted in the clearest of cases. There is no evidence that the accused ever asserted in anyway hisinterest in calling a lawyer. There is no suggestion that the officer’s testimony is not true. There is no evidence that the accused is fromAustralia and what relevance that has to the proceedings. With respect to the argument under s. 10(

a) of the Charter, the Crown reliedon the cases of R. v. Glass, 2013 SKPC 31 and R. v. Carriere, 2010 SKPC 118. ANALYSIS Was there a violation of Mr. Hogan’s right under s. 10(

a) of the Charter, that he was not properly advised of the reason for hisdetention? [19]

Section 10(

a) of the Charter provides that everyone has the right on arrest or detention to be informed properly of the reasonthereof. In this case, Constable Adrian stopped the suspect vehicle at 2:25 a.m., after observing some driving actions such as the highrate of speed, the swerving, and stopping too long at the intersection. He was suspicious that the driver was impaired. After smellingbeverage alcohol when speaking with Mr. Hogan in his truck and asking for Mr. Hogan’s driver’s licence and registration, he asked Mr.Hogan to walk to his police vehicle. Constable Adrian described Mr.

Hogan’s walk as “pretty good” but there was a bit of a sway. Oncethe accused entered the back of the police vehicle, the officer smelled beverage alcohol. As a result, the officer made the ASD demandat 2:28 a.m. This is some three minutes later from the time of the stop and immediately after the officer had isolated Mr. Hogan in theback of the police vehicle. The officer was of the opinion he had a reasonable suspicion to make the approved screening device demand. [20] This issue was considered by His Honour Judge Rosborough in R. v.

Gross, 2012 ABPC 286, where at paragraphs 67 and 68he stated: While it is unfortunate that Det. Steil could not accurately articulate the requirements of the Charter, s.10(a), this will not impugn hisinvestigation, providing he complies with it. On these facts I find that he did so. Gross’ Charter, s.10(

a) right was neither infringed nordenied. The cautious and diligent police officer will verbally advise detainees why they have been stopped at roadside, why they are asked toexit their motor vehicle and why they are being taken to a police vehicle. This, even when the circumstances make those reasonsobvious. The case of Klug reinforces the value of doing so. Nevertheless, the fact that this would prevent needless litigation of this issueor otherwise constitute a ‘best practice’ does not elevate it to the status of a constitutional norm.

I am satisfied on the basis of bindingauthority that, where the reasons are obvious and the detainee, as here, understands the nature of the process underway, additional verbaladvice is not constitutionally mandated. [21] This is similar to the case of R. v. Carriere, 2010 SKPC 118, where his Honour Judge Kalmakoff concluded that the ASDdemand made three minutes from the time of the stop sufficiently informed the accused the reason for his detention. This is very similarto the case here in that within three minutes of the time of the stop, the officer made the approved screening device demand on Mr.Hogan.

This is also the approach taken by His Honour Judge Kovatch in R. v. Glass, 2013 SKPC 31. At paragraph 16 in R. v. Glass,Judge Kovatch notes that even if he is wrong in his conclusion, that the police officer did not obtain any evidence by reason of thisfailure. I concur with that statement and again say from the time of the initial stop until three minutes later when the ASD demand wasmade, Constable Adrian spoke to the accused in a professional and polite tone and the accused complied with his request. The officerdid not compel Mr. Hogan to perform any sobriety tests or incriminate himself in any other way.

Therefore, to reiterate, even if I amwrong and there was a breach, if the analysis as outlined in R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, was done, I wouldconclude that the officer’s evidence is admissible. Therefore the defence’s application for a Charter breach under s. 10(

a) is dismissed. Was there a violation of Mr. Hogan’s rights under ss. 8 and 9 of the Charter with respect to obtaining the samples of his breath? [22] Sections 8 and 9 of the Charter read as follows: s. 8 Everyone has the right to be secure against unreasonable search or seizure.

s. 9 Everyone has the right not to be arbitrarily detained or imprisoned. [23] Mr. Hogan argues that the breath samples were obtained without a warrant and are therefore unreasonable and a violation ofhis Charter rights. Therefore the persuasive burden shifts to the Crown to show on a balance of probabilities that the actual search andseizure was reasonable. The breath tests can only be justified if it is authorized by law, the law itself is reasonable and the manner inwhich the search is conducted is reasonable. Here the issue is whether the search was authorized by law.

Did Constable Adrian have reasonable and probable grounds to make the breathalyzer demand pursuant to s. 254(3) of the CriminalCode? [24] This requires an examination of the events leading up to the Intoxilyzer demand. The defence submitted that the policeofficer made an unlawful approved screening device demand under s. 254(2) which resulted in an unlawful Intoxilyzer demand under s.254(3) of the Criminal Code. [25] The defence claimed that the police officer did not have reasonable and probable grounds to arrest Mr.

Hogan for impaireddriving and as a result, the breath demand under s. 254(3) of the Criminal Code was unlawful. [26] The defence argues two points in relation to the approved screening device demand under s. 254(2) of the Criminal Code. First, the defence argues that the officer did not provide the exact description of the ASD device used to determine if it conformed to theone approved in the regulations in the Criminal Code. [27] Constable Adrian testified he used an approved instrument. He checked the sticker on the ASD to ensure that he was withinthe calibration period.

He was an approved technician and had been since 2002. In R. v. Gundy, 2008 ONCA 284 , [2008] 231C.C.C. (3d) 26, the Ontario Court of Appeal at paragraph 44 stated as follows: In determining whether the particular device was approved the Court must consider all the evidence, including any circumstantialevidence. The Court is entitled to draw reasonable inferences from the evidence. Thus, in my view, if the officer in his or her testimonyrefers to the device as an “approved screening device”, the trial judge is entitled to infer that the device was indeed an approved device.

As such, the officer is entitled to rely upon the “fail” recorded by the device to find that there was reasonable and probable grounds tomake the breath demand. [28] The Court goes on at paragraph 45 to state: The officer is not required to refer to the device by its particular brand and number such as, “Alcotest 7410 GLC”. Further, references topart only of the identification such as “Alcotest” or “Alcotest GLC” do not rebut the reasonable inference from the officer’s reference tothe device as approved that it is indeed an approved screening device.

The addition of the manufacturer’s name for example “Dreger Alcotest 7410 GLC” is likewise not fatal. See R. v. Neziol, [2001] 22 M.V.R. (4th) 299 (Ont. S.C.J.). Further in my view the context inwhich the officer refers to the device as approved is of no particular moment. Thus, if the officer testifies that he or she used anapproved screening device or agrees with the suggestion that it is an approved screening device, such testimony is direct evidence upon which the trial judge can rely: See eg. R. v. Latulippe, [2005] 26 M.V.R. (5th) 97 (Ont.

S.C.J.). [29] I agree with the reasoning in Gundy and this accords with decisions of our Court and I find that the officer used an approveddevice. [30] The defence argued that the ASD demand was not lawful because the officer read the demand from his card and used wordsthat were not applicable in the situation. In particular, the officer included in the demand that he read “accompany me” and “drug”. Thepolice officer admitted that these words were not necessary. Mr. Hogan was already seated in the back of the police vehicle and theofficer did not have any suspicion that Mr. Hogan was impaired by a drug.

[31] R. v. Torsney, 2007 ONCA 67 , [2007] 217 C.C.C. (3d) 571, at paragraph 6, leave to appeal to the Supreme Court,refused 2007, Supreme Court S.C.C. 126, stated the demand need not be in any particular form. This was also followed in R. v. Caplette,2010 SKPC 32. The use of these words did not take away from what was required of Mr. Hogan. The demand must make it clear to thedetainee that he was to provide a sample of his breath forthwith. I am satisfied that this was sufficiently indicated to Mr.

Hogan. [32] The defence asks the Court to enter a judicial stay as the Crown has failed to disclose a vital piece of evidence. In particular,the police officer did not include in his notes that he heard Cst. Coglin ask the accused if he wanted to contact counsel and the accuseddeclining. In addition, the defence argues the Crown did not disclose in the police report the “check list” form used by the police.

Thislatter piece of evidence goes to grounds to make the Intoxilyzer demand according to the defence argument. [33] The Crown responded by stating that a judicial stay is only to be made in the clearest of cases. The obvious remedy here, ifany, would be an adjournment to allow the defence to evaluate its position and prepare a further Charter application and call furtherevidence. There is no evidence to suggest that the officer’s evidence is not true. [34] I agree with the Crown. This is not the clearest of cases. Adjournment would have been the proper remedy. It was notrequested.

The burden to establish a Charter breach is borne by the defence. Again, if there was any other response other than trying totake advantage of this situation, an adjournment if requested would have been the proper remedy. [35] I have said before that the police officer’s notes are for the benefit of the officer. Therefore the detail in the notes will vary. Imust say though it would be good practice to include a brief notation such as a discussion or compliance with s. 10(

b) of the Charter hadoccurred. Now the evidence here is that there was no notation of Cst. Adrian being present when Cst. Coglin asked the accused againabout whether he wanted to call a lawyer. Cst. Adrian had previously advised the accused of his s. 10(

b) Charter rights and the accusedhad declined. The evidence is not clear whether this was in Cst. Adrian’s notes that he made in his notebook and made at the time orshortly thereafter. Also Cst. Coglin was not called as a witness by the defence, so I do not know anything further about thisconversation. Most importantly, however, the only evidence I have is that the accused was asked if he wanted to speak to a lawyer andhe declined. There is no evidence indicating the accused had questions, wanted more information or clarification or that he made anyrequests to the officer to contact counsel. [36] In R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 at paragraph 17, the Court explained that s. 10(

b) of the Charterimposes three duties on the police with respect to someone whom they arrest or detain, namely: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [37] The accused must be reasonably diligent in the circumstances.

The Charter right is to be informed of one’s right to retain andinstruct counsel without delay. In this case we do not get to the second and third requirements, being the implementational duties of thepolice, as the accused did not give any indication he wanted to contact private counsel or Legal Aid. Mr. Hogan did not testify on thevoir dire and therefore the only information the Court is left with is the evidence of Cst. Adrian which I have no reason not to accept. [38] In conclusion I am not satisfied on a balance of probabilities that any of the accused’s rights were violated.

The accused’sCharter applications are denied and all evidence will be admitted from the voir dire to the trial proper. IMPAIRED DRIVING

[39] The well-known case of R. v. Stellato, (SCC), [1994] 2 S.C.R. 478 sets out the law with respect to therequirements of impaired driving. The impairment of the accused must relate to his ability to drive, as stated: Accordingly before convicting the accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate amotor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonabledoubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairment ranging fromslight to great, the offence has been made out. [40] Cst. Adrian’s observations of Mr. Hogan are as follows: (1) smell of beverage alcohol from the vehicle; (2) brown paper bag on the floor between the passenger and driver’s area that the officer assumed was a liquor store bag; (3) the accused had to be asked twice for the vehicle registration and he dropped it when his passenger handed it to him; (4) his walk to the police vehicle was “pretty good” although there was a bit of a sway;

(5) Mr. Hogan was noted to have a thick accent; and (6) the smell of alcohol coming from him. [41] I considered these observations along with the manner of driving observed by the officer. The first thing Cst. Adrian noticedwas the headlights of the truck “bounced in the dark” indicating it was travelling at an excessive speed. The vehicle slowed at theintersection. The vehicle crossed the centre line and then back to its lane. In addition the officer was of the opinion the truck paused toolong, in excess of five seconds, at the intersection.

It is to be noted there was no traffic and the truck pulled over without incident. [42] Considering all of the evidence, I am not satisfied that these observations indicate behaviour that proves beyond a reasonabledoubt that the accused is guilty of impaired driving. The smell of alcohol in the vehicle could indicate that some alcohol had beenspilled on the accused or in the truck. The paper bag that looked like it was a liquor store bag tells me nothing as there was no evidenceof its contents. The speed and slight swerving may be evidence of poor driving at this time of night.

The truck was bouncing accordingto the officer, but I have no information as to the road conditions, the kind of truck, or for the length of time he made this observation. Pausing too long at the intersection is not very helpful. It could be that the accused saw the police vehicle and was being extra cautious. It is noted the truck stopped without any other unusual observations and Mr. Hogan walked to the police vehicle. The officer seemed toadd the comment about slight sway as an afterthought. [43] In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320 (S.C.C.), Mr.

Justice Cory said at paragraph 39, when talkingabout proof beyond a reasonable doubt: Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. [44] Therefore, I am not prepared to convict the accused of the impaired driving charge as when I consider the evidence as awhole, I am left with a reasonable doubt. [45] In conclusion, I find that the breathalyzer demand was properly made and the samples were properly received within themeaning of s. 254(2) of the Criminal Code.

The seizure of breath samples was authorized by law and as a result, there has been noviolation of the accused’s Charter rights. Accordingly, the evidence received from and after the ASD demand is properly admissibleagainst the accused. Mr. Hogan is found guilty on count 1.

M. Gordon, J