Her Majesty the Queen - v. -, 2011 SKPC 161

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 161 Date: October 18, 2011 Information: 46743088 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Sajec Appearing: Mr. Bryce Pashovitz For the Crown Mr. Michael Owens For the Accused JUDGMENT D.C. SCOTT , J BACKGROUND [ 1 ] The accused, Michael Sajec, is charged with operating a motor vehicle while over .08 contrary to s. 253(1) (

b) of the Criminal Code . A charge of operating a motor vehicle while impaired, contrary to s. 253(1)(

a) of the Criminal Code , was stayed at the conclusion of the evidence.

[ 2 ] The trial commenced March 3, 2011. An application was made by Mr. Sajec to exclude the Certificate of Analyses on a number of grounds (alleging his s. 9 Charter rights were violated; that the officer had no basis for stopping the accused; that the officer did not have a reasonable suspicion to make the ASD demand; that there were no reasonable and probable grounds to make an intoxilyzer demand; that the ASD test was not taken within the recommended 15 minute time frame; and that the ASD was not properly calibrated).

Following a voir dire , the Certificate of Analyses was admitted into evidence by oral decision of May 4, 2011. [ 3 ] The trial continued on August 19, 2011, at which time all evidence on the voir dire was applied to the trial proper, including the testimony of Cst. Yurach, Cst. White and Michael Sajec, along with the Certificate of Analyses. The Crown closed its case and stayed the impaired driving charge.

Defence counsel chose not to call further evidence on the trial proper. [ 4 ] In argument, Defence counsel raised a new issue—that is, whether the Crown had complied with the requirements in ss. 254(3) and 258(1) (c)(ii) of the Criminal Code that breath samples be taken “as soon as practicable”. Defence counsel stressed that this argument was not directed at the admissibility of the certificate, but rather at whether the certificate could be relied upon if the breath samples were not taken “as soon as practicable”.

This raises several issues, including the timing and procedure of the application, whether the breath samples were taken “as soon as practicable” in accordance with the provisions of the Criminal Code , and if not, what bearing this has in law on the reliability of the certificate. FACTS RELEVANT ON THIS APPLICATION [ 5 ] On March 17, 2010, at 7:47 p.m. Cst. Yurach stopped the vehicle driven by the accused shortly after it pulled away from the curb on 37 th Street and Idylwyld Avenue, in Saskatoon, adjacent to Ally Katz Bar. The purpose of the stop was to check for sobriety. At 7:53 p.m. the officer asked Mr.

Sajec when he had consumed his last drink. At 7:55 p.m. an ASD demand was made. At 8:00 p.m. the accused took the roadside test, providing a “fail” reading. At 8:01 p.m. the accused was arrested and the officer made an intoxilyzer demand. At 8:04 p.m. the officer read to the accused his rights and warnings. Mr. Sajec declined the opportunity to contact legal counsel. [ 6 ] The accused had with him in his vehicle, a female passenger who Cst. Yurach described as intoxicated to the point of being “pretty much passed out in the front seat”. Cst. Yurach was alone on his patrol.

He called for a police car to attend, so other officers could deal with the female passenger. [ 7 ] Cst. Yurach did not note when he and Mr. Sajec left the scene but testified it took approximately 10 minutes to drive to the Saskatoon Police Station, with no stops or delays on the way. [ 8 ] At 8:27 p.m. Cst. Yurach and the accused arrived at the police station. There was no breath technician on duty at the station, but Cst. Yurach is himself such a technician. Cst. Yurach asked for the assistance of Cst. White to stay with the accused and to complete the investigative check sheet while Cst.

Yurach prepared to administer the test. [ 9 ] Cst. Yurach testified that between 8:27 p.m. and 8:44 p.m. he prepared the intoxilyzer and completed his interview notes. [ 10 ] At 8:32 p.m. Cst. White met the accused in an interview room and at 8:33 p.m. he read to the accused the secondary warning. Again, Mr. Sajec did not wish to speak with a lawyer. At between 8:35 p.m. and 8:36 p.m. Cst. Yurach returned to the interview room, explained the process to Mr. Sajec and again read to him the secondary warning regarding his right to counsel. Cst.

White testified it took approximately two to three minutes to complete the investigative check sheet. [ 11 ] The first breath sample was taken at 8:44 p.m. resulting in a reading of 180; the second sample was taken at 9:05 p.m. resulting in a reading of 180. At 9:10 p.m. Mr. Sajec was charged and at 9:30 p.m. he was released. [ 12 ] In his testimony, the accused did not dispute the times attested to by the officers.

ISSUES 1. What is the appropriate procedure for raising an application of this nature? 2. Was the breath test administered “as soon as practicable”? If not, what is the effect of a failure to comply with this requirement? DEFENCE ARGUMENT [13] Defence counsel argued the breath test was not administered as soon as practicable, given that 43 minutes elapsed between thedemand for a breath sample and the first breath test.

Further, it was submitted that failure to comply with the statutory requirement thatthe test be administered as soon as practicable affects the reliability of the certificate and not its admissibility. Defence counsel did notask that I exclude the certificate, but rather, that I not rely upon it. [14] A number of cases were provided by Defence counsel, which I have reviewed and considered, including R. v. Evett, [1999]S.J. No. 92 (P.C.); R. v. Fyfe, 2007 SKPC 56; R. v. Hiebert, [2004] S.J. No. 664 (Q.B.); R. v. Goss, 2008 ABPC 10 , [2008] A.J.No. 116 (P.C.); R. v. McDonald, 1990 unreported; R. v.

Lott, [1997] S.J. No. 134 (P.C.); R. v. Wetzel, 2011 SKPC 9 , 2011SKPC 009; R. v. Huot, [2001] S.J. No. 356 (P.C.); R. v. Allin, [2003] S.J. No. 289 (P.C.); R. v. Claughton, [1998] O.J. No. 3515 (Ont.C.J.); R. v. Keddy, [1995] N.S.J. No. 526 (S.C.); R. v. Whitesell, (BC SC), [1998] B.C.J. No. 303 (S.C.); R. v. Wan,2007 ONCJ 102 , [2007] O.J. No. 987 (Ont. C.J.); R. v. McAllister, [2009] A.J. No. 1173 (P.C.); R. v. Mario, [2010] A.J. No.1163 (P.C.); R. v. Zirtz, [2000] S.J. No. 233 (P.C.). Cases of this nature depend largely upon their unique facts. Of particular assistancewas the decision of R. v.

McCoy, (SK KB), [1990] S.J. No. 657 (Q.B.). CROWN ARGUMENT [15] The Crown relied on the decisions in R. v. Forsythe, [2010] 251 Man. R. (2d) (C.A.) (leave to appeal to S.C.C. denied June10, 2010) and R. v. Epp, 2010 SKPC 89 , 2010 SKPC 089. In particular, the Crown argued that this application ought to havebeen brought as part of the earlier Charter application and that the Defence should not be allowed, in essence, to split its case. In anyevent, the Crown argued that the breath test was administered as soon as practicable in the circumstances of this case. ANALYSIS 1.

What is the appropriate procedure for raising an application of this nature? [16] The Crown, relying on Forsythe, argued the Defence ought to have made its argument with respect to this issue at the sametime as its application for exclusion of the certificate earlier in these proceedings. [17] Prior to the Charter, failure to comply with a statutory requirement that an officer have reasonable and probable grounds didnot render the Certificate of Analyses inadmissible (R. v. Rilling, [1976] S.C.R. 183).

[18] The Court in Forsythe held that Rilling is still good law and applies to applications to exclude the certificate for failure tocomply with the requirement that the test be taken “as soon as practicable”. However, it was the Forsythe Court’s view that the Charterought to be the mechanism used to challenge the admissibility of a Certificate of Analyses.

Such an approach would avoid theunnecessary complexity in bringing two different motions, as was done in the case before this Court, one, dealing with Charter issuesand non-compliance issues; and a second dealing with a further non-compliance issue. [19] I recognize Defence counsel in this case argued that whether the test was taken as soon as practicable, ought to affect thecertificate’s reliability rather than its admissibility. Nonetheless, it is my view the better approach would have been to raise this issue inthe context of the accused’s Charter application.

However, I will consider the matter on its merits. 2. Was the breath test administered “as soon as practicable”?

If not, what is the effect of a failure to comply with this requirement? [20] Section 254(3) of the Code provides that if a police officer has reasonable grounds to believe an accused committed anoffence under s. 253 of the Code within the previous three hours, the officer may demand as soon as practicable and require the accusedto provide as soon as practicable a sample of his breath. [21] As a general rule, the phrase “as soon as practicable” does not require that the breath test be taken at the earliest possiblemoment.

The Court must look at the whole chain of events bearing in mind the Code permits an outside limit of two hours from the timeof the offence to the time of the first test. If there is a vacuum in the evidence with respect to the time between the demand and the test,the Court is not allowed to speculate in order to fill the vacuum. [22] The critical issue is whether the conduct of the police was reasonable having regard to all of the circumstances (R. v. Payne(1990), (ON CA), 56 C.C.C. (3d) 548 (Ont. C.A.)). [23] In McCoy, Gerein J. held the Crown must establish that samples were taken within a reasonable time.

What is reasonable willdepend on the particular circumstances of each case. The trial judge may have reference to his or her own experience. The Crowncannot be expected to account for every minute or even several minutes lost over a period of time. However, when the time lapse is oneof considerable or unusual duration, then the Crown must provide an explanation for the delay. If the explanation is accepted as properthen the lapse of time remains reasonable. If not, the Crown cannot rely on the presumption. [24] According to the Saskatchewan Court of Appeal in R. v. Carter (1981), (SK CA), 59 C.C.C. (2d) 450(Sask.

C.A.), the requirement must be applied with reason. The Court held there is no need to explain every incident which occurredfrom the time of the offence to the time the samples were taken unless the trial judge is not satisfied on the evidence that the sampleswere taken as soon as practicable. [25] In the case before this Court the intoxilyzer demand was made at 8:01 p.m. The first breath sample was taken 43 minutesafter the demand at 8:44 p.m. [26] During that time, Cst. Yurach read to the accused his rights and called for another police car to attend to and deal with theintoxicated passenger.

No evidence was presented with respect to when that assistance arrived or when Cst. Yurach and the accused leftthe scene. The officer testified it took 10 minutes to drive to the police station arriving at 8:27 p.m. Their arrival time was verified byCst. White. It follows they would have left the scene at approximately 8:17 p.m. [27] A 10-minute drive to the police station from Idylwyld Drive and 37th Street in Saskatoon, would not have been unreasonable. Accordingly, there are two periods of time for the Court to consider: one at the scene and the other at the police station.

[ 28 ] At the scene, from 8:01 p.m. to 8:17 p.m. (16 minutes), the officer made the intoxilyzer demand, read to the accused his right to counsel, and requested and waited for someone to attend to the accused’s passenger. The officer’s actions in calling for another car to assist with the intoxicated passenger were reasonable in the circumstances. The passenger was not in a condition to leave the scene on her own. Cst. Yurach was alone, when he stopped Mr. Sajec. There was not a second officer to remain at the scene with the passenger. The wait was not unduly long.

I find that a period of 16 minutes for these steps to occur to have been reasonable. [ 29 ] At the police station, from 8:27 p.m. to 8:44 p.m. (17 minutes), the accused was read his secondary rights, the machine was prepared, the officer made entries in his notes and the investigative check sheet was completed. Some time was needed by Cst. Yurach to prepare the machine, given he was the only qualified technician on duty. Cst. White assisted by reading to the accused his secondary rights and warnings and completing the investigative check sheet.

I find the time taken at the police station of 17 minutes to read to the accused his rights, to prepare the intoxilyzer machine and to allow the officer to complete his notes and check sheet to have been reasonable, given there was no other officer available to conduct the test. [ 30 ] Although the Defence argued that an excessive and unnecessary amount of time was taken completing the investigative check sheet, Cst. White testified it took 2 – 3 minutes to do so. [ 31 ] It is my view that the time from the demand to the taking of the first sample was satisfactorily explained by the Crown witnesses.

I accept the explanations provided as proper. Therefore, the lapse of time of 43 minutes from demand to test is reasonable, in the circumstances of this case. [ 32 ] Furthermore, s. 258(1)(c)(ii) of the Code provides that, unless there is evidence to the contrary, the Certificate of Analyses is conclusive proof of the concentration of alcohol in an accused’s blood, where breath samples are taken pursuant to a demand under s. 254(3), if each sample is taken as soon as practicable after the time when the offence was alleged to have been committed, and other requirements are met.

Section 258(1)(c)(ii) in essence requires that the certificate be relied upon, if the statutory requirements have been met and where, as here, no evidence to the contrary has been presented. CONCLUSION [ 33 ] In all of the circumstances, I find the test was administered within a reasonable time and the requirements of ss. 254(3) and 258 of the Code that breath samples be taken as soon as practicable have been met. Further, the test was administered within the two hour limit as required by s. 258 of the Code .

The Crown is therefore entitled to rely on the statutory presumption in establishing the accused’s blood alcohol content. And, the Court is entitled to rely upon the Certificate of Analyses as conclusive evidence of the accused’s blood alcohol content at the time of driving. The readings were 180 and 180. I therefore find the accused guilty as charged. _______________________________ D.C. Scott, J