Her Majesty the Queen - v. -, 2013 SKPC 149

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 149 Date: September 20, 2013 Information: 24496404 Location: Kamsack _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brice Michael Proskie Appearing: Andrew Wyatt For the Crown David Kreklewich For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] Mr. Proskie is charged with operating a motor vehicle while impaired by alcohol and operating a motor vehicle with more than 80 mg% of alcohol in his blood. The prosecutor concedes that there is insufficient evidence to convict Mr.

Proskie of impaired driving. The one issue raised by the defence on the over 80 charge is whether the police officer took an ASD sample forthwith from Mr. Proskie after demanding he provide this. Mr. Kreklewich argues he did not, and that as a result the provisions of s. 254(2) were not complied with and Mr. Proskie’s rights under s. 8, 9 and 10(

b) of the Charter were infringed. He seeks to exclude the Certificate of Analyses and other evidence arising after the breach pursuant to s. 24(2) of the Charter .

[ 2 ] Mr. Proskie admits that he was driving at 3:30 p.m. on March 15, 2013. Other than this admission, the evidence on the Charter issue and the trial proper was presented through the testimony of Cst. Anthony Williams and Cst. David Cobbledick, both of the Kamsack RCMP. II. RELEVANT EVIDENCE Cst. Williams [ 3 ] Just after 3:30 p.m. this afternoon Cst. Williams was driving west on Highway 5 near Kamsack. He received a radio dispatch that there was a motor vehicle accident three to four miles west of Kamsack on this highway.

As he was travelling in the direction of the accident, it took him only about a minute to get to the location of the vehicles. He first came upon a truck and trailer unit that had extensive damage to the rear wheels and trailer area. The other vehicle, which belonged to Mr. Proskie, was about a half a mile west on the highway, in the north ditch. Cst. Williams stopped by the truck, and walked up to its cab. He spoke to the driver of that vehicle, and noted that Mr.

Proskie was seated in the back seat, as the truck driver was giving him refuge from the frigid weather of that day. [ 4 ] After speaking to the driver and otherwise investigating the accident, Cst. Williams took a warned statement from the truck driver at 4:10 p.m. He then took a warned statement from Mr. Proskie at 4:25 p.m., which took two to two and a half minutes. That statement was taken by the officer in the front seat of his police vehicle. The officer said Mr. Proskie was not detained. He told Mr. Proskie it was possible he would be charged with an offence under The Traffic Safety Act . [ 5 ] Cst.

Williams said that Mr. Proskie then asked to go back to his vehicle and get some personal items. As a result, he drove Mr. Proskie to his vehicle, and both men walked to it. Cst. Williams arrived first, and noted a can of Budweiser beer and a half collapsed case of Budweiser beer in the snow beside the door of the vehicle. Cst. Williams asked Mr. Proskie to come down to the vehicle, and then asked him if he had consumed alcohol. Mr. Proskie said he had drank two beer. [ 6 ] Cst. Williams told Mr. Proskie to come back to the police vehicle with him to talk about the beer. The officer walked behind Mr.

Proskie and noted that he wasn’t walking in a straight line and that he was weaving to the right and to the left. The officer said, at this point, he formed a suspicion that Mr. Proskie had alcohol in his body. He told Mr. Proskie to get in the back seat of the police vehicle and gave him the ASD demand at 4:38 p.m. [ 7 ] Cst. Williams said he did not have an ASD with him, which he explained by saying in the afternoon there was less likelihood of encountering an impaired driver as compared to later in the evening. He called the Kamsack Detachment and asked that an ASD be brought to him. At 4:50 p.m., Cst.

Cobbledick arrived with an ASD. Cst. Williams tested this ASD, turned it on, and explained to Mr. Proskie how he was to blow into it. The first test registered an error, and Cst. Williams asked Cst. Cobbledick to come and give him assistance. Cst. Cobbledick [ 8 ] Cst. Cobbledick was with four other police officers, in the midst of lodging a prisoner into the police cells at the Kamsack Detachment, when Cst. Williams called the detachment. He said the prisoner was combative, and it was taking longer than usual to lodge him.

He then took one of the ASDs at the Kamsack Detachment, confirmed it was working by testing it, and left in a police vehicle to take the ASD to Cst. Williams. The motor vehicle accident was four to five miles west of Kamsack on Highway 5, and the roads this day were ice covered. As a result, he could only drive about 50 kilometres per hour. [ 9 ] Upon arriving at the scene, he gave the ASD to Cst. Williams, and then proceeded to clean up debris from the highway. Cst. Williams then asked for his help, and he got into Cst. Williams’ vehicle and checked the ASD.

He removed its faceplate and discovered the battery was loose. He then reset the ASD, confirmed it was working and warmed it up. He then spoke to Mr. Proskie about the test, and presented the ASD to him. Mr. Proskie blew into it and a fail result was received by Cst. Cobbledick at 4:56 p.m.

III. WAS THE ASD SAMPLE TAKEN “FORTHWITH ” AFTER THE DEMAND? [ 10 ] Section 254(2) of the Code provides, in part, that where a peace officer reasonably suspects that a person who is operating a motor vehicle has alcohol in his body, the officer may by a demand made to that person, require the person to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an ASD. The Saskatchewan Court of Appeal has defined “forthwith” to mean without an unreasonable or unjustified delay. [1] Mr. Kreklewich argues that the ASD sample was not taken from Mr.

Proskie “forthwith” after the demand, in compliance with s. 254(2), and that this constituted a breach of Mr. Proskie’s rights under ss. 8, 9 and 10(b). For the reasons that follow, I disagree. [ 11 ] I am satisfied that Cst. Williams formed a suspicion that Mr. Proskie had alcohol in his body when he followed him back to the police vehicle, after the officer discovered a can and a case of beer beside Mr. Proskie’s vehicle. He gave the ASD demand to Mr. Proskie shortly after that, at 4:38 p.m. Cst. Cobbledick arrived with the ASD at 4:50 p.m. and a fail result was received from Mr. Proskie at 4:56 p.m.

As a result, the sample was received 18 minutes after the demand, with twelve minutes taken to receive the ASD from the other officer, and six minutes taken to obtain the sample after the arrival of Cst. Cobbledick. Was the sample taken forthwith after the demand? [ 12 ] I have considered the cases referred to by counsel, and in particular those which deal with the issue in this case: R. v. Cote [2] , R. v. George [3] , R. v. Ritchie [4] and R. v. Janzen [5] .

The result in each of these cases depended on unique circumstances, and I do not accept that there is any mechanical or strict rule about the number of minutes of delay that would constitute a sample not being taken forthwith after the demand. [ 13 ] Ultimately, the question I must answer is whether the sample was taken from Mr. Proskie without an unreasonable or unjustified delay after the demand. In considering the evidence of both officers, I have concluded that: (1) it was not unreasonable for Cst. Williams not to have an ASD with him given the time of day this occurred; (2) the twelve minutes taken by Cst.

Cobbledick to arrive at the scene with the ASD, after Cst. Williams made the demand, was not unreasonable, given the officer’s circumstances at the point the call was received and the treacherous driving conditions through which he travelled up to five miles to reach the scene; and (3) the six minutes taken between Cst. Cobbledick arriving at the scene and a fail sample being received was not unreasonable, given that Cst.

Cobbledick checked the device before leaving the detachment and there was no indication of malfunction and that, in addition to the time taken up checking the battery, time was required to warm up the device, to explain to Mr. Proskie how to provide a sample and to obtain the sample from him. [ 14 ] Taken together, I am satisfied that the ASD sample was taken from Mr. Proskie without an unreasonable or unjustified delay after the demand. The Charter application is dismissed. IV. CONCLUSION [ 15 ] Given the lack of evidence of impairment, Mr.

Proskie is found not guilty on the charge of impaired driving (count #1). Regarding the .08 charge, as:

(1) I have dismissed the Charter application;

(2) Mr. Proskie provided samples of his breath into an approved instrument, with readings of 130 mg% at 5:20 p.m. and 120 mg% at 5:41 p.m.; and (3) all other prerequisites were proved by the Crown, I am satisfied beyond a reasonable doubt of his guilt on this charge, and Mr. Proskie is found guilty of driving while over the legal limit (count #2).

R. Green, J [1] R. v. Janzen (2006), 2006 SKCA 111 , 285 Sask. R. 296 at para. 4. [2] (1992), (ON CA), 70 C.C.C. (3d) 280 (Ont. C.A.). [3] (2004), (ON CA), 23 C.R. (6th) 181 (Ont. C.A.). [4] (2004), 2004 SKCA 9 , 241 Sask. R. 155 (Sask. C.A.). [5] Supra.