Her Majesty the Queen - v. -, 2011 SKPC 164

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 164 Date: November 2, 2011 Information: 40041921 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Donavin Lorne Lorenz Appearing: Mr. Andrew Davis For the Crown Mr. Lyndon A. Heidinger For the Accused JUDGMENT D.J. KOVATCH , J Background [ 1 ] The accused, Donavin Lorne Lorenz, is charged with driving while his blood alcohol content exceeded .08 percent and with impaired driving.

It is alleged both offences occurred on June 20, 2010. [ 2 ] By agreement, the Crown presented all of its evidence in a Charter voir dire . The Defence conceded if the Defence was unsuccessful in the Charter application, and the Crown’s evidence was admitted on the trial proper, that a guilty verdict must be

entered. In other words, my decision on the Charter voir dire also decides the issue on the trial proper. The Evidence [ 3 ] The only witness called was Cst. Ryan Lawrence of the Moose Jaw Police Service. He testified that he has been with the force for approximately four years. Shortly prior to 4:00 a.m. on June 20, 2010, he was on patrol, and noticed a very muddy vehicle. He was aware of some complaints from farmers that individuals were driving their four wheel drive vehicles in farmers’ fields, and causing considerable damage.

The officer followed the vehicle for a short while and then pulled it over. [ 4 ] He testified that the accused was the driver of the vehicle. There was another male passenger in the vehicle. He said that as soon as the accused opened his window, he could smell beverage alcohol from the vehicle. He also noticed that the accused’s eyes were glassy. He asked the accused if he had anything to drink, and the accused said he had two beer approximately one and a half hours ago. [ 5 ] The officer said he believed the accused had consumed alcohol and had alcohol in his body.

He asked the accused to come to the police vehicle. He said that as soon as they were both in the police vehicle the smell of alcohol became stronger. At 4:01 a.m. he made the ASD demand. At 4:04 the accused registered a fail on the approved screening device. [ 6 ] The officer testified that immediately upon the ASD fail, he got the accused out of the police vehicle, advised him that he was under arrest for impaired driving, placed the handcuffs on him and returned him to the police vehicle. The officer testified that he then advised the accused of his Charter rights and gave him the police warning.

The officer testified that he made a number of notes and at 4:14 made the intoxilyzer demand. The officer testified that the intoxilyzer demand was in the standard or usual form and that he read the demand from a Police Issue Card. He read the demand in Court from that same card. He then took the accused immediately to the police station where they arrived at 4:24 a.m. The accused was then able to call Legal Aid. The officer then turned the accused over to Cst. Watt, the intoxilyzer technician. Two samples of the accused’s breath were subsequently obtained and Cst. Watt prepared a Certificate of Analyses.

The officer testified that he then completed the Notice of Intention and served it upon the accused. He stated that he normally compares the original Certificate of Analyses with the copies. He testified that he could not recall doing that on this occasion, but that was his normal practice. [ 7 ] Under cross-examination, the officer testified that he pulled over the accused for two reasons. First, the complaint about “mud bogging” or people ripping up farmers’ fields. Second, to check for sobriety.

The officer admitted that when he approached the accused’s vehicle he did not indicate that he wished to check for sobriety. Counsel for the accused then cross-examined the officer at some length as to the grounds for concluding he had reasonable suspicion upon which to make the ASD demand. [ 8 ] As soon as the Crown’s case on the voir dire was closed, Mr. Heidinger advised that there would be no Defence evidence on the voir dire . He immediately conceded that the onus was on the accused to establish a Charter violation. He raised a number of arguments. We will deal with those arguments in order.

Analysis Was there a violation of the accused ’s rights contrary to

section 10(

a) of the Charter? [ 9 ] Under s. 10(

a) of the Charter, the accused has the “right on arrest or detention to be informed promptly for the reasons therefore...”. It is well recognized that an arrest and/or detention of an accused person can take place without the formal enunciation of any words from the police officer. If an accused person feels that he is compelled to accompany a police officer and compelled to answer questions, he may be psychologically detained triggering the s. 10 rights.

However, every individual is not detained within s. 10 of the Charter merely because a police officer stops a vehicle and engages in some very preliminary conversation or questioning. If the officer’s actions become coercive, and he is clearly investigating a particular accused for a particular offence, then clearly the officer must comply with s. 10 of the Charter .

[10] In this case, the officer’s notes indicated that he pulled over the accused and began speaking to him at 3:58 a.m. Heimmediately smelled alcohol coming from the accused’s vehicle, and asked the accused to accompany him to the police vehicle. At thatpoint in time, the officer clearly did not know whether the alcohol smell was coming from the passenger, the person of the accused orsimply from the inside of the vehicle. As soon as both were in the police vehicle, the officer noted that the smell of alcohol was muchstronger.

At this time, he concluded that the accused had alcohol in his body and made the ASD demand. The ASD demand was madeat 4:01, some three minutes after they began talking. Until the time of the ASD demand, there was nothing coercive about the officer’sactions. He wasn’t investigating anything, and didn’t gather any evidence. I don’t know what he could tell the accused to attempt tocomply with s. 10 of the Charter. In short, there was nothing that occurred until they entered the police vehicle and the ASD demandwas made to invoke s. 10 of the Charter.

As soon as the ASD demand was made, the accused was advised as to why he was beingdetained and has no complaint about non-compliance with s. 10(

a) of the Charter. [11] On the above basis, I would not conclude that there is any violation of s. 10(

a) of the Charter. More importantly however, ifthere were some very minimal violation of s. 10(a), I would be looking to see what evidence should be excluded. I would be looking tosee if the police officer obtained any evidence against the accused that would not have been obtained but for the violation. I would thenbe looking to exclude that evidence. Given what is at the most a very minor or trivial violation, I would not be imposing a judicial stay. Between the time of the initial stop and conversation with the accused, until they were in the police vehicle, the officer has obtained noevidence of any offence.

He had only smelled alcohol from the accused to give him a reasonable suspicion upon which to make the ASDdemand. As a result, there is no evidence to exclude here, and no remedy available even if I concluded there was a minor violation of s.10(

a) of the Charter. If I am wrong in this analysis, I would still rely upon the decision of His Honour Judge Matsalla in R. v. Ellis, 2011SKPC 148, and determine that any breach of s.10(

a) was very short term and trivial, and deny any remedy under s. 24(2) of the Charter. Did the officer have a reasonable suspicion upon which to make the ASD demand? [12] I dealt with the issue of whether a police officer had reasonable suspicion to make an ASD demand at length in the decision ofR. v. Monteyne, 2008 SKPC 20. At paragraph twenty-nine, I said this: Using these

definitions and s. 254(2), in my view, any kind of reasonable belief or apprehension, without proof, “that the operator hasalcohol in his body” will be sufficient grounds to justify an ASD demand. This will not be a high or difficult standard for police officersto meet. In paragraph thirty, I stated as follows: Practically speaking, it seems to me that an individual will smell of alcohol for only one of two reasons: number one, someone hasspilled an alcohol based drink upon him; or number two, he has been drinking.

It also seems to me that if the accused had a drink spilledon him, that would have been instantly ascertained by the police officer. As a result, in my view, when a police officer smells alcoholcoming from an accused person, the only logical conclusion for the police officer to draw is that the accused person has been drinkingand as a result has alcohol in his body. In short, in my view, when a police officer testifies that he smells alcohol coming from anaccused person, the police officer will most often have a reasonable suspicion that the accused has alcohol in his body, and an ASDdemand is justified.

In the case of R. v. Butchko, 2004 SKCA, our Court of Appeal adopted the Ontario Court of Appeal decision in R. v.Lindsay (1999), (ON CA), 134 C.C.C. (3d) 159. Both cases stand for the proposition that an officer smelling alcoholon the breath of a driver will, without more, justify an ASD demand. [13] In this case, the officer testified that when he stopped the accused’s vehicle, he immediately noticed that the accused’s eyeswere glassy. He testified that when both he and the accused were in the police vehicle, there was a strong smell of alcohol coming fromthe accused. The accused admitted he had been drinking.

I am satisfied that the officer had a reasonable suspicion the accused hadalcohol in his body and the ASD demand was justified. Is it significant that the officer did not say the ASD failure gave him reasonable and probable grounds for the intoxilyzerdemand? [14] Defence counsel argues that the police officer had to testify that the ASD failure gave him reasonable and probable groundsfor the intoxilyzer demand and reasonable and probable grounds to believe the accused was impaired by alcohol. I disagree. The police

officer required reasonable and probable grounds for an intoxilyzer demand. It is clear that there is both an objective and subjectivecomponent to reasonable and probable grounds. As far back as the case of R. v. Arthurs (1982), (SK CA), 12 Sask. R.95, the Saskatchewan Court of Appeal concluded that the failure of the alert screening test, in and of itself, provided the police officerwith reasonable and probable grounds for a breathalyzer demand.

As I understand it, the entire purpose for the ASD device and test is toprovide the officer with an objective and scientific basis for the intoxilyzer demand, and to remove the necessity of proving thosegrounds on subjective observations by the police officer. In this case, there was the ASD failure. That provided reasonable and probablegrounds. It provided objective and scientific evidence upon which the officer could make the intoxilyzer demand. [15] The only question is whether the officer subjectively held that belief.

The officer testified that immediately upon the ASDfailure, he got the accused out of the police vehicle, and advised him he was under arrest for impaired driving, and placed the handcuffson him. He then advised the accused of his Charter rights and gave him the police warning. He then made the intoxilyzer demand in itsusual form. In making that demand, the police officer said: I have reasonable grounds to believe that your ability to operate a motor vehicle is impaired by alcohol.

In accordance with the CriminalCode, I demand that you provide samples of your breath for analysis and that you accompany me for the purpose of providing suchsamples. These samples will be analysed on an approved instrument.... (emphasis added) I am satisfied that the officer subjectively held this belief, so that this demand was proper. Was there any unexplained delay in getting the accused to the police station for the intoxilyzer tests? [16] The officer testified that the intoxilyzer demand was made at 4:14 a.m.

He then drove to the Moose Jaw Police ServiceBuilding, entered the garage area, removed the accused and took him to the book-in desk. They arrived at the book-in desk at 4:25 a.m.,eleven minutes after the intoxilyzer demand. There is no unexplained delay. Was the accused supplied with a copy of the Certificate of Analyses and the Notice of Intention?

Was s. 258(7) of the Codecomplied with? [17] Section 258(7) of the Code reads as follows: No certificate shall be received in evidence . . . unless the party intending to produce it has, before the trial, given to the other partyreasonable notice of his intention and copy of the certificate. [18] Cst. Lawrence testified that after Cst. Watt administered the intoxilyzer tests, Cst. Watt prepared the Certificate of Analyses. He presented the Certificate of Analyses to Cst. Lawrence. Cst.

Lawrence testified that he completed and executed the Notice ofIntention to produce the certificate, and explained the certificate to the accused. He testified that a number of copies of the Certificate ofAnalyses come attached as one carbon copy form. He said he normally compares the original to the copies and then signs the original. [19] In addition, on the back of the original Certificate of Analyses is a blank form affidavit of service. Cst. Lawrence completedthat affidavit of service attesting that at 0635 hrs on June 20, 2010, he personally served the accused with a true copy of the certificate.

The affidavit of service was sworn before a Commission for Oaths on June 30, 2010, just ten days after these incidents occurred. [20] Defence counsel did not cross-examine on any of these points, or lead any evidence that the accused had not been properlyserved. He simply argued that the officer said he usually compares the copies to the original, but did not specifically recall doing so thistime, and did not testify that he actually did so this time. [21] I interpret the officer’s evidence as him saying he did not specifically recall comparing the copies to the original. However,

his usual practice is to do so, and he assumes he would have followed his usual practice. In my view, this case illustrates exactly why witnesses are advised to form a general and usual practice for repetitive steps that they take every day while at work. Then, if the witness is not able to recall the precise case, he is still in a position to testify that he followed his usual practice. In addition, there is an affidavit of service sworn just ten days after the alleged offence and these events occurred. It attests to proper service of the Certificate of Analyses.

On the basis of the officer’s testimony and the affidavit of service, I am satisfied that s. 258(7) has been complied with. Does the Court require viva voce evidence that the accused blew into an intoxilyzer machine? [ 22 ] Defence counsel argued that the Crown had to adduce viva voce evidence to the effect that the accused blew into an intoxilyzer machine. Failure to lead this evidence left the Crown with a fatal flaw in its case and the Court should decline to admit the Certificate of Analyses.

Counsel advised that there was an Alberta Queen’s Bench decision that adopted this argument, however, I was not supplied with a copy of that decision and could not locate such a decision. On the basis of my examination and

interpretation of s. 258 of the Criminal Code , this argument must fail. Firstly, s. 258 of the Criminal Code allows the Crown to establish a number of relevant facts by the Certificate of Analyses. In many of the cities, the officers on the street are not qualified as intoxilyzer technicians. In those cases, as in this case, the arresting officer simply turns the accused over to the intoxilyzer technician. It seems to me that a police officer, who is not qualified as an intoxilyzer technician, would not be able to testify that the accused blew into the intoxilyzer.

Such evidence would have to come from the technician who is trained in the operation of that machine. The practical effect of the acceptance of Defence counsel’s argument would be that the Crown must be required to call the technician as a witness in virtually every case.

Section 258 of the Code would be rendered virtually meaningless and of no effect. I cannot accept that I should ignore the intention of Parliament in enacting s. 258 of the Criminal Code . [ 23 ] Perhaps more importantly however, in my view this argument runs directly contrary to the express wording of s. 258(1) (

g) of the Criminal Code . That

section reads as follows: 258(1) In any proceedings under subsection 255(1) in respect of an offence committed under s. 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2.), . . . (

g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating: (

i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument. (ii) the results of the analyses so made, and (iii) if the samples were taken by a technician, ..... (

B) the time when and place where each sample and any specimen described in clause (

A) was taken, and (

C) that each sample received from the accused directly into an approved container or into an approved instrument operated by the technician, is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate ; (emphasis added) [ 24 ] This subsection allows the Crown to prove that the samples of breath were taken directly into the intoxilyzer and the results of that analyses by the Certificate of Analyses. The Certificate of Analyses of Cst.

Watt states in part: “that I did receive each of the said samples directly into an Intoxilyzer 5000C, an approved instrument as defined in subsection 254(1) of the Criminal Code ”. Pursuant to subsection 258(1)(g), this Certificate of Analyses provides the evidence that the breath samples were taken directly into the Intoxilyzer 5000C machine. Conclusion [ 25 ] For all of the above mentioned reasons, the accused has failed to establish any breach of his Charter rights. There is no basis to exclude the evidence of Cst. Lawrence from the trial proper or to exclude the Certificate of Analyses.

The Certificate of Analyses establishes that two breath samples were taken from the accused, at 4:55 and 5:26 a.m. The readings were 110 mg and 100 mg.

Accordingly, I find the accused guilty of count number one, driving while his blood alcohol content exceeded .08 percent. I impose a judicial stay with respect to count number two. Dated at Moose Jaw, Saskatchewan this 2 nd day of November, 2011. ___________________________________________ D.J. Kovatch, J