Her Majesty the Queen - v. -, 2013 SKPC 155

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 155 Date: October 8, 2013 Information: 24499377 Location: North Battleford _____________________________________________________________________________ Between: Her Majesty the Queen - and - Marcy Shynkaruk Appearing: Ms. Jennifer Hiatt For the Crown Mr. A. Kapoor and Mr. T. Parlee For the Accused DECISION ON A VOIR DIRE B.G. MORGAN , J Introduction [ 1 ] On March 1, 2013, Constables Burton and Crozier, members of the RCMP, were on patrol in an area near Battleford, Saskatchewan when they came upon a vehicle that was “floating” in its lane.

The officers pulled the vehicle over: it was being operated by Ms. Shynkaruk, the sole occupant. She was given an approved screening device demand, which she failed, and subsequently provided samples of her breath into an approved instrument, both of which exceeded the permitted amount. Accordingly, she was charged with “over .08” and impaired driving, as the charges are more particularly formalized in the Information.

[ 2 ] The trial proceeded on a voir dire /trial, as a number of Charter issues were raised, as follows: 1. Has the Crown established that an approved screening device was used? 2. Was it necessary to detain the accused in the police car for the purposes of administering the approved screening device? 3. Did the police officer have reasonable and probable grounds to make a breath demand under s. 254(3)? 4. Was the detainee ’s s. 10(

b) Charter right violated? [ 3 ] On a voir dire , the Defence is required to establish a breach on a balance of probabilities. I will therefore deal with each argument in turn, applying that standard. 1. Has the Crown established that an approved screening device was used? [ 4 ] The argument of the Defence is essentially that Constable Burton, when referring to the approved screening device, used the expression “ASD”, and also, rather than refer to an actual approved instrument, referred to the serial number of the instrument that he did use.

Thus, it is argued, there would be reasonable doubt that a proper approved screening device was used, resulting in a failure to have sufficient grounds to make an Intoxilyzer demand, the end result being a violation of the accused’s s. 8. and s. 9 Charter rights. [ 5 ] The Crown argues that the officer did in fact refer to an approved screening device, and in any event, even if he did not, the Court can draw an inference as to what he used, based on R. v. Gundy , 2008 ONCA 284 . [ 6 ] The evidence on this point is that the officers were following the vehicle when it was observed to be “floating”, which Cst.

Burton described as being “ a generally smooth weave” within the driving lane. Based on this, the officers determined to initiate a stop pursuant to s. 209.1 of The Traffic Safety Act , to check for licence, registration, and sobriety of the driver. [ 7 ] When Constable Burton, who was taking the lead on this particular stop, approached the driver’s side of the vehicle, he detected an odour of alcohol from her breath as Ms. Shynkaruk responded to his questions.

Thus, he testified, he determined to obtain a “roadside test on her breath”, and for that purpose, took her to the back of his patrol car to administer an “ASD roadside screening demand”. [ 8 ] The officer then read into evidence at the trial from the card that he used to read that demand at the time, and in doing so, specifically referred to the need of Ms. Shynkaruk to provide “ a sample of your breath suitable for analysis in an approved screening device”. [ 9 ] The Defence relies on the case of R. v. Foley , [1975] S.J.

No. 182 , in which a Certificate of Analyses referred to the approved instrument as a “Borkenstein Breathalyzer”. At that time, there were five different specific models of the Borkenstein Breathalyzer that were approved instruments. The Court held that: For the certificate to be accepted in court, the sample of breath must be received into an approved instrument, the proof of which is upon the Crown. This requirement is not satisfied by a certificate that the sample was received into a Borkenstein Breathalyzer without proof that it was received into an approved model. (para. 10)

[ 10 ] The Defence argues that, by analogy, the same argument applies to an approved screening device demand. I am not able to accede to that argument. [ 11 ] First, I find as a fact that the officer did refer specifically to an approved screening device; he did so when reading the demand from the card. [ 12 ] In R. v.

Gundy , supra , the Court held, among other things, that “. . . if the officer in his or her testimony refers to a device as an “approved screening device”, the trial judge is entitled to infer that the device was indeed an approved device”. [ 13 ] The Gundy rationale has been followed by a number of cases in Saskatchewan from both the Saskatchewan Provincial Court and the Court of Queen’s Bench, in order of publication as follows: R. v. Lundrigan , 2009 SKPC 73 ; R. v. Caplette , 2010 SKPC 32 ; R. v. Helm , 2011 SKQB 32 ; Zapski v. Saskatchewan (Attorney General) , 2011 SKQB 67 ; R. v.

Spilde , 2011 SKPC 97 ; R. v. Kukrudz , 2011 SKPC 141 ; R. v. Donald , 2011 SKQB 408 ; R. v. Franke, 2013 SKPC 86 . [ 14 ] The law in Saskatchewan is well settled on this point. The application based on an alleged failure on the part of the officer to identify the make of the approved screening device is dismissed. 2. Was it necessary to detain the accused in the police car for the purposes of administering the approved screening device? [ 15 ] Mr. Parlee’s concern is that Constable Burton, who made the approved screening device demand, read that demand to Ms.

Shynkaruk in his police vehicle; he said he did this due to officer safety concerns, and Mr. Parlee argues, and I agree, that there were no issues respecting officer safety based on Ms. Shynkaruk’s situation; that is, she herself posed no security risk at any point, and was at all times cooperative with the police. Thus, it could be said that placing her in the police vehicle had nothing to do with reasons of ensuring the officer was safe from Ms. Shynkaruk. [ 16 ] Mr.

Parlee notes that Constable Crozier was outside the police vehicle, checking over the Shynkaruk vehicle for open liquor, etc., and as such, he had no concerns respecting officer safety based on the fact that the vehicle was at the side of a highway. Mr. Parlee notes that he was, among other things, opening the driver’s side door of the vehicle, which of course would be adjacent to driving lanes on the highway. [ 17 ] Mr. Parlee goes on to say there is a contradiction between the evidence of the two officers as to the perceived danger, and that it was not reasonably necessary to detain Ms.

Shynkaruk in the police car to read the approved screening device command. Thus, he argues, there has been an arbitrary detention under s. 9 of the Charter as the degree of detention was more than was reasonably necessary in the circumstances. [ 18 ] The Crown’s position is that this seems to be presented as an argument that there were lack of grounds to make the approved screening device demand. The Crown relies on R. v. Duchek , 2012 SKPC 7 and R. v.

Franke , supra , and the cases cited therein. [ 19 ] Dealing with the Crown’s argument first, s. 254(2) requires that a peace officer have “reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle . . .”. [ 20 ] The evidence on this point is provided primarily by Constable Burton, as well as by reference to Exhibit P-2 on the voir dire , a video of what transpired in the back of the police car as Constable Burton dealt with Ms.

Shynkaruk. [ 21 ] In his evidence, Constable Burton stated that as he was asking Ms. Shynkaruk for her licence and registration, as he is of course permitted to do under s. 209.1 of The Traffic Safety Act , he smelled an odour of alcohol from Ms. Shynkaruk’s breath as she responded. In his evidence, he stated that he asked her if she had been drinking, to which she replied she had just come from a casino

after a day of shopping. He testified that he then asked her to go to his car for a “roadside test”. [ 22 ] This response to the question of whether or not she had been drinking was not, in fact, a response to that question. However, any deficiencies in the evidence on the issue of when the alcohol had been consumed are eradicated when one reviews the tape of what occurred in the police car, and the conversation that went on at the Shynkaruk vehicle before she was asked to provide a sample of her breath (the video captures both the view and conversation between the officers and Ms.

Shynkaruk at the Shynkaruk vehicle, and switches to the back seat view of the police car when Ms. Shynkaruk is placed in the police vehicle). In that video, at the Shynkaruk vehicle, Cst. Burton asked if Ms. Shynkaruk had anything to drink tonight, to which she replied she’d had a beer. The officer then asked her how long ago that was, and she stated approximately one-half hour earlier.

It is at that point that the officer asked her to come back to his vehicle to provide the roadside sample. [ 23 ] There is no need to put a gloss on the wording of s. 254(2), nor to undertake a lengthy review of case law on this issue. What is required is that the police officer have “reasonable grounds to suspect that a person has alcohol . . . in their body”. Based on the conversation between Ms. Shynkaruk and the officer, it is clear that the grounds were there for him to form that reasonable suspicion, and it was clear from his evidence that he had that reasonable suspicion.

Thus, there is nothing faulty in the circumstances under which the breath demand was made. [ 24 ] With respect to the second leg of the argument, Mr. Parlee relies on the case of R. v. Aucoin , 2012 SCC 66 , in particular paras. 75 onwards. In essence, he is focusing his argument on whether or not it was necessary to detain this accused in the back of the police car at all. [ 25 ] The facts in Aucoin are significantly different from the case before me. Mr. Aucoin was a 19 year old driver with a probationary licence, who was pulled over due to a discrepancy in his licence plates, a potential regulatory offence.

Detecting alcohol on his breath, the officer had him provide a roadside screening sample in an approved screening device, while Mr. Aucoin sat in the back of his police vehicle. Although Mr. Aucoin “passed” the demand, as he was a probationary driver, he was not to have any alcohol in his system whatsoever. Accordingly, the arresting officer decided to issue two provincial regulatory offence tickets. [ 26 ] The arresting officer determined that it was necessary to secure Mr.

Aucoin in the back seat of his police cruiser while he wrote the ticket, due to a number of circumstances that the trial judge found were reasonable in the circumstances. Prior to placing Mr. Aucoin in the rear seat of the cruiser he obtained the consent from Mr. Aucoin to do a pat down search, and upon doing that search, located some cash and drugs, ultimately leading to Mr. Aucoin’s conviction for possession of drugs for the purpose of trafficking. [ 27 ] Mr.

Aucoin’s appeal was based on the allegation that the police officer had no authority to do a pat down search, and that by doing so, he violated his s. 8 rights to be secure against unreasonable search and seizure. [ 28 ] As the majority put the issue, in para. 1, “this appeal concerns a police officer’s authority to detain a motorist in the rear of his police cruiser in the course of a roadside stop for a regulatory offence”. [ 29 ] Mr.

Parlee relies on a number of comments made by the minority in that decision, and the minority differed from the majority in whether or not the evidence of the cocaine should have been admitted into evidence, essentially a s. 24(2) remedy argument. [ 30 ] As the majority put it in para. 35: [35] To be clear, I do not see this case as turning on whether Constable Burke had the authority to detain the appellant in the rear of his police cruiser, having lawfully stopped him for a regulatory infraction.

Rather, the question is whether he was justified in exercising it as he did in the circumstances of this case. [ 31 ] The majority focused on the exercise of that discretion, finding that the decision to detain Mr. Aucoin essentially made an unlawful detention, and the pat down search that flowed from that was ultimately improper.

[32] However, in this case, there are a number of distinguishing factors. [33] First, on the issue on the exercise of the officer’s discretion, which was the issue for the majority, the Court clearly held that itwas a decision to detain Mr. Aucoin while the ticket was written out that was not reasonable in the circumstances, as there were otheralternatives to dealing with someone who was being ticketed for a provincial regulatory offence. In this case, Ms.

Shynkaruk was placedin the back of the police cruiser for the purpose of having a criminal investigation completed, which was clearly allowed in the wordingof s. 254(2)(b), in that a detainee is required, “if necessary, to accompany the peace officer for that purpose”. Mr. Aucoin was in fact inthe back of the police car when he provided a “pass” test on the approved screening device. [34] Mr. Parlee’s argument focuses on the reasonableness of the decision of Constable Burton to place Ms. Shynkaruk in the backof his police cruiser in order to administer the roadside screening test.

He had the lawful authority to take those steps. The reasoning inAucoin does not apply. [35] Second, it was the pat down search that arose after the decision to place Mr. Aucoin in a vehicle while a regulatory offenceticket was written out that the Supreme Court found to be improper, and a violation of Mr. Aucoin’s

section 8 Charter rights. In thiscase, there was no pat down search. [36] The fact that Constable Burton thought it would be better for safety reasons which were directly related to the fact that theparties were stopped on a highway at night, and another officer did not see that particular danger as an impediment to him doing a searchfor evidence of that vehicle, are different matters. Constable Burton obviously did not want to be standing on a highway while Ms.Shynkaruk provided a sample of her breath behind the driver’s seat of her vehicle.

I would assume when Constable Crozier opened thedriver’s side door to check if there was any open liquor in the vehicle, he would not have done that in heavy traffic. [37] In any event, the point to be made is that just because two officers may have a different view of how he or she would handlea particular situation does mean that one officer’s view is unreasonable, and that certainly falls short, in any event, of being an arbitrarydetention, which is what is being argued in this case. There was nothing arbitrary about the detention of Ms.

Shynkaruk: she waslawfully detained for the purposes of an investigation into a potential criminal offence, pursuant to authority granted to the police underthe Criminal Code. [38] Thus, this argument must fail. 3. Did the police officer have reasonable and probable grounds to make a breath demand under s. 254(3)? [39] Mr. Parlee relies on R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 50, where the following statementis made: [50] Nonetheless, as I stated at the outset, it cannot be said that a “fail” result per se provides reasonable and probable grounds.

If thatwere the case, it was open to Parliament to indicate this intention in the Criminal Code. Yet, nowhere in s. 254 is it indicated that a“fail” result on an approved screening device is deemed to provide reasonable and probable grounds. Thus, it is necessary to determineas a question of fact in each case whether or not the police officer had an honest belief based on reasonable and probable grounds that thesuspect had committed an offence under s. 253 of the Code. [40] That comment made by Mr.

Justice Sopinka was made in that portion of the judgment when he was dealing with thefollowing specific issue, identified at para. 47: [47] Did the Court of Appeal err in law by ruling that unless a peace officer either ascertains when a driver consumed his last drink of

[47] Did the Court of Appeal err in law by ruling that unless a peace officer either ascertains when a driver consumed his last drink ofalcohol or waits at least fifteen minutes before administering an approved screening device test, one cannot rely on a “fail” reading onthe approved screening device test in making a breathalyzer demand under s. 254(3) of the Criminal Code? [41] In para. 50, Mr.

Justice Sopinka was referring specifically to the argument that a “fail” result per se would form sufficientgrounds to make the breath demand under s. 254(3), even if the officer has reason to believe the approved screening device was notgiving a proper reading. That was the position taken by some of the Supreme Court judges, who were of the view that even if the “fail”result is wrong, any errors due to recent consumption can be sorted out at the Intoxilyzer test stage. Thus, as I read that comment by Mr.Justice Sopinka, he is rejecting that particular view.

As he says in para. 49, “normally, where a properly conducted roadside screeningtest yields a “fail”, this alone will be sufficient to furnish a police officer with such grounds” (emphasis added). [42] Here, the officer had no reason to suspect there had been recent consumption, and had no reason to wait fifteen minutesbefore taking a sample; indeed, he had specifically asked when the last consumption was, and his belief was that that occurred 30minutes prior to the stop.

This is not a case of an officer blindly relying on an approved screening device result in the absence of anyknowledge as to whether or not the result was accurate. [43] Further, the officer also testified to his grounds for believing a s. 254(3) demand was appropriate. Certainly, the “fail” resultwas a major part of that belief. However, when queried as to what his grounds were, he specifically referred to the driving pattern, whichwas unusual, as well as the odour of beer on Ms.

Shynkaruk’s breath as they conversed, and the fact that her eyes were red andbloodshot. [44] Therefore, I cannot accede to the suggestion of Mr. Parlee that the officer did not have subjective grounds, which can be seento be objectively reasonable, to make the test for the demand under s. 254(3). 4. Was the detainee’s s. 10(

b) Charter right violated? [45]

Section 10(

b) of the Charter states that everyone has the right on arrest or detention to retain and instruct counsel withoutdelay and to be informed of that right. In R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, at page 191 - 192, Lamer C.J., indealing with what has been called the informational duty on the police, stated that the authorities, upon arresting or detaining a person,have the obligation to firstly “inform the detainee of his or her right to retain and instruct counsel without delay and of the existence andavailability of Legal Aid and duty counsel”. [46] In this case, Mr.

Parlee argues that the arresting officer did not provide the 1-800 toll-free Legal Aid number to Ms.Shynkaruk, thereby violating her s. 10(

b) informational rights. Mr. Parlee relies on the case of R. v. Wingerter, [1998] S.J. No. 768. [47] The Crown argues that this issue was settled in R. v. Baig, (SCC), [1987] 2 S.C.R. 537 which held that oncethe police have complied with s. 10(b), by advising the accused without delay of his right to counsel without delay, there are nocorrelative duties triggered and cast upon them until the accused, if he so chooses, has indicated his desire to exercise his right tocounsel. [48] The thrust of Mr.

Parlee’s argument is that, if someone is arrested outside normal business hours (as is the case here), it isnecessary to provide the 1-800 number for Legal Aid. Specific reliance is placed on para. 23 of Wingerter, which states: [23] I am of the view that in the jurisdiction of Saskatchewan, if an accused is arrested during normal business hours, then theinformational component of s. 10(

b) does not require that the warning consist of the toll-free number. However, if the accused isarrested outside of normal business hours, then the informational component of s. 10(

b) is accurately set out in R. v. Bartle, supra, and R.v. Pozniak, (SCC), [1994] 3 S.C.R. 310 and the accused must be informed of the existence of a toll-free number and theavailability of duty counsel.

[ 49 ] I find as a fact that, shortly after obtaining the “fail” result on the approved screening device, the arresting officer recited the following warning to Ms. Shynkaruk: I am arresting you for impaired operation of a motor vehicle. You have the right to retain and instruct counsel without delay. You may call any lawyer you wish. Legal Aid duty counsel is available to provide you with immediate legal advice free of charge, and can explain the Legal Aid plan to you. I can provide you with a number you can call free of charge. Do you understand that? [ 50 ] Ms. Shynkaruk said “yes”.

The officer then said “do you wish to call a lawyer now?”, to which Ms. Shynkaruk said “no”. [ 51 ] I am unable to agree with Mr. Parlee’s

interpretation of Allbright J.’s decision in Wingerter . That is, I do not interpret the quoted passage from Wingerter as stating that an officer is to actually read out that toll-free number as part of the standard warning, or is required to provide that actual number to the detainee in every case. Rather, Wingerter clearly states that “the accused must be informed of the existence of a toll-free number and the availability of duty counsel”. [ 52 ] The officer clearly provided that informational component to Ms. Shynkaruk. She clearly stated she did not wish to call counsel.

There was no indication at any point that Ms. Shynkaruk did not understand her rights to counsel. [ 53 ] In Wingerter , the evidence at trial, set out in para. 7, makes it clear that the officer, in providing the warning from memory, said that legal counsel was available free of charge and could explain the Legal Aid plan to him, following which the officer asked if he understood. What the officer failed to do was to also tell Mr. Wingerter of the immediate availability of Legal Aid through a toll-free number.

As the officer omitted that advice, and as the stop was well outside normal business hours, Wingerter held, following Bartle , that it was required of the officer to let Mr. Wingerter know of the “existence and availability of Legal Aid and duty counsel”. On the facts of Wingerter , there is no indication that this information was conveyed to Mr. Wingerter. On the facts of this case, that information was imparted to Ms. Shynkaruk, as the officer read the standard warning from the card. [ 54 ] I am fully satisfied that Ms. Shynkaruk was advised of the required informational component of s. 10(b).

This Charter application fails. [ 55 ] As a result, I dismiss the Charter applications in their entirety. Exhibit P-1 on the voir dire , being the Certificate of a Qualified Technician, and Exhibit P-2, being the videotaped evidence of what transpired at the time of the stop and onwards, shall become full exhibits at the trial. [ 56 ] Matters are adjourned to October 24, 2013 at 1:00 p.m. in courtroom #1, North Battleford, for the purpose of setting a date for a continuation of the trial. ______________________________ B.G. Morgan, J