Her Majesty the Queen - v. -, 2012 SKPC 7

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 007 Date: February 3, 2012 Information: 24378935 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jody Christine Duchek Appearing: Mr. Barrie Stricker For the Crown Mr. Ron Piché For the Accused JUDGMENT R. GREEN , J I. OVERVIEW [ 1 ] Ms. Duchek is charged with operating a motor vehicle while over .08 and with operating a motor vehicle while impaired by alcohol. The Crown proceeded summarily. [ 2 ] Early in the morning of December 25, 2010, Cst.

Chris Graham, of the Esterhazy RCMP, was southbound on Highway 80 near Esterhazy. It was a night he described as: the temperature being -10 C, foggy and somewhat windy. He followed a vehicle driven

by Ms. Duchek for between one and two kilometres, and noted it swerving back and forth between the centre line and the fog line and, on one occasion, crossing the centre line. In cross-examination he admitted that drifting, not swerving, was a more accurate description of what the vehicle was doing. [ 3 ] At 12:46 a.m. Cst. Graham activated his emergency lights and Ms. Duchek pulled over to the shoulder of the highway. Following a short discussion with Ms. Duchek, and computer checks he performed about her in his police vehicle, the officer detained Ms.

Duchek for the purposes of an Approved Screening Device (ASD) test. Following a fail reading, Cst. Graham arrested Ms. Duchek for impaired driving, and took her to the Esterhazy Detachment, where, at 1:41 and 2:01 a.m., she provided two breath samples of 150 mg% to Cst. Kevin Langdon, a qualified technician. [ 4 ] At the start of the trial, Mr. Piché identified what he believed to be the one Charter issue in this case. He said the issue was the same one canvassed in R. v. Thompson , 2003 SKPC 56 , which was whether in this case Cst. Graham had a lawful basis under s. 254(2) of the Criminal Code to detain Ms.

Duchek for an ASD test. He submitted that an absence of such a basis meant her detention was arbitrary and a violation of her rights under s. 9 of the Charter . Mr. Piché’s reference to Thompson , and my review of Judge Jackson’s decision in that case, satisfies me that a further Charter issue to be considered in this case is whether, if there was not a lawful basis for the ASD test, the taking of the ASD sample together with the subsequent Intoxilyzer tests resulted in a breach of Ms. Duchek’s rights under s. 8 of the Charter . [ 5 ] The Crown presented two witnesses: Cst. Graham and Cst. Langdon.

Their evidence was applied to both the Charter issue and the trial proper. The defence called no evidence on the Charter issue or the trial proper. [ 6 ] I view the issues in dispute in this case to be:

(1) Whether Ms. Duchek’s rights not to be arbitrarily detained (under s. 9 of the Charter ) and to be free from unreasonable search and seizure (under s. 8) were violated by a lack of lawful grounds to support the ASD demand made to her by Cst. Graham under s. 254(2) of the Criminal Code , and, if so, whether the ASD result and the Certificate of Analyses and other evidence of the Intoxilyzer tests should be excluded pursuant to s. 24(2) of the Charter ;

(2) Whether the Intoxilyzer samples were taken as soon as practicable after the time when the offence was alleged to have occurred so as to engage the presumptions of proof contained in s. 258(1)(

c) of the Code ; and

(3) Whether there is proof beyond a reasonable doubt that Ms. Duchek’s ability to operate a motor vehicle was impaired by alcohol on this date. II. THE ASD DEMAND AND THE CHARTER Was there a violation of

section 8 and 9 of the Charter? [ 7 ] Section 254(2) of the Code provides, in part, that where a police officer reasonably suspects that a person who is operating a motor vehicle has alcohol or a drug in her body, the officer may, by a demand made to that person: require the person to provide forthwith a sample of breath that, in the officer's opinion, will enable a proper analysis to be made by means of an ASD, and, if necessary, to accompany the officer for that purpose. [ 8 ] After stopping this vehicle, Cst. Graham approached the driver’s side window and noted Ms.

Duchek in the driver’s seat and a male passenger in the front passenger seat. He said the driver’s side window was down, either partially or entirely. Cst. Graham told Ms. Duchek about his observations of her driving, and she explained that the reason she was driving like this was because she was trying to change the radio controls. He did not accept this explanation, given the distance he had followed her.

[ 9 ] Ms. Duchek provided her vehicle registration to the officer, who noted that she was slurring her speech. He asked whether she had consumed any alcohol and she replied that she had two beer at a Christmas party at 8:00 p.m. Given Ms. Duchek’s slurred speech, the officer did not accept that she had consumed only two drinks. Nor did he accept that she had left the Christmas party that length of time before the stop, given her slurring. [ 10 ] Cst.

Graham had been a police officer for a year and a half on this evening, and despite his initial evidence that the date - Christmas Day - raised his awareness about the potential for impaired drivers, given what he believed to be an increase in alcohol consumption at Christmas time, he had never arrested and charged anyone for impaired driving on either Christmas Eve or Christmas Day. In his personal life, he had drunk alcohol to excess on occasion, and said when he had, his behaviour was characterized by slurred speech and reduced motor control. [ 11 ] Cst.

Graham returned to his police car to “collect his thoughts” on his observations to that point and, further, to run computer checks on Ms. Duchek. He discovered both that she held a valid driver’s licence and that she had a previous conviction for impaired driving. He said, at that point, based on the totality of his observations, that he had a suspicion that Ms. Duchek had alcohol in her body and he went back to her motor vehicle and told her that he was detaining her for a roadside breath sample on an ASD.

He denied that he placed any significant weight on his discovery of her previous record, saying only that it was in the back of his mind (p. 60 of transcript). [ 12 ] To this juncture, the officer had smelled no alcohol on Ms. Duchek’s breath nor any coming from the interior of the vehicle. He believed, in retrospect, that this was so because it was windy that night. He however admitted that nothing in his occurrence report or his notes said anything about the wind being a factor in this case. Upon entering the police vehicle, the officer immediately smelled alcohol on Ms.

Duchek’s breath, just before he read her the formal ASD demand. [ 13 ] In argument, Mr. Piché claimed that the Crown did not, in this case, lead evidence as to the officer’s belief which led to the ASD demand. I disagree. In the direct evidence of Cst. Graham he said that, after he returned from his police vehicle, he suspected that Ms. Duchek had alcohol in her body (p. 17 of transcript). Further, he said it was the totality of all his observations that led him to this suspicion (p. 19 - 20 of transcript). As a result, I accept and find that Cst. Graham had a subjective belief that Ms.

Duchek had alcohol in her body when he detained her for an ASD test. The issue is whether that belief was reasonable. [ 14 ] I am satisfied that the critical point at which the lawfulness of this detention is to be judged is the point Cst. Graham detained Ms. Duchek and required her to accompany him back to his police vehicle, for the purposes of taking an ASD test. The totality of observations upon which the officer grounded his suspicion at that point was: (1) what he believed to be abnormal driving;

(2) Ms. Duchek’s slurred speech; (3) an admission by her that she had two beer at a Christmas party about five hours before, which, given her slurring, the officer thought to be an underestimate of the amount she consumed, and an overestimate of the time since that consumption occurred; and (4) his discovery that she had a previous conviction for impaired driving. [ 15 ] The question is whether the factors Cst. Graham noted, taken together, make reasonable his suspicion that Ms. Duchek had alcohol in her body. Each case revolves around its unique facts.

Despite the reality that this officer did not smell alcohol on her breath until immediately upon her entering the police vehicle, which I find was because of the strength of the wind that night, I nevertheless am satisfied that the officer’s suspicion was reasonable. That is because of: (1) the nature of Ms. Duchek’s driving, which I find to be out of the ordinary given the distance the officer followed her;

(2) Ms. Duchek’s slurred speech; and (3) her admission to the officer that she had been drinking alcohol at a Christmas party earlier the previous evening. [ 16 ] While I am satisfied that Cst. Graham’s suspicion was reasonable on the grounds stated above, I am not satisfied that his discovery that Ms.

Duchek had a previous conviction for impaired driving - at some unascertained date and without any indication of whether the conviction was for impairment by alcohol or a drug - was material to the issue. [ 17 ] I could not find any other drinking and driving case where a Court had considered the effect of such a discovery on whether a reasonable suspicion existed. I do note that in R. v. MacKenzie , 2011 SKCA 64 , the Saskatchewan Court of Appeal, in holding that the officer in that case had a reasonable suspicion that Mr.

MacKenzie was in possession of a controlled substance, noted (at para. 31) that the officer listed, as one of twelve factors supporting his suspicion, that a computer check showed no criminal record for Mr. MacKenzie

and, hence, no discernable reason for his extremely nervous state. In this case, however, even before considering that the presumption ofinnocence is a cornerstone of our criminal justice system or whether evidence of such a conviction makes more likely a suspicion ofalcohol in a person’s body, a dubious proposition at best, I am not satisfied that the discovery of a previous conviction in theunascertained nature of that discovered in this case adds in any way to the other grounds which supported Cst. Graham’s suspicion thatMs. Duchek had alcohol in her body. [18] Because I am satisfied that Cst.

Graham had a reasonable suspicion that Ms. Duchek had alcohol in her body, I am notsatisfied that any Charter breach occurred. Should results of the ASD test and the Intoxilyzer tests be excluded under s. 24(2) of the Charter? [19] Given my finding that there was no Charter breach in this case, an analysis under s. 24(2) is not necessary. However, even ifI had found that Cst. Graham’s honest belief that Ms. Duchek had alcohol in her body was unreasonable, and that Ms.

Duchek’s rightsunder s. 8 and 9 had been violated, I would not have excluded the evidence of the breath tests. [20] Section 24(2) provides that where evidence is obtained in a manner that infringes a right or freedom guaranteed by theCharter, that evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in theproceedings would bring the administration of justice into disrepute. The law respecting the exclusion of evidence, under s. 24(2) is nowgoverned by the Supreme Court of Canada’s decision in R. v. Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1.

That decisionrequires the Court to balance: (1) the seriousness of the breach; (2) the impact of the breach on the Charter-protected rights of theaccused; and (3) society’s interest in the adjudication of the case on its merits, in determining whether admission of evidence wouldbring the administration of justice into disrepute. [21] In R. v. Kachur, 2011 SKQB 347, Justice Pritchard upheld a decision in which Judge Plemel - despite his finding that thepolice officer had an honest but unreasonable suspicion that Mr.

Kachur had alcohol in his body to support an ASD demand and, as aresult, violated his rights under s. 8 and 9 of the Charter - refused to exclude the breath test evidence under s. 24(2) of the Charter. Thebasis of that decision (at para. 34 - 38 of Judge Plemel’s decision) was:

(1) Regarding the issue of “seriousness”, that the conduct of the officer was not so serious that it required the Court to disassociate itselffrom the fruits of the Charter breaches (citing para. 108 of Grant);

(2) Regarding the impact of the breach on the Charter-protected rights of the accused, that the method of providing breath samples isrelatively non-intrusive (citing para. 111 of Grant) and that nothing in the Kachur case regarding the taking of the samples or hisdealings with the police was out of the ordinary, or aggravated or prolonged the situation; and

(3) Regarding society’s interest in the adjudication of the case on its merits, that, given the general reliability of breathalyzer analysesand the serious result of offences committed under s. 253 of the Code, society has a high interest in having the case adjudicated on itsmerits (citing R. v. Karst, 2009 CarswellOnt 7313 (Ont. S.C.J.)). [22] Similarly in this case, as I noted above, I am satisfied: (1) that Cst. Graham honestly suspected that Ms.

Duchek had alcohol inher body; (2) that the officer was acting in good faith throughout the encounter; and (3) that the wind hindered the officer’s ability tosmell alcohol on Ms. Duchek’s breath, which he immediately smelled when she entered his police vehicle. I am as well satisfied that theprovision of breath samples in this case was relatively non-intrusive and that Ms. Duchek’s dealings with the police were not prolonged. As a result, taken together with society’s interest in having the case considered on its merits, had I found a Charter breach in this case, Iwould not have excluded the breath test results.

III. WERE THE INTOXILYZER TESTS TAKEN AS SOON AS PRACTICABLE AFTER THE OFFENCE WAS ALLEGEDTO HAVE OCCURRED?

[ 23 ] The officer brought Ms. Duchek back to his police vehicle and, at 12:50 a.m., read the ASD demand to her. Ms. Duchek registered a fail on the ASD and was then arrested for impaired operation of a motor vehicle at 12:53 a.m. She was advised of her right to counsel at 12:54 a.m. and asked if she wanted to contact a lawyer, at 12:56 a.m. After she declined counsel, he read the police caution at 12:57 a.m. and then the breath demand at 12:58 a.m. Cst. Graham said he believed Ms. Duchek understood what he had said to her. [ 24 ] The officer then returned to the Duchek vehicle and spoke to the male passenger.

He believed the passenger to be in an advanced state of impairment and brought him back to the police vehicle. He also contacted Cst. Langdon, an approved breath technician, so that this officer could attend to the detachment to conduct the Intoxilyzer tests. He then searched the vehicle, finding an empty beer bottle in the glove compartment, a full bottle of beer behind the passenger’s seat and a half-full bottle of whiskey behind the passenger’s seat. [ 25 ] With Ms. Duchek and the male passenger in his police vehicle, he arrived at the Esterhazy Detachment at 1:25 a.m. He placed Ms.

Duchek into the interview room at the detachment (at 1:28 a.m.), where a video camera recorded her actions. That video was not put into evidence by the Crown or the defence. When asked, again, by Cst. Graham, she declined to speak to a lawyer. The officer then, again, asked Ms. Duchek how much she had to drink that evening and she repeated, in a statement ruled voluntary, that she had two beer at 8:00 p.m. and that she had a turkey supper, before the alcohol consumption, that upset her stomach. [ 26 ] Cst. Langdon, who was off-duty when contacted by Cst.

Graham, arrived at the detachment at about the same time as Cst. Graham and Ms. Duchek. The first sample was taken from Ms. Duchek by Cst. Langdon at 1: 41 a.m. That leaves thirteen minutes between when Ms. Duchek was lodged into the interview room by Cst. Graham and when she successfully provided an Intoxilyzer sample to Cst. Langdon. [ 27 ] The Crown submitted that no objection, other than the application under s. 24(2) of the Charter based on a lack of reasonable suspicion Ms.

Duchek had alcohol in her body, was taken by the defence at the time the Certificate of Analyses was marked as Exhibit P- 1 (subject to the Charter application). As a result, Mr.

Stricker argued that an absence of a Charter application claiming that the Intoxilyzer tests were not taken as soon as reasonably practicable, or an absence of any other submission on the inadmissibility of the Certificate of Analyses, related to that time element, meant that the defence could not raise this issue in argument at the conclusion of the trial. [ 28 ] However, I am satisfied that there is a distinction in law between: (1) the requirement in s. 254(3) of the Code that a demand be made “as soon as practicable” and that a person given a breath demand provide samples “as soon as practicable”; and (2) the presumption in s. 258(1)(

c) of the Code which, amongst other requirements, requires that the samples of breath be taken “as soon as practicable after the time when the offence was alleged to have been committed” (see R. v. Dolezsar , 2010 SKPC 142 ). That difference is that the former issue goes to the lawfulness of the search and seizure, and as a result engages s. 8 of the Charter and requires a Charter application under s. 24(2) to exclude the Certificate of Analyses, while the latter issue, assuming the admissibility of the Certificate of Analyses, relates to whether the Crown can rely on the presumption in s. 258(1)(

c) and does not engage the Charter . [ 29 ] I appreciate that the Manitoba Court of Appeal, in R. v. Forsythe, 2009 MBCA 123 , held that a Charter application was required to challenge the admissibility of breath tests taken pursuant to a demand under s. 254(3) of the Code (at para. 27).

But, in reaching my assessment, above, I am satisfied that Judge Labach, in Dolezsar (at para. 51 - 53 ), correctly stated the law in Saskatchewan: [51] While I agree with the Manitoba Court of Appeal's comments [in Forsythe ] that a Charter challenge is necessary when an accused is taking issue with the admissibility of breath samples on the basis of whether the requirements of section 254(3) have been met, I am not prepared to agree that a Charter challenge is necessary to take issue with the applicability of the

section 258 presumption. There are a great number of cases in Saskatchewan where an accused has challenged whether a breath sample was taken as soon as practicable under section 258(1)(c). In doing so they are challenging the applicability of the presumption rather than the admissibility of the breath tests. If an accused is successful in their challenge, then the Crown cannot rely on the statutory presumption that the blood alcohol concentrations in the Certificate of Analyses were the same as at the time the vehicle was operated despite the fact that the Certificate of Analyses was admitted as a full exhibit.

In such a case, no Charter application is required because the admissibility of the certificate evidence is not in question, only the use that may be made of it is. See R. v. Allin , 2003 SKPC 58 (Sask. Prov. Ct.); R. v. Fyfe , [2007] S.J. No. 305 (Sask. Prov. Ct.) ; R. v. Gilchrist , [2008] S.J. No. 665 (Sask. Prov. Ct.) ; R. v. Ealey , [2010] S.J. No. 357 (Sask. Prov. Ct.) ; R. v. Carriere , supra .

[52] Support for this position can be found in the case of R. v. Carter [ (SK CA), [1981] S.J. No. 1337 (Sask. C.A.)].In this case, the Saskatchewan Court of Appeal dealt with an appeal by way of stated case from an accused's conviction for driving whileover .08. The question on the stated case was whether the learned trial judge had erred in finding that there was no unreasonable delayfrom the time of the impaired driving offence to the time the breath tests were taken.

In finding that the trial judge had correctlydetermined that the tests were taken as soon as practicable, Chief Justice Culliton had this to say at paragraph 5: [5] The law is well settled that for the prosecution to rely on the presumption provided for in section 237(1)(c)(iv) of the Criminal Codeit is necessary that there be compliance with the requirements set out in paragraphs (ii), (iii) and (iv) of section 237(1)(c).

Clearly thefailure to satisfy the Court that breath samples were taken as soon as practicable after the offence was alleged to have been committed,does not go to the admissibility of the certificate, but solely as to whether or not there can be reliance on the presumption provided for inparagraph (iv). [53] Thus, while I take guidance from Appellate Courts in other jurisdictions, until the Saskatchewan Court of Appeal has ruledotherwise, I feel bound by the decision in R. v.

Carter, supra, as well as the considerable body of case law from Saskatchewan courtsindicating that a Charter application is not required when taking issue with the applicability of the presumptions in section 258(1)(c). [30] The presumption in s. 258(1)(

c) provides a shortcut for the Crown once the prerequisites noted in that

section - one of whichis that the samples of breath be taken “as soon as practicable after the time when the offence was alleged to have been committed” - havebeen proved by the Crown. That shortcut, if the Crown seeks to rely on it, forms part of the Crown’s case. I can see no lawful basisupon which the defence must give notice of their position - whenever that arises - that the Crown has not proved the prerequisites toapply the presumption in s. 258(1)(c). [31] Mr. Piché submitted that the delay between when Ms.

Duchek arrived at the detachment (1:25 a.m.) and when she gave herfirst sample (1:41 a.m.) meant that the samples taken from her were not taken as soon as reasonably practicable, especially in his viewbecause part of this time was taken up with Cst. Graham questioning Ms. Duchek about her drinking that evening in furtherance of hisinvestigation. [32] In R. v. Janzen, 2006 SKCA 111, the Saskatchewan Court of Appeal defined the term “as soon as practicable” to meanwithout an unreasonable or unjustified delay (at para. 4). In R. v. Vanderbruggen (2006), (ON CA), 206 C.C.C. (3d)489 (Ont.

C.A.), Rosenberg J.A. said the term meant “nothing more than that the tests were taken within a reasonably prompt time underthe circumstances” (at para. 12). Regarding how “as soon as practicable” should be assessed, Justice Rosenberg further said that: ... while the Crown is obligated to demonstrate that - in all the circumstances - the breath samples were taken within a reasonably prompttime, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute the accused is incustody. (at para. 13) [33] In this case, I am satisfied that the tests were taken from Ms.

Duchek “as soon as practicable”: within a reasonably prompttime under the circumstances and without an unreasonable or unjustified delay. The first test result on the Intoxilyzer was recordedthirteen minutes after Ms. Duchek was lodged into the interview room. Further to asking Ms. Duchek if she wanted to call a lawyer, anydiscussion Cst. Graham had with her, about her consumption of alcohol that evening, was of short duration. As well, the qualifiedtechnician, Cst. Langdon, who was off-duty when contacted by Cst. Graham to attend at the detachment, arrived there at approximatelythe same time as did Cst.

Graham and Ms. Duchek. He would have required some reasonable time to ready the Intoxilyzer machine andto prepare Ms. Duchek for the giving of a sample. [34] In all the circumstances, I am satisfied that the presumption in s. 258(1)(

c) applies in this case to the Certificate of Analyses(Exhibit P-1) and that all other elements of the .08 charge have been proved beyond a reasonable doubt. IV. IS THERE PROOF BEYOND A REASONABLE DOUBT OF IMPAIRMENT? [35] The Supreme Court of Canada in R. v. Stellato, (SCC), [1994] 2 S.C.R. 478 approved the following test forimpairment:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment established any degree of impairment ranging from slight to great, the offence has been made out. [ 36 ] In this case Cst. Graham followed Ms. Duchek’s vehicle for between one and two kilometres, and noted it drifting back and forth between the centre line and the fog line and, on one occasion, crossing the centre line. Cst. Graham admitted that there were not any screeching of tires by Ms. Duchek, nor any jerkiness in the way she operated the vehicle, and that her stop in response to the emergency lights appeared to be normal. [ 37 ] Cst. Graham said Ms.

Duchek’s speech was slurred when he first spoke to her through the window of the vehicle. He could not recall what words were slurred, nor had he spoken to her before. He had met Ms. Duchek since the date of her arrest, and said he didn’t notice any speech impediment as she talked normally. He also noted a strong smell of alcohol on her breath after he had detained her for an ASD test and placed her into the police vehicle. [ 38 ] Regarding motor skills, Cst. Graham admitted that Ms. Duchek did not fumble with the registration when she provided this to the officer.

He also admitted that, during his dealings with Ms. Duchek, she exhibited complete understanding and comprehension of what she was being told and that neither his report or his notes indicated any indication that there was a difficulty in Ms. Duchek’s motor coordination. Nor did he note any glassy or bloodshot eyes. [ 39 ] Cst. Langdon took breath samples from Ms. Duchek at the detachment and said Ms. Duchek had slurred speech, glassy red eyes and the smell of alcohol on her breath. He admitted that he made no notes of Ms. Duchek having slurred speech.

He further said she didn’t seem to be “police friendly”, saying “fuck you” to him at one point after he told her not to put her tongue over the mouthpiece, but admitted that a few minutes later she apologized for swearing at him. He also said Ms. Duchek’s cognitive skills were fine and there was no problem with the way she walked. [ 40 ] Here, applying the test from Stellato , to the whole of the evidence, I am left with a reasonable doubt that Ms. Duchek’s ability to operate a motor vehicle was impaired by alcohol. That doubt arises because of the following evidence which I accept:

(1) Ms. Duchek’s driving, which Cst. Graham described as drifting within her lane and crossing the centre line once, while out of the ordinary, was not what could be considered egregious, and would not necessarily mean impairment by alcohol;

(2) The smell of alcohol on Ms. Duchek’s breath (noted by both officers) and glassy red eyes (noted only by Cst. Langdon) are in my view equivocal on the issue of impairment;

(3) Despite Cst. Graham’s evidence that Ms. Duchek crossed the centre line of the highway once, and the evidence of both officers that she slurred, the evidence of both officers was that Ms. Duchek showed no problem with motor co-ordination, which I take to include her manner of walking; and

(4) Cst. Graham said that Ms. Duchek showed no problem in understanding what was said to her and Cst. Langdon said that her cognitive skills were fine. V. CONCLUSION [ 41 ] Because I am satisfied that the Crown has proven all elements of the .08 charge beyond a reasonable doubt, Ms. Duchek is found guilty on count #1. Because I not satisfied beyond a reasonable doubt that Ms. Duchek’s ability to operate a motor vehicle was

impaired by alcohol, she is found not guilty on count #2. R. Green, J