Her Majesty the Queen - v. -, 2011 SKPC 165

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 165 Date: November 2, 2011 Information: 30731153 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ryan Andrew Jensen Appearing: Mr. Rob Parker For the Crown Mr. Charles Stewart For the Accused JUDGMENT D.J. KOVATCH , J Background [ 1 ] Ryan Andrew Jensen was charged with driving while his blood alcohol content exceeded .08 percent and impaired driving. The charges arose on October 1, 2010. The trial proceeded on August 4, 2011.

The only witness for the Crown was Cst. Cory Kerr of the Moose Jaw Police Service. During his evidence, the Crown tendered a Certificate of Analyses. It was received by the Court but

subject to full argument on the Defence objections and the Court ruling on its admissibility. The Crown closed its case after Cst. Kerr’s evidence. The Defence advised that there would be no Defence evidence. It was essentially agreed that the decision on the trial proper turned on whether the Certificate of Analyses was admissible. [ 2 ] During argument, the Crown conceded there was no evidence to support the charge of impaired driving. I immediately dismissed that charge, and reserved on the charge of driving while over .08. The Evidence [ 3 ] Cst.

Cory Kerr testified that he has been a member of the Moose Jaw Police Service for approximately twelve years. On October 1, 2010, at approximately 9:50 p.m., he was in an unmarked police car, facing south on Main Street North in Moose Jaw. At this time, he saw a northbound vehicle pull away from a number of other vehicles and quickly accelerate to eighty-six kilometres per hour. This was in a fifty kilometre zone. The officer turned his vehicle northbound, and pulled over the Defendant’s vehicle. The accused was the driver of that vehicle, and he had three passengers with him.

The officer immediately approached the accused and asked for his licence and registration. At this time, he immediately noticed that the accused’s eyes were red and glassy. In addition, the officer detected the smell of alcohol coming from the vehicle. [ 4 ] The officer asked the accused to exit the vehicle. The officer stated that he wanted to determine if the smell of alcohol was coming from the accused or from some other person in the vehicle. They walked back toward the police vehicle. Near that vehicle, the officer still smelled alcohol.

He asked the accused if he had been drinking, and the accused said he had a couple beer. At that time, the officer made the standard form ASD demand. According to the officer’s notes, the ASD demand was made at 9:57 p.m. The officer testified that he then put the accused in the back seat of the police car. According to the officer’s notes, at 9:59 p.m. there was an ASD fail result. [ 5 ] According to the officer’s notes, at 10:00 p.m. he read the breath demand “because of the fail result”. “Now he had grounds for the demand”.

The officer further testified that according to his training on the ALCO Test 7410 GLC, the device is calibrated to fail with a blood alcohol reading of 100 mg and greater. The officer then made the intoxilyzer demand. The demand was in the usual form, having been read from a card. The demand was as follows: I have reasonable grounds to believe that your ability to operate a motor vehicle is impaired by alcohol. In accordance with the Criminal Code , I demand that you provide samples of your breath for analysis and that you accompany me for the purpose of providing such samples.

These samples will be analysed on an approved instrument. Do you understand? [ 6 ] The officer advised the accused of his Charter rights to counsel. He then read the accused the statutory warning. He took the accused to the Moose Jaw Police Service Building and booked him into cells at 10:11 p.m. [ 7 ] The accused was given an opportunity to call a lawyer, but declined. He was then turned over to Cst. Scheske, the intoxilyzer operator. [ 8 ] Cst. Kerr testified that he did not pay particular attention to what took place between Cst. Scheske and the accused.

He did not know if he was in the room when the samples were taken. He did testify that Scheske handed him three or four copies of the Certificate of Analyses. Cst. Kerr testified that the copies were all attached as part of one carbon form. He testified that he read the certificate to the accused, then completed the Notice of Intention, and dated and signed the Notice of Intention. He said that he “served one copy” on the accused. He noted that service was completed at 2249 hours or 10:49 p.m. It is significant to note that he completed the affidavit of service on the back of the original Certificate of Analyses.

In that affidavit of service, Cst. Kerr attests that he personally served the Notice of Intention and copy of the certificate at 2249 hours on October 1, 2010. The jurat for the affidavit of service indicates that the affidavit was sworn on October 1, 2010. [ 9 ] Defence counsel spent some time cross-examining the constable regarding his observations of the accused and the indicia of

impairment. He clearly established that the accused was not obviously impaired by alcohol. This resulted in the Crown advancing noargument on the impaired driving charge, and my immediate dismissal of the impaired driving charge. [10] Defence counsel also cross-examined regarding service of the Notice of Intention and the issuance of an Appearance Notice. Cst. Kerr freely admitted that he had little independent recollection of these matters. He testified regarding service of the Notice ofIntention at 2249 hours on October 1. This was based upon his notes and the affidavit of service.

He testified that he issued and servedan Appearance Notice. He did not recall just when that happened. Defence counsel introduced the Appearance Notice as an exhibit. The Appearance Notice indicates that it was issued at 10:50 a.m. on October 1, 2010. Defence counsel then asked if it was possible thatthe accused was held until 10:50 the following morning and released at that time. The police officer conceded that was possible. Issues [11] The Defence called no evidence. Defence counsel raised three arguments against the acceptance and admission into evidenceof the Certificate of Analyses.

Number one, that the officer did not have reasonable and probable grounds to make the intoxilyzerdemand; number two, that the officer did not testify that he left a copy of the Notice of Intention and Certificate of Analyses with theaccused; and number three, that no one testified that the accused blew into the intoxilyzer machine. I will deal with each of thesearguments in order.

Analysis Number One: That the officer did not have reasonable and probable ground to make an intoxilyzer demand. [12] Defence counsel argued that the police officer did not testify that he believed that the accused had a blood alcohol reading ofat least 100 mg of alcohol per 100 ml of blood, or that he believed that the accused was impaired by alcohol.

As a result, Defencecounsel argued that the police officer did not have reasonable and probable grounds for the intoxilyzer demand. [13] In my view, there is no legislative requirement that the police officer enunciate any particular wording prior to or as part ofmaking the intoxilyzer demand. Section 254(3) mandates that the peace officer have reasonable and probable grounds to believe that anoffence has been committed under s. 253. In a number of court cases, the courts have repeatedly stated that reasonable and probablegrounds has both an objective and a subjective component.

As a result, the issue here is not whether the officer has stated someparticular wording, but whether the officer had reasonable and probable grounds for the intoxilyzer demand. [14] As mentioned above, reasonable and probable grounds has both a subjective and objective component. Dealing first with theobjective component, as far back as 1981, in the case of R. v. Arthurs (1982), (SK CA), 12 Sask. R. 95, theSaskatchewan Court of Appeal dealt with the issue of whether failure on the Alert machine could provide reasonable and probablegrounds for a breathalyzer demand.

The Court stated: In my opinion, by enacting s. 234.1 Parliament intended that the result of “Fail” indicated by an Approved Roadside Screening Deviceshould by itself be sufficient reasonable and probable grounds to enable the peace officer to make a demand pursuant to s. 235(1). [15] In my view, this decision must be read as authority for the proposition that the ASD failure, in and of itself, provides theofficer with an objective basis for the intoxilyzer demand. [16] With respect to this point, I would add that the entire purpose of the approved screening device and the provisions in the Coderelated to the approved screening device is to give the police officer objective and scientific evidence upon which to make a demand, asopposed to subjective observations of the accused.

For these reasons and the fact that the accused blew a fail on the ASD device, Iconclude that the police officer had an objective basis for the intoxilyzer demand.

[ 17 ] I turn now to the question of whether the officer subjectively believed there was a basis for that demand. The officer testified that at 2159 hours or at 9:59 p.m., the accused registered a fail on the approved screening device. At 2200 hours or 10:00 p.m., just one minute later, the officer read the formal breath demand “because of the fail result”. The officer testified that because of the fail result, he now had grounds for the demand. He further testified that the ASD machine is calibrated to register a fail result when the blood alcohol content is 100 mg of alcohol per 100 ml of blood or greater.

The officer testified that he then read the formal demand to the accused from a card. He read from the same card in Court. In making that formal demand, the officer stated that he had “reasonable grounds to believe your ability to operate a motor vehicle is impaired by alcohol”. He demanded that the accused accompany him to provide suitable samples of his breath in an approved instrument.

On the basis of this evidence, I conclude that the police officer personally held the belief that an offence had been committed and that he had the grounds for the intoxilyzer demand. [ 18 ] As the evidence indicates that both the subjective and objective components of reasonable grounds were established, I conclude that the intoxilyzer demand was proper. Number Two: Whether the officer left a copy of the Notice of Intention and Certificate of Analyses with the accused. Whether section 258(7) of the Criminal Code was complied with. [ 19 ] Defence counsel referred to the case of Garson v.

The Queen (1982), 15 M.V.R. 147 (Sask. Q.B.) . In that case, a police officer testified that the accused was served with a copy of the Notice of Intention and Certificate of Analyses, immediately following the breathalyzer test. The officer then testified that the accused was booked into cells and held until the following morning. He testified that the Notice of Intention and Certificate of Analyses may have been taken from the accused and put with the accused’s personal effects.

Because the officer was off shift when the accused was subsequently released, he was not in a position to testify as to whether the accused’s personal effects and the Notice of Intention and Certificate of Analyses were returned to the accused. [ 20 ] On appeal, Mr. Justice Maurice said the purpose of what was then s. 237(5) of the Criminal Code , was to enable the accused to know the case he was required to meet at trial, so he could properly prepare his defence. Justice Maurice concluded that because the certificate was not left with the accused, but was taken from him, this purpose was not accomplished.

He refused to admit the Certificate of Analyses into evidence, and acquitted the accused. [ 21 ] As I understand Defence counsel’s argument, he says this accused may have been held until the following morning, and may have had the Certificate of Analyses taken from him.

Further, there is no evidence that the certificate was left with the accused, as opposed to simply being served upon him, and as a result, s. 258(7) has not been complied with and the Certificate of Analyses should not be admitted into evidence. [ 22 ] On the basis of the evidence, I am not prepared to conclude that the accused was held in custody until the following morning, or that the Certificate of Analyses was taken from him. There is no evidence that the accused was held in custody and not immediately released. The Appearance Notice indicates that it was issued at 10:50 a.m. on October 1.

This would be twelve hours prior to the conclusion of the intoxilyzer tests. Obviously this notation is an error. I am not prepared to conclude on the basis of this error on the Appearance Notice when the accused was released from custody. [ 23 ] More importantly however, I note that s. 258(7) of the Criminal 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 party reasonable notice of his intention and copy of the certificate. [ 24 ] This subsection and the predecessor subsection referred to by Mr.

Justice Maurice in the Garson decision do not impose a legislative requirement that the Certificate of Analyses “be left with the accused” or that the Crown adduce evidence that the Certificate of Analyses was left with the accused. The

section merely requires that a copy of the Certificate of Analyses and Notice of Intention be given to the accused. I do not interpret Mr. Justice Maurice’s decision in the Garson case as authority for the proposition that the Crown must establish that copies were “left with the accused”. Rather, I interpret Justice Maurice’s decision as saying that if the service requirements are met only in the most technical sense, because the certificate was given and immediately taken from him, the Court will conclude this is not proper compliance with the subsection.

[ 25 ] In this case, the police officer testified that he served the copies. He made a note to that effect. He almost immediately completed and swore the affidavit of service. There is no evidence that the copy was taken or removed from him. I must conclude that s. 258(7) was fully complied with. Number Three: That no one testified that the accused blew into the intoxilyzer machine . [ 26 ] 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 . [ 27 ] 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) [ 28 ] 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 [ 29 ] I have dismissed all of the Defence objections regarding admissibility of the Certificate of Analyses. It follows that the Certificate of Analyses is properly admitted as a full exhibit in this trial.

The Certificate of Analyses established that at 2221 hours on October 1, the accused supplied a breath sample which tested at 120 mg of alcohol in 100 ml of blood. At 2241 hours, he supplied a second sample which tested at 130 mg of alcohol in 100 ml of blood. The Crown has proved the offence and accordingly I find the accused guilty of count one on the Information.

Dated at Moose Jaw, Saskatchewan this 2 nd day of November, 2011. ________________________________________ D.J. Kovatch, J