Her Majesty the Queen - v. -, 2020 SKPC 1

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 1 Date: January 15, 2020 Information: 90173448 Location: Beauval _____________________________________________________________________________ Between: Her Majesty the Queen - and - Freddie Mike Roy Appearing: Ms. Frances Atkinson, Q.C. For the Crown Mr. Ronald Pich é For the Accused DECISION ON THE ADMISSIBILITY OF EVIDENCE AND TRIAL DECISION L.A. MATSALLA , J [ 1 ] Mr. Roy was charged that, on April 20, 2019, at Beauval, in this province, he did operate a conveyance while his ability to do so was impaired by alcohol contrary to s. 320.14(1) (

a) of the Criminal Code and secondly, that he had a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood after ceasing to operate a conveyance contrary to s. 320.14(1) (

b) of the Criminal Code .

[ 2 ] The defence had alleged that the accused’s rights under ss. 8 , 9 , and 10(

b) of the Canadian Charter of Rights and Freedoms [ Charter ] had been breached. This case proceeded utilizing a blended procedure in that the Crown in the voir dire was prepared to call all of the evidence that it intended to call on the matter. The defence agreed to do likewise. It was understood that any Crown evidence that was determined on the voir dire to be admissible would be evidence on the trial. The Crown called the investigating officer as its only witness and the defence did not call any evidence. The Facts [ 3 ] The police officer was an RCMP member with 1½ years of experience.

He was on patrol in his vehicle in the Beauval area on the date in question and he was proceeding in a northerly direction on Highway #155 when, at 9:39 p.m., he noticed an all-terrain vehicle (ATV) cross the highway prompting him to activate his lights and engage his siren for the purpose of conducting a check of the operator’s driver’s licence. The ATV continued on the trail along the highway despite the officer’s actions. He drove parallel to the ATV then drove ahead of the vehicle and pulled into a driveway that crossed the trail near a business located along the highway.

The ATV struck the passenger side of the police vehicle ahead of the rear tire. The ATV was disabled but continued to run although it was damaged significantly. The accused was on the ground and his helmet was damaged. Mr. Roy was the operator of the ATV and did not appear to be suffering from any injuries. When approached, he appeared surprised as to what had just occurred. The officer placed him in the police vehicle and in doing so the officer noted that he had a slight problem getting into the vehicle although he concluded that the recent collision may have affected the accused.

The officer did not ask the accused to produce his driver’s licence. [ 4 ] The officer concluded that the accused appeared to be coming from a local bar. He then made a demand upon the accused for a sample of breath for an analysis in an approved screening device [ASD]. Mr. Roy understood and the result of the analysis was a “fail”. At 9:41 p.m. Mr. Roy was placed under arrest for the impaired operation of a conveyance and for having a blood alcohol level in excess of 80 milligrams of alcohol in 100 millilitres of blood. He made some calls to his partner and he arranged for a tow truck to attend at the scene.

At 9:45 p.m. he referred to a card as he advised the accused of his right to counsel and the police warning. Mr. Roy appeared to understand and, in response to a question as to whether he would like to speak to counsel, he replied that he did not. The accused did not have slurred speech and did not appear to have any problems with his fine motor skills. At 9:49 the officer made arrangements for a qualified technician to be available. After waiting for the tow truck and for his partner, the officer transported the accused to the detachment – some 10 to 12 minutes away.

Despite spending some time speaking to and interacting with the accused he only noticed the smell of alcohol coming from the accused as they proceeded to the detachment. At the detachment the accused was placed in a cell and the officer noted that the accused had bloodshot eyes. At 10:12 p.m. he commenced to observe the accused but, at 10:14 p.m., he realized that he had forgotten to request that the accused provide a sample of breath for analysis in an approved instrument. He proceeded to do so. The accused appeared to understand.

The officer did not, once again, advise the accused of his right to retain and instruct counsel and the accused did not ask him if he wished to do so. He continued to observe the accused for some 23 minutes. The testing process continued. [ 5 ] Mr. Roy provided samples of breath for analysis at 10:35 and 10:57 p.m. and identical readings of 120 milligrams of alcohol in 100 millilitres of blood were obtained. [ 6 ] The officer served Mr.

Roy with two Certificates of Qualified Technician prepared by Constable Preston – one Certificate referred to a demand made under s. 254(3) of the Criminal Code and the second referred to a demand made pursuant to s. 320.28(1) (

a) of the Criminal Code . Each of the Certificates included a “Notice of Intention to Produce Certificate” duly completed by the officer serving the Certificates. The Certificates included an Affidavit of the officer setting out that copies were served upon Mr. Roy. The accused was subsequently released. Issues

a) Whether the officer made a demand “as soon as practicable” as required by s. 320.28(1) ;

b) Whether the accused’s rights under ss. 8 , 9 , and 10(

b) of the Charter had been infringed, and if so, whether evidence of the breath tests ought to be excluded pursuant to s. 24(2) of the Charter . Analysis [ 7 ] In the appropriate circumstances, s. 320.28(1) permits an officer to make a demand upon a person “as soon as practicable” and requires that a person provide samples of breath for analysis “as soon as practicable” as well. The wording in the present provisions of the Criminal Code are similar to the former provisions of the Criminal Code so reference to earlier decisions is helpful. The focus in this case is whether the demand was made as required by the Code not whether the accused provided samples as required.

[8] Mr. Justice Kalmakoff, in R v Peepeetch, 2018 SKQB 65 (a case in which a demand was made four minutes after an arrest),succinctly set out the circumstances that must exist to comply with the “as soon as practicable” requirement. At paras 41 – 44 he saidthis: [41] It is important to note that the “as soon as practicable” requirement in s. 254(3) does not mean that a demand for an evidentiarybreath sample must be made instantaneously.

Nor does “as soon as practicable” mean “forthwith” or even “as soon as possible”: R vRacine, 2014 SKCA 73 , 438 Sask R 310; R v Burwell, 2015 SKCA 37 , 472 Sask R 1 [Burwell]. “As soon aspracticable” means that a breath demand must be made within a reasonably prompt time.

If there is any delay in making the demand, orin carrying it out, that delay must be explained, and the conduct of the police contributing to the delay must be reasonable: Burwell; R vPhillips (1988), (ON CA), 42 CCC (3d) 150 (Ont CA); R v Letford (2000), (ON CA), 150 CCC(3d) 225 (ONCA); R v Purdon (1989), 1989 ABCA 297 , 52 CCC (3d) 270 (Alta CA); R v Squires (2002), (ON CA), 166 CCC (3d) 65 (Ont CA); R v Naidu, 2012 BCCA 150, 2012 BCCA 150 , 30 MVR (6th) 1. [42] The “as soon as practicable” standard must be applied with reason.

In R v Carter (1981), (SK CA), 9 Sask R 1(Sask CA), the Saskatchewan Court of Appeal noted that the key question is whether any delay is satisfactorily explained. InR v Vanderbruggen (2006), (ON CA), 206 CCC (3d) 489 (Ont CA) [Vanderbruggen], the Ontario Court of Appealheld that “as soon as practicable” means “within a reasonably prompt time under the circumstances.” Depending on thecircumstances of the case, breath samples may be found to have been taken as soon as practicable even if they could have been takensooner.

The legal test is flexible, and grounded in common sense: R v Prestupa, 2016 SKCA 118 , 485 Sask R 152. [43] While the Crown must be in a position to satisfactorily explaindelay, this does not require that it provide a detailed explanation of what occurred during every minute that the accused was incustody: Vanderbruggen at para 13; R v Zemlak, 2013 SKQB 34 , 413 Sask R 1; R v Singh, 2014 ONCA293, 2014 ONCA 293 , 310 CCC (3d) 285.

The mere passage of time is not unwarranted delay if that time is occupied by thepolice carrying out reasonable duties related to the investigation: R v Sword, 2015 SKQB 9 , 466 Sask R 108, aff’d 2015 SKCA116 , 467 Sask R 270. [44] In the end, whether the delay involved in making (or implementing) a demand is permissible is a fact-specific determination. Theexact amount of time involved is not the determining factor.

Whether the demand is made assoon as practicable depends on the circumstances, and the reasonableness of any police actions that cause or contribute to the delay. [9] The case of R v Pavey, 2015 SKQB 40, 469 Sask R 39 [Pavey] was a case in which the accused had failed an ASD test atroadside and, at 11:10 p.m., placed the accused under arrest and advised him of his right to retain and instruct counsel. He took theaccused to the detachment arriving at 11:25 p.m. and, some 20 minutes later, reminded Mr. Pavey that he had an option to speak tocounsel however Mr. Pavey declined.

The officer then realized that he had not administered the breathalyzer demand and, at 11:35 p.m.,he did so. The accused did not exercise his right to counsel. Some twenty-five minutes passed from the time of the arrest to the time ofthe demand. Chicoine, J concluded, at para 62, that the officer did not make the demand “as soon as practicable” and, as a result, theaccused’s rights under ss. 8 and 10(

b) had been infringed. The evidence of the breathalyzer tests was excluded (para 73). [10] Very shortly thereafter, in R v Lester, 2015 SKQB 53, 469 Sask R 257 [Lester], Mr. Justice Chicoine heard a similar case inwhich a “fail” reading on the ASD was obtained at 10:43 and a breathalyzer demand was made 12 minutes later at 10:55 p.m. Theaccused was only then advised of his Charter rights and he expressed an interest to speak to counsel. The officer had simply forgotten tomake the demand at an earlier time.

The Court found that there was no evidence as to what the officer’s actions were during the 12minute period after the “fail” reading was obtained. Further, the officer did not arrest the accused, inform him of the reason for thearrest and did not advise him of his right to retain and instruct counsel. The demand was not made “as soon as practicable” and, as aresult, the accused’s ss. 8, 9 and 10(

b) rights were breached. Evidence of the breath samples was excluded, (para 36). [11] McMurtry, J, in R v Schlamp, 2015 SKQB 348 [Schlamp], determined that, as a result of the 25 minute delay between thearrest of the accused at 9:35 p.m. and the breathalyzer tests at 10:10 p.m., the demand was not made “as soon as practicable” (para 21). The officer had forgotten to make the breath demand however, after conducting the Grant analysis, the Court admitted the results of thebreath tests.

There was evidence that the accused knew why he was transported to the detachment. [12] In R v Schulhauser, 2015 SKQB 205, 478 Sask R 249 [Schulhauser], after having obtained a “fail” reading on the ASD, thepolice officer advised the accused of the typical police warning at 10:30 p.m. and the accused expressed a desire to talk to counsel. Because the officer had forgotten to do so, the demand was not made until 35 minutes later at the detachment at 11:05 p.m., at whichtime the accused was asked which counsel he wished to speak to and arrangements were made for him to do so. Layh, J held that failure

to make a demand for a breath sample breached the accused’s ss. 8 and 9 Charter rights (para 21). Whether the accused’s s. 10 (

b) rights were infringed [ 13 ]

Section 10(

b) reads as follows: 10. Everyone has the right on arrest or detention . . .

b) to retain and instruct counsel without delay and to be informed of that right; . . . [ 14 ] It is clear that when an accused is detained (as was readily admitted by the police officer in this case) the obligations set out in s. 10 (

b) are immediately engaged, R v Suberu , 2009 SCC 33 , [2009] 2 SCR 460. The police officer in this case promptly advised Mr. Roy of that right and he declined to contact counsel, however that does not end the inquiry. It must be determined whether there was a significant change in jeopardy after the demand sufficient to impose an obligation on the police to, once again, inquire of the accused whether he wished to retain and instruct counsel. The obligation of an officer in such circumstances was explained by the Supreme Court of Canada in R v Sinclair , 2011 SCC 40 , [2011] 3 SCR 3.

The Ontario Superior Court of Justice in R v Gadsen , 2012 ONSC 5948 concerned a case in which the accused person at roadside requested to speak to specific counsel and after unsuccessful attempts to speak to duty counsel but, before the breath test, he continued to request to speak to that same counsel, however, the testing procedure continued.

While the Court concluded that the accused did not face a change in jeopardy because he had obtained legal advice, the Court referred to Sinclair and said the following at para 12: [12] The Supreme Court went on to identify three instances that could represent a change in the detainee’s situation that would warrant a renewed consultation with counsel:

a) Where there are new procedures involving the detainee;

b) Where there is a change of the detainee’s jeopardy;

c) Where there is reason to question the detainee’s understanding of his s. 10 rights. and at para. 14, referring to Sinclair : The change of circumstances . . . must be objectively observable in order to trigger additional implementational duties for the police.

It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so. [ 15 ] In Pavey , the accused, despite admitting that he understood his right to counsel at roadside, did not wish to speak to counsel. The Court, at para 41, said this: I am of the view that the making of the formal breathalyzer demand effectively changed the reason for Mr.

Pavey’s detention, namely, to obtain conscriptive evidence for a charge of driving while over .08. This was, in my opinion, a significant enough change in jeopardy to warrant a re-reading of the right to counsel. The same court reached the same conclusion in Lester (para 37 ). In Schlamp , at para 23 , the Court pointed out that such a breach would be more serious if the demand would have been made after the accused had exercised his right to counsel. [ 16 ] I have concluded that the police had an obligation to provide Mr.

Roy with another opportunity to retain and instruct counsel because there was a significant change of jeopardy after the breath demand was made and, therefore, his s. 10 (

b) rights were breached. Whether the accused’s ss. 8 and 9 rights were infringed

[ 17 ] Sections 8 and 9 read as follows: 8. Everyone has the right to be secure against unreasonable search or seizure, and 9. Everyone has the right not to be arbitrarily detained or imprisoned. [ 18 ] As a result of my conclusion that the demand was not made “as soon as practicable”, Mr. Roy’s right under s. 8 had been breached ( Lester at para 32, Schulhauser at para 21). Furthermore for the same reason, the accused’s s. 9 rights had been breached ( Lester para 37 , Schulhauser , para 21 , Schlamp , para 21 ).

Section 24 analysis [ 19 ] The Supreme Court of Canada in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ] set out the three factors that must be considered to determine whether the evidence obtained as a result of a breach of an individual’s rights under the Charter can be admitted. The Court must examine the following: [71] 1) seriousness of the Charter -infringing state conduct; 2) the impact of the breach on the Charter -protected interests of the accused; and 3) society’s interest in the adjudication of the case on the merits.

After making the inquiries, the Supreme Court requires this Court to determine whether, on balance, the admission of the evidence obtained as a result of the use of the breath tests would bring the administration of justice into disrepute. [ 20 ] Dealing firstly with the first inquiry, it is apparent that the failure to make the breath demand in a timely fashion was not deliberate but was unintentional. The police officer simply forgot to make the demand.

Nonetheless, s. 320.28(1) of the Criminal Code places significant authority in the hands of a police officer to require a person to provide potentially conscriptive evidence. The law places a responsibility on the officer to initiate that process promptly because the individual has been detained.

The officer, in this case, may have been careless or he may have been distracted by the arrangements that he was making before leaving the scene or he may have thought that making the demand was simply a technical requirement but, in any event, he did not focus on the importance of complying with his obligation under the Criminal Code . The breach is a serious one in this case because the accused’s ability to retain and instruct counsel was affected ( Pavey at para 66, Lester at para 40).

The admission of evidence obtained in violation of Charter rights may send a message that the justice system condones serious state misconduct rather than requiring that the police uphold the rights granted by the Charter ( Grant at para 23 ). [ 21 ] Secondly, I must examine the impact of the breaches on Mr. Roy’s Charter rights.

While he had declined to retain and instruct counsel at roadside it could not be said that he was aware that he could be requested to provide conscriptive evidence and he could not have been expected to focus on the significance of what he was facing so as to make a rational decision to seek counsel. Furthermore, he was detained to provide a sample of breath yet he was not aware that he was expected to do so. He was in custody for a significant period of time before the breath samples were requested ( Lester at para 43 ). Nonetheless, I would conclude that the impact on Mr.

Roy was not particularly serious. [ 22 ] The final avenue of inquiry requires that the Court consider society’s interest in the adjudication of the case on the merits. It is undeniable that impaired driving is a serious issue in society today because of the potential significant consequences to citizens. Obtaining breath samples as a result of a breach of an individual’s rights is not particularly intrusive, R v Anderson , 2011 SKCA 13 at para 11 , 366 Sask R 175.

That said, the Supreme Court in Grant did not hold that breath evidence is to be admitted in all cases as has been pointed out in Pavey at para 72 and Lester at paras 44 - 45 . Mr. Justice Barrington-Foote (as he then was) in R v Lomenda , 2014 SKQB 77 [ Lomenda ] (affirmed, 2015 SKCA 40 at para 6 ) said this at para 43 - 44 respecting the results of an ASD test: [43] When these factors are considered together, this case does not fall clearly at either end of the spectrum described in para. 111 of Grant, supra. The Charter breach can be properly characterized as negligent, but not flagrant or wilful.

The intrusion on the Charter - protected interests of the accused was, at worst, moderate rather than serious. The evidence is reliable and essential to the Crown’s case. [44] On balance, however, I conclude that the evidence must be excluded as its admission would tend to bring the administration of

justice into disrepute. In the absence of evidence as to whether Sergeant Macrae was actually aware of the law reflected in Bernshaw,supra, and if not, why not, I conclude that he was either ignorant of the law, or negligent. His choice to adopt the procedure used in thiscase was of particular importance due to the fact that it was the approach he frequently used and talked to others. It is important to avoidrewarding or encouraging such behavior, which may reasonably be characterized as a pattern of abuse.

Unlike Lomenda, there is no evidence, in this case, that the police officer was in the habit of delaying demands for a breath test but thepassage has relevance in this case in that the long term reputation of the administration of justice must be considered (Lomenda at para45). [23] I must conclude, on balance, that the appropriate remedy is to exclude the evidence of the breath tests that were obtained as aresult of the infringement of the accused’s rights under the Charter. As a result, the Certificates of the Qualified Technician are notadmissible.

In light of my conclusion, it is not necessary for me to determine whether the certificate was served upon the accused asrequired by the Criminal Code. [24] In respect of count #2 of the Information, (that is whether the Crown has proven that the accused operated a motor vehiclewhile his ability to do so was impaired by alcohol), I have considered the cases of R v Stellato, (SCC), [1994] 2 SCR478 and R v Landes (1997), (SK KB), 161 Sask R 305 (QB).

I have also considered the case of R v Orbanski, 2005SCC 37, [2005] 2 SCR 3 – a case in which it was held that a judge can only consider the evidence of the results of an ASD test inrelation to an officer’s grounds for making a breath demand not in relation to proof of impairment. The evidence establishes that theaccused was operating an ATV on a trail in a typical fashion. He did not respond to the emergency equipment engaged by the officer,but he was wearing a helmet at the time.

The officer spoke to him shortly after the ATV struck the police vehicle but he did not noticethe smell of alcohol coming from him at that time. He did not fumble at any time. The officer did not note slurred speech and theaccused did not suffer from any lack of fine motor skills. While he had difficulty getting into the police vehicle, the officer candidlyadmitted that the reason for the difficulty may have been due to the collision. The smell of alcohol was only noted in the police vehicleand Mr. Roy’s blood shot eyes were noted during the observation period at the detachment.

The Crown must prove the elements of theoffence beyond a reasonable doubt. In these circumstances, I am not satisfied that the onus has been met and I must acquit Mr. Roy ofthe offence set out in count #1 of the Information. [25] The accused is acquitted of both counts set out in the Information. _____________________ L.A. Matsalla, J