Her Majesty the Queen - v. -, 2013 SKPC 17

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 017 Date: January 25, 2013 Information: 24422183 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sergii Ostropolskyi Appearing: Andrew Wyatt For the Crown Richard Leland For the Accused JUDGMENT P. KOSKIE , J I. INTRODUCTION [ 1 ] On August 10, 2010, at 11:18 p.m. the police were contacted by a concerned citizen about a party on Irwin Avenue, in the City of Yorkton, Saskatchewan. [ 2 ] The first police officer to attend was Cst.

Letson who arrived at approximately 11:20 p.m. and saw a black Trans Am drive off of the lawn onto Irwin Avenue. As a result he engaged his emergency lights and stopped the vehicle.

[ 3 ] There were three occupants in this vehicle. The driver was observed having a black eye, red glossy eyes, and a thick Ukrainian accent. He was attempting to hide a beer behind his leg. The front passenger, someone known to the police officer as Tyler Ironstand, was also attempting to hide a beer from the officer. Cst. Letson asked the parties to leave the vehicle and sit on the curb while he called for back-up.

He did so for security reasons in that there were three passengers and a party going on behind him on Irwin Avenue. [ 4 ] It took two to three minutes for back-up to attend in order to deal with the passengers and isolate the driver. In the course of attempting to deal with Mr. Ironstand he became agitated and was arrested for being drunk in a public place. While attempting to get Mr. Ironstand in the second police vehicle he tried to grab his beer back from the newly arrived officer, and fought and resisted being placed into the police vehicle. [ 5 ] At this time Cst.

Letson was investigating the open liquor ticket and the accused was not being cooperative, in that he denied both driving and drinking in his car, even though Cst. Letson had observed the driving and saw the open Kokanee beer can behind his leg. [ 6 ] Once the passengers were dealt with by the other officers and the security concerns were no longer an issue, he took the accused back to his police vehicle. Upon being isolated in the police car the officer noticed the smell of liquor on the accused’s breath and the accused admitted to consuming a couple beers.

As a result at 11:30 p.m. an ASD demand was made upon the accused who indicated he understood. [ 7 ] Cst. Letson was not an approved screening operator at the time of this arrest and radioed back to get an approved screening device and operator. Cst. Stroh attended within 10 minutes of the demand and at 11:40 p.m. got the grounds for the demand from Cst. Letson. [ 8 ] Cst. Stroh explained the ASD to the accused, who attempted to blow into the instrument a total of nine times in all.

After the sixth attempt a new mouthpiece was used and an actual demonstration was given on how to correctly blow into the instrument. Further, the officer explained that he would be charged with refusal if he did not provide a proper breath sample. After three further attempts no suitable samples were obtained and the accused was charged with refusal under s. 254(5) at 11:49 p.m. II. ISSUE & ANALYSIS 1. The issue before me is whether the ASD demand was made forthwith or was it in violation of the accused’s s. 10(

b) Charter rights? [ 9 ] I have reviewed all of the cases filed by both counsel, but I have found the

summary in R. v. Quansah, 2012 ONCA 123 , 2012 O.J. No. 779, to be the most succinct

summary on the law in this area, where Mr. Justice Laforme at paragraphs 45-49 stated: 45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually.

Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights. 46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion. 47 Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible

interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2). 48 Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(

b) rights before requiring the sample. If so, the "forthwith" criterion is not met. [ 10 ] In the case at bar I must weigh the balance of the right to counsel upon detention with society’s interest in keeping our roads free from drunk drivers. [ 11 ] The second criterion of the Quansah decision is also met when the police officer made the approved screening demand immediately upon forming the suspicion that the accused had alcohol in his body.

This was accomplished only after the accused was isolated in the police vehicle and there was no safe way to do so until the passengers in the vehicle had been dealt with by the second police vehicle. [ 12 ] The third and fourth criteria suggest a delay must be shown to be reasonably necessary otherwise the ASD test should be done immediately, keeping in mind the whole of the circumstances, and whether there were articulated and legitimate safety concerns, or where one is not immediately available. [ 13 ] In the case before me there is a continuing party, two other passengers, one of which is known to the officers to be volatile and does in fact get aggressive by resisting arrest and attempting to grab his beer back, and resisting placement into the back of the police vehicle.

These safety concerns are explained and legitimate on the part of the first attending officer and explain the delay period from 11:20 p.m. to 11:30 p.m. which is the time of the approved screening demand. Also, within this time period the officer places the accused in his vehicle and smells liquor emanating from the accused, along with his admission of having a couple of beers. He, upon getting the grounds for the ASD, immediately makes the demand at 11:30 p.m. [ 14 ] Thereafter, the time from 11:30 p.m. to sometime shortly after 11:40 p.m. when Cst.

Stroh arrived with the ASD, the delay is in order to get an approved screening device and qualified operator to Irwin Avenue and is in my opinion reasonable in the circumstances, it is basically from 11:30 to 11:40 p.m., about ten minutes. [ 15 ] This is not the case of an officer waiting and denying the accused rights to counsel for no reason at all. The arresting officer required someone to operate and bring the machine and that was completed within 10 minutes of forming his reasonable suspicion. [ 16 ] The last 10 minutes prior to Cst.

Stroh’s arrival was not sufficient time to consult with counsel in these circumstances and as such I don’t find a breach of the s. 10(

b) rights. Even if I had found there was a Charter violation on these facts it would not stand up to a Grant analysis on these particular facts, due to the fact the police acted in good faith throughout this arrest and situation that was before them. Further, from 11:40 p.m. through to 11:49 p.m. Cst. Stroh gave an explanation of the machine twice, in addition nine attempts to blow into the instrument were made by the accused, and a new mouthpiece was inserted after the sixth attempt, and an explanation of what refusal meant was given to the accused.

Clearly, the accused was dealt with immediately upon the arrival of the ASD. [ 17 ] I wish to caution counsel that these cases will be decided on a case by case basis and in different circumstances I would come to a different conclusion. For example, in the course of this decision I thought about why isn’t it part of basic training that all police officers are qualified on an ASD. Further, if one is going to attend and enforce driving violations it may be time that enough approved screening devices are placed in all police vehicles and I refer you to my sister, Judge Beaton, at paragraph 24 of R. v.

Hatzel (2011), S.J. No. 278, 2011 SKPC 59 : 24 Police officers ought to be aware that time is of the essence in obtaining roadside breath samples. In the present case, the bulk of the delay was due to awaiting the arrival of the ASD. Should police officers choose not to carry an ASD in their vehicles, they do so at the peril of unlawfully detaining accused people and potentially having critical evidence excluded by the Courts. There is a limit on how long police can wait for the availability of the ASD.

Given the reason for the delay, the police conduct showed a reckless disregard for the accused's Charter rights. This breach is a serious one and not merely a technical one. III. CONCLUSION [ 18 ] In any event, in the case at bar I find the delay was adequately explained and accordingly, I find the accused guilty on count one, the refusal under s. 254(5).

[ 19 ] Further, I find the accused not guilty on the impaired driving charge as there was insufficient evidence to support a conviction. [ 20 ] Dated at the City of Yorkton, in the Province of Saskatchewan this 25 th day of January, A.D. 2013. _______________________ P. Koskie, J