Her Majesty the Queen - v. -, 2018 SKPC 8

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 008 Date: February 12, 2018 Information: 24485090 Location: Rosetown _____________________________________________________________________________ Between: Her Majesty the Queen - and - Vance Uffelman Appearing: T. O ’Hara For the Crown L. Heidinger For the Accused DECISION ON VOIR DIRE M.M. BANIAK , J [ 1 ] The accused, Vance Uffelman, is charged as follows: 1) that on or about the 30 th day of October, 2015 at Elrose, in the Province of Saskatchewan, did while his ability to operate a motor vehicle was impaired by alcohol or a drug, did have the care or control of a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code ; and 2) that on or about the 30 th day of October, 2015 at Elrose, in the Province of Saskatchewan, did having consumed alcohol in such a

quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in 100 millilitres of blood, did have the care or control of a motor vehicle, contrary to section 253(1) (

b) and section 255(1) of the Criminal Code . [ 2 ] The trial commenced on November 14, 2017, in Rosetown, Saskatchewan.

The evidence was proffered in the context of a voir dire with the agreement that the evidence so admitted would be applied to the trial proper. [ 3 ] Following the Crown’s case on the voir dire , the respective arguments were advanced on January 17, 2018, in Provincial Court Saskatoon. [ 4 ] Defence argued, firstly, that since the Approved Screening Device (ASD) used by the RCMP officer was not maintained as per the requirement that there be an annual maintenance record, any results obtained therefrom could not be relied upon to create the reasonable grounds for a breath test, pursuant to s. 254(3) of the Criminal Code . [ 5 ] Secondly, defence argued that the pat-down search of the accused by the officer prior to the ASD being administered, violated the accused’s Charter rights. [ 6 ] The Crown takes the position that the annual maintenance record is not as important as the bi-weekly calibration of the ASD; that the officer subjectively believed that the ASD functioned properly; and, that the officer was not aware that the ASD was not annually certified until after the test was taken. [ 7 ] With respect to the Charter breach stemming from the pat-down search of the accused, Crown takes the position that, having regard to all of the circumstances, it was reasonable and prudent for the officer to proceed as she did.

Alternatively, if there was a s. 8 Charter breach, it was of such a minor nature as to warrant the inclusion of the evidence following a Grant [1] analysis. Evidence [ 8 ] The Crown’s only witness was Ralphene Williams, a constable with the RCMP. At trial time she testified that she had 7 ½ years experience. The trial was held approximately two years after the alleged offence. [ 9 ] On October 30, 2015, Constable Williams was on patrol doing the evening shift. She was dispatched to a rural farmstead. The owners of the property had reported a vehicle in their field.

The vehicle was running but no one was visible inside. She arrived at the scene about 20 minutes later. As she approached the running vehicle, she noticed the seat coming up from a reclined position. The accused was in it. She continued: So while Mr. Uffelman was turned and speaking with me, I could smell alcohol coming from his breath.

And there I asked him when his last drink had been, and he advised me his last drink had been two hours previous at which time I requested that he exit his vehicle and come with me to my police vehicle for an ASD test to confirm sobriety before he continued driving. [2] [ 10 ] Constable Williams further testified that the accused appeared confused, had difficulty opening the door, and when he got out she noticed a mickey sized bottle of Southern Comfort liquor on the seat beside him, and it was about one quarter full: I noted the Southern Comfort in the vehicle. I left it there and Mr. Uffelman came with me.

I brought him to the back of the vehicle. He was searched. He was put in the back seat of my vehicle and I read him the ASD demand from my - my cards, which he confirmed he understood.

[ 11 ] Constable Williams further described the accused as having droopy eyes and walking with a wide gait. [ 12 ] The ASD used by Constable Williams was an Alco-Sensor FST, an approved screening device. She then was asked about the calibration and maintenance that is normally performed on this device: So the calibration, annually, has an annual maintenance. That ASD that we had was new from the factory, so its annual maintenance was done on October 15, 2014.

So that meant it was due for its next annual maintenance on October the 15 th , 2015 . . . every month - this style has - every 30 days, it has to have an accuracy check . . . that ASD has its accuracy test done on October the 5 th , and it would have been due for its next accuracy test on November the 5 th , 2015. [3] [ 13 ] She testified that she did not notice that the annual maintenance check had not been done when she was using the ASD on October 30, 2015, only noticing this fact while preparing for the first trial date of this matter which was scheduled for June 13, 2017.

She did not notice that the annual calibration had expired two weeks earlier. According to her, the device was turned on, it did its own self-check and it was functioning properly when she administered the test on the accused. The test was completed at 23:32 hours, after which he was arrested for impaired care and control and given his counsel rights. Constable Williams testified that the accused understood everything and that he indicated that he did not wish to call a lawyer. They left the scene at 23:41 hours and arrived at the Rosetown detachment at 00:07 hours on October 31, 2015.

After the requisite observation periods, the accused provided two breath samples. After being served with the Certificate of Qualified Technician, the Notice of the Driving Suspension and the Notice of Intention to Seek Greater Punishment he was released on a Promise to Appear. [ 14 ] The accused was cooperative and respectful throughout.

The constable in fact drove him to the 7-11 to get some food and afterwards to the Country Roads Inn where he arranged to get a room. [ 15 ] During cross-examination, the following exchange took place with respect to the pat-down search: Q And prior to putting him in the back of the cruiser you searched him; is that right? A Yes Q Okay. And was that, like, your pat-down search, like, empty pockets, back of the hand across the belt? A It was to ensure there was no alcohol or anything on him that I needed to be concerned of in ths vehicle. So it would have been empty your pockets, coat, jacket, pants. Q Okay.

So - and is that something that you routinely do with everybody before they get into your vehicle? A Yes Q And is that something that you’re trained to do or is that something you do on your own? A We’re trained for officer safety and for security is to search somebody to ensure there’s no weapons, no means of escape, and for safety.

Q Okay. And I’ll put to you that up to that point, Mr. Uffelman was polite and cooperative; fair to say? A M-hm. Q I’ll put to you that there wasn’t any obvious weapons in his possession at that point in time; would that be correct? A M-hm. Q Okay. And he was following your directions, correct? A M-hm. Yes. Sorry, yes. . . Q Okay. And would that be something - in terms of your training to do that, is that something that your whole detachment would be taught to do in terms of before you put someone into the back of the cruiser, you do this to check or this - this search?

That’s something that everyone in your detachment would be trained to do? A You’d be - you’re trained to for security and for means of escape and for - so I don’t know Mr. Uffelman - Q Okay A I’m a lone officer in the middle of a field, our size difference.

While he’s compliant, I - it’s just - I felt at that point in time for my safety and for the investigation, to ensure there was no more alcohol that could be consumed, I did a pat-down search. [4] [ 16 ] With respect to the calibration of the Alco-Sensor FST, Constable Williams acknowledged that it requires a monthly calibration to confirm accuracy and an annual maintenance certificate confirming that it passed a maintenance test. [ 17 ] Constable Williams testified that she checked the “accuracy date, but not the maintenance date.” [5] [ 18 ] She further testified that when she checked the ASD it was within the current accuracy date, which led her to believe that it was within the annual maintenance check date. “I felt that it was within its date because it was accuracy checked.” [6] [ 19 ] Defence concluded the portion of the cross-examination dealing with the ASD by asking the following: Q . . .

I’ll put to you that without the fail result on the screening device, you felt that you didn’t have reasonable and probable grounds to arrest him for impaired care and control; would that be correct? A The reason I went with the ASD, Mr. Uffelman coming out of the vehicle, and his behaviour in the vehicle, the smell of alcohol, the uncoordinated and inability to open the doors and roll the windows down as requested, his - and the odour of alcohol on his breath, I knew he had alcohol in his body. But as I just woke him up, I couldn’t attribute all of his behaviours to the alcohol.

I thought some of it may have been because he just woke up. . . had I stopped him roadside and that’s what I had observed, I would have gone straight

impaired. But because I just woke him up, there was that other factor that I wanted to rule out. [7] [ 20 ] The ASD result, therefore, provided Constable Williams with the grounds to make the breath demand. [ 21 ] The two issues to be considered, therefore, are as follows: 1) Did the pat-down search prior to the ASD being administered violate the accused ’s Charter rights? 2) Did the police officer have reasonable and probable grounds for the breathalyzer demand having regard to the fact that the ASD did not have the recommended annual maintenance or calibration?

Analysis 1) Did the pat-down search prior to the ASD being administered violate the accused ’s Charter rights? [ 22 ] With respect to the legality of the pat-down search, it is necessary to determine if this warrantless search, during the investigative stage of the detention was authorized by law, if the law itself was reasonable and if the manner in which the search was carried out was reasonable. [8] [ 23 ] During an investigative detention warrantless searches or the so-called pat-down searches are not justified as a matter of course as R v Mann , holds: The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention.

Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances: see S. Coughlan, “Search Based on Articulable Cause: Proceed with Caution or Full Stop?” (2002), 2 C.R. (6th) 49, at p. 63 . The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances.

It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition. [9] [ 24 ] Similarly, a police officer cannot justify a search during the investigative stage of the detention on the basis that it is part of his training, or police policy at his detachment or personal practice. [10] [ 25 ] Having concluded that a warrantless search during investigative detention is presumed to be unreasonable and contrary to the detainee’s s. 8 Charter rights, it then falls on the Crown to prove on a balance of probabilities that the search was reasonable.

If it can discharge this burden, then it will succeed. [ 26 ] For this case, the subjective component is satisfied by the officer’s honest belief that she had concerns about her safety. She testified that she did and I accept her testimony. I found her testimony to be credible throughout.

[ 27 ] The objective component will be established if it is determined that her honest belief in the existence of safety concerns is supported by the facts.

It is necessary to consider the “totality of circumstances as they existed in this case”. [ 28 ] Constable Williams testified that she did not want the accused to have any objects or weapons or alcohol on his person before placing him in the police cruiser. [ 29 ] She also testified that her officer safety concerns were based on the following: 1) she did not know the accused; 2) she was a lone officer in the middle of a field; and 3) there was a substantial size difference between the accused and herself. [ 30 ] Even though the accused was not difficult or aggressive, Constable Williams decided it was prudent to conduct a cursory pat- down search of the accused.

There was no evidence that this was a lengthy or intrusive exercise. [ 31 ] Based on Constable Williams’ testimony, it appears to me that the pat-down search was based on and motivated by safety concerns, and reasons specifically related to the particular nature of an impaired investigation. This is not a case where she was responding to a particular policy, training or personal routine alone.

I find nothing in the evidence to suggest an ulterior motive for the pat-down search. [ 32 ] We have a situation where a lone, female officer responded to a dispatch directing her to a remote rural area approximately half an hour from Rosetown. It was almost midnight, dark and wet. The accused’s vehicle was not on the side of he road but in the stubble field. Constable Williams encountered a male who appeared to be somewhat confused, perhaps intoxicated, and whom she did not know. He was bigger than her.

I find that the pat-down search was reasonable. [ 33 ] However, even if the accused’s Charter rights were infringed, the evidence from the ASD test would not be excluded if the three pronged test in Grant was applied. [ 34 ] Firstly, the seriousness of the violation, when analyzed contextually, does not favour exclusion. The search was minimally intrusive; it was of very short duration; and the police officer did not act in bad faith.

There is no suggestion that the officer had an ulterior motive other than searching for weapons, and ensuring that the impaired investigation was not compromised. [ 35 ] Secondly, the impact of the Charter breach on the accused was significant. His driving privilege, if convicted, would be suspended for a period of time. However, driving is a privilege and it carries with it certain responsibilities.

A minimally intrusive search, even if it contravenes the accused’s Charter rights, should not result in the exclusion of the evidence stemming from the ASD test. [ 36 ] Thirdly, society’s interests in the adjudication of the case on the merits also favours admission of the ASD test result. This factor generally relates to the seriousness of the offence and the importance of the evidence to the Crown’s case. In this case, if the ASD test results were to be excluded, the grounds for the breathalyzer demand would not be present and the Crown would not be in a position to prove its case.

Drinking and driving offences are universally condemned by the public. Given the importance of the ASD test to the Crown’s case, the admission of this evidence would not bring the administration of justice into disrepute. [ 37 ] Having regard to the above, the Grant factors do not favour exclusion.

2) Did the police officer have reasonable and probable grounds for the breathalyzer demand having regard to the fact that the ASD did not have the recommended annual maintenance or calibration performed? [ 38 ] This issue, although somewhat rare, has been considered on several occasions. The Alberta Court of Queen’s Bench in R v Schram [11] had to deal with a fact situation where the screening device, along with the equipment used to calibrate it, had not received annual maintenance for at least five years.

An expert on screening devices testified that the reliability of such devices deteriorates with lack of annual maintenance - the longer it goes without maintenance the less reliable it is likely to become. The investigating officer was not aware of the annual maintenance requirement. [ 39 ] The Court held that even though the officer may have subjectively believed that the screening device was working properly, his belief was not reasonable on the facts before him when viewed objectively by the Court (para 5).

As the issue was not considered in this context at trial, a new trial was ordered. [ 40 ] This case is clearly distinguishable from the case before me. In the instant case, the machine or device was new in 2014. Its annual maintenance check was due just two weeks before it was used to test the accused’s breath. The monthly calibration was performed as required, and the constable using the device was aware of the maintenance and calibration requirements, although she was not aware that the annual maintenance was not done until after the test.

There was no expert evidence called, and there was no evidence that the device was faulty or less reliable because its annual maintenance check was overdue by two weeks. [ 41 ] The Alberta Court of Appeal in R v Biccum [12] considered a fact situation where the screening device used by the investigating officer had a recalibration sticker which showed that it had expired approximately 15 hours earlier.

The officer was aware of the expiry date when he used the device. [ 42 ] The Court held that “the Crown has the burden of proving on a balance of probabilities the underlying facts relevant to the reasonableness of the demand” (para 16). It went on to say, however, that: [22] . . .Obviously, some facts may deserve more weight than others, but the “expiry” of the approved screening device is not determinative.

Reasonableness cannot be reduced to the rigid insistence on the existence or non-existence of any one factor. . . . . . [24] The reasonableness of Constable Watt’s reliance on the device even though it was due for recalibration must therefore be assessed having regard to the total context of this particular investigation. Reasonableness depends on the facts and context, and it would be an error of law to reduce it to an inflexible rule of law: Bernshaw at para. 51.

As noted, there is nothing in the Criminal Code making calibration a condition precedent to use of the device, nor any provision that its readings are conclusive: Bernshaw at para. 50. If the passage of the scheduled calibration time is to be treated, automatically and invariably, as making reliance on the readings unreasonable, absurd results would arise.

For example, it would be reasonable to rely on the device one minute before midnight, but not one minute after midnight of the recalibration date. [13] [ 43 ] Our Court of Queen’s Bench in R v Beaton [14] held that in the absence of real evidence of some unreliability of the ASD, the officer was entitled to rely on the ASD to provide reasonable and probable grounds to demand a breath sample: In conclusion, I find that Cst.

Holmes had no reason to believe that the ASD was not a properly functioning ASD and, in the absence of evidence to the contrary, he had sufficient grounds to administer and rely upon the “fail” result. Without real evidence of some degree of unreliability of the ASD, as proffered in Persaud [15] and Pruski [16] , the officer was entitled to rely on the ASD to provide the reasonable and probable grounds to demand a breath sample. [17] [ 44 ] Finally, our Court of Queen’s Bench in R v Sanche [18] when considering the Crown’s failure to provide defence with the ASD

calibration logs, quoted with approval the trial judge reliance on the Alberta Court of Appeal’s decision in R v Black [19] : [52] The re-calibration logs are therefore irrelevant to the issue of the reasonableness of the officer’s demand for a breath sample. Because there is no direct charge that follows a fail result on an ASD test, the logs are also irrelevant to any issue flowing from the breathalyzer test.

What is relevant to charges of driving over .08 is the operation of the breathalyzer machine and not the ASD. [53] I conclude that the logs are irrelevant to any issue respecting the charge the respondent is facing. Since both first and third party disclosure is predicated upon relevance, the courts below erred in law in ordering their disclosure.

I therefore would allow both appeals and grant certiorari to both the Chief of Police and the Crown. [ 45 ] The Court in Sanche concluded that whereas the Intoxilyzer maintenance records are relevant to an over .08 charge, the same cannot be said of the ASD calibration logs. [ 46 ] Having regard to the above, I find that the accused’s ss. 8 and 9 Charter rights were not violated on the basis that the ASD was not calibrated on the recommended date. ___________________________ M.M.

Baniak, J [1] 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ] [2] Transcript p 10 [3] Transcript, p 13 [4] Transcript, pp 42-43 [5] Transcript, p 46 [6] Transcript, p 47 [7] Transcript, page 47-48 [8] R v Mann , 2004 SCC 52 , [2004] 3 SCR 59 [9] Mann , supra , para 40 [10] R v Schwab , (2015), 2015 ABPC 180 ; R v Wondu , 2015 Carswell Alta 612 (QB) [11] 2003 ABQB 241 (on appeal from the Provincial Court) [12] 2012 ABCA 80 , 286 CCC (3d) 536 [13] Biccum , supra , paras 22 - 24 [14] 2015 SKQB 58 [Beaton ] [15] 2011 ONSC 1233

[16] 2006 ONCJ 506 [17] Beaton , supra , para 27 [18] 2015 SKQB 321 [ Sanche ] [19] 2011 ABCA 349 , at paras 52 and 53 , 286 CCC (3d) 432