Her Majesty the Queen - v. -, 2016 SKPC 067

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 067 Date: May 5, 2016 Information: 24544965 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joel William Styles Appearing: Jennifer Hiatt For the Crown Ronald Piché For the Accused DECISION B. TOMKINS , J [ 1 ] Mr. Styles is charged that he did, on June 20, 2015 at Pilot Butte, Saskatchewan: • while his ability to operate a motor vehicle was impaired by alcohol, operate a motor vehicle contrary to section 253(1) (

a) of the Criminal Code ; and • having consumed alcohol in such a quantity that the concentration thereof in his blooded exceeded eighty milligrams of alcohol in one hundred milliliters of blood, operate a motor vehicle contrary to section 254(1) (

b) of the Criminal Code .

[ 2 ] Counsel agreed that the trial would proceed as a blended voir dire and trial. That is, the Crown's evidence was tendered on the voir dire and the voir dire was completed, the defence calling no evidence. The case was then called on the trial proper at which point the evidence taken on the voir dire was applied to the trial and the Crown thereby completed its case. The defence did not call evidence. The matter was then reserved for decision on the voir dire and on the trial itself. This is my decision on both. A.

FACTS [ 3 ] The defence having called no evidence and the Crown witnesses being consistent in their evidence, the facts underlying the charges are quite straightforward. These are the facts as I find them. [ 4 ] On June 20, 2015, Cpl. Karaim was on patrol in the town of Pilot Butte. He passed a vehicle with its windows down and its two occupants looking straight ahead. This caught his interest and he decided to stop the vehicle. When he turned on his emergency lights, the vehicle pulled over to the curb. The stop occurred at 8:17 p.m. [ 5 ] On approaching the vehicle, he found Mr. Styles was the driver. Mr.

Styles provided his licence and registration but appeared to be unusually focused in doing so. During their conversation at the vehicle, Cpl. Karaim noted that Mr. Styles had red, glassy eyes and that he spoke slowly and appeared to have to concentrate to speak correctly. Cst. Karaim also noticed a mild odour of alcohol coming from the vehicle. [ 6 ] The officer told Mr. Styles he was conducting an impaired driving investigation and asked Mr. Styles to accompany him to the police vehicle. He wanted to make further observations and in particular, to determine the source of the odour of alcohol. After Mr.

Styles exited, the officer was satisfied that the odour was from Mr. Styles and advised him that he was being “detained for an ASD breath sample”. He estimated that this occurred at about 8:22 p.m. He said that by that time, he was satisfied that Mr. Styles had consumed alcohol and was operating a vehicle, though he did not believe he had grounds to arrest him for impaired driving or to make a breathalyzer demand. [ 7 ] Cpl. Karaim was not authorized to give Approved Screening Device (ASD) tests and did not have a device in his vehicle so he called to ask another police vehicle to attend with one.

He was advised that one would attend shortly and in the meantime, he left Mr. Styles in the police car and returned to Mr. Styles’ vehicle to attend to the passenger. Another officer came and Cpl. Karaim left him to deal with the passenger, who he thought might have had open liquor in the vehicle. He returned his attention to Mr. Styles. [ 8 ] When he got back to the police vehicle, Cst. Kilburn was there with an ASD. He advised Cst. Kilburn that he “had enough for an ASD” and told him that Mr. Styles was the driver of the vehicle and that he had alcohol on his breath.

He did not advise him that he observed red, glassy eyes, concentrated speech or that Mr. Styles had to focus on his actions when providing his licence. [ 9 ] Cpl. Karaim told Mr. Styles that Cst. Kilburn would conduct an ASD test and turned him over to Cst. Kilburn for that purpose. [ 10 ] Cst. Kilburn made an ASD demand at 8:35 p.m., based on the information that Cpl. Karaim had provided. Mr. Styles complied and a fail result was obtained. Cst. Kilburn advised Mr. Styles that he was under arrest for operating a vehicle while his blood alcohol ratio exceeded .08. He then advised Cpl. Karaim that Mr.

Styles had failed the ASD test and that he had arrested him for “over .08”. [ 11 ] At 8:36 p.m., Cpl. Karaim advised Mr. Styles that he failed the ASD test and would be arrested for impaired driving. At 8:38 p.m., he advised him of his Charter rights and gave the warning. At 8:44 p.m., he advised Mr. Styles that they were going to the detachment to get further samples and then drove to the Pilot Butte detachment. [ 12 ] After Mr. Styles consulted counsel, Cpl. Karaim observed him from 9:28 p.m. until he gave his first sample at 9:47 p.m. Afterwards, Cpl. Karaim observed again until Mr.

Styles gave his second sample at 10:07 p.m. Both exceeded .08. B. VOIR DIRE DECISION

[ 13 ] The relevant portion of section 254(2) reads as follows: If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle . . . , the peace officer may, by demand, require the person[:] (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [ 14 ] Mr. Styles argued that Cst. Kilburn’s ASD demand did not meet the requirements of the

section in that he did not have information as to the time that Mr. Styles operated a vehicle and therefore, did not have reasonable grounds to suspect that he had committed an offence within the preceding three hours. [ 15 ] He further argued that the ASD demand was not made forthwith. [ 16 ] As a consequence of each, Mr. Styles said, the demand did not comply with section 254(2) of the Criminal Code and consequently, his rights under the Charter were infringed as follows: • the taking of the samples was without lawful authority and constituted an unlawful search contrary to

section 8; • he was unlawfully detained contrary to

section 9; and • he was unlawfully denied his right to counsel contrary to

section 10(b). 1. Cst. Kilburn’s ASD Demand [ 17 ] Although Cpl. Karaim observed Mr. Styles’ driving and so knew the time at which that occurred, he did not make the ASD demand and did not advise Cst. Kilburn of the time of driving. Thus, Mr. Styles argued, Cst. Kilburn did not have the requisite grounds to make the demand. [ 18 ] The Crown submitted that as this ground was not included in Mr. Styles’ written Charter notice, I ought not to consider it. I do not agree. [ 19 ] Mr. Style’s notice alleges that his Charter rights under sections 8, 9 & 10(

b) were breached because the ASD demand was not made forthwith. As will be discussed below, this encompasses the time from the formation of suspicion until the tests were taken. Cst. Kilburn’s demand occurred during and is an integral part of what occurred during that time. [ 20 ] The matter was raised during oral argument and no objection was made at the time. Had there been, an adjournment might have been granted to allow counsel to consider and address the issue. In any event, this matter was adjourned to allow counsel time to provide written argument on all of the issues raised.

I do not believe the Crown was compromised by my receiving and considering the argument. [ 21 ] The evidence is clear from both Cpl. Karaim and Cst. Kilburn that the latter was advised only that Mr. Styles was the driver and that he had alcohol on his breath. Cst. Kilburn testified that he was the passenger in a police vehicle when the call for delivery of an ASD came and he did not pay attention to the specifics of the call.

He also said that he was not advised of the time of driving. [ 22 ] While one is tempted to conclude that the officer could reasonably have concluded that the call would have come close after the traffic stop, I do not think the inference necessarily follows. In any event, there is no evidence Cst. Kilburn drew this inference or

turned his attention to the time of driving at all. [23] That being the case, he did not have grounds to make the ASD demand and Mr. Styles’ Charter rights pursuant to sections 8,9 and 10(

b) were breached. 2. Demand to be Made Forthwith [24] Various cases have interpreted this

section as requiring not only that the sample be provided forthwith but also that the demand be made forthwith.[1] In effect, the demand is part of the continuum for the provision of a sample forthwith. In this regard, Madam Justice Ryan-Froslie held as follows in R v Billette:[2] It is obvious that the procedural scheme set out in s. 254 of the Criminal Code depends upon timing. Time is very important. The reasonfor this is obvious. If the Crown is to prove an offence within the necessary window, samples must be taken in a timely fashion.

Thus,while s. 254(2) does not state that the demand must be made "forthwith", it is implicit that this is the case. Justice Arbour of the OntarioCourt of Appeal in R. v. Pierman (1994) (ON CA), 19 O.R. (3d) 704, speaking for the majority, held this view andstated at para. 5 as follows: ... [I]t is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driverhas alcohol in his or her body." This is the only

interpretation which is consistent with the judicial acceptance of an infringement on theright to counsel provided for in s. 10(

b) of the Charter. If the police had discretion to wait before making the demand, the suspect wouldbe detained and therefore entitled to consult a lawyer. The basis upon which the courts have held that Parliament may infringe on asuspect's right to counsel is that there is no opportunity for the police to accommodate that right if the breath sample must be taken"forthwith". It follows, in my view, that for the

section to maintain its constitutional integrity we must assume it also contemplates thatthere be no opportunity for the suspect to consult counsel before the demand is made. (Underscoring added by Justice Ryan-Froslie) Justice Arbour's reasoning in R. v. Pierman, supra, was approved by the majority of the Supreme Court of Canada in R. v.

Bernshaw, (SCC), [1995] 1 S.C.R. 254 (S.C.C.). [25] “Forthwith” has been held to mean “without reasonable or unjustified delay.”[3] The determination of whether a demand wasmade forthwith is measured from the time that the officer forms a reasonable suspicion that the person has alcohol in his body and hasoperated a vehicle until the time that the demand is made. [26] In this case, Cpl. Karaim’s suspicion was formed at 8:22 p.m., the demand was made by Cst. Kilburn at 8:35 p.m. and the testwas performed at 8:36 p.m.

This was a period of 14 minutes. [27] The Crown argued that the explanation provided is reasonable. There are a number of cases that have held that it is notreasonable to expect an ASD and a trained operator in every police vehicle and it is not unreasonable to delay for a reasonable period oftime to allow an ASD to be delivered. In this regard, the Crown is correct but this argument misapprehends the delay alleged in thiscase. The part of the process that was delayed and that was challenged by Mr. Styles is the time between the formation of a reasonablesuspicion and the time that the demand was made.

That delay was 13 minutes. [28] Cpl. Karaim explained the delay. He said his regular posting is with the RCMP’s F Division where he is part of the SpecialEnforcement Unit that investigates organized crime. He takes overtime at various detachments on his days off, often for communitieshosting special events such as the Craven Country Jamboree and, as he was that day, the Pilot Butte rodeo. Thus, he is not frequentlyinvolved in impaired driving investigations and apparently thought it better to leave the demand to someone more familiar with theseinvestigations.

He waited not just for the ASD to arrive but for an officer who Cpl. Karaim thought could better administer the ASDdemand.

[ 29 ] In my view, this does not provide a reasonable explanation for the delay. Police officers are authorized in this section, and others in the Criminal Code , to take actions which, absent that authority, would compromise or breach an individual’s Charter rights; these are extraordinary powers. It is fundamental to the exercise of that authority that all officers engaged in enforcing the Criminal Code must act in accordance with the authority they have been given and that they cannot, by choosing not to use their lawful authority, compromise an individual’s Charter rights. This is what Cpl. Karaim did.

If he did not feel confident or competent to complete his duties in a manner that did not infringe Charter rights, he ought not to have taken on those duties. [ 30 ] As such, the ASD demand in this case was not made forthwith and was without reasonable or justified delay and Mr. Styles’ rights were breached. As a consequence: • the provision of a sample into the ASD constituted an unlawful search and seizure contrary to

section 8; • Mr. Styles’ detention to obtain the samples was arbitrary contrary to

section 9; and • Mr. Styles right to counsel was not suspended during that period of detention and the taking of samples without informing him of and implementing his rights to counsel violated

section 10(b). 3. Grant Analysis [ 31 ] In accordance with R v Grant , [4] evidence obtained in violation of the Charter will be received in evidence notwithstanding the breach if its admission would not bring the administration of justice into disrepute. The criteria for determining the impact on the administration of justice are : • the seriousness of the Charter -infringing state conduct which led to the discovery of the evidence; • the impact of the breaches on the Charter -protected interests of Mr. Sweeney; and • society's interest in an adjudication of the case on its merits. [ 32 ] Cst.

Kilburn’s role in the breach was not serious. While he did not turn his attention to time of driving, he was acting on the advice of Cpl. Karaim who did have personal knowledge of time of driving, who told Cst. Kilburn that he had grounds to make an ASD demand and who did, in fact, have those grounds. [ 33 ] Cpl. Karaim’s role, on the other hand, is very serious. The officer, in effect, undertook duties that he did not feel competent to properly administer without regard to the impact this might have on the Charter rights of people with whom he would deal.

This is equivalent to disregarding those rights. [ 34 ] The impact of the breach was minor. The first breach flows, in effect, from the second. That is, had Cpl. Karaim made the demand when and as he should, Cst. Kilburn would not have been required to make a demand at all. [ 35 ] Cpl. Karaim’s breach flows entirely from the placement of the demand on the continuum from suspicion to the ASD test. In fact, the test was taken immediately after Cst. Kilburn made the demand and the total time that elapsed from Cpl. Karaim’s suspicion to the taking of the test was 14 minutes.

Had the demand been made at 8:22 p.m., when it should have been made, the test would have occurred at the same time because the officer would still have had to wait for an ASD to be delivered. The device was delivered within a reasonable time. The length of time that Mr. Styles would have been detained for purposes of testing would have been exactly the same. [ 36 ] Further, Cpl. Karaim did advise Mr. Styles at 8:22 p.m., when he believed he had grounds, that he was “being detained for an ASD sample”.

Without so deciding, this is in the nature of an ASD demand in the limited sense that it conveyed that a test would be required. [ 37 ] Society’s interest in the adjudication of cases on their merits includes, of course, society’s interest in the protection of Charter rights. In this case, Cpl. Karaim had grounds to make an ASD demand, Cst. Kilburn did make a demand, the evidence was obtained through a relatively non-intrusive test and the results are reliable.

[ 38 ] Considering these factors together, the balance favours admitting the result of the ASD test and it will not be excluded. [ 39 ] In so concluding, I am aware that my decision differs from that reached in R v Findlay [5] where evidence was excluded upon a finding that the officer involved did not have knowledge of the time of driving at the time demands were made. However, in that case, the officer did not observe the accused driving and did not turn his attention to timing. In this case, Cpl.

Karaim was aware of the time of driving and it is only the fact of the involvement of the subsequent officer that raises the issue at all. C. TRIAL DECISION [ 40 ] Mr. Styles raised the following issues in his trial on these charges: As to the impaired driving charge: 1. The evidence does not establish beyond a reasonable doubt that Mr. Styles’ ability to operate a motor vehicle was impaired by alcohol. As to the driving while over .08 charge: 2. The officer did not make a valid demand under section 254(3); and 3. Mr.

Styles was not properly observed prior to the taking of the breathalyzer tests and, therefore, the presumption of accuracy does not apply. 1. Impaired Driving [ 41 ] The evidence shows that Cpl. Karaim did not observe anything improper or unusual in Mr. Styles’ driving. In fact, his attention was drawn to the vehicle because the windows were open and the men in the car were looking straight ahead; apparently he thought this was unusual or, at least, interesting. [ 42 ] On meeting Mr.

Styles, he observed a mild odour of alcohol, red and glassy eyes, slow, deliberate speech and deliberate movements when retrieving his operator’s licence. He said Mr. Styles walked “OK” and that “he had no problem with walking”. [ 43 ] At the scene and afterward, Mr. Styles had “good understanding and comprehension”; I take this to mean that he understood and responded appropriately during questions and conversation. Cpl. Karaim did not observe at the scene or later, any lack of or compromise to Mr. Styles’ motor skills. By the time they were at the station, he noted that Mr.

Styles’ speech had improved; it is not clear when this improvement was first noted. [ 44 ] While the evidence satisfies me that Mr. Styles had consumed alcohol and that he operated a vehicle after doing so, it does not satisfy me beyond a reasonable doubt that his ability to operate a motor vehicle was impaired. While even slight impairment will ground a conviction, something more than proof of alcohol consumption is required. [ 45 ] For this reason, Mr. Styles will be acquitted of count 1 for driving while impaired. 2. Validity of Breathalyzer Demand [ 46 ] Mr.

Styles argued that the officer did not make a breath demand at all or, if he did, it was inadequate to satisfy the requirements of section 254(3). Failing a valid demand, the presumptions of accuracy and identity do not arise. Without those, there is no evidence either that Mr. Styles’ blood-alcohol content at the time of driving was the same as at the time of the breathalyzer test or that the test results accurately reflected Mr. Styles’ blood-alcohol level at the time of testing.

[ 47 ] The Crown submitted that the demand was adequate to meet the requirements of the section. [ 48 ] Section 254(3)(a)(

i) and (

b) provide: If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, [and] (

b) if necessary, to accompany the peace officer for that purpose. [ 49 ] Cpl. Karaim testified that he is not frequently involved in impaired driving investigations given his permanent position in the RCMP and so did not make a “formal” breath demand. I take this to mean that he did not read the demand from the police-issue card. But he did testify to having said words which might nonetheless constitute a valid demand.

In the course of repeated questions from the Crown, he gave these answers: • “I would advise him he’s going back to the detachment to give further samples on an approved instrument.” • “I tell him that he’s going back to the detachment for breath samples and that he is required to do so, I guess.” • “I told him that we were going back to the detachment and that he had to provide breath samples on an approved instrument.” • “I told him that he failed the ASD, I told him he was under arrest, I read him Charter rights and warnings, and that we were going back to the detachment for breath samples on an approved instrument.” While there are variations in the exact wording of the answers the officer gave, they are consistent to the extent that he advised Mr.

Styles that they would go to the detachment, that further breath samples would be taken into an approved instrument and that he was required to provide them.

The question is whether these words constitute a valid demand pursuant to section 254(3). [ 50 ] My sister Judge Halliday conducted an extensive review of case law respecting the requirements of a valid demand in R v Racine . [6] In that case, the officer testified the words of his demand were that “he had reasonable and probable grounds to believe his ability to operate a motor vehicle was impaired by alcohol and he was required to come back with him to the police station to provide samples of his breath forthwith.” [ 51 ] Judge Halliday concluded that a demand in these words was valid.

In part, she relied – as will I – on the decision of our Court of Appeal in R v Ackerman [7] where the Court concluded: In my opinion, no particular words are necessary to make a demand under this section. The demand, if made in popular language or in the words of the section, or in any other words that are such that they convey to the person that the demand is made pursuant to the section, is a lawful demand.

In determining whether or not the words used were such as to convey to the person the nature of the demand, consideration can properly be given to the surrounding circumstances. [ 52 ] In this case, the words used conveyed to Mr. Styles that he was being taken for breath samples on an approved instrument and that he was compelled to provide those samples. The surrounding circumstances in this case include the fact that Mr. Styles knew he was detained and being investigated for impaired driving, that he had been required to and did provide samples into an ASD and that he was under arrest for impaired driving.

In those circumstances, the demand, while not ideal, was adequate. [ 53 ] This case is distinguished from those submitted on behalf of Mr. Styles in that in each of those cases, a significant part of what Cpl. Karaim conveyed was missing. Further, this is not a case like R v Bone [8] (and others) where the officer testified only to reading the demand from a card without any indication of what the words were or what the card said. 3. Observation

[ 54 ] Upon their arrival at the station, Mr. Styles was booked and then spoke to counsel. Cpl. Karaim thereafter commenced the required pre-test observation. He testified that it is necessary to observe a person who is detained for breathalyzer tests for a period of 15 minutes prior to each test to ensure that there is no alcohol in that person’s mouth at or near the time of testing. [ 55 ] The first observation period commenced at 9:28 p.m. At 9:43 p.m., Mr. Styles was turned over to the Technician for his first test.

He then returned to the booking area and the second observation period started at 9:48 p.m. and ended at 10:03 p.m. when Mr. Styles was taken for his second test. [ 56 ] Mr. Styles argued that Cpl. Karaim did not properly observe him during the required time and that, therefore, the presumption of accuracy set out in section 258(1) (

c) of the Criminal Code does not apply.

That subsection provides that when breath samples are taken pursuant to a demand made under subsection 254(3) : evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; [ 57 ] Mr.

Styles argued that a failure to properly observe constitutes improper operation of the breathalyzer and that the prerequisites of the quoted portion of section 258(1) (

c) have not been met. [ 58 ] In response, the Crown argued that the observation period was proper and that there was direct evidence from Cpl. Karaim that Mr. Styles did not take anything by mouth or burp. The Crown is correct that this was Cpl. Karaim’s evidence. [ 59 ] I was provided as Exhibit D1, video from the booking area for the period from 9:38:06 [9] until 10:10:14 p.m.; this encompasses some of the first observation period and all of the second. It shows that Mr. Styles was located in a cell across from and slightly to the right of the main part of the counter in the booking area.

The door to the cell was fully open throughout the times of observation and Mr. Styles is seen throughout sitting on a bench or bed at the far side of the cell. He is visible through the door. [ 60 ] Cpl. Karaim’s actions are also visible throughout. The video shows that at 9:38:06, Cpl. Karaim was standing with his back to Mr. Styles as he conversed with other officers in what I have referred to as the booking area. At 9:39:07, Cpl. Karaim is seen looking at something in his hands. His attention is focused and he did not look up until 9:40:05 when, with his back to Mr.

Styles, he looked at what appear to be notes on the counter in front of him. At 9:40:45, the officer is again seen looking downward at something in his hands with his back to Mr. Styles; he remained so until 9:41:37. During this time – three minutes and 31 seconds – he was not seen to even cast a glance at Mr. Styles. [ 61 ] At 9:41:37, Cpl. Karaim walked into the room where Mr. Styles was sitting and exited at 9:41:43. He returned to the counter and, with his back to Mr. Styles, placed items from the counter into a clear plastic bag. He completed this task at about 9:43:30.

During that time – one minute 47 seconds – the officer did not look at Mr. Styles. [ 62 ] At 9:43:30, Cpl. Karaim took the bag and went into the room where Mr. Styles was. He remained in the room for five seconds and then returned to the booking area and stood again at the counter in a position where he was not looking at Mr. Styles although at one point, he turned his head briefly toward him. [ 63 ] At 9:44:17, Cpl. Karaim entered the room where Mr. Styles was and remained there for 30 seconds. At 9:45:03, Mr.

Styles was taken from the observation room to the next room for his first breathalyzer test. [ 64 ] As was noted earlier, Exhibit D1 covers only six minutes and 57 seconds of the first observation period. During that time, Cpl. Karaim had Mr. Styles under observation – at any level at all – for 41 seconds.

[ 65 ] According to Cpl. Karaim’s evidence the second observation period comprises the time from 9:48 p.m. until 10:03 p.m. but the video shows that Mr. Styles did not return from the first test until 9:49:24. However, Mr. Styles was not removed for the second test until 10:04:50 so irrespective which clock one uses for reference, a period of exceeding 15 minutes was observed. [ 66 ] At 9:49:24, Mr. Styles has entered the observation cell and the officer has taken position beside the counter, on which he has placed his notes or some papers that he is looking at.

At 9:50:46, he began looking downward at something in his hands and he remained so positioned until 9:52:32. [ 67 ] At 9:52:32, Cpl. Karaim walked to the doorway of Mr. Styles’ observation cell where he stood in the doorway or in the room itself until 9:55:56, save a very brief period when he exited to go to the counter. [ 68 ] At that point, the officer returned his attention to the item in his hands. He remained focused on this until 10:01:39 when he put whatever was in his hands on the counter and, with his back to Mr.

Styles, engaged in a brief conversation with another officer and dealt with a bit of paperwork. At 10:03:13, he looked up and toward Mr. Styles but then returned to his paperwork. [ 69 ] At 10:03:26, Cpl. Karaim went to the cell where Mr. Styles was and remained there for five seconds. He then returned to the counter, did paperwork and concentrated on the item in his hands until 10:04:50 when Mr. Styles was removed for his second test. [ 70 ] Thus, the second observation period was 15 minutes, 26 seconds. During this time, Cpl. Karaim had Mr. Styles under observation for three minutes and 29 seconds. [ 71 ] Cpl.

Karaim testified that he was able to observe whether Mr. Styles did anything, such as burp or regurgitate or otherwise bring alcohol into his mouth and affect the test results. However, the video shows that for the majority of the observation time, he did not observe Mr. Styles at all. Further, while there is no evidence of the distance from where Mr. Styles sat to the place the officer stood at the counter, it would appear that it is too far for one to be confident that the officer would hear a noise - assuming there would be one – from Mr. Styles if he burped or regurgitated.

No other officer testified to observing Mr. Styles and there is nothing in the video recording suggesting any other officer was in a position to do so. [ 72 ] In R v By , [10] Justice Barrington-Foote, relying heavily on R v St-Onge Lamoureaux , [11] confirmed that the presumption of accuracy in section 258(1) (

c) may be rebutted by evidence raising a doubt as to whether the breathalyzer malfunctioned or was improperly operated. He further held that evidence that the observation periods were not properly conducted constitutes evidence that the breathalyzer was improperly operated because the observation period is an essential part of the testing procedure. [ 73 ] He held that nothing more is required; that is, it is not necessary to show, in addition, that the failure to properly observe rendered the test results unreliable.

In the latter regard, he said, it is not necessary to adduce evidence “linking the deficiency to a potential inaccuracy in the particular breath test results in the matter before the court, as opposed to a burden on the Crown to prove that there is no such link.” [12] That is, the accused does not have to adduce evidence showing that there was burping or regurgitation or the like; the Crown has the burden to prove that there was not. [ 74 ] In conclusion, Mr.

Justice Barrington-Foote wrote: In the result, it is my opinion that St-Onge stands for the proposition that evidence which raises a reasonable doubt as to whether the breathalyzer malfunctioned or was operated improperly may be sufficient, without more, to rebut the presumption of accuracy in s. 258(1) (c), at least where – as here – there is evidence that the improper operation might have produced test results which overestimated the blood alcohol content of the accused. Further, it is my opinion that the evidence in this case meets that standard.

I note, in particular, the evidence that the observation period was a mandatory part of the test process and that none of the police officers conducted the observation period at all, together with the evidence as to the reason for that observation period and the potential impact of mouth alcohol on the test results. That constituted evidence of deficiencies in the test process that raised a reasonable doubt as to the proper operation of the breathalyzer. [ 75 ] I think By and this case cannot be distinguished. In By , the evidence showed that for nine of 15 minutes, no officer observed the accused at all.

In this case, the evidence establishes that the officer did not observe Mr. Styles for six minutes and 16 seconds of the

six minutes and 57 seconds of the first observation period shown in the video. He was not observed for about 12 minutes of the second observation period. [ 76 ] Cst. Kilburn is trained in the operation of certain breathalyzer devices, although not the model used in this case. He gave evidence of the need for close and vigilant observation to ensure that the subject does not regurgitate, vomit, cough or belch; these, he agreed, could affect the accuracy of the test results. Cpl.

Karaim gave similar, if less detailed, evidence to the same effect. [ 77 ] Thus, the prerequisites in the quoted paragraph of By are met in this case. There is evidence that the observation periods were not conducted properly and there is evidence of the need and reasons for that observation. Together, these constitute “evidence of deficiencies in the test process that raised a reasonable doubt as to the proper operation of the breathalyzer”. [ 78 ] In so concluding, I am aware that there are decisions from this Court which have held to the contrary.

However, those cases are distinguishable from the case before me. [ 79 ] In R v Bannerman [13] and R v Daoust , [14] for example, there was no evidence that the observation period was not properly conducted and the officers involved testified that they maintained close proximity to the accused throughout. [ 80 ] In R v Woroschuk , [15] it appears that the issue was the duration of the observation periods and Judge Kovatch accepted the witness’ evidence that they were of “adequate” duration. I do not think his conclusion, therefore, conflicts with the decision in By .

This may explain why Woroschuk did not make reference to the By decision. [ 81 ] On the facts of this case, I am bound by the Court of Queen’s Bench decision in By . [ 82 ] That being the case, the presumption of accuracy has been rebutted and I cannot accept the breathalyzer readings on the Certificate of Qualified Technician as accurate. D. CONCLUSION [ 83 ] For reasons previously given, Mr. Styles will be acquitted of impaired driving. [ 84 ] Because the presumption of accuracy has been rebutted, the accuracy of the breathalyzer readings has not been proven and Mr.

Styles will be acquitted of driving while over .08. DATED at Regina, Saskatchewan, this 5 th day of May, 2016. ______________________________________ B. Tomkins, J