Her Majesty the Queen - v. -, 2014 SKPC 37

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 037 Date: March 4, 2014 Information: 24273126 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Blake Langman Appearing: Brian Hendrickson, Q.C. For the Crown Merv Nidesh, Q.C. For the Accused JUDGMENT M. GORDON , J [ 1 ] The accused is charged that on April 10, 2011: - While his ability to operate a motor vehicle was impaired by alcohol did operate a 2007 Chevrolet Silverado, Saskatchewan marker 424 FWG, contrary to s. 253(1) (

a) of the Criminal Code ; and - Count 2, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood did operate a motor vehicle to wit: a 2007 Chevrolet Silverado, Saskatchewan marker 424 FWG, contrary to s. 253(1) (

b) of the Criminal Code .

[ 2 ] Cst. Roddick was sworn in on the trial and the voir dire . With the consent of counsel all admissible evidence on the voir dire would be applied to the trial proper. Charter notice was given to the Crown and filed with the Court. The Crown on one of the adjourned dates requested that the defence provide particulars and specify the Charter arguments he would be making at trial. The defence did file on October 16 a new list of issues and the cases relied on. THE EVIDENCE [ 3 ] Cst. Roddick was patrolling in the Town of Lafleche, Saskatchewan.

He had information that a hockey pool was taking place and a special occasion liquor permit had been obtained at a certain venue. Cst. Roddick was observing vehicles leaving from this venue. At 1:40 a.m., he observed the suspect vehicle and attempted to follow it and intercept it. Finally, Cst. Grenier travelling in another police car intercepted the subject vehicle and was able to stop it. The initial stop was for sobriety and checking for a valid driver’s licence and registration. When Cst.

Roddick exited his police vehicle, he noticed the accused outside of his vehicle trying to produce his driver’s licence for Cst. Grenier. Mr. Langman had his wallet in his hand but could not locate his licence even though it was visible to the police. Finally Mr. Langman handed his wallet to Cst. Grenier to retrieve the driver’s licence. Cst. Roddick asked the accused if he had any alcohol that evening and Mr. Langman responded that he had three or four beer. He told Mr. Langman that he was under investigation for impaired driving. [ 4 ] The officer decided to place Mr. Langman in the back of the police vehicle.

The officer could smell alcohol coming from the accused when he spoke to him. Mr. Langman’s speech was slurred although the officer admitted he was not familiar with him. Cst. Roddick explained to the accused that he wanted him to come to the police vehicle to blow and that he was under investigation for impaired driving. The officer noted that Mr. Langman had some difficulty walking to the police vehicle. However, the officer agreed that the slippery streets and the fact that Mr.

Langman had cowboy boots on could account for his difficulties. [ 5 ] Defence admitted the identity of the accused. [ 6 ] At 1:50 a.m., Cst. Roddick read the approved screening device demand to Mr. Langman. Mr. Langman replied that he understood. This officer had an ASD machine with him and he was a qualified operator at the time. He turned on the machine and waited for it to warm up for approximately one to one and a half minutes. The officer explained to Mr. Langman that there was a new mouthpiece and asked him to blow. Mr. Langman blew as required and registered a fail. The officer advised him of this.

At 1:52 a.m., the officer read Mr. Langman his rights to counsel. At 1:54, the breath demand and police warning were read. Each time Mr. Langman indicated that he understood. The officer observed the odour of alcohol was stronger in the back seat of his police vehicle and advised the accused he was under arrest for impaired driving. [ 7 ] When asked if he wished to contact a lawyer, the accused replied “no, just want to go to bed”. The officer did a quick search of the accused for safety reasons and then the officer told Cst. Grenier to call a breathalyzer technician. [ 8 ] Cst.

Roddick drove with the accused to Gravelbourg, the closest detachment which was 21 kilometres away. They arrived at the Gravelbourg Detachment at 2:15 a.m. The accused was placed in an interview room. The officer observed Mr. Langman to be wobbling and have trouble with balance and actually struck the door frame with his shoulder. Mr. Langman sat down in an interview room and chatted with him about the hockey draft. The breathalyzer technician came and got Mr. Langman and took him into the Intoxilyzer room. The first test was at 2:24 a.m. After the first test, Cst. Roddick took Mr.

Langman back to the interview room and waited for 20 minutes and then escorted him back to the Intoxilyzer room for the second test. The Certificate of Analyses was marked as Exhibit P-1 in the voir dire . At the conclusion of the tests, the officer drove Mr. Langman home to his Lafleche residence. [ 9 ] Defence counsel admits that over holding is not an issue. [ 10 ] On cross-examination Cst. Roddick admitted that he did not ask Mr. Langman when he had his last drink. The officer agreed that one had to ensure that there was no mouth alcohol present because it can give higher results.

The officer did not record the calibration of the ASD, he did not make a notation of the last time it was calibrated and he did not make a note of the manufacturer or

make and model of the ASD. However the officer testified he would not use the ASD if it was not up to date and there is a sticker placed on the ASD machines that states “do not use past due date”. The officer admitted that some of his notes were rather sketchy but he did have to refer to them as the alleged incident occurred two and a half years ago. The officer admitted that he read the ASD demand from his card that he carries with him and that the demand includes words to the effect that he had a reasonable suspicion that the suspect had alcohol or drugs in his system.

The officer admitted he had no reason to suspect that drugs were involved. [ 11 ] The officer also admitted that when he gave the police caution to Mr. Langman he ended with “anything you say may be used as evidence”. He did not say as evidence “against you”. The officer also admitted that the accused, Mr. Langman, was seated in the back seat right behind the officer and the officer had to concentrate on his driving and he was not directly observing the accused during this time. ANALYSIS [ 12 ] The initial Charter application dated March 28, 2012, alleged violation of Mr.

Langman’s rights under s. 7, 8, 9 and 10 of the Charter and requested exclusion of all evidence obtained with respect to Mr. Langman. The supplementary Charter notice dated October 16, 2013, identifies the following issues with the supporting cases: The issues raised by the defence Charter notice in the voir dire are: (1) notes deficient - R. v. Gamble; R. v. Adhoffer (2) last drink - R. v. Gamble (3) mouth alcohol screening device - R. v. Gamble (4) wording of screening device demand; alcohol or drugs when no evidence of drugs; accompany when already has (5) no identification of screening device - R. v.

Colbourn; R. v. Schott (6) reasonable grounds - R. v. Gamble (7) failure to comply with the minimum 15 minutes observation period before first test into instrument - R. v. Mackaskill (8) onus on Crown - R. v. Gamble (9) violation of s. 8 of Charter of Rights and Freedoms - R. v. Gamble [ 13 ] The defence has asserted that certain of Mr. Langman’s rights under the Charter have been infringed.

The defence has the burden of establishing on the balance of probabilities that the alleged breaches occurred. [ 14 ] First I will consider whether the police officer had reasonable and probable grounds to make the breath demand on Mr. Langman pursuant to s. 254(3) of the Criminal Code . Section 254(3) reads:

(3) 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, or ... (

b) if necessary, to accompany the peace officer for that purpose.

[15]

Section 8 of the Canadian Charter of Rights and Freedoms states: Everyone has the right to be secure against unreasonable search or seizure. [16] In R. v. Breland, 2011 SKPC 54 , 2011 SKPC 054, Judge Gray stated at paragraph 22: Although the onus lies upon an accused to establish a Charter violation on a balance of probabilities, compelling breath samples amountsto a warrantless search which is prima facie unreasonable. Thus the Crown must establish that the search was authorized by law, the lawwas reasonable and the search was conducted in a reasonable fashion.

There is no argument that s. 254(3), which authorizes the search isunreasonable or the manner in which the search was conducted is unreasonable. The only issue is whether Constable Danielson wasentitled to make the demand; in other words did she have reasonable grounds? [17] Therefore I need to consider whether the search was authorized by law. It is authorized by law if Cst. Roddick had therequisite reasonable grounds to make a demand under s. 254(3) and did properly make the demand under this section. Therefore, I needto go back and examine the factors which led to this demand.

This includes the propriety of the ASD demand under s. 254(2), theconducting of the ASD test and the observations that led to the Intoxilyzer demand. [18] The first issue that the defence identified in the October 16 “list” is did Cst. Roddick have reasonable grounds to make theASD demand pursuant to s. 254(2) of the Code? Reasonable suspicion under s. 254(2) of the Criminal Code is a two-prong test (R. v.Butchko, 2004 SKCA 159). The Crown must prove the officer making the demand subjectively had the suspicion the accused hadalcohol in his body. [19] The second part of this test is the objective component.

Do the facts and circumstances as they were known to the officer atthe scene, give rise to a rational suspicion that the accused had alcohol in his body? Cst. Roddick knew there was an event occurringwhich a special occasion liquor permit had been obtained for; it was 1:40 in the morning and he noticed the accused leave this venue andget in his vehicle and drive away. Cst. Roddick decided to check the driver for sobriety, licence and registration. He followed thevehicle for approximately five minutes and tried to intercept or stop it.

The vehicle would turn a corner and proceed in another directionjust as the officer was going to stop it. Finally, another officer Cst. Grenier was able to stop the vehicle. When Cst. Roddick approachedthe driver of the vehicle who had stepped outside of his vehicle, he could smell alcohol coming from him. Mr. Langman had difficultyproducing his driver’s licence and finally gave his wallet to Cst. Grenier and asked him to find his licence. Cst. Roddick said he couldsee the driver’s licence as Mr. Langman was looking for it. The officer also observed Mr. Langman to have slurred speech. Whenquestioned, Mr.

Langman stated he had had three or four beer. The police officer asked Mr. Langman to come to the police vehicle toblow into the machine. The officer had initially told the accused he was under investigation for impaired driving. It was very slipperyout and the police officer noted that Mr. Langman had on cowboy boots and had difficulty walking to the police car. [20] Reasonable suspicion of the presence of alcohol in the body does not need to amount to reasonable grounds to believe that aperson is impaired by alcohol. I conclude that Cst.

Roddick had sufficient grounds, both objectively and subjectively, to make theapproved screening device demand. [21] The defence next argued that the Crown has not proved that the ASD demand was a lawful one. The evidence is that Cst.Roddick read the demand from his police issued card. The defence argues the police officer’s use of the word “drug” renders the entiredemand unlawful. This issue has been raised by counsel many times and can be easily dealt with. In my view this argument iscompletely illogical.

The demand need not be in any particular set of words, it must be clear to the suspect the requirement and what isexpected of him. The inclusion of “drug” in the phrase “alcohol or a drug” does nothing to detract from an otherwise proper approvedscreening device demand (see R. v. Torseny, 2007 ONCA 67 , [2007] 217 C.C.C. (3d) 571, leave to appeal S.C.C. refused; alsocited with approval in R. v. Caplette, 2010 SKPC 32 and R. v. Carriere, 2010 SKPC 118). [22] The next issue is has the Crown proved that the approved screening device was properly calibrated and in proper workingorder? Cst.

Roddick had an ASD machine with him and he was a qualified operator at the time. He turned on the machine, let it warmup for the one and a half to two minutes and put on a new mouthpiece and requested Mr. Langman to blow. On cross-examination, theofficer admitted he did not include in his notes the manufacturer, make or model of the ASD and did not know whether the device waschecked annually. However, the officer stated he would not use the machine if it was past the calibration date. He did look at the sticker

on the machine which said “do not use beyond this date” and he was satisfied that the machine was within the calibration time and wasworking properly. [23] The officer’s evidence is unchallenged. There is no evidence to suggest the machine was malfunctioning or that thecalibration period had expired. It is noted the officer was an approved operator of an ASD at the time, meaning that he had receivedtraining on the proper use of an ASD. There are many decisions of this Court as well as other courts across Canada that have taken thesame approach (see R. v. Claypool, 2003 SKPC 116; R. v.

Gundy, 2008 ONCA 284). [24] The next argument put forth by the defence was that the police officer should have waited 15 minutes before administeringthe approved screening device to ensure that mouth alcohol dissipated. This can be a problem if there was recent consumption or thedetainee belches or burps and brings alcohol up from his stomach. In this case Cst. Roddick made the approved screening devicedemand at 1:50 a.m.

Section 254(2) of the Criminal Code requires the peace officer may by demand require the subject to provideforthwith a sample of his breath into the approved screening device (see cases such as R. v. Bernshaw, (SCC), [1994]35 C.R. 201 (S.C.C.) which talks about how the term “forthwith” must be given a flexible

interpretation depending on the informationthat the officer has at the time as to whether the suspect has recently consumed alcohol). In R. v. Dewald, (SCC),[1996] 1 S.C.R. 68, the Court noted that the police are entitled to wait 15 minutes before administering the approved screening devicetest only in circumstances where the officer can form an opinion that the delay is required in order to obtain an accurate result. Therewas no evidence in this case to suggest recent consumption other than Mr. Langman leaving the venue which had the special occasionpermit. Mr.

Langman did not say anything to the officer and there was no other physical signs or actions indicating that there had beenrecent consumption or that this would be a problem. This requirement that a 15 minute observation period is needed seems to have comefrom the procedural manuals used in training for the approved screening device. However, it is not in the Criminal Code and thereforenot required for a breath sample to be admissible. In general it is my view that the defence has to show some basis that the officer shouldhave waited this period of time, otherwise it is merely speculation and nothing turns on it.

Since time is crucial the officer has to makean assessment as to whether or not to wait to administer the test. Here, again, there was no evidence to suggest to the police officer thathe should hold off on obtaining the sample, and the police officer acted reasonably and within the requirements of the law. [25] The defence also made submissions with respect to deficiencies in the police caution warning given to Mr. Langman. Thisoccurred after the fail result had been recorded. Mr.

Langman had been placed under arrest, read his rights to counsel at 1:52 a.m., thepolice caution at 1:53 and the breath demand pursuant to s. 254(3) at 1:54 a.m. The officer admitted in cross-examination when readingthe police caution to using the words at the end “may be used as evidence”. The defence suggests, although this was not pursued in finalargument, that this misled the accused and consequently taints the demand under s. 254(3). Therefore, the Intoxilyzer demand was notlawful and the evidence obtained (Exhibit P-1) should be excluded. Again this argument fails.

The demand again under s. 254(3) neednot be in any set of words. It must be clear what is required of the accused and the requirements come from the section. If the demandmeets these standards, then it is good and the police warning does not affect the demand. The evidence is that each time Mr. Langmanwas asked a question with respect to rights, warnings and police caution, he indicated that he understood. There is no evidence toindicate that he was misled. Therefore, again, the admission of those words in no way affects the lawfulness of the demands.

Thedefence filed no case law or authorities to convince me otherwise. [26] Finally the defence argues that the demand under s. 254(3) was not lawful as there was not a 15 minute observation periodprior to the first test being taken. As stated in relation to the approved screening device, the observation period is a period of timeimmediately preceding each breath sample when the police officer observes the detainee to ensure there is no belching or burping thatwould bring up stomach fluids and nothing is consumed.

The observation period does not go to the admissibility of the certificate butrelates to the reliability of the test and the result. This is clear in the transcript of Malcolm McCastle. In the McCastle case theProvincial Court Judge in Alberta agreed with defence counsel’s submission that the officer should not just have assumed that theaccused had not consumed anything or had not burped, regurgitated or vomited.

He held that the officer knew that there should be aperiod of observation and the accused was sitting about 25 feet down the hallway where others were milling about. [27] With respect, I disagree with this approach. It is usually the investigating officer who keeps the subject under observationprior and in-between the testing. It is true Cst. Roddick was aware of having an observation period as he clearly testified that heobserved Mr. Langman for 20 minutes between tests. The evidence of Cst. Roddick is that they arrived at the Gravelbourg Detachmentat 2:15 a.m.

He was the driver and the accused was seated behind him in the back seat of the vehicle. Cst. Roddick agreed that hisattention was focused on the act of driving. The defence filed a number of cases which I have reviewed. These cases are of course allfact sensitive. In many cases the accused testified on the voir dire and as such there was other evidence for the Court to consider. [28] In a fairly recent case out of the Alberta Court of Queen’s Bench, R. v. So, 2013 ABQB 549 (under appeal to Alberta Court ofAppeal), Wilson J. was faced with this same argument on appeal from Provincial Court.

At paragraph 52, the Queen’s Bench Judge

states: The crux of the Defence case at trial was accurately described at paragraph 15 of the judge’s decision. [15] Simply put, Mr. Foster concludes that if he can show any irregularity or deficiency in the maintenance or operation of theinstrument, that automatically casts reasonable doubt on the reliability of the breath test results, and must lead inevitably to acquittal. [29] He states further at paragraph 53: The phrase “and must lead inevitably to acquittal” is not, strictly speaking, correct in law. The only inevitable result would be therebutting of the presumption.

The Crown, as a matter of law, could still call further evidence in order to attempt to prove guilt regardlessof the fact that the presumption was rebutted.

If the Crown chooses not to do so, then an acquittal is inevitable. [30] And, at paragraph 55: But the essence of the defence submission at trial was repeated before me – any deviation from the Committee’s recommendation or theCalgary Police Service manual means that there is an “improper operation” sufficient to rebut the presumption. [31] The Queen’s Bench Judge goes on to review some of these recommendations, in particular at paragraphs 59, 60 and 61: At paragraph 25 she (the trial judge) references the CSFS Committee recommendations and states: The Committee states that before collecting a breath sample, the qualified technician must, among other things, observe the test subjectfor 15 minutes ...

In this case, and in other cases, counsel have been asserting that, in this passage, the Supreme Court of Canada “imposed a requirementthat the test subject must be observed for 15 minutes before a breath sample can be taken” (see, for example, R. v. Franczak, 2013 ABPC226 , 2013 ABPC 226; R. v. Vetsch, 2013 ABPC 194 , 2013 ABPC 194). This is erroneous. The Supreme Court of Canada imposed no such requirement. Indeed, a review of the Committee recommendationsdoes not even reference a 15 minute observation period simpliciter.

The recommendations only speak to the requirement that the accusednot consume or place alcohol in his mouth for 15 minutes prior to the breath test. (See page 15 of the recommendations.) [32] And, at paragraphs 63, 64 and 65: But, beyond that, it would make no sense to impose a 15 or 20 minute observation period per se. If there was no such observation conducted and the accused offered no evidence that he had consumed alcohol or put alcohol in hismouth during that time period, what would it matter that a peace officer had failed to stare at him for 15 or 20 minutes?

How would a failure to watch over a person suddenly become equated to an improper operation of the breathalyzer or equated to itsmalfunctioning? The failure to observe for 15 or 20 minutes is, in itself, of no moment. CONCLUSION [33] I am satisfied that: (1) the officer had reasonable grounds both subjectively and objectively to make the demand pursuant to s. 254(3) of the Criminal Code;

(2) the demand was made as soon as practicable and the samples were taken as soon as practicable as required by s. 258(1)(

c) of theCriminal Code;

(3) I have not found any breach of the accused’s rights under s. 8, 9, 10(

a) or 10(

b) of the Charter that have been established on thebalance of probabilities; and

(4) I have not found any evidence to the contrary. [34] In conclusion the Certificate of Analyses is admitted as Exhibit P-1 in the proceedings. There is no further evidence andtherefore I find the accused guilty of count 2. [35] Mr. Langman is also charged with operating a motor vehicle while impaired by alcohol contrary to s. 253(1)(

a) of theCriminal Code. The test for impairment is found in the well-known case of R. v. Stellato, (SCC), [1994] 31 C.R. (4th)60, in which the Supreme Court of Canada approved the following from the Ontario Court of Appeal reasons at (ONCA), [1993] 78 C.C.C. (3d) 380 at paragraph 14: In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [36] It is clear from the case law that the evidence as a whole must be considered in assessing whether there is sufficient evidenceof impairment to justify a conclusion that the accused’s ability to operate a motor vehicle was impaired by alcohol.

In this case, Cst.Roddick testified that he noticed the Langman vehicle leaving a venue where there had been a special occasion permit for alcohol to beserved that evening. He followed the Langman vehicle and tried to intercept it but was having difficulty doing so. However there wasreally no other evidence with respect to any driving actions and the vehicle did pull over and stop when signalled to do so by Cst.Grenier. Cst. Roddick noted Mr. Langman’s speech was slurred and that he had difficulty walking, but that is likely understandablegiven Mr.

Langman had on cowboy boots and the road surface was very slippery. The officer said he could smell alcohol coming fromMr. Langman as well. Therefore, applying the principles in Stellato, and the evidence, I find the evidence of impairment is so frail as toleave me with a reasonable doubt and the accused is acquitted on count 1. M. Gordon, J