Her Majesty the Queen - v. -, 2022 SKPC 19

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 19 Date: May 2, 2022 Information: 90422540 Location: Estevan Between: Her Majesty the Queen - and - Monty Blomberg Appearing: Gennadiy Bogutskiy For the Crown Alan Pearse For the Accused JUDGMENT ON CHARTER VOIR DIRE and TRIAL M.R. B RASS, J INTRODUCTION [ 1 ] The accused, Monty Blomberg, was charged on Information 90422540 that: 1. On or about 15 th day of May 2021 at Estevan in the Province of Saskatchewan did operate a conveyance while ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol or a drug, contrary to

section 320.14(1) (

a) of the Criminal Code .

2. On or about 15 th day of May 2021 at Estevan in the Province of Saskatchewan did have a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 ml of blood within two hours after ceasing to operate a conveyance, contrary to

section 320.14(1) (

b) of the Criminal Code . [ 2 ] The Crown proceeded by

summary conviction and the accused entered not guilty pleas to these charges. Prior to trial, defence counsel filed a Charter notice, alleging a number of breaches of the accused’s Charter rights and asked for a stay of proceedings or the exclusion of all evidence subsequent to the breaches. [ 3 ] The trial was held on these charges on January 25, 2022. The parties agreed that the trial would proceed as a blended Charter voir dire and trial. The Crown entered its evidence on the voir dire and applied to have all evidence entered at trial once the Court determined what evidence would be accepted.

The defence abandoned all Charter arguments and did not tender evidence on the voir dire . Evidence Presented on the Voir Dire [ 4 ] Constable Chabot, an officer with the Estevan Police Service for the last 10 years, executed a traffic stop for the purpose of checking for the driver’s sobriety on May 15, 2021. He has conducted multiple impaired investigations. The Constable identified Mr. Blomberg in court as being the driver of the vehicle he stopped. [ 5 ] The Constable proceeded to the driver’s window of the vehicle and could see that the accused was the lone occupant.

The Constable asked to see the accused’s driver’s licence. He testified that the accused had trouble with retrieving his driver’s licence from his wallet, passing by it a number of times while the Constable could plainly see it. The Constable also testified that he observed that the accused’s eyes were red and that the pupils were dilated, and that he smelled beverage alcohol coming from the vehicle. He indicated that the accused said that he had one drink one hour prior to being stopped. [ 6 ] The Constable informed the Court that as a result of his observations of the accused, he read Mr.

Blomberg an Approved Screening Device (ASD) demand at 12:34 a.m. He testified that the accused said he understood the demand when it was read out to him. The Constable then testified that he had an ASD in his vehicle, contrary to Sergeant McMillen, who informed the Court that he brought the ASD used in this case with him when he attended the scene. In any case, the Constable then indicated that he obtained a sample into the ASD from the accused which resulted in a reading of fail. He informed the Court that he showed Mr.

Blomberg the ASD results and advised him that he was under arrest for impaired driving at 12:35 a.m. [ 7 ] At 12:37 a.m., the Constable read the accused the breath test demand and then read the accused his Charter rights to counsel. The accused declined to speak to a lawyer. The Constable then read the accused the police warning.

The Constable testified that the accused indicated that he understood his Charter rights and the police warning. [ 8 ] Sergeant McMillan transported the accused to the Estevan Police Station since Constable Chabot was the canine officer and his police cruiser was not appropriate due to the presence of a police dog. The next time the Constable saw the accused was at the police station. [ 9 ] The Sergeant indicated that he brought the accused to the observation room at the Estevan Police Station at 12:40 a.m. He testified that he could smell alcohol when he was with the accused in the observation room.

As per the Sergeant’s practice, he reminded the accused that he may call a lawyer if he chose. The Sergeant informed the Court that the accused declined to call one. The Sergeant indicated that the first observation period started at 12:46 a.m. Breath samples were provided at 1:08 a.m. and 1:30 a.m. Once the release documents and fingerprinting were completed, the Sergeant transported the accused to Mr. Blomberg’s parent’s residence. [ 10 ] Constable Chabot is trained as a Qualified Technician. He was responsible for conducting the breath tests and operated the instrument.

He prepared and signed the Certificate of Qualified Technician and the Notice of Intention to Produce Certificate. The Certificate of Qualified Technician was tendered as an exhibit as P-1 for the voir dire . It provided the following statements: • Constable Chabot is a person designated pursuant to paragraph 320.4 (

a) of the Criminal Code of Canada by the Attorney General of Saskatchewan as being qualified to operate the Intox EC / IR II, an approved instrument, and being, therefore a qualified technician.

• That he certified that at Estevan, in the Province of Saskatchewan, pursuant to a demand under subsection 320.28(1) (

a) of the Criminal Code of Canada , he did take two samples of the breath of a person identified to him as Monty Blomberg, as in his opinion were necessary to enable a proper analysis to be made by means of an approved instrument in order to determine the concentration, if any, of alcohol in the blood of the said person. • That he did receive each sample directly into an Intox EC / IR II, an approved instrument as defined in

Section 320.11 of the Criminal Code of Canada , that was operated by Constable Chabot. • That before each sample was taken, the Constable performed a system blank test, the result of which was not more than 10 mg of alcohol in 100 ml of blood.

System black tests are recorded by the approved instrument and documented on the Subject Test Printout produced in relation to the testing of the said person. “System blank test” is abbreviated as “BLK” on that document. • That before each sample was taken, the Constable performed a system calibration check, the result of which was within 10 % of the target value of the alcohol standard that has been certified by an analyst. The alcohol standard was suitable for use in the said approved instrument and was identified as Intox EC / IR II, lot AG004801.

System calibration checks are recorded by the approved instrument and are documented on the Subject Test printout, “System calibration check” is abbreviated as “STD” on that document. • That prior to each test the approved instrument performed diagnostic tests which the instrument passed. The results of these tests are recorded on the Subject Test printout and are abbreviated as “DIAG” on that document.

Therefore, Constable Chabot ascertained that the approved instrument was in proper working order. • That the first breath sample was taken at 01:08 hrs. on May 15, 2021 and that the result of the proper analysis of this sample was: 180 mg of alcohol in 100 ml of blood. • That the second breath sample was taken at 01:30 hrs. on May 15, 2021 and that the result of the proper analysis of this sample was: 180 mg of alcohol in 100 ml of blood. • That there was an interval of at least 15 minutes between the times when the samples were taken. • That the results of the analyses, which were rounded down to the nearest multiple of 10 mgs, did not differ by more than 20 mgs of alcohol in 100 ml of blood. • That the Constable certified that the statements made in this certificate are true to the best of his skill and knowledge, dated the 15 th of May 2021 at Estevan, Saskatchewan signed by Constable Chabot. [ 11 ] The Certificate and the Notice are found on one document but were marked as P-1 and P-2 on the same document for the voir dire . [ 12 ] The Crown made an application to have all the evidence tendered deemed admissible on the voir dire be applied to the trial proper .

Defence counsel agreed pending the argument on the voir dire . Defence indicated that they were not calling any evidence on the voir dire and on the trial. The Court now turns to the issues that were raised in final argument by the defence and will consider the arguments that were presented by both the defence and Crown on the following issues. ISSUES Has the Crown Proven Beyond a Reasonable Doubt that the Accused was Impaired? [ 13 ] Defence argued that the Crown has not proven beyond a reasonable doubt that the accused was impaired on the night that he was stopped by the Constable.

There were no driving patterns that demonstrated impairment. Defence admitted that the accused may have fumbled looking for his driver’s licence, that there may have been an odor of alcohol and that he may have had dilated pupils. However, the defence submitted that the Crown has not proven beyond a reasonable doubt that the accused’s ability to operate a conveyance was impaired. [ 14 ] The Crown submitted that there is no list of observations which must be found in a particular case in order to find impairment.

Determining impairment involves considering a number of factors which should be considered holistically. In this case, the experienced officer testified that he smelled a strong odor of alcohol, that the accused had trouble locating his driver’s licence which was easily seen by the Constable, and that the accused had red eyes. Constable Chabot indicated that the accused had “dilated” pupils. However, the Crown advised the Court that the accused’s pupils were small in size and not “dilated”, which means they are enlarged.

Due to this inconsistency, the Court cannot accept that there was anything about the size of the accused’s pupils which would be relevant to the issue of impairment.

[15] In R v Stellato (1993), (ON CA), 78 CCC (3d) 380 (Ont CA), Justice Labrosse indicated: [14] In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction canbe registered. 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. [16] In the current case, the Crown outlined a number of factors that caused an experienced Constable of 10 years to suspect thatthe accused was impaired. As noted, above, the Court accepts that the accused did fumble when he looked for his driver’s licence, thatan odor of beverage alcohol could be smelled, and that he had red eyes. The Court also notes that other no other indicia of impairmentwere identified.

For instance, there were no observations of difficulty in walking or talking or other signs of impairment such as mannerof driving. The Constable did agree that a person who has red eyes may be tired, although he did not think that was the cause of theaccused’s red eyes in this case. [17] There were sufficient grounds to make an ASD demand. However, taking into consideration all the evidence presented, theCourt does not find that proof of impairment was established. As a result, the offence on Count 1 has not been made out. Is the failure to file the Certificate of Analyst fatal to the Crown’s case?

Position of the Parties [18] In closing arguments, defence argued that because the Court was not provided the Certificate of an Analyst, the Crown hasnot established that the accused was over .08. Defence relied on the R v Pahl, 2021 SKQB 179 [Pahl] case which at para. 82 whereJustice Mitchell indicates: [82] ...All that is required is an analyst must certify the alcohol standard either by way of viva voce evidence or a statutorilyrecognized Certificate of An Analyst. [19] There is no allegation that the Crown failed to disclose the Certificate of an Analyst to the defence.

This is a case wheredefence argued that the Crown attempts to prove its case solely on the Certificate of the Qualified Technician and his viva voceevidence. This argument is a distinguishing point from the cases discussed below that considers

section 320.31(1). [20] The Crown submitted that the arresting officer, Constable Chabot, was the breath technician who prepared the Certificate ofthe Qualified Technician and who provided his viva voce evidence in court. The Crown suggested that the Constable was the breathanalyst. Thus, in light of para. 82 from Pahl cited above, the Crown submitted that the Crown could rely on the statutory presumption ofaccuracy not of the target value but of the accused’s blood alcohol level. [21] The Crown further submitted that the Pahl case may be distinguished from the current case.

First, they argue that it isdistinguishable on the basis that it is a case dealing with flying an airplane. Second, Pahl was a case that fell under the sections of theCriminal Code prior to the new amendments. The Crown submitted that new evidentiary shortcut was not available at that time. [22] The Crown acknowledged that Justice Mitchell considered the decision of the Alberta Court of Appeal in R v Goldson 2021ABCA 193, 406 CCC (3d) 84 [Goldson] to be of persuasive value.

The Court there held that an analyst’s certificate must be filed by theCrown under the new provisions in order for the presumption of accuracy to apply. The Crown argued that the decision is not bindingon this court and should not be applied to this case. [23] The Court noted that the defence did not make an application for further disclosure. As well, the Court noted that the defencedid not indicate that it did not receive the Certificate of an Analyst in its disclosure package. Nor did the defence make an application tocross-examine the analyst who may have produced the Certificate of an Analyst.

The Court also noted that the defence did not ask theConstable, who was the qualified technician, any questions on this point in cross-examination. Defence only indicated that the court didnot receive this certificate. [24] As indicated above, Constable Chabot is a trained Qualified Technician who took the breath samples and produced theCertificate and Notice of Intention on this case. The Crown filed the Certificate of Qualified Technician and the Notice of Intention to

Produce Certificate, respectively as P-1 and P-2. It did not file a Certificate of an Analyst that would certify the alcohol standard and that it is appropriate for use in the instrument that was used to test Mr. Blomberg’s breath samples on the night of May 15, 2021. Relevant Sections of the Criminal Code [ 25 ] The Criminal Code provides an evidentiary shortcut to prove the blood alcohol concentration readings of an accused when the Crown establishes that the requirements under s. 320.31(1)(

a) have been met: 320.31

(1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if (

a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst; (

b) there was an interval of at least 15 minutes between the times when the samples were taken; and (

c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood. [ 26 ]

Section 320.32(1) provides the Crown the ability to use certificate evidence rather than calling the witnesses that certify these documents: 320.32

(1) A certificate of an analyst, qualified medical practitioner or qualified technician made under this

Part is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate. [ 27 ]

Section 320.34(1) sets out specific disclosure requirements: 320.34

(1) In proceedings in respect of an offence under

section 320.14, the prosecutor shall disclose to the accused, with respect to any samples of breath that the accused provided under

section 320.28, information sufficient to determine whether the conditions set out in paragraphs 320.31(1)(

a) to (

c) have been met, namely: (

a) the results of the system blank tests; (

b) the results of the system calibration checks; (

c) any error or exception messages produced by the approved instrument at the time the samples were taken; (

d) the results of the analysis of the accused’s breath samples; and (

e) a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument.

(2) The accused may apply to the court for a hearing to determine whether further information should be disclosed. Case Law [ 28 ] Defence provided the case of Kvasnak v R , 2021 SKQB 283 [ Kvasnak ] to the court in support of its argument that a Certificate of Analyst is to be provided as cited in para. 82 of the Pahl case outlined above. The evidence in the Kvasnak case indicated that the Certificate of an Analyst was not disclosed to the accused as required by

section 320.34(1) (

e) of the Criminal Code . This is a distinguishing factor from the current case where there is no such allegation related to the Certificate of Analyst. However, the Court in Kvasnak accepted that the Certificate of Analyst was required to certify the alcohol standard. [ 29 ] In the case of Goldson the facts of that case indicated that the Crown did not submit the Certificate of the Qualified Technician nor the Certificate of the Analyst. The Crown relied on viva voce evidence of the Qualified Technician who took the breath samples from the accused.

The Alberta Court of Appeal held: [73] The revised conditions to trigger the presumption of accuracy and the omission of language in the Amending Act setting out the content of the certificates must be taken to be intentional, leaving the Crown with the ordinary rules of evidence to prove that the alcohol

standard was “certified by an analyst” or by way of the statutorily recognized Certificate of Analyst. As the Supreme Court has recognized, the preconditions or elements now specified in s. 320.31 must all be proven, “by certificate or by oral evidence”: see Lightfoot at 575.The content of those elements has now changed, but they must still be proven for the Crown to obtain the advantage of the statutory presumption. [74] In our view, this

interpretation is consistent with the purpose of the Amending Act and the intention of Parliament. To require the Crown at the very minimum to tender the Certificate of Analyst at trial, which it must produce to defence under s. 320.34(1) in any event, is hardly an onerous obligation and is consistent with simplifying the law related to proof of BACs. Based on our

interpretation, the conditions will be met if the Crown tenders these two certificates as long as they contain the information set out in s. 320.31(1). This provides the Crown with a very simple and effective means of establishing the presumption. [ 30 ] The Court further commented on the nature of the Qualified Technician’s testimony on the analyst’s certification: [83] The answer to the question on leave is as follows: the proper

interpretation of “certified by an analyst” in s. 320.31(1) (

a) of the Criminal Code requires evidence from the analyst regarding certification, either by way of the analyst’s viva voce evidence or by way of the statutorily recognized Certificate of Analyst. The QT’s evidence about whether an alcohol standard is certified by an analysis is inadmissible hearsay. [ 31 ] Justice Mitchell acknowledged that he was not bound by the Alberta Court of Appeal decision in Goldson but he noted that the case did represent the considered view of the first appellate court in Canada to consider the issue of the proper

interpretation of “certified by an analyst” in

section 320.31(1)(

a) and was therefore of persuasive value; see para. 75. He states in his decision at paragraphs 81 and 82 the following: [81] In my view, the court in Goldson CA , having given close and careful attention to what was meant by this statutory language, would have stated without equivocation that the target value also must be certified by an analyst, if it believed this was a statutory pre- condition to the operation of s. 320.31(1) (

a) of the Criminal Code . It did not do so. [82] For these reasons, I hold that there is no requirement for an analyst to certify the target value. To similar effect, see, for example: R v Wu (2019), 60 MVR (7 th ) 90 (QL) (Ont Sup Ct) at paras 5-7 . All that is required is an analyst must certify the alcohol standard either by way of viva voce evidence or a statutorily recognized Certificate of An Analyst. [ 32 ] Justice Mitchell accepted that the Crown may rely on the statutory presumption of accuracy set out in

section 320.31(1) to prove the test results of breath samples taken are accurate and reliable by tendering as evidence the Certificate of an Analyst as well as the Certificate of the Qualified Technician. [ 33 ] Justice Crooks in the Kvasnak case considered Justice Michell’s consideration of the Goldson case in Pahl . The Crown in Kvasnak also argued that Goldson was not binding and that it did not remove the exception to the hearsay rule for the Qualified Technician’s evidence in Saskatchewan.

Justice Crooks further stated: [46] The Crown asserts that there remains an exception to the hearsay rule for the qualified technician’s evidence in Saskatchewan, relying on the Saskatchewan Court of Appeal decision in Kroeger where the Court definitively stated "[i]f the [qualified technician] can state that he or she has ascertained the breathalyzer to be in proper working order by means of an alcohol standard that ends the matter..." [47] However, in my view, there has been a significant change in the legislative scheme from that considered in Kroeger .

Section 320.31(1) (

a) specifically requires that calibration tests be performed prior to the taking of the breath samples in order to ensure the proper functioning of the approved instrument. It also requires that the calibration checks be performed with an alcohol standard “certified by an analyst” in order to determine whether they produce results within an acceptable margin of the target value of the certified alcohol standard. This is a significant difference from the previous wording of s. 258(1)(

c) which obligated the qualified technician to identify the alcohol standard “suitable for use with an approved instrument.” [ 34 ] The Criminal Code allows the Crown to rely on the evidentiary shortcut of submitting certificates rather than having to call witnesses to court. The Crown is required to provide disclosure of Certificates and must serve Notices of Intention to file Certificates in order to do so.

This Court is persuaded by the Alberta Court of Appeal in the Goldson case where they indicate: [75] We reject the Crown’s submission that because it is obligated to disclose the certificates to the defence, the defence has what it needs to bring any meritorious challenge to the accuracy of the breath samples, and as a result, it is not required to tender the Certificate of Analyst at trial. The

summary conviction appeal judge also relied upon this procedure in support of her

interpretation that a hearsay exception existed. [76] This reasoning appears to shift the burden to the accused and is inconsistent with fundamental criminal law principles. If the Crown wishes to rely on the statutory presumption of accuracy, it is up to the Crown to prove (not the accused to disprove) that the statutory preconditions to its operation are met.

[ 35 ] This Court was not convinced by the arguments that were put forward by the Crown. Therefore, the Court finds that the failure to file the Certificate of Analyst was fatal to the Crown’s case. The Crown is not able to rely solely on the Certificate of the Qualified Technician who could not certify the alcohol standard on the instrument that was used to test Mr. Blomberg’s breath samples on the night of May 15, 2021. [ 36 ] This Court is bound by the Kvasnak case.

While it might be possible to distinguish the Pahl decision on the basis that it was a transitional case, as submitted by the Crown, the same cannot be said of the Kvasnak case where the Crown also did not enter the Certificate of Analyst into evidence at trial. In addition, the decision of the Court of Appeal of Alberta in Goldson while not binding, is highly persuasive. [ 37 ] Therefore, this Court agrees with and will apply the reasoning set out in both Goldson and Kvasnak that the proper

interpretation of the new legislation leads to the conclusion that in order to succeed in obtaining a conviction for the offence in Count 2 on the Information the Crown must file, in addition to the Certificate of the Qualified Technician, a Certificate of an Analyst concerning the alcohol standard used by the Technician. In the absence of either the evidence of an Analyst in court, or the filing of the Analyst’s Certificate, the Crown cannot rely on the presumption of accuracy set out in

section 320.14(1) and therefore has not established that the accused’s blood alcohol reading was over the permissible limit within two hours after he stopped driving his vehicle. CONCLUSION [ 38 ] Based on the evidence presented on the voir dire and applied to the trial proper that was accepted by the Court, the Crown failed to demonstrate that Mr. Blomberg’s ability to operate a conveyance was impaired by alcohol or a drug when he was stopped on May 15, 2021. The Crown also failed to provide conclusive evidence that Mr.

Blomberg had a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 ml of blood within two hours after ceasing to operate a conveyance, contrary to

section 320.14(1) (

b) of the Criminal Code . [ 39 ] The accused is therefore acquitted on both Counts on Information ending 2540. _______________________ Brass, J