Her Majesty the Queen - v. -, 2022 SKPC 5

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 5 Date: January 25, 2022 Information: 902022922 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ca m Oliphant Appearing: J. Laing For the Crown M. Brayford, Q.C. & B. Pfefferle For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused was charged on October 27, 2020, with (paraphrased): Count 1 - impaired driving, contrary to s. 320.14(1) (

a) of the Criminal Code ; and

Count 2 - within two hours of ceasing to drive had blood alcohol equal to or in excess of .08 percent, contrary to s. 320.14(1) (

b) of the Criminal Code . [ 2 ] As Charter issues were raised, the trial proceeded by way of blended voir dire . The Crown called the investigating officer, R.C.M.P. Cst. Justin Deschaies, as its sole witness on the voir dire and trial proper. Defence called no evidence. II BACKGROUND [ 3 ] At approximately 12:45 a.m. on October 27, 2020, Cst. Deschaies observed a black Silverado truck exiting the town of Eston at an excessive speed. [ 4 ] Cst. Deschaies gave pursuit to check driver’s license, registration, and sobriety, and effected a traffic stop roughly two kilometers out of town.

The truck signaled and stopped on the edge of the highway in an appropriate manner. The driver was the lone occupant and identified as the accused. He was polite and cooperative and exhibited no difficulty in responding and producing requested documentation. [ 5 ] After an approximate thirty second interaction at the truck window, Cst. Deschaies formed a reasonable suspicion that the driver had alcohol in his body.

His grounds consisted of breath odour of alcohol, glossy eyes, and the driver’s admission that he was coming from the local bar, where he had consumed two drinks, the last being five minutes before leaving. [ 6 ] Cst. Deschaies requested (informally) that the accused accompany him to his patrol vehicle to conduct an Approved Screening Device (ASD) test. [ 7 ] Just prior to Mr. Oliphant entering the back seat of the police vehicle, Cst. Deschaies ran the back of his hand along the rear waistband of his pants. At trial, he estimated this took “half a second”.

He also asked the accused whether he possessed anything which could cause harm to Cst. Deschaies or himself and checked the accused’s mouth for any obstructions. [ 8 ] At 00:51 hours, Cst. Deschaies read the formal ASD demand and then waited ten minutes before administering the test because of the accused’s information concerning his last drink. [ 9 ] Mr. Oliphant registered a “fail” and was consequently arrested and given rights to counsel, police warning, and formal breath demand, all of which he understood. [ 10 ] Concerning rights to counsel, Cst.

Deschaies asked the accused whether he wished to contact legal counsel, to which he received a negative reply. He did not add the word “now”, which is printed on his card. He explained at trial that he no longer included “now” after asking whether a detainee wished to contact legal counsel because he had no means to effect this on scene, and he was told that there was recent case law indicating this was not required. [ 11 ] The accused was transported to the Kindersley detachment to provide evidentiary breath samples.

Upon arrival, he required use of a washroom and was directed to a cell toilet, which was video monitored. [ 12 ] Although this camera normally continuously monitored cell activity, which included the toilet, no video footage was available due to a detachment computer malfunction. Cst. Deschaies was unable to say whether video had been captured and was lost, or whether it had not been recorded at all when Mr. Oliphant used the facilities. Cst.

Deschaies was not made aware of the computer malfunction until the following December or early January. [ 13 ] Two 15-minute observation periods were conducted prior to testing, which ultimately yielded readings of 90 milligrams

percent and 80 milligrams percent, respectively. [ 14 ] The observation periods were recorded, and defence raised in its Charter notice that Cst. Deschaies “was texting, reading, or writing on nine different occasions” during the second period prior to the test result of 80 milligrams percent. [ 15 ] At trial, Cst. Deschaies acknowledged he was comfortable that this was “approximately accurate”.

He admitted that this was inconsistent with his observational duties prior to breath testing. [ 16 ] At the completion of the samples being taken, the accused was processed, which included service of the requisite documentation and then driven home by Cst. Deschaies. [ 17 ] For court purposes, Cst. Deschaies prepared and forwarded the disclosure package to the Crown for dissemination to defence counsel. III ISSUES [ 18 ] Several issues have arisen for determination: A. Whether the Crown can rely upon the Certificate of a Qualified Technician - Approved Instrument Print Out (Exhibit P-2 for identification). B.

Charter Issues: (

a) Administering the ASD in the patrol vehicle and pat-down search prior to entering the vehicle (ss. 8 and 9); (

b) Proper compliance with right to counsel (s. 10(b)); (

c) Missing disclosure and video monitoring of cell washroom (ss. 7,8, and 9); (

d) Failure to perform proper observation period prior to second sample being provided (s. 8); and (

e) Section 24 analysis (if required). C. Impaired Driving Evidence IV ANALYSIS A. Whether the Crown can rely upon the Certificate of a Qualified Technician - Approved Instrument Print Out (Exhibit P-2 for identification). [ 19 ] Where an accused provides samples of breath into an approved instrument, the Criminal Code [ Code ] details the criteria and procedure whereby the results of the breath samples can be relied upon as conclusive proof that BAC equaled or exceeded .08 percent within two hours of ceasing to drive (presumption of accuracy). [ 20 ] Pursuant to s. 320.31(1)(a) – (c), the three criteria required to establish such conclusive proof are: (

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. [ 21 ] Facts sufficient to satisfy these three criteria can be proven by the statutory shortcuts of certificate evidence as set out in ss. 320.32(1) and (2) of the Code :

(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 that the signature or the official character of the person who signed the certificate.

(2) No certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate. [ 22 ]

Section 320.33 of the Code references the requirements relating to printout data from approved instruments: 320.33 A document that is printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made an analysis of a sample of a person’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person who signed it. [ 23 ] Pursuant to s. 320.34(1), disclosure must be made to the accused of “…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 within an approved instrument. [ 24 ] To satisfy the statutory Code requirements in the present case, the Crown tendered the following: P-1 – Certificate of a Qualified Technician P-2 – The Crown tendered two documents to comprise this exhibit: (

a) Certificate of a Qualified Technician – Approved Instrument Print Out, and (

b) Intox EC/IR II Subject Test as a stand-alone document P-3 – Certificate of Analyst (Alcohol Standard) re: Airgas Lot AG926601 P-4 – Certificate of Analyst (Alcohol Standard) re: Airgas Lot AG914101 [ 25 ] All exhibits were marked for identification pending completion of cross-examination. [ 26 ] The defence asserts that Exhibit P-2, tendered as two separate documents, cannot be made a full exhibit for two reasons: (

a) the evidence is insufficient to establish service of the Subject Test and subsequent disclosure to defence and thereby does not satisfy the disclosure requirements of s. 320.34(1) of the Code ; and (

b) whether or not the Subject Test was served, it did not have the necessary certification that it was the proper document as required by s. 320.33 of the Code . [ 27 ] On the first issue, Cst. Deschaies testified in-chief that following the test results he “proceeded to do the paperwork… produced it to him and… provided copies.” Service stamps are reflected on both the Certificate and the Subject Test document. Although the service stamp on the Subject Test was incorrectly worded (not relevant to the issues before the Court), nonetheless, the service stamp does indicate that the Subject Test was served by Cst.

Deschaies upon the accused. Cst. Deschaies also testified that the Subject Test formed part of the disclosure package he put together and forwarded to Crown counsel. [ 28 ] In the circumstances, the Court draws the inference that the Subject Test was served upon the accused and a copy provided to the Crown for disclosure to defence. However, that does not end the matter. The question remains as to whether, nonetheless, there has been proper statutory compliance with s. 320.33 and s. 320.34(1) of the Code . [ 29 ] Cst.

Deschaies acknowledged in cross-examination that the two documents tendered as Exhibit P-2 had not been attached together at any point, and the Court so finds as a fact.

[ 30 ] When examining the Subject Test document, it appears that there is a signature on the bottom right portion of the Qualified Technician, Kevin Wilson, as required by s. 320.33 . This

section states however that the document must not only be signed but certified as well by the Qualified Technician as the subject printout from the approved instrument. [ 31 ] The Certificate portion of Exhibit P-2 purports to certify the printout, stating that “the attached Subject Test document dated 2020-10-27 is the printout produced by the approved instrument when it made an analysis of the breath of the said person.” The Subject Test printout, however, was not attached, meaning that it was not certified as required by s. 320.33 .

This no doubt could have been addressed by way of viva voce evidence, however, the Qualified Technician was not called to testify. [ 32 ] The Crown argues that “there is no statutory requirement that these documents be stapled together or be on one page.” The Court agrees.

However, there is a statutory requirement that the printout be certified by the Qualified Technician, and the method chosen to prove the certification here was not complied with. [ 33 ] Further, the Crown submits that there was only one Subject Test document disclosed – in effect, inviting the Court to draw the inference that the printout document, as disclosed, satisfies s. 320.33 of the Code . To do so, however, would be to ignore the clear unambiguous language of the

section and usurp the function of the Qualified Technician making the Court the means of the required certification. This would set a dangerous precedent whereby statutory non-compliance can be ignored or judicially ameliorated. [ 34 ] The 2018 Criminal Code amendments provide evidentiary shortcuts, whereby conclusive proof of BAC is established through proper statutory compliance, as set out therein.

In the recent Court of Queen’s Bench decision of R v Kvasnak [1] , Madam Justice Crooks held that failure to comply with the statutory disclosure requirements in s. 320.34(1) (in that case Certificates of Analyst) meant that the Crown could not rely upon the presumption of accuracy as set out in the Code . [ 35 ] Similarly, in this case, because the purported approved instrument printout was not certified as required in s. 320.33 , the s. 320.34(1) disclosure requirements relating to the results of the system blank tests and calibration tests required as per s. 320.31(1)(a), have not been met. [ 36 ] In the result, the Crown is unable to rely upon the presumption of accuracy to prove the necessary elements of s. 320.14(1) (

b) in Count 2 of the Information. [ 37 ] Notwithstanding the Court’s determination on this issue, the balance of the Charter arguments will be addressed to complete the record. B. Charter Issues (

a) Administering the ASD in the patrol vehicle and pat-down search prior to entering the vehicle (ss. 8 and 9) [ 38 ] Once Cst. Deschaies suspected that Mr. Oliphant had alcohol in his body, he requested that Mr. Oliphant accompany him to his police vehicle to provide an ASD sample, as lawfully authorized by s. 320.27(1) (

b) of the Criminal Code :

(1) 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 conveyance, the peace officer may, by demand, require the person … (

b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose. [ 39 ] By so doing, defence contends, this amounted to an arbitrary detention in the police vehicle, stating that the test should have been performed at roadside to be constitutionally compliant, relying principally on the decision of R v Aucoin [2] . [ 40 ] In Aucoin , a youth was ticketed and then was requested to sit in the rear of the patrol car while being written up primarily to avoid him slipping away in the crowd.

The Supreme Court found such post-investigative detention unnecessary and arbitrary. [ 41 ] Aucoin , however, has been distinguished in several decisions in our Court in the context of the performance of ASD testing [3] , citing with approval Madam Justice J.M. Ross in R v Fournier [4] from the Alberta Court of Queen’s Bench at paragraphs 49-51:

[49] The Supreme Court specifically commented in Aucoin that it was not an investigative detention case. The pat-down search detention in the police vehicle occurred after the investigation was complete. The appellant was to be detained in the police vehicle while the officer wrote up two tickets for “relatively minor motor vehicle infractions”. In this context, being searched and placed in the police vehicle “altered the nature and extent of the appellant’s detention in a fairly dramatic way” (at para 34).

The majority described the police decision as having “fundamentally altered the nature of [the appellant’s] ongoing detention” (at para 30). [50] In contrast, in the Provincial Court ASD cases there is an ongoing investigative detention. The individuals involved are lawfully detained until the completion of the ASD test, whether they are detained in their own vehicles (with potentially their car keys removed for safety), or outside on the side of the road (with potential issues regarding safety, privacy, or comfort), or in the back of a police vehicle.

I accept that the latter option, particularly where it is preceded by a pat-down search, does involve an increased restriction on liberty and privacy interests, but in the context, I would not describe the difference as fundamental nor dramatic. [51] The fact that the investigation was complete in Aucoin also affected the risk that police were facing, and meant that delay was not a concern. This is very different from the situation in an ongoing ASD investigation, as elaborated in a number of the Provincial Court decisions, including Kim and Iorio .

The circumstances in Aucoin did not support the same degree of latitude regarding police decisions. [ 42 ] In the present case, Cst. Deschaies articulated several reasons why he chose to conduct the ASD test in the patrol vehicle, citing primarily officer safety concerns. His experience over the years with impaired drivers taught him that often their behaviour can be unpredictable, changing abruptly from calm to aggressive in some instances. On one occasion, during an impaired driving investigation, the suspect suddenly drove off, creating harm to him as an officer and to the public at large.

By contrast, the patrol vehicle, he stated, provides a stable controlled environment reducing or eliminating such risks. [ 43 ] Cst. Deschaies also testified that he was alone on a dark highway in a remote area, which was a concern to him. Standing on the highway itself also puts officers at risk, he advised. He also stated that this was a chilly evening and for comfort reasons, for he and Mr. Oliphant, it was preferable to conduct the ASD testing in his vehicle, where also, the entire transaction could be audio and video recorded for both their benefit. [ 44 ] There may be occasions, Cst.

Deschaies testified, where ASD testing at the window might be acceptable, such as at a roadside- controlled check stop where multiple officers would be present, and police vehicles could act as natural barriers. [ 45 ] Prior to entering the patrol vehicle, Cst. Deschaies asked Mr. Oliphant if he had anything on his person that could cause harm, including a lighter. Cst. Deschaies explained that on one occasion, a detainee attempted to light the rear seat of his police car on fire. [ 46 ] As Mr. Oliphant began to enter the patrol vehicle, Cst. Deschaies ran the back of his hand along Mr.

Oliphant’s rear outer waistband of his pants, which he estimated took “half a second.” His reasoning was to check for the presence of weapons, again for officer safety. There is no indication on the in-car video of any visible reaction from Mr. Oliphant as he enters the vehicle. Such concerns are justified, Cst. Deschaies stated, as he was aware of knives being found in patrol cars where inadequate searches were conducted. [ 47 ] In R v Mann [5] , the Supreme Court of Canada recognized a power of search incidental to investigative detention upon reasonable grounds when safety of the officers or others was a risk.

This determination must be based upon the totality of the circumstances, and the search itself must be reasonable.

The Court found that a brief pat-down search was reasonable, but this was exceeded when the officer extended the search into the detainee’s pockets. [ 48 ] The use of pat-down or “frisk” searches had in fact been the subject of judicial comment by the Supreme Court of Canada for some time prior to Mann , as evidenced by the dicta in R v Mellenthin [6] at paragraph 43 : [43] … Police officers face any number of risks everyday [ sic ] in the carrying out of their policing function and are entitled to go about their work secure in the knowledge that risks are minimized to the greatest extent possible. … a frisk search is a “relatively non-intrusive procedure”, the duration of which is “only a few seconds”.

Where an officer has reasonable grounds to believe that his or her safety is at risk, the officer may engage in a protective pat-down search of the detained individual. The search must be grounded in objectively discernible facts to prevent “fishing expeditions” on the basis of irrelevant or discriminatory factors.

[ 49 ] When viewing the totality of the circumstances in this case and having regard to the officer’s past experiences with impaired driving investigations, the fact he was alone, at night on a remote highway dealing with an unknown individual, a pat-down search was reasonable and necessary [7] . [ 50 ] Finally, the search itself in this case barely rises above the de minimis threshold in the Court’s view and would not have warranted any Charter relief even if it had been determined to constitute a breach. [ 51 ] In the circumstances, the Court finds that no Charter breaches have been established for conducting the ASD testing in the patrol vehicle nor for the pat-down search prior to entering the vehicle. (

b) Proper compliance with right to counsel (s. 10(b)) [52] Mr. Oliphant alleges breaches of his s. 10(

b) Charter rights in two respects: (

a) by unnecessarily placing him in the patrol vehicle to conduct the ASD test, thereby exceeding the permissible delay to comply with s. 10(

b) rights as set out in R v Thomsen [8] ; and (

b) by the failure of Cst. Deschaies to add the word “now” to the question “do you wish to call a lawyer?” By so doing, defence contends, the Court cannot be satisfied whether the accused would be sure of the immediacy of his right to counsel. [53] With respect to the first argument, the Court has already determined that placing Mr. Oliphant in the patrol vehicle was necessary and reasonable in the circumstances to effect the ASD testing. Accordingly, implementing the s. 10(

b) rights would continue to be reasonably suspended as per Thomsen . [54] Further, Cst. Deschaies acted diligently to administer the test in the patrol vehicle albeit he waited an additional ten minutes to perform the test since Mr. Oliphant had advised he had his last drink five minutes before leaving the bar. This of course was for the benefit of Mr. Oliphant to prevent the potential of a false reading due to residual mouth alcohol, which defence took no issue with. [55] As to the second submission regarding leaving the word “now” off the verbatim recitation of the s.10(

b) rights, the Court interprets R v Knoblauch [9] as a complete answer. [56] In Knoblauch , the investigating officer was distracted momentarily and inadvertently omitted to inquire whether the detainee wished to contact legal counsel now. Madam Justice Jackson concluded that asking this question was not required to fulfill s. 10(

b) obligations, stating at paragraph 31: [31] … s. 10(

b) deals with the granting of certain rights. An individual arrested or detained has the right to retain and instruct counsel and to be advised of those rights, all without delay. A police officer’s obligation to impart knowledge of a right and facilitate its exercise if asserted is not synonymous with an obligation to ascertain whether a detainee wishes to exercise such right. In my view, such an obligation is not mandated by the purpose or wording of s. 10(

b) and, while asking such a question may well assist in establishing that a detainee has not been denied an opportunity to ask for his or her right to counsel, it may also, in certain circumstances, defeat the right. I say that because posing a question “Do you wish to call a lawyer now” may be viewed as pressuring the detainee to make a choice whether or not to exercise the right to counsel before a detainee is ready to do so. [57] Notwithstanding, in the present case, Cst. Deschaies did ask whether Mr.

Oliphant wished to contact legal counsel and received a negative response, clearly going further than lawfully required of him. [58] Defence posits that, notwithstanding Knoblauch, a violation could still occur if a detainee was unsure of the immediacy of his or her right to counsel. Whether correct or not, that point is moot, however, as Mr. Oliphant did not testify on the voir dire , and there is nothing in the evidence otherwise to suggest this to be the case.

[59] The Court finds no breach of Mr. Oliphant’s s. 10(

b) rights have been established. (

c) Missing disclosure and video monitoring of cell washroom (ss. 7, 8, and 9) [60] Upon arrival at the Kindersley detachment, Mr. Oliphant was provided the use of a cell toilet prior to starting the testing process. This was an area that was normally continuously video monitored. On this occasion however, no video footage was available due to a computer malfunction at the detachment. [61] In his evidence, Cst. Deschaies stated that he was unable to say whether cell video footage was made at this time (only potentially so) and lost or, alternatively, was never recorded.

He was made aware subsequently in December or January that no video footage existed by reason of the computer malfunction. [62] Following the close of trial, defence counsel informed that an additional Charter argument would be advanced seeking a stay of proceedings on the basis of missing disclosure, and, as well, the use of the video monitoring of the cell toilet area [10] .

No prior Charter notice was given concerning this alleged breach nor any informal discussion raised otherwise prior to the trial concluding. [63] The Crown objected, stating that no such relief should be entertained nor granted both on the merits and on the basis of procedural fairness. [64] The Court agrees with the position of the Crown for the following reasons: (

a) although the Crown duty is to provide all relevant disclosure in its possession as per R v Stinchcombe [11] , it is apparent that the Crown at no time had possession of the potential video footage, so it had nothing to disclose in this regard; (

b) this was not a circumstance where disclosure could be said to have been lost or destroyed intentionally or through negligence [12] – rather, it was by reason of a computer malfunction; (

c) assuming cell video footage ever existed, which is by no means clear, there is no evidence as to what might have been shown or to what extent, or who might have seen it, in relation to Mr. Oliphant’s protected privacy interests; (

d) there is an obligation on defence generally, and in this case specifically depending upon the nature of the disclosure, to pursue any apparent disclosure deficiencies [13] . If, for example, disclosure indicated that Mr. Oliphant used the washroom facilities (particularly the cell toilet), it would be incumbent upon defence counsel to make inquiries as to why no detachment video was included in the disclosure package given the potential Charter breaches this may entail.

Further, even if no disclosure related to any toilet usage, detachment video may be nonetheless significant concerning evidence of an accused’s level of impairment. Again, lack of any such video evidence should trigger further inquiries in the Court’s view; (

e) there is no evidence before the Court as to whether videotaping of cell toilets is still employed at the Kindersley detachment or what steps, if any, may have been taken to ameliorate potential privacy breaches; and (

f) it would be procedurally unfair, especially if disclosure may well have alerted defence to a potential Charter breach (unknown to the Court), to entertain the extraordinary remedy of a s. 24(1) stay of proceedings without the Crown having been given the opportunity to marshal evidence or otherwise prepare its case to refute same. [65] For the foregoing reasons, allegations of such Charter breaches as set out cannot succeed. (

d) Failure to perform proper observation period prior to second sample being taken (s. 8) [66] The accused asserts that his s. 8 Charter rights were breached by virtue of the deficient observation period prior to providing his second sample of breath at the detachment, which registered 80 milligrams percent. It must be emphasized at the outset that this argument focuses upon an alleged breach of s. 8 “to be free from unreasonable search and seizure” and not in regards to raising a reasonable doubt by establishing an evidence to the contrary defence, which is no longer available.

[67] The Court must first determine whether an improper or deficient observation period occurred leading to the taking of thesecond sample. The Charter notice of the accused states that “on at least nine occasions, the observing officer can be seen to be texting,reading, or writing.” Cst. Deschaies stated in cross-examination that he had not reviewed the video, but he was comfortable that this wasaccurate. [68] After acknowledging that residual mouth alcohol was a concern, as it had been at roadside, Cst. Deschaies subsequently gavethe following answers: Q.

If someone was right at the legal limit, we are talking about any infinitesimal amount of contamination could be the differencebetween a reading between 79.999 and being 80 – so any amount of contamination is a concern – fair? A. Yeah. Fair. … Q. So does it not leave open the possibility that a burp went undetected in this case? A. Potentially. Q. You agree that because of the nature of this particular reading – the lowest it could be and still be illegal that contamination wassomething that was important? A. Correct. Q.

So doing the observation period where you don’t keep the subject under close observation leaves open – fails to perform a safeguardthat is there for the benefit of the accused – correct? A. Correct. [69] Although Cst. Deschaies testified that he did not recall any burping or regurgitation, it is apparent that his observation of the accused was distracted during the period leading up to the second sample[14].

Although the 15-minute observation period is not statutorilyrequired, it has long been recognized that the purpose of an observation period is to ensure, as best as possible, that no mouth alcohol is present that may falsely elevate a reading[15]. [70] On the evidence of Cst. Deschaies, the Court is able to determine that a proper observation period was not conducted leadingto the second sample. Having so found, the Court must now turn to whether this constitutes a breach of Mr.

Oliphant’s Charter protectedrights from unreasonable search and seizure with respect to the manner in which the second breath sample was received. [71] The defence position, as set out in their brief, is encapsulated in R v Savage[16] at paragraphs 38, 44, and 52: [38] Although the Criminal Code does not require that the police observe a suspect for 15 minutes prior to taking a breath sample, andin some cases, it may not be required to prove that the search was reasonable (R v Bernshaw, (SCC), [1995] 1 SCR254), the failure to observe the full observation period recommended for a device needs to be assessed in relation to the s. 8 Charterbreach allegations. … [44] Despite making findings about the observation period before the roadside test (which was not an issue), and hearing a plethora ofevidence about observation periods and their importance, the trial judge did not specifically address the fact that only 13 minutes elapsedbetween the time the party arrived at the detachment and the first breath sample was provided. … [52] In conclusion, an accused who alleges a Charter breach has the onus to prove the violation on a balance of probabilities, but theonus shifts to the Crown when it is established to be a result of warrantless search.

As this was not an “evidence to the contrary case”,the accused has no onus to prove that the lack of compliance with the observation period cast doubt on the reliability of the resultsthrough mouth alcohol caused by burping, belching, or vomiting. As the only issue was whether the breath samples were taken in areasonable manner, with the onus on the Crown to prove that it was. Speculation as to any unusual occurrence happening was notrequired and thus, the reference to extraneous information to establish its absence was an error.

[72] A similar conclusion was reached by the Albert Court of Queen’s Bench in R v McManus [17] . The Alberta Court of Appeal, however, overturned the McManus decision [18] holding decisively that failure to conduct proper observation periods prior to breath testing could not be the basis of a s. 8 Charter challenge stating, inter alia, at paragraphs 43 and 48: [43] We reject the suggestion that protection against an almost-but-not-quite-perfect breathalyzer examination, even where procedural safeguards exist to ensure accuracy, falls within the intended scope of s 8 protection.

To give the 15-minute observation period the status of Charter protection under the manner of search rubric, would be to trivialize the Charter and extend guarantees beyond the contemplated scope. … [48] In our view, the respondent’s focus on reliability as a measure of reasonableness ignores the interests that s 8 is intended to protect: the excessive intrusion by the state into the private lives of individuals and more specifically, into their dignity, integrity, and autonomy.

It is difficult to conceive how any interest protected by s. 8 can be affected by failing to delay the taking of breath samples, required by the Code to be taken as soon as reasonably practicable, simply to foreclose a contingency that likely did not happen. In our view, the 15-minute observation period, and the failure to observe it, cannot, without more, ground an argument that the respondent’s s 8 Charter rights have been breached. [73] The appeal decision in McManus was recently applied by our Court of Queen’s Bench in R v Shaw [19] .

In that case, the accused was noted to have burped four times in the observation period leading to the second sample, such that there was only an eight minute lag time between the last burp and the taking of the sample.

Although not framed as a s. 8 Charter issue, McMurtry, J. at pages 15-19 of the decision quotes extensively from the McManus appeal decision underscoring several passages for emphasis, including paragraph 48, as quoted, supra. [74] Although, as noted, Shaw was not argued in the context of a s. 8 Charter issue, given the very strong endorsement of the McManus appeal decision, this Court is of the view that it is bound by it, such that a s. 8 Charter remedy is not available in the present case based upon a deficient observation period. C. Impaired Driving Evidence [75] Mr. Oliphant was first observed by Cst.

Deschaies exiting the town of Eston at what the Constable believed to be an excessive rate of speed. Beyond that, he displayed no driving irregularities. He did not swerve in his lane, stopped when required to do so, signaled, and parked appropriately on the side of the highway. [76] Physical signs relating to Mr. Oliphant’s sobriety were more indicative of alcohol consumption than impairment. In this regard, Cst. Deschaies detected a smell of alcohol on his breath and glossy eyes. Mr.

Oliphant otherwise had no problem communicating effectively and displayed no motor skill deficiencies in producing requested documentation. He was polite and cooperative. [77] In the circumstances, the Court is not satisfied that the Crown has proven beyond a reasonable doubt that Mr. Oliphant’s ability to operate a conveyance was impaired by alcohol, even to the degree of slight impairment as referenced in R v Stellato [20] .

V CONCLUSION [78] The accused is found not guilty on Count 1 of the Information of operating a conveyance while his ability to do so was impaired by alcohol. [79] Exhibits P-1, P-3, and P-4 are admitted as full exhibits on the trial. Exhibit P-2 is not admitted into evidence as it is statutorily non-compliant. The Crown therefore is unable to rely upon the presumption of accuracy, and, accordingly, the accused is found not guilty on Count 2 of the Information of operating a conveyance while his blood alcohol equaled or exceeded .08 percent. _________________________ R.D. Jackson, J