Her Majesty the Queen - v. -, 2013 SKPC 20

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 020 Date: February 26, 2013 Information: 24408511 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Heibein-Langen Appearing: Ms. Erin Schroh For the Crown Mr. Clint Yarshenko For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, Michael Heibein-Langen is charged with impaired driving and driving while over .08 percent. It is alleged that these offences occurred on January 23, 2011, at Estevan, Saskatchewan. THE EVIDENCE

[ 2 ] The only witness called was Cst. Chris Lamotagne of the RCMP. [ 3 ] Cst. Lamotagne testified that at approximately 3:18 a.m. on January 23, 2011, he was on Souris Avenue in Estevan, headed for the No. 47 Highway. He saw the defendant’s vehicle. In his view, the vehicle was travelling at a speed just slightly higher than normal. It also appeared to be sliding a bit. He acknowledged that the road conditions were slippery. Nevertheless, he activated his emergency lights and pulled over the vehicle. The accused, Michael Heibein-Langen, was the operator.

When the accused opened the window of his vehicle, the officer immediately noted the smell of alcohol. He also noted that the accused had somewhat glossy eyes. He testified that the accused had some difficulty removing his licence from his wallet. The officer admitted under cross-examination that at this time he did not have reasonable and probable grounds to make the Intoxilyzer demand. He felt he did have sufficient grounds for the ASD demand. He immediately asked the accused to accompany him to his police vehicle for the purpose of the ASD test. The accused was placed in the back seat of the police car.

The officer testified that he could easily smell alcohol coming from the accused in the police vehicle. He asked Mr. Heibein-Langen how much he had to drink, and the accused replied that he had four or five drinks. [ 4 ] The officer made the standard ASD demand. The accused said that he understood. Under cross-examination, the officer testified that Mr. Heibein-Langen advised that he was coming from McDonalds and had a bag of McDonalds food with him. The officer testified that he knew they could not drink at McDonalds, so on this occasion he did not ask Mr. Heibein-Langen when he had his last drink.

At 3:24 a.m., just six minutes after the officer observed the driving, he made the ASD demand. Mr. Heibein-Langen supplied a sample which registered a fail. At 3:28 a.m., the officer placed Mr. Heibein-Langen under arrest and advised of his rights to counsel. At 3:29 a.m., the officer made the standard breath demand for samples in the Intoxilyzer. [ 5 ] At 3:39 a.m., they arrived at the Estevan Police Service office. The accused was again asked if he wished to speak to a lawyer and he indicated that he did not. He was then allowed to use the washroom.

The officer testified that immediately after the accused used the washroom, he began the 15 minute observation period leading up to the Intoxilyzer test. During this 15 minute observation period, an officer monitors the accused to ensure that he doesn’t put anything in his mouth and isn’t burping or regurgitating. Simply stated, during the 15 minute period they want to ensure that any mouth alcohol has dissipated so that they can obtain an accurate reading in the Intoxilyzer. [ 6 ] At 4:05 a.m., the accused provided his first breath sample which registered 190 milligrams of alcohol per 100 millilitres of blood.

At 4:25 a.m., the accused provided a second sample which registered 180 milligrams of alcohol. The constable then completed the Certificate of Analyses and Notice of Intention to Produce. He later served the accused with true copies. ARGUMENT OF THE DEFENCE - ISSUES 1. The defence argued that it may be fatal that the officer did not ask the accused when he had his last drink, prior to obtaining the sample in the approved screening device. 2. Defence counsel established that the police’s standard procedure was to observe the accused person for 15 minutes prior to the first sample in the Intoxilyzer.

He established that the police officer was with the accused from very shortly after 3:18 a.m. until they arrived at the Estevan Police Station at 3:39 a.m. He asserted that this time should be counted toward the observation time, and that the officer was effectively in observation of the accused for more than 15 minutes by the time they arrived at the Estevan Police Station. As a result, he asserted that the 15 minute observation period observed at the police station amounted to institutional or systemic delay.

He argued that this institutional or systemic delay resulted in a breach of the accused’s Charter rights. ANALYSIS Issue #1 - Whether it was fatal that the police officer did not enquire when the accused had his last drink, before supplying a breath sample in the approved screening device. [ 7 ] In my view, this was not fatal. Supplying a sample in the approved screening device is not necessarily a legal prerequisite to

the Intoxilyzer demand. The ASD test merely provides reasonable and probable grounds for the Intoxilyzer demand. In each case, it is aquestion of fact whether the officer acquired the requisite reasonable and probable grounds. In this case, there was no suggestion and noindication of any recent drinking. The officer was advised that the accused just came from McDonalds, and in fact the accused had a bagof food from McDonalds. The officer reasonably concluded that there was no recent drinking, and he had no reason to doubt theaccuracy of the ASD test.

As a result, I conclude that the officer obtained reasonable and probable grounds for the Intoxilyzer demandon the basis of the ASD test and that the Intoxilyzer demand was proper and lawful. Issue #2 - Whether there was institutional or systemic delay resulting in a breach of the accused’s Charter rights. [8] I begin by noting that Mr. Yarshenko did not really advance the argument that the samples were not taken as soon aspracticable, so that the certificate was inadmissible. Had that argument been made, I would rely upon R. v. Carter (1981), (SK CA), 59 C.C.C. (2d) 450 (Sask. C.A.) and R. v.

Payne (1990), (ON CA), 56 C.C.C. (3d) 548 (Ont. C.A.),and conclude that any delay here was reasonable and fully explained. As a result, the tests were obtained as soon as reasonable andpracticable and the certificate is admissible. [9] As mentioned above, defence counsel’s real argument is that the 15 minute observation period should have taken place inthe police vehicle prior to ever arriving at the station, and the test should have proceeded very quickly thereafter. [10] I have some doubts as to the merits of an argument based upon systemic or institutional delay.

In this regard, I note thejudgment of Madam Justice Charron in R. v. MacDonald; R. v. Gibson, 2008 SCC 16 , [2008] 1 S.C.R. 397. The facts in thatcase were very different than in this case. Nevertheless, Madam Justice Charron noted on a number of occasions that in a large numberof cases it would be possible for the defence to lead evidence to show that the accused’s blood alcohol reading could not have beenprecise, and might in fact straddle the .08 limit. She noted that Parliament must be taken to have been aware of this and have taken thisinto account in passing this legislation.

Similarly, in this case, Parliament must be taken to have known that detailed procedures wouldbe established for the use of the Intoxilyzer machines and obtaining breath tests on it. If one accepts this, as I do, I have some difficultythen reaching the conclusion that there has been some breach of this accused’s Charter rights because the police have followed theestablished procedures.

However, I will proceed to examine those procedures. [11] In order to do this, I ask the following questions: 1) Is there an established procedure? 2) Is the established procedure a reasonable one? 3) In the circumstances of this individual case, was it reasonable for the officer to follow the established procedure, or should he havedeparted from that procedure? [12] There is clearly an established procedure. It involves waiting until they arrive back at the police station, so that the accusedcan be properly and consistently observed.

It involves observing the individual for a period of 15 minutes prior to the sample beinggiven. [13] In my view, this procedure is both a reasonable one and one fairly administered for the benefit of the accused person. Thepurpose of the procedure is to make sure that all mouth alcohol has dissipated so that accurate and valid readings may be obtained fromthe Intoxilyzer. Obviously the reason for waiting until they are back at the police station is to ensure that the individual is closely andadequately observed or monitored for the entire 15 minute period.

In my view, an individual could not be adequately or appropriatelymonitored by a single officer, at the same time the officer is driving the police vehicle. I cannot help but note the debate that hasoccurred in Saskatchewan over the last two or three years regarding legislation prohibiting the use of cell phones or other electronicdevices while driving. The clear intent of this legislation is to prevent a driver from dividing his attention between the road and anelectronic device, so that the driver may focus upon driving.

It seems to me that this Court would be operating contrary to that generalintent by directing that a police officer must divide his attention between an accused person and driving the police vehicle by carefullymonitoring that accused person in the back of the police vehicle. As a result, it is my conclusion that the policy and procedure is areasonable one.

[ 14 ] It is also my view that the police officer reasonably implemented or followed the stated procedure in this case. He felt he had not adequately monitored the accused in the back seat of the police car. As a result, the constable initiated the 15 minute observation period at the police station. [ 15 ] As a result of all of the above, I conclude that the Intoxilyzer tests were administered as soon as reasonable and practicable, and there was no breach of the accused’s Charter rights.

As a result, the Certificate of Analyses is admissible and I find the accused, Michael Heibein-Langen guilty of driving while his blood alcohol content exceeded .08 percent. I impose a judicial stay with respect to the charge of impaired driving. [ 16 ] Dated at Estevan, Saskatchewan this 26 th day of February, 2013. D. Kovatch, J