Her Majesty the Queen - v. -, 2018 SKPC 020

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 020 Date: March 16, 2018 Information: 991013290 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Thomas Adam Masiowski Appearing: Mr. Barrie W. Stricker For the Crown Mr. Ronald P. Piché For the Accused JUDGMENT S.I.

ROBINSON , J [ 1 ] Thomas Adam Masiowski of Prince Albert, Saskatchewan stands charged that he did on May 20, 2017, at Prince Albert have the care or control of a motor vehicle while impaired by alcohol or a drug and, further, have the care or control of a motor vehicle while his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to sections 253 and 255 of the Criminal Code .

[ 2 ] The accused’s trial commenced before me at Prince Albert on October 13, 2017. By agreement, a voir dire to determine certain Charter issues raised by the defence was “blended” into the trial proper. When the Crown closed its case, the defence elected not to call evidence on either the voir dire or the trial proper. The matter was then adjourned from time to time for argument and finally adjourned to today’s date for decision. A. THE EVIDENCE [ 3 ] Constable Darryl Hickie of the Prince Albert Police Service testified as the Crown’s main witness.

His testimony was that on May 20, 2017, he was involved in a “Mothers Against Drunk Driving stop check”. The accused’s vehicle was the first in a line of three vehicles that came to the stop check. At about 8:50 p.m., Constable Hickie directed the accused to stop by putting his hand out. The accused did indeed stop in a controlled fashion, and Constable Hickie had some conversation with him. When Constable Hickie asked the accused if he had been drinking, the accused replied that he had had a couple of drinks at a staff party.

Constable Hickie noted that the accused had an odour of alcohol on his breath, had glassy eyes, and had some trouble finding his driver’s licence in his wallet. From this, Constable Hickie formed the opinion that the accused had been consuming alcohol and that his ability to operate a motor vehicle might be impaired. He then had the accused move his vehicle off to the side of the main roadway and had the accused exit his vehicle.

He noted that the accused was swaying and staggering slightly after exiting his vehicle. [ 4 ] Constable Hickie then, at 9:01 p.m., made a demand requiring the accused to provide a sample of his breath into an approved screening device (ASD). Constable Hickie did not have an ASD in his possession but was able to get it from another officer within about a minute. The accused’s initial attempt to provide an ASD sample was not successful, but on a second attempt, he blew a “fail” reading. [ 5 ] Based on the ASD fail result, Constable Hickie arrested the accused for impaired operation of a motor vehicle.

At 9:07 p.m., he gave a demand that the accused provide breath samples and had the accused accompany him in a patrol car to the Prince Albert Police Service station so that those samples could be taken. The accused apparently co-operated fully with Constable Hickie. [ 6 ] When they got to the police station, Constable Hickie noted that the accused had a slight sway and stagger as he walked through the police loading bay area leading to the station’s interview area. He also observed the accused stagger when he later moved from the station’s interview room to the breath testing room.

He recorded the swaying and staggering in his police notebook and further confirmed his observations in his testimony under oath. Here, it must be emphasized that video of the accused walking through the loading bay area and the accused being in the interview room (recorded on Exhibit P-1) does not disclose any sign of the accused either swaying or staggering. I am at a loss to understand why a senior police officer would both make false notes and give false testimony indicating that the accused had been staggering.

While I am prepared to accept parts of Constable Hickie`s testimony, I am not at all impressed with his overall truthfulness. [ 7 ] After the accused was given an opportunity to call a lawyer, he provided samples of his breath for analysis to Constable Rob Lindsay. The accused’s first sample taken at 9:50 p.m. resulted in a reading of 220 milligrams of alcohol in 100 millilitres of blood. His second sample taken at 10:11 p.m. resulted in a reading of 210 milligrams of alcohol in 100 milliltres of blood. [ 8 ] In addition to Constable Hickie, the Crown called Constable Rob Lindsay as a witness.

Constable Lindsay had been at the stop check and had delivered the ASD that Constable Hickie used in dealing with the accused. Constable Lindsay also acted as the qualified technician who took breath samples from the accused at the police station. [ 9 ] As noted earlier, the defence did not call evidence on either the voir dire or the trial proper. B. CHARGE OF IMPAIRED CARE OR CONTROL [ 10 ] The Crown has presented little evidence to suggest that the accused’s ability to operate a motor vehicle was impaired by alcohol. To the contrary, Constable Hickie saw nothing untoward in the accused’s driving.

Constable Hickie did testify that the accused was swaying and staggering at different times. This evidence might ordinarily suggest a significant impairment of the accused`s motor skills. However, as this evidence is essentially contradicted by video taken of the accused at the police station, I reject any suggestion that the accused was swaying or staggering at any time. I therefore find the accused not guilty on his charge of impaired care or control. C. CHARGE OF OVER 80 1.

Was the ASD Demand Made Forthwith? [ 11 ] Defence counsel does not take issue with Constable Hickie’s evidence that the initial stopping of the accused’s vehicle occurred at around 8:50 p.m. and that an ASD demand was made about 10 to 12 minutes later. Nonetheless, the defence argues that because of the 10 to 12 minute delay in making the ASD demand, it was not made forthwith and therefore does not comply with the requirements of paragraph 254(2) (

b) of the Criminal Code . [ 12 ] Courts have held that the requirement that an accused “provide forthwith a sample of breath” means that the demand for an ASD breath sample should be made forthwith (see R v Billette , 2001 SKQB 150 at para 12 , 205 Sask R 79 [ Billette ]). [ 13 ] Here, defence counsel submits that since the 10 to 12 minute delay from the time that the accused was initially stopped to the time of the ASD demand is largely unaccounted for, the Crown has not proven that the demand was made forthwith. I cannot agree with

this submission. Ten to 12 minutes is not an unusually long delay. In that time period, Constable Hickie had the accused pull his vehicle off to the side of the road, had further conversation with the accused, and also arranged to have an ASD delivered to him. While it is true that Constable Hickie did not have an ASD in his immediate possession when he stopped the accused, it must have been in close proximity since he was able to get the device in about a minute. While it is desirable to have an impaired driving investigation proceed expeditiously, it need not be a foot race.

Here, I am unable to find a delay that would put the ASD demand in breach of the “forthwith” requirement. [ 14 ] The Billette case can be distinguished from the case before me. In Billette , the trial judge had no clear evidence as to the total length of the delay in the making of the ASD demand. Moreover, there was evidence that the investigating officer had taken time to do a warrantless search of a vehicle before making the demand. [ 15 ] As I find that Constable Hickie properly made an ASD demand of the accused and made that demand forthwith, I am unable to find that the accused`s rights under

section 8 or

section 9 of the Charter have been infringed. 2. Did the ASD Test Cause Unwarranted Delay? [ 16 ] Defence counsel further argues that Constable Hickie’s early conclusion that the accused was impaired meant that the ASD test represented an unwarranted delay and meant that the demand for breath tests pursuant to subsection 254(3) of the Criminal Code was not made "as soon as practicable" as is required by subsection 254(3) . Defence counsel says that Constable Hickie`s evidence shows he had reached the conclusion that the accused`s ability to operate a motor vehicle was impaired by alcohol as soon as he directed the accused to pull his vehicle to the side of the road. I cannot agree with this

interpretation of the evidence. Constable Hickie`s testimony (at pages T18 and T19 of a transcript of the trial evidence) was only that the accused`s ability to operate a motor vehicle might be impaired. This comports with Constable Hickie`s other testimony suggesting he only had reason to believe that the accused had been consuming alcohol. [ 17 ] Again, as with the ASD demand, I am unable to find that the demand for breath samples pursuant to subsection 254(3) of the Criminal Code infringed the accused rights under

section 8 and

section 9 of the Charter . D. SERVICE OF NOTICE OF INTENTION TO TENDER CERTIFICATE [ 18 ] Defence counsel argues that the Crown has not proven that notice of the Crown`s intention to tender the certificate of a qualified technician (the technician being Constable Rob Lindsay) has been served on the accused. [ 19 ] Paragraph 258(1) (

g) of the Criminal Code provides that the proof of breath test results received following a demand under subsection 254(3) of the Criminal Code can be introduced into evidence through the certificate of a qualified technician. However, the introduction of the certificate into evidence at trial is conditional on the Crown complying with subsection 258(7) of the Criminal Code . That subsection reads:

(7) No certificate shall be received in evidence pursuant to paragraph (1)( e ), ( f ), ( g ), (

h) or (

i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate. [ 20 ] Here, the certificate of qualified technician dated May 20, 2017, and signed by Constable Rob Lindsay (P-2 for identification) sets out the information required by paragraph 258(1) (

g) of the Criminal Code in the upper two thirds of a single page of paper. The bottom third of the page has a notice of intention to produce the certificate in evidence. It is dated May 20, 2017, and signed by Constable Hickey. On the back side of the page, there is an "Affidavit of Service" form wherein Constable Hickie purports to swear that he did on May 20, 2017, personally serve the accused with the certificate of qualified technician and the notice of intention to produce. Constable Hickie has signed this page.

However, although the jurat is partially filled out, there is no signature or name of an official taking the oath. [ 21 ] The fact that the Affidavit of Service form was not actually sworn by Constable Hickie raises a red flag. What was the reason the affidavit was not sworn? Could it be because the certificate or a completed notice of intention to produce was not served on the accused?

At trial, Constable Hickie was not questioned on why the affidavit was not sworn, and he volunteered no explanation. [ 22 ] It might be noted that if Constable Hickie had been in a position to swear out an affidavit confirming that he had served the accused with a copy of the certificate of qualified technician and the notice to produce, it should have been a simple matter for him to do so. By virtue of

section 10 of Saskatchewan`s Commissioners for Oaths Act, 2012 , c C-16.001, all police officers are commissioners for oaths able to take sworn affidavits. Constable Hickie would presumably have had ready access to a police officer able take his affidavit at the Prince Albert Police Service station. [ 23 ] Subsection 4(6) of the Criminal Code allows service of a document to be proven by oral evidence given under oath, an affidavit or solemn declaration or, in the case of a peace officer, by a statement in writing certifying that the document was served.

Could the unsworn Affidavit of Service form signed by Constable Hickie be construed as a certificate within the meaning of subsection 4(6) ? In my view, it should not be. Given the questions raised by the unsworn form, it would be unwise for me to try to breathe new life into that document by calling it a certificate. [ 24 ] It was of course, as subsection 4(6) of the Criminal Code states, open to the Crown to prove service of the notice of intention

to produce through Constable Hickie`s testimony at trial. Clear and concise evidence on this point could allay my concern as to whether the accused was ever served with a notice of intention. In this regard, it is fair to recite Constable Hickie`s evidence respecting service of the certificate and the notice of intention to produce. His evidence in this regard is contained at pages T69 to T72 of a transcript of the trial evidence: 1 Mr. Stricker: Witness, the—to your knowledge, did the accused supply samples pursuant to your demand​ 2 Constable Hickie: Yes, he did. 3 Mr.

Stricker: And was anything prepared by the technician operating by the evidentiary instrument​ (sic) 4 Constable Hickie: Yes, there was. There`s a—certificate of analysis here. 5 Mr. Stricker: Could you tell the Court, are you holding that in your hand​ 6 Constable Hickie: I am right now, yes. 7 Mr. Stricker: Could you tell the Court, does the technician`s signature appear in any location​ 8 Constable Hickie: Yes, it does, on the second page. 9 Mr. Stricker: Could you— 10 Constable Hickie: Certificate of qualified technician. 11 Mr.

Stricker: Could you hold it up and show His Honour where the technician signed​ 12 Constable Hickie: Right here, Your Honour. 13 Mr. Stricker: Did you sign it in any place​ 14 Constable Hickie: Yes, I did, on the bottom of notice of intention to produce certificate. I did that. I actually signed on the bottom on the back page, affidavit service. 15 Mr. Stricker: Okay. 16 Constable Hickie: He got a copy of the same certificate. 17 Mr. Stricker: Now, how did you come into possession of something that was—I`ll rephrase.

Do you know whether or not the accused obtained a copy of the certificate of qualified technician in this particular case​ 18 Constable Hickie: Yes, he did. 19 Mr. Stricker: And explain the procedure that occurred up to the time you saw it initially and you provided a copy of the document to the accused in that respect. 20 Constable Hickie: Well, to the best of my knowledge, after the breath tech`s finished his or her taking the samples, they come to the table that I was sitting at, and Constable Lindsay told me that this was the original copy, and this was the copy for the accused.

And I have to sign that I had the—the bottom of this notice to—of intention to produce certificate. I also sign the affidavit of service. So he got a—a true copy of the actual certificate that came off the— 21 Mr. Stricker: Okay. 22 Constable Hickie: —from the operator. 23 Mr. Stricker: You`re holding up the—the printout; is that correct​ 24 Constable Hickie: Yes. 25 Mr. Stricker: Just leave the printout [indiscernable] 26 Constable Hickie: Okay. Okay. 27 Mr. Piché: That`s the—that`s the test record. 28 Mr. Stricker: Just the certificate of qualified technician. 29 Constable Hickie: Okay. 30 Mr.

Stricker: You—describe again. You use the word "true copy". How did you determine it was a true copy? 31 Constable Hickie: Because when Constable Lindsay, breath tech, brought it to my—to my table, I verified by reading through both documents they were the same. Same data, same information was contained in both.

32 Mr. Stricker: Where was the accused when you did that? 33 Constable Hickie: Right across the table from me. 34 Mr. Stricker: Okay. And after you read it, what did you then do? 35 Constable Hickie: I then, with the other documentation that provides—that`s provided to him, I set that aside. And then when I serve him the documentation in order, after that, I did the affidavit of service on the certificate of a qualified technician. 36 Mr. Stricker: Is there an affidavit of service on the back side of the copy that was provided to the accused? 37 Constable Hickie: No, he gets just the front page. 38 Mr.

Stricker: Well, you—you handed that document to the accused. What discussion, if any, did you have about it at that time? 39 Constable Hickie: In regards to the certificate, I—I would`ve told him the readings, the results, but the other documentation that was more relevant was the actual notice to appear for—for Court. And then the documentation involving his vehicle being seized, where it was at, and his—the licence suspension on the forms. 40 Mr. Stricker: Did you discuss the readings again with him when you had the original and the copy? 41 Constable.

Hickie: As I read through his copy and my original as (indiscernible), I made sure that it was the same data. I just read off the—the—the true copy, the—actual original document verbatim for him to understand. 42 Mr. Stricker: You—you kept moving your hand over. Did you compare the information contained on the technician`s certificate with the printout from that particular test? 43 Constable Hickie: I did originally, yes. 44 Mr. Stricker: The Crown—pardon me.

What did the accused do with the certificate of qualified technician and the notice of intention to produce the same? 45 Constable Hickie: Everything was in a pile he took in his possession, and then I—then I released him from custody and—and sent him on his way from the Service station. [ 25 ] The above testimony of Constable Hickie could be interpreted to mean that Constable Hickie signed the notice of intention to produce and then gave the accused a copy of it as required by subsection 258(7) of the Criminal Code . However, it is not entirely clear as to whether that actually happened.

There is no straightforward statement from Constable Hickie that he signed the notice of intention to produce at the bottom of a true copy of the certificate of qualified technician and then gave that document to the accused. [ 26 ] I note that Constable Hickie`s answers at the numbered paragraphs 14 and 20 suggest that he signed the notice of intention to produce and the affidavit of service at the same time. But at numbered paragraph 35, he suggests that he signed the affidavit of service after the accused had been served with documents.

That leaves the possibility that the notice of intention to produce was not signed by Constable Hickie until after the accused had already been served with documents. In my view, a valid notice of intention to produce would require Constable Hickie`s signature before it was served. [ 27 ] Further, at numbered paragraph 39, Constable Hickie said that with regard to the certificate, he would have told the accused the results of the breath tests. He would then, it seems, go on to give some emphasis to the documents regarding the accused notice to appear in court, his vehicle seizure and his licence suspension.

Significantly, Constable Hickie does not seem to have mentioned the notice of intention to produce. This again suggests that the notice of intention to produce had perhaps not yet been signed as a valid notice when the accused was served with his various documents. [ 28 ] Finally, although I have accepted Constable Hickie`s testimony on some points in this case, his failure to testify in a fair manner regarding the accused`s motor skills makes it somewhat difficult to know what value I can find in his testimony regarding the notice of intention to produce.

Even if I were to sort out any ambiguity, the resulting narrative might still not be true. [ 29 ] In R v Redford , 2014 ABCA 336 , 584 AR 294, the Alberta Court of Appeal held that the burden on the Crown under subsection 258(7) of the Criminal Code , to prove reasonable notice of intention and service of a copy of a certificate, is proof on a balance of probabilities and not beyond a reasonable doubt. In the present case, it is not necessary for me to choose between the two proof options.

On the facts before me, I am unable to find that the Crown has established even on a balance of probabilities, that the accused was served with reasonable notice of the Crown`s intention to produce the certificate of qualified technician in evidence. As such, I am finding the certificate of qualified technician signed by Constable Rob Lindsay is inadmissible pursuant to subsection 258(1) (

g) of the Criminal Code . [ 30 ] Having found the certificate of qualified technician inadmissible, I find the accused not guilty on his charge that he had the care or control of a motor vehicle while his blood alcohol content was over the legal limit.

[ 31 ] I wish to thank both Mr. Stricker and Mr. Piché for both their oral submissions and their helpful written briefs. _________________________________________ S.I. Robinson, J