Her Majesty the Queen - v. -, 2020 SKPC 49

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 49 Date: December 15, 2020 Information: 90401023 Location: Regina Between: Her Majesty the Queen - and - Mathew Ramon Skorka Appearing: Mr. Patrick Malone For the Crown Mr. Alan Pearse For the Accused JUDGMENT D. KOVATCH, J BACKGROUND [ 1 ] The accused, Mathew Skorka, is charged with driving while his blood alcohol content was equal to or over .08%, and with impaired driving on June 17, 2020. [ 2 ] Prior to trial, defence counsel served and filed a Charter notice.

By agreement between counsel, this matter was dealt with as a blended Charter voir dire and trial. At the conclusion of the Crown’s case on the voir dire , the defence called no evidence. The Crown advised they had no additional evidence for the trial proper. Defence counsel advised they would not call any evidence on the trial. The matter proceeded immediately to argument. I reserved my decision. This is that decision. THE EVIDENCE

THE EVIDENCE [ 3 ] The first witness called for the Crown was Mr. Mathew Chamberlin. He testified that he works for Nutrien. On June 17, 2020, he was on his way home from work, driving west on Highway # 1 toward Moose Jaw. It was at approximately 4:30 to 5:00 p.m. He saw a white truck swerving from the extreme right to the extreme left side of the two westbound lanes on the divided highway. At first, the white truck was travelling slower, and so he overtook the white truck. At that time, he noted that the truck was a white Dodge Ram which he said had B.C. plates. [ 4 ] Mr.

Chamberlin said he passed the white Dodge Ram truck, and continued heading westbound. Then the white truck accelerated and passed the witness who estimated that the white truck was travelling at approximately 150 km/hr when it passed him. At that time, the witness noticed that there was a male driver who was the sole occupant of the vehicle. Mr. Chamberlin also noticed that the driver had a canned drink in one hand. [ 5 ] Mr. Chamberlin was concerned about this erratic driving, which occurred near Pense, Saskatchewan and called 911.

He continued to follow the white truck, and dropped further behind. [ 6 ] Belle Plaine is the next town west of Pense. It is approximately 12 km from Pense. Mr. Chamberlin testified that when he got to Belle Plaine, the RCMP had the white truck pulled over to the left side of the road. The witness said, “ it was definitely the truck.” [ 7 ] Under cross-examination, Mr. Chamberlin was asked if he reported to 911 that the white truck had Quebec plates. The witness agreed that he did. He explained that he saw the different coloured plates and believed the blue and white plates were from Quebec.

However, the police later informed him that the plates were from British Columbia. [ 8 ] The next witness was Mr. Wade McKay. He testified that he is an I.T. director for the city of Moose Jaw, and provides I.T. services for Moose Jaw City Police. They provide the equipment and service for video recording and all support services. If there are problems with the system, they are called. [ 9 ] He advised they can no longer access video surveillance for Moose Jaw Police for June 17 of 2020. Video between June 4 and July 24 is no longer available. He further advised that they contacted LockNet.

I gather that LockNet supplies the hardware and software. [ 10 ] Mr. McKay advised that their system consists of five raids, which is a collection of hard drives, working as a team, with each raid containing eight discs. In the result, the machine has 40 discs. In June or July, the system had “a catastrophic failure”. He testified that no one has ever seen all eight discs in a raid fail at the same time. [ 11 ] Under cross-examination, the witness was specifically asked about the video of the police station cells.

The witness advised he believes it was recorded on June 17, but some time after that the system failed and the recording of the cells was lost. [ 12 ] Mr. McKay denied that there was any negligence in not backing up the system before the failure. He stated that the system is designed to accommodate the failure and removal of up to two discs. No one had ever seen eight discs all stop at the same time. He also stated that the damage was not consistent with any accidental erasure. He was asked about the age of the system and its anticipated lifespan.

He stated that the system is about five or six years old, and is at a stage where one might expect one or two discs to fail and then they would be changed out. [ 13 ] The final witness called was Cst. Kris Selinger. He testified that he has been with the RCMP for 14 years, and is now with the combined traffic enforcement unit. He is a qualified breath technician and a drug recognition expert. On June 17, 2020, he was on duty, and in full uniform and in a marked police vehicle. At the time, he was stopped at the Belle Plaine Shell Station for a break.

He was with another RCMP officer who was also in full uniform in a separate marked vehicle. [ 14 ] While there, he received a radio dispatch advising of a white Dodge Ram truck believed to have Quebec plates that was headed west on the Trans-Canada Highway from Pense. He was further advised that the truck was speeding and driving erratically. There was suspicion of a possible impaired driver.

[ 15 ] Cst. Selinger moved his vehicle a very short distance from the Shell Station to the median area between the two divided highways. He positioned his vehicle facing east to watch for the westbound white truck. He soon saw the westbound white truck and his radar locked on its speed at 150 km/hr. He pulled over the vehicle. It pulled over to the left side of the road. The officer pulled up behind the white truck, and noted it had British Columbia plates. [ 16 ] Cst. Selinger approached the vehicle. The accused was the driver and sole occupant. Cst. Selinger identified the accused in court.

The officer asked the accused for his driver’s licence and registration. The accused quickly produced a photo driver’s licence. The accused then looked in his glove box for the vehicle registration. He had some difficulty locating the registration. At this time, the officer noted that the accused had red watery eyes. There was also an odour of alcohol. The officer asked the accused if he had been drinking, and the accused admitted he had been. The officer asked the accused to come back to the police vehicle for a breath test. The accused got out of his vehicle.

The officer noted he was stumbling at that time, and used the vehicle to steady himself. The officer stated that at the time, the accused advised that he had suffered a broken leg. The accused walked the short distance to the police car. At that time, the officer did a quick pat- down search and found nothing. The accused then seated himself in the police vehicle. [ 17 ] Cst. Selinger advised there was an in-car camera that recorded matters of the accused in the police vehicle and at the roadside. The video was played for the court. At first, one can only see the empty backseat of the police vehicle.

Starting at the three minute mark on the video, one can hear the officer say “come on back with me.” The accused then put his hands on the hood of the vehicle for just seconds, while the pat-down search was done and he was placed in the backseat of the police vehicle. [ 18 ] One can hear the officer advise the accused that he was going pretty fast, and smelled of liquor. The officer indicated they were going to take a breath test. At seven minutes and 30 seconds on the video, the officer read the formal approved screening device [ASD] demand.

He asked the accused if he understood, and the accused indicated he did. At eight minutes and 30 seconds on the video, the officer asked the accused what time he had his last drink. The accused advised about five minutes ago. The officer then advised that they should wait about 10 minutes to allow mouth alcohol to dissipate. By agreement between counsel, they fast forwarded the video to 15 minutes, and restarted there. The officer explained the possible readings. At 17 minutes and nine seconds, the officer advised it was an ALCO-Test FSD. The officer began taking samples.

The first three tests were not sufficient to yield test results. Immediately following the fourth test, one can hear the officer say: “Perfect. You’ve got it.” At 22 minutes and 24 seconds, the officer showed the accused the fail result on the machine. He then advised, “I have to arrest you and take you for a breath test.” [ 19 ] At 24 minutes and 35 seconds on the video, the officer advised of the arrest and advised the accused of his Charter rights. He asked the accused if he understood, and the accused replied that he did.

Immediately thereafter, another officer delivered the accused’s phone and wallet to the accused. Apparently they were removed from the accused’s vehicle. The officer then read the formal breath test demand, and asked the accused if he understood. He advised that he did. At 27 minutes, the officer asked the accused if he wished to call a lawyer now. The accused said no. The officer said I’ll ask you again later. The accused said: “It’s my fault.” The officer then read the police warning. He asked the accused if he understood, and the accused advised that he did. [ 20 ] The accused then put on his seatbelt.

One can then hear the officer calling dispatch. He asked that they call Moose Jaw Police Service to advise they were coming in for breath tests. [ 21 ] The officer then opened the back door where the accused was sitting, to place handcuffs on the accused. The cuffs were placed on the accused with his hands in front of him. Cst. Selinger did not remove or replace the seatbelt, before placing the cuffs on him. [ 22 ] At 37 minutes and 40 seconds on the video, the officer began driving toward Moose Jaw. He advised that Moose Jaw police have the closest breathalyzer.

At 56 minutes and 44 seconds on the video, they arrived at the Moose Jaw police station, and at 57 minutes and 33 seconds, they entered the garage bay. The in-car video ends there. [ 23 ] The officer advised that immediately upon arrival at Moose Jaw police station, the accused was allowed to use the washroom. After that, the officer again asked the accused about calling a lawyer. The accused said “No, it’s ok.”

[ 24 ] There was also video of the accused in the police station. For about 20 minutes, the accused and the officer sat on a bench outside of the intoxilyzer room. This was the first observation period. The officer advised he observed the accused to make sure there was no coughing or burping or bringing up. He observed the accused did not eat or drink anything. At around 6:16 on the video, the accused was taken into the intoxilyzer room, where he provided his first sample. There was then the second observation period.

At 6:44, the accused re-entered the intoxilyzer room and provided a second breath sample. [ 25 ] Cst. Landon Giraudier of the Moose Jaw Police Service was the breath tech. Cst. Selinger testified that following the completion of the second successful sample, Cst. Giraudier supplied him with the Certificate of the Qualified Technician. The witness advised that he completed the Notice of Intention portion of the certificate, and explained it to the accused. The accused’s readings were very high.

The decision was made to hold the accused in cells overnight because of the high readings, and the fact that the accused was from Medicine Hat. He did not know anybody in Moose Jaw. His driver’s licence was suspended and his vehicle impounded. Because of the decision to hold him in cells overnight and the high readings, the decision was made not to serve the accused with the Certificate and Notice of Intention at that time. These documents were placed on the file, and another officer served the accused with them the following day. That other officer then prepared and swore an affidavit of service.

That affidavit and the Certificates were filed with the court. [ 26 ] A warned statement was taken from the accused. That warned statement was played in court. I need not go into it, as it is irrelevant to my decision. [ 27 ] Under cross-examination, Cst. Selinger confirmed that he made the ASD demand based upon his reasonable suspicion that the accused had alcohol in his body. He said he made the demand because the accused had watery eyes and smelled of alcohol. He asked the accused if he had been drinking, and the accused admitted he had been drinking. In addition, there was the evidence of bad driving.

There was speeding and the complaint received by dispatch. The officer said he personally saw the accused speeding and had clocked him on radar. The officer advised that speeding and erratic driving are sometimes signs of impairment. [ 28 ] Defence counsel suggested that sometimes people speed when they are not drunk. The officer agreed. Defence counsel suggested that sometimes people have watery eyes when they are not drunk. Further, there may be other reasons for watery eyes.

The officer agreed there may be other reasons for watery eyes. [ 29 ] Defence counsel asked how far the officer was from the accused when he smelled alcohol. The officer said he definitely was not social distancing from the accused. He was closer than a meter. Perhaps one to two feet away. He also advised that he was specifically looking for the smell of alcohol because of the complaint. Defence counsel suggested the smell could be from the car itself or be the result of a spill. The officer stated that he believed it was from the accused’s breath. [ 30 ] Cst.

Selinger was cross-examined regarding letters defence counsel had sent requesting disclosure. The officer acknowledged the receipt of these requests, and advised he requested that disclosure be made.

All disclosure was made, except for videos of the accused in the cell block area where the accused was housed, that following night. [ 31 ] The officer agreed with counsel that he only had grounds for the ASD demand, when that demand was made, and did not have grounds to immediately proceed with the Intoxilyzer demand. [ 32 ] The officer also agreed with counsel that the accused had done nothing threatening, at which time the pat-down search was made.

They were following a standard safety procedure prior to the time when the pat-down search took place before placing the accused in the back of the police vehicle. [ 33 ] The officer was shown the Certificate of Qualified Technician. He testified that he trained on the same breathalyzer machine that was used in this case. He agreed there are a couple of ways to test or calibrate the machine. One of these methods involves the “dry gas canister”. Counsel pointed out that the certificates referred to an air gas canister, “lot AG9O3501” . The officer agreed this number is important.

Counsel then had the officer refer to his file and a report on that file from Cst. Landon Giraudier. Counsel had the officer read a particular passage

from that report. The report seemed to indicate that the number for the dry gas canister shown on the Intoxilyzer instrument was one digitdifferent from the one in the certificate. The officer indicated that the report said what the report said. ARGUMENT [34] The accused made four separate Charter arguments, and one argument respecting the certificate on the trial proper. The issues thatarise from those arguments are as follows:

(1) Whether the failure of the Crown to produce video of the accused while housed in cells overnight, resulted in a breach of hisCharter right to make full answer and defence. If so, should the remedy of a stay of proceedings be granted?

(2) Whether there was a breach of the accused’s Charter right to be free from unreasonable search and seizure, when the police officerobtained a breath sample in the ASD. Whether the police officer had a reasonable suspicion that the accused had alcohol in his body, andwhether the seizure of breath was authorized by law.

(3) Whether the accused’s Charter right to be free from unreasonable search and seizure was breached when the police did a pat-downsearch of the accused, before placing him in the back of the police vehicle for the ASD tests. If so, what remedy should be granted.

(4) Whether the officer had reasonable grounds for the Intoxilyzer demand.

(5) Whether there is a legal basis to exclude from evidence the Certificate of Qualified Technician. ANALYSIS Whether the failure of the Crown to produce video of the accused while housed in cells overnight, resulted in a breach of his Charterright to make full answer and defence. [35] Counsel for the accused made the usual request for disclosure, which included a request for videos taken of the accused in thepolice car, at the station and in the breath test room, and when the accused was housed in cells overnight.

The Crown complied with allof these requests except for supplying the video of the accused while in the cells overnight. The evidence was that the accused was taken to the MooseJaw City Police Service for breath testing. The Moose Jaw Police Service has video surveillance of the cell area. This video surveillancewas recorded and the accused was recorded in cells on the evening of June 17, 2020 and the early morning hours of June 18, 2020.However, sometime later in the month of June or early in the month of July, the computer recording system suffered a catastrophicfailure.

The recording of the accused while housed in police cells was lost and has not been recovered. Counsel for the accused arguesthat the Crown’s failure to produce this video has impaired the accused’s right to make full answer and defence and that the appropriateremedy for this breach of his Charter rights is a stay of proceedings. [36] Since the Supreme Court’s seminal decision of R v Stinchcombe, (SCC), [1991] 3 SCR 326, the Crown has beenobligated to disclose all relevant, non-privileged information in its possession or control so as so allow the accused to make full answerand defence.

It is a relatively common occurrence that there be some dispute between Crown and defence regarding what informationmust be provided. In such cases, there will be an application before the court, and the Court will determine whether the evidence orreport exists, is relevant, and is subject to some rule of privilege.

If the evidence exists, is relevant and is not subject to any privilege, theCourt will then direct that the evidence be produced or disclosed. [37] As a result of the above, in some cases the Court has concluded that the evidence requested was not relevant to the issues raised bythe trial and therefore it could not be said that the accused’s ability to make full answer and defence was affected. The Court could notconclude there was a Charter breach nor grant a Charter remedy.

In particular, I am referring to R v Banford, 2010 SKPC 110, 363 SaskR 26 [Banford], reversed at 2011 SKQB 418, 386 Sask R 141 and R v Gilchrist, 2011 SKQB 445, 387 Sask R 230 [Gilchrist], affirmed at 2013 SKCA 142, 427 Sask R

258. [ 38 ] The Banford case is interesting in that it involved video of the accused at the police detachment, including in the breath testing room. Mr. Justice McLellan stated in part at para. 14: With respect to the conclusion reached by the learned trial judge, I am of the view that the relevance of the material contained in the destroyed surveillance video is speculative at best. The Crown is correct that there are no issues raised in the Agreed Statement of Facts that make the events at the detachment relevant to Mr. Banford’s defence.

It may be that if the matter proceeds to trial issues will be raised that will demonstrate to a trial judge that there is a reasonable possibility that the failure to disclose had an adverse effect on the ability to make full answer and defence. For example, there was nothing in the Agreed Statement of Facts to suggest that anything untoward occurred in the breathalyzer room. Of considerable importance is the fact that the Crown chose to stay the impaired driving charge, thus making any signs of impairment captured by the video irrelevant. Accordingly, non-disclosure by the Crown was not in breach of Mr.

Banford’s s. 7 rights. [ 39 ] In the case at bar, the video that counsel complains was not produced, is even further removed from the relevant time period and facts than it was in Banford . In the case at bar, the accused was stopped on the road, failed the ASD test, taken to Moose Jaw where he provided breath samples in the Intoxilyzer, then charged, fingerprinted and placed in cells. It is only the videos of the accused when placed in cells, after all matters were concluded, that defence complains were not produced.

Counsel has not explained or provided any evidence as to how or why this evidence might be relevant. Stated just a little differently, the onus is on the accused to prove a Charter breach and entitlement to Charter relief. The defence has not met that onus and established a Charter breach. [ 40 ] On the basis of the Banford and Gilchrist decisions referred to above, I would conclude that there has been no Charter breach by the Crown failing to provide this video.

I would add, based upon R v Boutin , 2014 SKCA 21 , 433 Sask R 171; R v Piccirilli , 2014 SCC 16 , [2014] 1 SCR 309 and R v Poletz , 2014 SKCA 16 , 433 Sask R 155 that even if I determined there was a breach of the Charter here, a stay of proceedings would not be an appropriate remedy. [ 41 ] For these reasons this Charter application must be dismissed. Whether there was a breach of the accused’s Charter right to be free from unreasonable search and seizure, when the police officer obtained a breath sample in the ASD.

Whether the police officer had a reasonable suspicion that the accused had alcohol in his body, and whether the seizure of breath was authorized by law. [ 42 ]

Section 320.27(1) provides that: “If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body…” that officer may demand that the person supply a breath sample in the ASD. If that officer in fact has a reasonable suspicion of alcohol in the body, then the demand and the seizure of breath is authorized by law and the search and seizure will be reasonable and appropriate. If however, the reasonable suspicion is not present, then the demand and seizure of breath are not authorized by law and the Court may conclude there has been a breach of that person’s Charter right.

The leading Saskatchewan case defining reasonable suspicion is the R v Yates , 2014 SKCA 52 , 438 Sask R 78 [ Yates ] . In the case at bar, defence counsel simply referred to the Yates decision, and proclaimed that the officer did not have a reasonable suspicion. He made no attempt to examine what the court actually said or to apply it to the facts of this case.

I do not agree with him that the officer did not have a reasonable suspicion. [ 43 ] In the Yates decision, at para. 37, the Court said “the standard of reasonable suspicion only requires that the Crown prove a reasonable suspicion that a driver possibly had alcohol in his or her body”. At para. 38, the Court said the reasonable suspicion must be based on a constellation of objective events. Further: “The constellation of necessity may include factors capable of an innocent or innocuous explanation.

As noted by Karakatsanis in Chehil at para. 32, “factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so”. [ 44 ] In the case at bar, the officer testified and there was evidence of the accused speeding and his erratic driving. Counsel suggested and the officer agreed that speeding or erratic driving sometimes happen for a reason other than an accused being impaired.

The officer stated that the accused smelled of alcohol and admitted drinking. Counsel suggested and the officer agreed that the smell of alcohol can

occur as a result of the accused spilling it. The officer stated that the accused had red and watery eyes. Counsel suggested and the officer agreed that this can happen for a number of events, possibly unrelated to alcohol. As was noted in the Yates decision, the fact there may possibly be an innocent explanation for each factor does not mean the officer was not entitled to rely upon the factors and reasonably conclude there was a possibility the accused had alcohol in his body.

It has been held in many cases that evidence the accused smelled of alcohol can provide the officer with the reasonable suspicion required to make an ASD demand. On the factors enunciated by the officer above, I have no hesitation in concluding that the officer had a reasonable suspicion. The ASD demand was justified. There was no breach of the accused’s Charter right by the officer making the ASD demand or seizing the breath sample. This ground must fail.

Whether the accused’s Charter right to be free from unreasonable search and seizure was breached when the police did a pat-down search of the accused, before placing him in the back of the police vehicle for the ASD tests. If so, what remedy should be granted. [ 45 ] In this case, the officer had some conversations with the accused, and determined he had the appropriate grounds for the ASD demand. He advised the accused that he would have the accused come back to the police vehicle for the breath test. There was a walk of just a few feet from the accused’s vehicle to the police vehicle.

At the police vehicle, after the back door of the vehicle was opened, an officer did a quick pat-down search over the clothes of the accused. He ascertained there was nothing there, and the accused was seated in the back of the vehicle. Defence counsel argues that as, at least on an objective basis, the officer had no concerns for officer safety, this pat- down search was illegal and unauthorized. Once again, I disagree. [ 46 ] In the case of R v Weinbender , 2018 SKPC 15 [ Weinbender ] , this issue was vigorously argued before me. At para. 29, I divided the safety procedures into two categories.

I stated as follows: It seems to me that in looking at workplace safety practices and procedures, such practices or procedures could be divided into two broad categories. Firstly, general safe workplace practices and procedures, that are designed to be used everyday in the workplace, to maintain a safe work environment. These procedures are used everyday, and are used when there is no imminent threat or danger. The second category involves safety practices or protocols that are used when a worker is confronted with a potential dangerous situation, or emergent situation.

These practices and procedures are designed to correct a budding emergent or dangerous situation, and retain or restore a safe work environment. A proponent of specific safety procedures and protocols would make two points regarding defence counsel’s criticism of the pat-down search. Firstly, he would say that the criticism of the pat-down search, when the officer does not perceive any real physical harm or danger, is ill founded. The pat-down search prior to putting someone in the vehicle is a general workplace safety practice designed to maintain a safe workplace.

It should be used regularly, not when there is a perception of danger. In fact, if the danger arises after the individual is already in the back seat of the police car, it is then too late to do the pat-down search. Secondly, and perhaps more importantly, the fact that the officer has not perceived and testified about a specific threat or danger does not mean that this procedure is not there for officer safety.

To the contrary, this is a “category 1 safety procedure” designed to maintain safety. [ 47 ] The point I was trying to make there is that police officers, like every other working person, are not only entitled to but obligated to put in place appropriate procedures to maintain a safe workplace. The police vehicle is part of their workplace. Any individual is entitled to take appropriate procedures to ensure that another person will not be a threat or danger, if they are allowed admission to a person’s car or home. In my view, the police are no different in this regard.

A simple pat-down search before putting a person into the back of a police vehicle is in my view, a reasonable and acceptable practice to ensure officer safety. [ 48 ] In the Weinbender decision, I went on to examine and adopt the decision of R v Fournier , 2017 ABQB 533 . In that case, Madam Justice Ross examined case law and determined the Supreme Court of Canada has not yet determined whether a police officer may, without any specific information, conduct a pat-down search before putting an individual in the back of a police cruiser.

Further, they have not determined that reasonable grounds to believe officer safety is at risk is necessary before performing a pat-down search. In addition, Madam Justice Ross noted that the ASD test is to be conducted forthwith. The investigating officer has little time or opportunity to investigate an accused person, or do a risk analysis before placing the individual in the back of a police cruiser and doing the ASD test. She noted that the pat-down search was minimally intrusive and concluded it was reasonable for officer safety. I adopted that reasoning, and would again adopt that reasoning.

[ 49 ] As in Weinbender , I would specifically note that this decision is made in the context of placing an individual in the back of a police cruiser for the purpose of conducting the ASD test. It is also specifically made in reference to a minimally intrusive pat-down search. In my view, a more rigorous or intrusive search or a search to obtain evidence for other criminal charges would not be justified. [ 50 ] For these reasons, in my view there has been no unreasonable search and seizure by the pat- down search.

I hasten to add however, that even if I concluded there was a Charter breach, I would not exclude the evidence of the ASD test or the subsequent breath test on the Intoxilyzer. The officer displayed no ill will or bad faith. The conversations between the Cst. Selinger and the accused were very polite and respectful throughout the entire incident. His quick and cursory pat- down search was not intrusive or demeaning. It yielded no evidence for this charge or any other charge.

In my view, if I were to exclude all evidence after the pat-down search, it would be punishing the police and the Crown because I did not like “their safety procedure” and that would be inappropriate. For all of these reasons, this ground must fail. Whether the officer had reasonable grounds for the Intoxilyzer demand . [ 51 ] Defence counsel made very little argument on this point, and I have to confess I do not understand the argument. Perhaps the argument was simply to the effect that if I excluded the evidence of the ASD result, then the officer would not have reasonable grounds for the Intoxilyzer demand.

I have already concluded that the ASD demand was properly made, and an ASD fail result obtained. The officer properly relied upon that result, and it provided him reasonable grounds for the Intoxilyzer demand. Whether there is a legal basis to exclude from evidence the Certificate of Qualified Technician. [ 52 ] The Intoxilyzer tests were administered by Cst. Landon Giraudier of the Moose Jaw Police Service. He is a qualified technician. Cst. Giraudier did not testify in these proceedings. He prepared a Certificate of a Qualified Technician.

A photocopy of that Certificate is attached as Appendix A to this decision. The Notice of Intention to produce the Certificate was completed by the investigating officer, and that Notice of Intention and Certificate were properly served upon the accused. [ 53 ] During the cross-examination of Cst. Selinger, defence counsel referred the Constable to his file, and the disclosure package. As I understood matters, he referred the Constable to a memo or report in the police file that was supposedly prepared by Cst. Giraudier.

He referred the Constable to a specific passage in this memo or report, and asked the Constable to read that passage. The Constable did read that passage. In the Certificate of the Qualified Technician, it indicates: “The alcohol standard was suitable for use in the said approved instrument and identified as air gas, lot AG903501”.

The passage read by the Constable during cross-examination seems to indicate that the air gas lot number that appears on the Intoxilyzer instrument, has one different digit than is contained in the Certificate of Qualified Technician. [ 54 ] During the course of argument, defence counsel conceded and stated that nothing on the face of the certificate is a problem.

He argued however, based upon this passage quoted by the officer in his evidence, that the certificate was fatally flawed and inadmissible, and without the Certificate there can be no conviction. [ 55 ] For the following reasons, I disagree with defence counsel and would admit the Certificate. Firstly, in my view, the evidence referred to above is inadmissible hearsay.

There is no admissible evidence of any kind pointing to a problem with the certificate, and thus no basis to refuse to admit it into evidence. [ 56 ] In Sopinka, Lederman and Bryant , The Law of Evidence in Canada, 5 th Edition, at page 249, the authors define hearsay as follows: “Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statement or conduct are tendered either as proof of their truth or as proof of the assertions implicit therein”.

In this case, the witness was not testifying about his personal conduct or his investigation of the matter. There was a memo or report, supposedly written by another individual. He read the contents of that report. The purpose of having him do that was to prove there was a difference of one digit in the lot number for the air gas. This testimony fits perfectly within the definition of prohibited hearsay and is inadmissible.

[ 57 ] Secondly, in argument, counsel agreed there was no problem on the face of the Certificate.

Section 320.32(1) reads as follows: 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.

Section 320.31(1) reads as follows: 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 … This subsection goes on to list three conditions that must be met in order to rely upon the certificate. The Certificate of the Qualified Technician establishes that those conditions are met. Under 320.32(1), those conditions may be established by certificate evidence.

The result is that the only evidence before the court is the certificate evidence, and that certificate evidence conclusively establishes the blood alcohol readings at the time. [ 58 ] Even if the hearsay evidence adduced was accepted as legitimate and factual, it would not in any way place the readings in doubt or rebut the presumption of accuracy.

Section 320.31, which is quoted above, is commonly referred to as the presumption of accuracy. This

section is very similar in terms to the prior section 258(1) (

c) of the Criminal Code . The case of R v Cyr- Langlois , 2018 SCC 54 , [2018] 3 SCR 456 [ Cyr-Langois ] involved a prosecution for driving while over .08, under the previous provisions of the Criminal Code . At trial, evidence was led that the qualified technician had failed to observe the accused for a period of approximately 15 or 20 minutes immediately prior to administering each test.

The trial judge concluded this was an improper operation of the Intoxilyzer, which cast doubt on the validity of the readings and rebutted the presumption of accuracy. [ 59 ] On appeal to the Supreme Court of Canada, the Court held that while the operation of the Intoxilyzer was improper, this evidence did not in any way relate to the reliability of the readings. It did not in any way cast doubt upon the reliability of the readings. As a result, the presumption of accuracy stood and the accused was properly convicted.

The Court went further and stated that in most cases, concrete evidence will be required to establish that the improper operation led to unreliable results. At para. 16 the Court stated: I do not rule out the possibility that improper operation may be so serious or so closely connected with reliability that it will be sufficient in itself to raise a reasonable doubt about the reliability of the results obtained. In short, it does not matter whether the possible impact on reliability is inferred from the actual nature of the defect, from the extent of the defect or from other external circumstances.

What is essential is that the possibility that the defect affected the reliability of the results is serious enough to raise a reasonable doubt. Bélanger J.A., dissenting in the Court of Appeal, noted the following on this point: [TRANSLATION] Although expert evidence is not essential, concrete evidence must be tendered to show that the improper operation or malfunctioning of the instrument may be linked to the results (as opposed to the necessity to show that improper operation did in fact lead to unreliable results).

In sum, the evidence should not be mere hypothesis or conjecture. [para. 75] I agree entirely with her analysis. The Court of Québec judge did not point to any concrete evidence in this regard, and for good reason: beyond conjecture and speculation, the evidence showed nothing. Zigman J. of the Superior Court correctly found that there was no evidence tending to cast doubt on the reliability of the results, and the majority of the Court of Appeal erred in reversing his decision. [ 60 ] Given the similarity of wording of subsection 258(1) (

c) of the Criminal Code and the present

section 320.31 of the Criminal Code , it is my view that the Cyr-Langois decision remains good law , and is applicable to this case. Applying this case to the case at bar, I am compelled to conclude that even if a misstatement of the air gas lot number were established, it would not cast doubt on the validity of the readings, and would not present any basis for not admitting the Certificate of the Qualified Technician into evidence. [ 61 ] Thirdly, I am of the view that

section 320.32(3)(4) and (5), establish a procedure for an accused party to challenge the certificate. These subsections are as follows:

(3) A party against whom the certificate is produced may apply to the court for an order requiring the attendance of the person

who signed the certificate for the purposes of cross-examination.

(4) The application shall be made in writing and set out the likely relevance of the proposed cross-examination with respect tothe facts alleged in the certificate. A copy of the application shall be given to the prosecutor at least 30 days before the day on which theapplication is to be heard.

(5) The hearing of the application shall be held at least 30 days before the day on which the trial is to be held. [62] In my view, counsel for the accused should have utilized these provisions and properly led evidence to show that the reliability ofthe results might have been affected. Simply pointing to what may be a defect, and speculating that the results are not reliable is notsufficient. CONCLUSION [63] All of the accused’s Charter arguments are dismissed. The Crown’s evidence establishes that the accused was driving a motorvehicle. He supplied suitable breath samples in the Intoxilyzer.

The Certificate of Qualified Technician is properly admissible.There is no basis to doubt the accuracy of the Certificate or the readings. I conclude that the Crown has proved Count 2 beyond a reasonable doubt. I impose a conditional stay of proceedings on Count 1, applying the principle enunciated in Kienapple v R, (SCC), [1975] 1 SCR 729. Dated at the City of Regina, in the Province of Saskatchewan, this 15th date of December 2020. D. Kovatch, J

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