Her Majesty the Queen - v. -, 2017 SKPC 52

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 052 Date : June 29, 2017 Information: 90125094 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - James Martin Appearing: Daryl Bode For the Crown Rhiannon Rees For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] James Martin is charged with operating a motor vehicle while impaired by alcohol and operating a motor vehicle with more

than 80 mg% of alcohol in his blood on November 13, 2016 in Yorkton. The Crown proceeded summarily. [ 2 ] On the morning of November 13, 2016, RCMP Cst. Kristen Guspodarshuk was on patrol in Yorkton. She was parked in a parking lot near Broadway Street, and saw a vehicle leaving from the north part of that lot adjacent to Joe Beeverz Bar and Grill. She followed that vehicle, which Mr. Martin was operating, and a few blocks down Broadway Street signalled for him to stop. He did so, and the officer then demanded that Mr. Martin provide a breath sample into an approved screening device (ASD). Because Mr.

Martin was smoking a cigarette when she first spoke to him, Cst. Guspodarchuk waited 15 minutes before the sample was taken. When the sample was received from Mr. Martin at 1:23 a.m., a fail reading resulted and the officer arrested him for impaired driving and read the breath demand to him. At the RCMP detachment, two samples of 90 mg% were received from the accused at 2:06 and 2:28 a.m. into an Intox EC/IR II approved breath instrument, as recorded on the Certificate of Qualified Technician (Exhibit P-1). [ 3 ] At the conclusion of the evidence, Mr.

Bode indicated that he was not seeking a conviction on the impaired driving charge. As a result, and based on the submissions of counsel, the only issues in dispute are respecting the .08. These are:

(1) Whether the police officer had a reasonable suspicion that Mr. Martin had alcohol in his body when she made the ASD demand, and, if not, whether Mr. Martin was arbitrarily detained contrary to s. 9 of the Charter ; and

(2) Whether the police officer took the ASD sample from Mr. Martin forthwith as required by s. 254(2) of the Criminal Code , and, if not, whether his Charter rights under s. 8, 9 and 10(

b) were violated. [ 4 ] As a result of these alleged violations, Mr. Martin submits that evidence of the results of his ASD breath test and of his Intox EC/IR II breath tests be excluded from evidence at this trial pursuant to section 24(2) of the Charter. [ 5 ] The evidence respecting the Charter issues was heard on a voir dire , with an agreement that any admissible evidence be applied to the trial. The only witness to testify was Constable Guspodarshuk. The defence called no evidence on the voir dire or the trial. II. BACKGROUND [ 6 ] Cst.

Guspodarchuk knew that there was a UFC fight this evening on television, and as a result she was patrolling near bars where she thought the fight would be viewed. Her focus was on finding impaired drivers and doing licence checks. Between 12:45 and 1:00 a.m. she was parked adjacent to the Giant Tiger store, just off Broadway Street in Yorkton, in the south part of a large interconnected parking lot that services a number of businesses. She saw a vehicle 25 to 50 metres north of her, which turned out to be driven by Mr.

Martin, leaving from the part of this parking lot which is adjacent to Joe Beeverz Bar and Grill. [ 7 ] When Cst. Guspodarchuk first saw the vehicle, it was accelerating and in her words was “moving at a high rate of speed”, although she later admitted that she did not know whether the vehicle was speeding. This vehicle was making a loud noise from its exhaust. [ 8 ] Mr. Martin turned left onto Broadway Avenue and Cst. Guspodarchuk followed this vehicle up to Fourth Avenue. She noted no other issues with the way Mr. Martin was driving.

At the intersection of Fourth and Broadway, she activated her emergency lights and Mr. Martin turned right onto Third Avenue and stopped his vehicle. [ 9 ] Cst. Guspodarchuk quickly ran Mr. Martin’s plate number on her police computer, and discovered that he was the registered owner. She then went to the driver’s side window and noticed that the driver, Mr. Martin, was smoking a cigarette. She told him to put the cigarette out. She believed, given the size of the cigarette, that it was freshly lit and as well believed that Mr. Martin might be using the cigarette’s smoke to mask odours such as alcohol. Cst.

Guspodarchuk looked at his driver’s licence and registration and both were valid.

[ 10 ] Cst. Guspodarchuk then asked Mr. Martin: “How is it going?” and further asked: “How many drinks did you have tonight?” Mr. Martin responded: “One drink”. Cst. Guspodarchuk later admitted in cross-examination she had no idea when he had consumed that drink, although I note she had asked him about “tonight”. [ 11 ] After receiving the “one drink” response, Cst. Guspodarchuk detained Mr. Martin, and told him to put his keys on the dash and to get out of his vehicle. She searched him for police officer safety and put him in the back of the police vehicle.

She then read him his rights to counsel and told him that he had been detained for the purpose of an impaired driving investigation. She asked him whether he wanted to call a lawyer, and he said: “No, I am good”. Cst. Guspodarchuk then read the ASD demand to him and told him that, because he had been smoking, she was going to wait fifteen minutes before taking the breath sample. [ 12 ] Regarding Mr. Martin’s condition, Cst. Guspodarchuk said his speech was good and that he was able to continue a conversation and walk without any difficulty. III.

DID THE OFFICER HAVE A REASONABLE SUSPICION HE HAD ALCOHOL IN HIS BODY? [ 13 ] Section 254(2) of the Criminal Code empowered this police officer to demand that Mr. Martin provide a sample of his breath into an ASD if she had a reasonable suspicion that he had alcohol in his body. I accept that the factors which led Cst. Guspodarchuk to this suspicion, regarding Mr.

Martin, were that: (1) he was leaving the area of a bar; (2) he accelerated away from the bar in a loud fashion; (3) he had a freshly lit cigarette which suggested to her he might be using this as a masking agent against the smell of alcohol on his breath; and (4) he admitted to having had one drink that night. [ 14 ] Even considering that the officer did not see Mr. Martin come out of the bar and that she noted no problems with his driving once he was out on Broadway Street, I am nevertheless satisfied that, due to the factors stated above, Cst. Guspodarchuk had a reasonable suspicion that Mr.

Martin had alcohol in his body at the point she first spoke to him. As a result, I find that she detained him for an impaired driving investigation lawfully and not arbitrarily and contrary to s. 9 of the Charter . IV. WHAT WAS THE EFFECT OF THE OFFICER WAITING FIFTEEN MINUTES FOR THE ASD SAMPLE? [ 15 ] Section 254(2) of the Charter further provides that the ASD breath sample must be provided by the detained person forthwith. For the reasons that follow, I am not satisfied that Mr.

Martin was allowed to do so. [ 16 ] In R v Bernshaw [1] , the Supreme Court of Canada set out the grounds upon which a police officer can delay for a short period in taking an ASD sample if she believes such a delay is necessary to obtain a proper sample, and yet still remain within the lawful authority to detain a suspect under s. 254(2) .

Speaking for the majority of the Court, Justice Sopinka approved the standard “that the police can only detain a suspect for an extra 15 minutes where there is some factual basis upon which to suspect that the screening device would yield an inaccurate result.” [2] [ 17 ] Regarding her wait of fifteen minutes in taking a breath sample from Mr. Martin on the ASD, Cst. Guspodarchuk said this was what she had been taught to do, when she took the ASD training course, in a case where she found a driver smoking.

She had been a police officer for approximately two years at the time of this incident, and said that she had been involved in a handful of impaired investigations but had never dealt with someone who had been smoking. She subsequently discovered, in talking to another police officer from her detachment, that she should have only waited five minutes and not fifteen minutes. She said the reason she waited was that cigarette smoke can cause a false fail response on the machine.

In cross-examination she said she made a mistake when she waited fifteen minutes, and that she should have read the manual before doing this, as she had done subsequent to this incident. [ 18 ] While there was some further discussion between the officer and Mr. Martin after he was detained and while he was in the police vehicle, and while there was some suggestion in her evidence that she was as well concerned about mouth alcohol, Cst. Guspodarchuk admitted that in her police notes she wrote that she waited fifteen minutes because he had been smoking a cigarette. I am

satisfied this was the reason she waited. While the officer acknowledged that waiting 15 minutes to take the ASD sample, when she should have waited five minutes, meant she was taking away Mr. Martin’s liberty for this time, she said she did not further advise Mr.

Martin of his right to call a lawyer because he was an adult and he had every opportunity to say he wanted to call a lawyer, which he did not. [ 19 ] In R v Lomenda [3] , Barrington-Foote J stated, regarding the meaning of “forthwith” in s. 254(2) , that a police officer is entitled to wait fifteen minutes before taking the ASD test if the delay is reasonable or justified. [4] In Lomenda , it was determined on appeal that a fifteen minute wait in that case was neither, as the officer said he would wait fifteen minutes in every case. [ 20 ] In Mr.

Martin’s case, I am not satisfied the wait of fifteen minutes was reasonable or justified. That is because: (1) even if she honestly believed she should wait, clearly, as per her evidence, Cst. Guspodarchuk was mistaken in this belief, and (2) while it appears the instructor at her course on operating the ASD was as well mistaken on how long to wait in these circumstances, the officer admitted that she should have read the manual before doing this, as she had done subsequent to this incident.

Taken together, I am not satisfied that the wait of fifteen minutes before taking the ASD test fell within this officer’s lawful authority under s. 254(2) or that this test was taken “forthwith” from Mr. Martin. As a result, I am satisfied that his rights under s. 8, 9 and 10(

b) of the Charter were violated. V. WOULD ADMISSION OF THE BREATH TEST EVIDENCE BRING THE ADMINISTRATION OF JUSTICE INTO DISREPUTE UNDER S. 24(2)? [ 21 ] Given my finding that Mr. Martin’s rights under ss. 8, 9 and 10(

b) of the Charter were violated from the point he was detained for an ASD sample by Cst. Guspodarchuk, the question becomes whether admission of the result of the ASD sample and the Certificate of Qualified Technician from his breath tests at the detachment would bring the administration of justice into disrepute, based on a balancing of: (1) the seriousness of the breach; (2) the impact of the breach on the Charter -protected rights of Mr.

Martin; and (3) society’s interest in the adjudication of the case on its merits. [5] [ 22 ] Given the clear evidence that this officer was mistaken about the need to wait fifteen minutes for the ASD test, and her statement that admitted that she should have read the manual before this incident, as she had done subsequent to it, I view this breach to be serious. Given that this detention was brief and that the ASD process was relatively non-intrusive [6] , I view the impact of this breach on Mr. Martin’s Charter -protected rights to be moderate.

Regarding the third factor, there is no question that the results of the ASD test and the Certificate of Qualified Technician are reliable, relevant evidence on a pressing issue of public concern such as impaired driving and that this factor favours inclusion of the evidence. [ 23 ] Similarly, in Lomenda , Justice Barrington-Foote found the breach to be serious, the impact on the Charter rights of the accused to be moderate and society’s interest in adjudication of the case based on the breath test evidence to favour inclusion.

Characterising the breach by the officer to be negligent, and not wilful or flagrant [7] , he excluded the evidence. He concluded that the police officer was either ignorant of the legal prerequisite for him to wait fifteen minutes or negligent as to this prerequisite. In conclusion, he stated: I am keenly aware of the scourge of impaired driving, and of society's compelling interest in the adjudication of charges of this kind.

It may appear to some members of the public that the truth-seeking function of the criminal justice system should take precedence, and as such, that reliable and essential evidence from an Intoxilyzer should not be excluded on the basis of what might appear to be a technical breach of Charter rights. I have, however, kept in mind that the focus of s. 24(2) is on the long-term repute of the administration of justice, and, as is noted at para. 84 of Grant , supra , that society also has "a vital interest in having a justice system that is above reproach".

It is this focus on the long-term repute of the administration of justice that calls for exclusion of the ASD evidence, as well as the Intoxilyzer evidence obtained as a result of a demand based on the results of the ASD. [8] [ 24 ] In considering these comments, I accept that in this case the breach demonstrated both ignorance by this police officer about the lawful prerequisites for waiting fifteen minutes for the ASD test and negligence on her part or on the part of her instructor.

While I would classify this breach as negligent as opposed to wilful or flagrant, nevertheless I am satisfied that the long term repute of the administration of justice would be brought into disrepute by admission of the result of the ASD test and of the Certificate of Qualified

Technician into evidence. I, therefore, direct that these be excluded under s. 24(2) of the Charter. VI. CONCLUSION [25] As a result of my decision on the s. 24(2) application, all of the evidence from the voir dire, except the result of the ASD testand the Certificate of Qualified Technician, will be applied to the trial. Given my decision to exclude the result of the ASD test and theCertificate of Qualified Technician, there is no evidence establishing Mr. Martin’s guilt on the over .08 charge, and he is found not guiltyon count #2.

On the charge of impaired driving on count #1, given the lack of evidence of impairment and the prosecutor’s statementthat he is not seeking a conviction on this charge, Mr. Martin is found not guilty on that charge as well. R.

Green, J [1] (SCC), [1995] 1 SCR 254. [2] At para 72. [3] 2014 SKQB 77, upheld on appeal at 2015 SKCA 40. [4] At para 22. [5] R v Grant (2009), 2009 SCC 32 , 245 CCC (3d) 1 at para 72. [6] At para 111 of Grant, the Court said: While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity isdeliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded,notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe interms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, thiswill often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [7] At para 43. [8] At para 45.