Her Majesty the Queen - v. -, 2013 SKPC 212

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 212 Date: December 17, 2013 Information: 46422201 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Megan Kristin Schedlosky Appearing: J. McLean For the Crown B. Mitchell For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] The accused was charged on January 31, 2012 with operating a motor vehicle while her ability to do so was impaired by alcohol and with operating a motor vehicle while her blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood. As the accused was asserting violations of her ss. 8, 9, 10(

a) and 10(

b) Charter rights, the Crown evidence was heard on a voir dire ; the accused did not testify. Counsel for the accused advised at the outset that identity was not in issue, nor did the Defence take any issue with the filing of the Certificate of Analyses on the voir dire.

EVIDENCE Constable Keating [ 2 ] Constable Keating has been a peace officer with the Saskatoon Police Service for approximately 3 years. On January 31, 2012, he was in uniform and on patrol in an unmarked police vehicle. At approximately 11:10 p.m., he observed a southbound vehicle travelling in excess of 60 km/hr. He turned left, while this vehicle turned right so they were both proceeding in the same direction on Attridge Drive. This vehicle crossed three traffic lanes and cut him off requiring him to brake to avoid a collision. He followed as it accelerated to 70 km/hr.

He activated the emergency lights and siren on his police vehicle and noted that the car twice drifted from the left to the right and then over corrected with a jerky motion. He caught up to the vehicle as it crested the overpass of Circle Drive then stopped for a red light at Attridge and Preston Crossing. It was the only vehicle in the area. Once the car stopped, he used the loud hailer to direct the operator of the vehicle to pull over whereupon it turned into a parking lot at that intersection. He stopped this vehicle to investigate the manner in which it had been driven.

The time of the stop was 11:15 p.m. which he determined, not from contemporaneous notes that he made, but from records kept in the usual course of the operation of the Saskatoon Police. [ 3 ] He approached the accused who was the driver; she produced a driver’s license and registration on request. The officer noted a light odour of alcohol and inquired about her driving. She had no explanation. When asked if she had consumed alcohol, she replied that she had two “icebergs” at 7:00 p.m. but denied that alcohol was a factor in her manner of driving. She explained that an iceberg was a beer with slush added.

Having received this information, Constable Keating returned to his police vehicle where he contacted another member of the department to determine whether there was an Approved Screening Device (ASD) available. He suspected that the accused was impaired by alcohol but did not advise her of that before determining whether an ASD was available. He received information that Constable Scanlan could deliver an ASD in short order. He then advised the accused that he believed she had consumed alcohol and that Constable Scanlan was en route with an ASD.

He estimated that the call to Constable Scanlan was placed within a couple of minutes of the traffic stop. While waiting for Constable Scanlan, he stood outside the driver’s door of the accused’s vehicle but did not interact with her or her passenger. Although he believed the accused had alcohol in her system when he first spoke to her based on a smell of alcohol, her admission of having consumed alcohol, and the manner of her driving, he did not make the demand immediately because he did not have an ASD in his possession. [ 4 ] Constable Scanlan arrived with the device at 11:25 p.m. and at 11:27 p.m.

Constable Keating read to the accused the demand for an ASD sample. She said that she understood the demand and agreed to provide the required sample. The device used was an Alcotest 7410 GLC, an approved screening device. He was trained in the operation of the Alcotest 7410 GLC in April, 2009 and although he was trained to calibrate this particular device he had not. It was calibrated by another officer and was calibrated to and including February, 2012. He understood that the device was calibrated to provide for an ‘alert’ reading between .040 and .099.

Any reading over .099 would result in a fail. [ 5 ] The process of providing a sample into the ASD was explained to the accused and she provided a suitable sample at 11:32 p.m. which resulted in a fail. Consequently, he formed the opinion that she was impaired by alcohol and arrested her at 11:34 p.m. at which time she was read the breath demand, her rights to counsel and the police caution. She said that she understood all three and that she wanted to contact to a lawyer. [ 6 ] When she left her own car, she stumbled, crossed her left foot over her right and used the top of her vehicle for balance.

She walked a distance of approximately 2 to 2 ½ vehicle lengths and had trouble with her balance throughout; she blamed her footwear for these difficulties. There was no snow; the parking lot was dry and the road conditions were good. [ 7 ] Constable Scanlan called to request a tow truck and a breath technician. He then transported the accused to the police station while Constable Keating waited for the tow truck which arrived at 11:49 p.m. Once the vehicle was towed, Constable Keating drove to the Saskatoon Police Station, arriving at 11:56 p.m.

The accused and Constable Scanlan were there and he rode the elevator to the detention area with them. He made no observations of the accused at that time. Once the accused was processed by detention, she was placed in a phone room and asked if there was any specific lawyer she would like to contact. A phone book was available for her use. She did not provide the name of a lawyer so he explained that she could call someone listed in the phone book or make contact with

Legal Aid. She wanted to speak with someone from Legal Aid and that call was made at 12:07 a.m. At 12:12 a.m. the call was concluded; Ms. Schedlosky was asked if she was satisfied with her call to which she replied “yes”. [ 8 ] Constable Keating remained with the accused and found her to be polite and talkative. He also noted that the odour of alcohol had become more pronounced. He monitored her to ensure that she did not burp or consume anything by mouth. In due course, she was called upon to provide the first sample which she did.

Subsequently, he continued to wait with her until the breathalyzer technician was ready to take the second sample which the accused had no problem providing. Constable Clewes, the breathalyzer technician, advised Constable Keating of the results of the tests whereupon the accused was advised that she would be charged with driving while over .08. She was again read her rights to counsel and the police warning.

She did not wish to call a lawyer, but calls were made to locate a sober adult to come to the police station to collect her. [ 9 ] In cross-examination, Constable Keating agreed that his attention was drawn to the vehicle driven by the accused because it was proceeding at a rate of speed higher than normal. He confirmed that speed of 78 km/hr with radar. Although the report he left referred to the speed, it made no mention of the use of radar. He said the report was dictated after he had completed his dealings with the accused, but his handwritten notes were made during his interaction with her.

At the end of his notes, he wrote a

summary of the entire event after the fact. He agreed that details, such as specific times, were important in note taking. He also agreed that the first time which he recorded in his notes was 11:27 p.m. Neither his notes nor his report referred to the time of the traffic stop until he was asked to provide a supplemental report several months later. He acknowledged that he had issued a

summary offence ticket to the accused and that the time of the offence was recorded on that ticket as 11:12 p.m. Initially, he said the time on the ticket was the time it was issued. [ 10 ] He agreed that prior to the first scheduled trial date, he was requested to provide a supplemental report with respect to the time of the traffic stop. In order to provide that information, he contacted the Communication Centre of the Saskatoon Police Service where the time that he called in his traffic stop was recorded. His supplemental report did not include the source of that information.

He maintained that the time of the stop was the time he called it in. [ 11 ] In further cross-examination, he confirmed that the smell of alcohol came from the breath of the accused, and not from her passenger. He also agreed that he did not record the time that he formed his suspicion that the accused had alcohol in her system but said that it was shortly after the stop. He agreed as well that he did not make the demand forthwith upon forming that suspicion. He noted that Constable Scanlan arrived at 11:25 p.m. within minutes of his request.

He did not do any sobriety tests with the accused and believed that the ASD was necessary to get further information for his investigation. He also confirmed that he did not have the grounds to make a full demand. He knew that an ASD demand was to be made forthwith upon the forming of a suspicion that a suspect had alcohol in their system and that the test must be conducted forthwith upon the demand being made. He chose to make the demand once he had an ASD available; otherwise, he would not have been able to obtain the sample forthwith.

He further agreed that he did not provide the accused with her right to counsel immediately after the stop. [ 12 ] In re-examination, he admitted that he did not record every detail of the traffic stop and only began taking detailed notes after he formed the opinion for the ASD demand. Constable Scanlan [ 13 ] Constable Scanlan was on duty, in uniform and in a marked police vehicle on January 31, 2013. He was contacted by Constable Keating at 11:15 and asked to bring an ASD device to a traffic stop.

He arrived at 11:24 and at 11:25 p.m. he saw the accused step from her vehicle and walk to the back of his patrol car. He noted that the accused stumbled and corrected her balance, saying that her boots were too big. She appeared to have some trouble comprehending and was slow to react to requests. She was, however, able to follow directions. He checked her vehicle for open alcohol and found an empty wine bottle and an empty beer bottle. [ 14 ] He spoke briefly to the passenger in the accused’s vehicle but she walked away from the scene before he was able to obtain any identification.

He saw that Constable Keating had obtained a fail reading on the ASD and heard him providing the accused with her rights. At the request of the accused, he retrieved some jogging pants from her vehicle that she put on before he left the scene with her at 11:45 p.m. En route to the police station he opened the silent patrolman and noted a strong smell of alcohol. He described it as a peculiar odour, a cross between alcohol and rotten apples. He also noted that the accused had slurred speech and droopy eyelids. They arrived at the police station at 11:51 p.m. and he helped her out of the patrol car.

She was handcuffed at the time. She was escorted to the booking counter and he considered his responsibilities concluded. He did not recall if he was present when Constable Keating arrived at detention.

[15] In cross-examination, he agreed that his report made no reference to a smell of alcohol but simply a peculiar smell comingfrom the accused. Although he described the accused as slurring her words heavily he could not say whether she had a pierced tongue ora speech impediment. DEFENCE POSITION [16] The defence position is that the ASD demand made by Constable Keating did not comply with s. 254(2) of the Criminal Codein that it was not made forthwith. As a result of that failure, s.8, s. 9, and s.10(

b) of the Charter of Rights were violated. Defencerequests that all of the officer’s observations, the results of the ASD and Certificate of Analyses should be excluded from evidence as aresult of that breach. CROWN POSITION [17] Counsel for the Crown argues that a flexible approach must be taken to the

interpretation of forthwith and that a twelveminute delay in making the demand is justified. Further, the Crown argues that even if there was a violation of the rights of the accusedthe evidence should not be excluded after a Grant analysis. ISSUES [18] The issues to be resolved are: (

i) Was there compliance with s. 254(2) of the Criminal Code or was there a violation of Charter rights? (ii) If there was a Charter breach, is exclusion of the evidence warranted? THE LAW [19] Section 254(2) of the Criminal Code says, in part:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol...in their body and that the person has, within thepreceding three hours, operated a motor vehicle...the peace officer may, by demand, require the person...(

b) to provide forthwith asample of breath that...will enable a proper analysis to be made by means of an approved screening device. [20] In R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640 the Supreme Court of Canada held that an individual uponwhom such a demand has been made is detained within the meaning of s. 10 of the Charter. Since the

section requires that the samplebe provided forthwith, the opportunity to retain and instruct counsel is not possible and a breach of s. 10(

b) results. In spite of this, theCourt ultimately found the

section constitutional and said at para. 22: The important role played by roadside breath testing is not only to increase the detection of impaired driving, but to increase theperceived risk of its detection, which is essential to its effective deterrence. In my opinion the importance of this role makes the

necessary limitation on the right to retain and instruct counsel at the roadside testing stage a reasonable one that is demonstrably justifiedin a free and democratic society, having regard to the fact that the right to counsel will be available, if necessary, at the more seriousbreathalyzer stage. [21] Although s. 254(2) does not specifically require that the demand must be made forthwith, it is considered to be implicit. AsJustice Arbour, speaking for the majority of the Ontario Court of Appeal, said at para. 5 in R. v.

Pierman (1994) (ONCA), 19 O.R. (3d) 704: It is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver hasalcohol in his or her body. This is the only

interpretation which is consistent with the judicial acceptance of an infringement on the rightto counsel provided for in

section 10(

b) of the Charter.”In other words, the forthwith requirement is inextricably linked to theconstitutional validity of s. 254(2) of the Criminal Code: see R. v. Woods 2005 SCC 42 at para. 29. [22] Significant consideration has been given to the meaning of forthwith in the context of the provision of roadside breathsamples. Generally speaking, it has been interpreted to mean “immediately” or “without delay” but each case demands an analysis of thecircumstances surrounding any delay and the reasons for it. For example, in R. v.

Bernshaw (SCC), [1995] 1 S.C.R.254 (SCC), waiting a number of minutes to ensure the dissipation of mouth alcohol before taking the test was found to be sufficientlyimmediate. Similarly, in R. v. Ritchie 2004 SKCA 9, the court found that the sample was taken forthwith despite an 11 minute delayoccasioned in part by the uncooperative behaviour of the accused and in part by the need to wait for a screening device to be brought tothe traffic stop. In R. v. Payne (1994), (NL CA), 91 C.C.C. (3d) 144 (Nfld.

C.A.), the Court held that generallyspeaking, a delay in excess of 30 minutes between making a demand and taking a sample would render the demand invalid; however, ifthe delay is less than that the court is bound to consider all of the circumstances in determining whether the sample was providedforthwith. Thus, there is some flexibility in determining compliance with the forthwith requirement of s. 254(2) having regard to all ofthe surrounding circumstances: see also R. v.

Janzen 2006 SKCA 111. [23] In Janzen, (supra), Cameron J.A. said at para. 4: ...in determining whether a particular roadside screening test has been administered forthwith, it is necessary to have regard for thecircumstances of the case, including the extent of the lapse of time and the reason for it, and to assess the matter with the followingconsiderations in mind: (

i) the balance between parliament’s objective in combating the evils of drinking and driving, on one hand, andthe person’s constitutional right to be free of unreasonable search and seizure, on the other, and (ii) the fact that a person’s constitutionalright to consult counsel is suspended upon demand to provide a sample of breath pursuant to section 254(2). [24] Similarly, some flexibility in assessing any delay between the formation of the suspicion and the making of the demand ispermitted. In R. v.

Brittain 2000 SKQB 242, the Court found that a 12 minute delay between the traffic stop and the demand did not takethe demand outside the parameters of s. 254(2). In R. v. Giesbrecht 2005 SKQB 3114, the officer formed a suspicion that the accusedhad alcohol in his body very shortly after making the traffic stop. As he did not have an approved screening device, he did notimmediately make the demand, but rather, waited 10 minutes until one was brought to him. At trial, the evidence of the fail reading wasexcluded as the demand was not made forthwith. This was found to be an error on appeal. [25] In R. v.

Jeffrey Anderson 2013 SKQB 219 the accused was stopped at 12:47 a.m. and a roadside demand was not made until1:02. In the interim, the officer ran a check on the licence plate, spoke to the accused, obtained his licence and registration, engaged inconversation with the accused as to any alcohol consumption. Only after this did the officer form the requisite suspicion and make thedemand. He then waited for the approved instrument to “warm up” and the sample was taken at 1:18 a.m. some 31 minutes after thestop.

On appeal, the Court found that the trial judge erred in concluding that the “forthwith” requirement had not been fulfilled. Further,the appeal court said that it was improper to consider the entire time commencing with the time of the stop in assessing whether thedemand was made forthwith. [26] Mr. Justice Sherman, in R. v. Mertens 2013 SKQB 252 said at para. 44: The logic that lead the Court of Appeal in R. v. Janzen, supra, to hold that “forthwith” is to be taken as meaning without unreasonable or

unjustified delay necessarily applies equally to time frame 1, between the officer forming an opinion that a driver is under the influenceof alcohol and the making of a demand, and to the time frame 2, the period between making of the demand and the provision of thesample. There is no need for, and indeed it would be illogical, to define “forthwith” differently for these two periods. In the applicationof the requirement for an immediate or forthwith demand, reasonable and justified delays will be accommodated in both situations,consistent with the guidance of the Court of Appeal in R. v. Janzen.

However, as demonstrated in the reasons of Lane J.A. in R. v.Anderson, the requirements of an immediate or forthwith demand can be breached by as little as a three-minute delay between thecommencement of the detention and the demand where there is no justification for the delay. (Emphasis mine) [27] In R. v. Dwayne Anderson 2011 SKCA 13, the accused was stopped on a routine traffic stop which evolved into an impaireddriving investigation. The stop occurred at 1:11 a.m. and the accused was directed from his car to the patrol car without any reasongiven.

At 1:14 a.m. the accused was read a demand to proved a sample of his breath into an approved screening device. Despite the factthat only three minutes had elapsed between the time of the stop and the time of the demand, the Court of Appeal found that theimmediacy requirement had not been met and a Charter violation resulted. However, the evidence obtained was not excluded after a s.24(2) analysis was conducted in accordance with R. v. Grant 2009 SCC 32 , 2009 S.C.J. No. 32. [28] In R. v.

Martens 2008 ABQB 223 the Court ordered a new trial saying that the trial judge had erred in law in finding that aseparate “forthwith” requirement existed for making the demand and taking of the sample. At trial, the evidence revealed a 12 minutedelay from the formulation of the suspicion to the making of the demand. The only reason for the delay was to await the delivery of anASD to the location of the traffic stop. When it arrived, the sample was immediately taken. Leave to appeal to the Alberta Court ofAppeal was denied at 2008 ABCA 283 , [2008] A.J.

No. 894 and refused by the Supreme Court of Canada at [2008] S.C.C.A.No. 440. [29] From these cases I conclude: that s. 254(2) of the Criminal Code requires that a demand be made forthwith; that forthwith istaken to mean without unreasonable or unjustified delay; that each case must be assessed on its particular facts; that a delay which isexplained and reasonable does not necessarily take a demand outside the parameters of s.254(2); that it constitutes an error in law to setthe standard closer to “immediately” instead of “without unreasonable or unjustified delay”: (See Anderson (Jeffrey) supra at para 44).

Finally, there is no separate forthwith requirement for making the demand and for taking the sample. ANALYSIS (

i) Was there compliance with s. 254(2) of the Criminal Code or was there a violation of Charter rights? [30] In the case at hand, I am satisfied that the accused was initially detained at 11:15 p.m. and within a “couple of minutes”theofficer formed a suspicion that the accused had alcohol in her body. The officer then placed a call and learned that an ASD could bemade available relatively quickly. He then advised the accused that he believed that she had been drinking and that another officer wason the way with an ASD. The accused remained seated in her own vehicle with the door open.

At 11:25, ten minutes after the trafficstop, the ASD arrived and the accused was escorted to the patrol car. At 11:27, approximately ten minutes after the officer formed hissuspicion, the demand was made. The only reason that the demand was delayed was to await the arrival of the approved screeningdevice. [31] The question is whether the delay of 10 minutes between forming the suspicion and making the demand satisfies theforthwith requirement and what effect that delay had on the Charter rights of the accused.

I am satisfied that the accused was advised ofthe reason for her detention thus fulfilling the requirement of s. 10(

a) of the Charter. Although there was no compliance with s. 10(b),the law is settled that the legislative scheme which provides for roadside testing of suspected impaired drivers is a reasonable limitationon the Charter rights protected by sections 8, 9 and 10. It is my view that if an accused person is advised that the reason for theirdetention is to provide a roadside sample, it is irrelevant whether a short delay to await the arrival of an ASD occurs before or after aformal demand is made.

The only concern is whether the delay was reasonable and justified bearing in mind that the Charter rights ofthe accused are suspended. In this case, I am satisfied that the forthwith requirement of s . 254(2) of the Criminal Code has been met. (ii) If there was a Charter breach, is exclusion of the evidence warranted? [32] However, if I am in error with respect to whether there was compliance with the forthwith requirement of s. 254(2), I will

consider the application of Grant, supra . [ 33 ] As set out in Grant , any determination with respect to exclusion of evidence requires an inquiry along three lines: (

i) the seriousness of the state conduct which infringed the Charter ; (ii) the impact on the Charter -protected interests of the accused; and (iii) the interests of society in having the matter adjudicated on the merits. [ 34 ] With respect to the issue of the seriousness of the Charter -infringing state conduct, Grant acknowledged that there was a spectrum of such misconduct, ranging from inadvertent or minor to wilful or reckless disregard: see para 74.

Consequently, the more serious and deliberate the state conduct, the more inclined the courts should be to disassociate from that conduct by weighing in favour of exclusion. In this instance, I cannot say that any breach was wilful or reckless. At worse, the actions of the officer were born of the belief that an ASD sample must be taken forthwith upon the demand being made. By calling to see whether a device was readily available, he turned his mind to ensuring that the detention of the accused for the purpose of providing the sample would not be protracted.

Further, by allowing the accused to remain in her own vehicle with her passenger, he ensured that her detention was the least restrictive possible. Thus, any violation would fall at the lower end of the scale and would militate in favour of admission. [ 35 ] The second line of inquiry concerns the impact on the accused of any breach of a Charter - protected interest. At para. 76 of Grant , supra , the Supreme Court of Canada recognized that a breach of Charter -protected interests can have a range of effect on an accused from “fleeting and technical” to “profoundly intrusive”.

The greater the impact, the more likely exclusion will be the remedy. In finding the legislative scheme for roadside testing to be constitutional, the Supreme Court acknowledged the important role of roadside breath testing in the detection and deterrence of impaired driving and that some limited restriction on the Charter rights of motorists pulled over for this purpose was warranted. The detention of this accused was solely for the purpose of administering a roadside breath test. The fact that the formal demand had not been made does not make any violation of the Charter more than fleeting or technical.

An analysis on this arm would also favour admission of the evidence. [ 36 ] The third line of inquiry enunciated in Grant involves society’s interest in having criminal cases adjudicated on their merits. The question then is “whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion”: see Grant (supra) para. 79. In making this assessment, courts were directed to take into account not only the negative impact on the administration of justice by admitting evidence but also the negative impact of failing to admit evidence.

The reliability of the evidence and its importance to the prosecution are very relevant to the truth seeking function of the trial process and as was pointed out in Grant , supra , the results of breath sample analyses are generally considered reliable and their exclusion would end any prosecution for the offence of driving while over the legal limit : see Grant , supra, para. 99-110 incl. [ 37 ] The Supreme Court concluded at para. 111: While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately 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 in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [ 38 ] In the case at hand, the evidence, particularly the result of the ASD, is reliable and vital to the continued prosecution of the case.

Thus, it is of high importance to the truth-seeking function and an assessment based on the third arm set out in Grant would also favour admission of the evidence. [ 39 ] Overall, I am satisfied that the exclusion of the results of the ASD test would serve to bring the administration of justice into disrepute on the particular facts of this case and therefore, I would admit the evidence. [ 40 ] Accordingly, the defence application for the exclusion of the results of the ASD and the observations made by the officer fails and all the evidence will be admitted on the trial of the allegations.

________________________________ M. L. Gray J