Her Majesty the Queen - v. -, 2013 SKPC 43

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 043 Date: April 1, 2013 Information: 44330077 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joseph Chance Sword Appearing: J. L. MacLean For the Crown R. P. Piché For the Accused JUDGMENT Q.D. AGNEW , J [ 1 ] The accused, Joseph Chance Sword, stands accused that on or about May 27, 2010 at or near Saskatoon he operated a motor vehicle: (1) while his ability to do so was impaired by alcohol or a drug contrary to ss. 255(1) and 253(1) (

a) of the Criminal Code ; (2) after having consumed alcohol in such quantity that the concentration in his blood exceeded 80 milligrams in 100 millilitres contrary to ss. 255(1) and 253(1) (

b) of the Criminal Code .

During the course of the trial, count one was stayed by the Crown and accordingly this decision will proceed on the basis solely of count two, the “over .08” charge. [ 2 ] Prior to trial, the defence gave notice of a number of Charter issues. I heard all of the Crown evidence on a voir dire, to be applied to the trial proper as I found it admissible. The accused testified on the voir dire , with his evidence not to be applied to the trial. At the end of the voir dire I reserved my decision to the conclusion of trial.

Defence elected not to call any evidence on the trial proper. [ 3 ] With respect to Charter issues, the defence argues that there was an arbitrary detention, contrary to s. 9 on the following bases: (1) at the time the demand was made for an ASD sample, the officer did not have sufficient grounds; (2) the “fail” result on the ASD was not sufficient to provide grounds, on the basis that insufficient time had passed between the time of the last drink and the test, such that the officer should have known that the “fail” result was not reliable or, alternately, that his belief to the contrary was not objectively reasonable. [ 4 ] Defence also argues that the breath samples taken at the RCMP detachment were not taken as soon as practicable, and accordingly, the Crown should not be entitled to admit the Certificate of Analyses into evidence and not rely on the statutory presumptions arising from it. [ 5 ] The defence also urges me to find that the Crown has not proven that the accused provided a sample of his breath “directly” into the approved instrument.

This was not raised by defence in cross-examination, and there is no direct evidence one way or the other on the issue. Defence’s point, if I understand it correctly, is that this is a fact which the Crown must prove by positive evidence. I note that s. 258(1)(

g) provides that if I allow the Certificate of Analyses into evidence, the Certificate is evidence of the facts referred to therein. The Certificate states that the qualified technician “did receive each of the said samples directly into [the approved instrument]”. Accordingly, if I admit the Certificate, there is some (uncontradicted) evidence before me which addresses the defence argument. I do not therefore propose to give any further consideration to this issue, as in my view it stands or falls with the Certificate’s admissibility.

Facts [ 6 ] On May 27, 2010, just before 2:00 a.m., Constable Flogan of the Saskatoon Police Service and his partner, Constable Danielson, observed a vehicle leave the parking lot of the “Copper Mug”, a bar or lounge on 8 th Street in Saskatoon. The vehicle turned to the right in exiting the parking lot, and proceeded north on Wiggins Avenue. Constable Flogan was driving east on 8 th Street approaching the intersection of Wiggins and 8 th Street and turned left onto Wiggins to follow the vehicle.

The vehicle had originally attracted his attention because it left the parking lot “rapidly”, in his words, and made a quick right turn onto Wiggins. [ 7 ] Constable Flogan followed the vehicle north on Wiggins, and saw the vehicle cross the centre line of the road at approximately 9 th Street. At that point, Constable Flogan activated his lights and the accused pulled over.

Constable Flogan testified that he pulled the vehicle over in order to “gauge the level of sobriety” of the driver and to talk to the driver about his rapid right turn and crossing the centre line of the road. [ 8 ] The driver turned out to be the accused. Constable Flogan spoke with him although the accused would not look at Constable Flogan. There was a passenger in the car and a smell of alcohol coming from the vehicle. Constable Flogan asked the accused if he had been drinking because he could not tell whether the smell of alcohol was from the accused or his passenger.

The accused answered that he had been and Constable Flogan then asked him to come to the police cruiser for the purpose of a breath test from an approved screening device. Constable Flogan made the ASD demand at 01:57. [ 9 ] It turned out that there was no ASD in Constable Flogan’s car so one was brought by another police cruiser. It arrived at 02:00.

[ 10 ] Constable Flogan testified that he read the ASD demand, which the accused indicated that he understood. He blew an “F” on the ASD, which to the Constable’s understanding meant that his blood alcohol level was over 10 milligrams of alcohol in 100 millilitres of blood or, in other words, over .10. He thereupon arrested the accused for impaired driving and being over .08, and read to him his Charter rights and breath demand.

Grounds for breath demand [ 11 ] The accused argues that the constable did not have sufficient grounds to demand that the accused provide a sample of his breath into the approved screening device (“ASD”), and that the “fail” result on the ASD did not create sufficient grounds for the subsequent breath demand.

In either event, the accused argues that the subsequent taking of samples of his breath was a breach of his s. 9 Charter rights, and the evidence derived therefrom should be excluded from evidence. [ 12 ] With respect to the former issue, the grounds which the constable had for making the ASD demand were the rapid exit from the parking lot, the small amount of swerving of the vehicle, an odour of alcohol from the vehicle, and the accused’s statement that he had consumed alcohol.

The accused was of course the driver, but there was a passenger in the vehicle, making it more problematic whether the odour of alcohol was coming from the accused or not. [ 13 ] Although the test for an ASD demand under the Code is quite low, the constable must still have reasonable grounds to suspect that the accused has alcohol in his body while operating the vehicle before he is entitled to make the demand.

The constable was unable to say at what point in their interaction the accused told him the timing of his last drink; that is, the Crown is unable to prove that the constable had any basis for believing that the accused had any alcohol in his body at the time the ASD demand was made. [ 14 ] The Crown has referred to various cases with respect to an officer’s right to make an ASD demand. [1] These cases are of limited assistance, as in each case there was some evidence of the presence, or from which the presence could be inferred, of alcohol in the accused’s body when the demand was made.

Here, that is not the case. The evidence is uncertain, to put the best face on it, as to when the accused made his statement of recent consumption to the constable. It may have been made before the ASD demand; it may have been made before the ASD test; it may have been after the ASD test. Not being able to determine this, I cannot include it in the officer’s grounds. [ 15 ] I note in passing that the accused, testifying on the voir dire , made reference to this conversation having occurred while he was still in his car.

As I refer to in greater detail below, I did not find the accused very convincing on the details of this conversation; I see no reason why I should give his recollection of the timing of it any greater weight. [ 16 ] I therefore have to conclude that the constable did not have any evidence, at the time he made the ASD demand, that the accused had alcohol in his body.

The accused was therefore arbitrarily detained, in violation of s. 9 of the Charter . [ 17 ] With respect to the second issue, whether or not the “fail” result on the ASD created sufficient grounds for the subsequent breath demand, the answer turns on when the constable believed the accused had last had a drink. The evidence from the constable was that there had to be at least fifteen minutes between the last “mouth alcohol” and the test for the reading to be valid.

Given that he was a trained operator of the device, I accept his evidence in this regard, as indeed did both the Crown and defence. [ 18 ] Constable Flogan testified that when he asked the accused if he had been drinking, he also asked how long it had been since the last drink and the accused said it had been 30 minutes. The notes which Constable Flogan made at the scene also indicate this. However, his dictated report states that the accused said that his last drink had been “3” minutes previously. He testified that the report had been dictated by him, and then transcribed by someone else.

He stated that he did not know if he had mumbled his words, or if the

transcriber had misheard him, or if it was in some other way that the number came to be shown as “3”, but he testified that the accused’s statement was in fact that it had been 30 minutes since his last drink. [ 19 ] As indicated above, in the course of cross-examination the constable admitted that the wording in his notes and report was confusing with respect to the accused’s last drink and that he did not know when the accused told him his last drink was.

This has to be weighed with respect to the credibility of his testimony on other matters as well. [ 20 ] The essence of the accused’s testimony on the voir dire was that when asked if he had been drinking, he said “yes”; when asked how long ago his last drink had been he said “two to three minutes ago”.

He testified that he and his friend had been drinking and had finished their last drink just as they were leaving and were pulled over “almost immediately” after leaving the Copper Mug. [ 21 ] Clearly there is a question of credibility which I must weigh in this matter. [ 22 ] The accused says that he told the officer that he had finished his last drink two or three minutes prior. The accused’s testimony was hazy as to where this conversation took place.

He stated that he “kind of” remembered being in his own car when Constable Flogan asked him when his last drink was, but then stated that he may have been in the back of the police car. When asked when he arrived at The Copper Mug, he stated he didn’t know, because it was “three years ago”. He then stated that he had arrived at about 11:00 o’clock. That last answer, however, seemed very much like a guess. He also testified that he had been at The Copper Mug for about two hours and that although he had not had anything to drink before arriving, while there he had four or five drinks. He was drinking rye and coke.

I note that the accused testified that finishing the drink was virtually the last thing that he did at The Copper Mug.

He then left the establishment; he and his friend went to their vehicle, in the parking lot; they got in, and the accused started the vehicle, drove across the parking lot to the exit, and entered the street; he drove for approximately two blocks, pulled over and then waited for the officer to approach the vehicle; when the officer approached the vehicle there was the usual request for the accused’s licence and registration which were apparently produced, and at some point shortly thereafter, the question about recent drinking. [ 23 ] Obviously, there had been some time passed since the last drink.

Equally obviously, it was not very long. I would not be surprised to find that the accused was not certain of how long it had been. I would not have been surprised to hear him respond to the question of how long ago his last drink had been with, “I don’t know”, “a few minutes”, “maybe five minutes ago”, “just now” or something similar.

The statement he says he made, “two to three minutes ago”, firstly seems to be shorter than the time it would actually have been, and secondly seems to be surprisingly congruous with the note in Constable Flogan’s typed report. [ 24 ] In other words, the fact that the accused says that he used a phrase which (1) seems like a somewhat unlikely phrase under the circumstances, and (2) meshes almost exactly with the constable’s typed report, is peculiar, to say the least.

This is not to say that it is impossible; simply that it seems odd. [ 25 ] On the one hand, therefore, I have Constable Flogan testifying that he was told by the accused that his last drink was thirty minutes prior, which matches his notes made near contemporaneously, but is contradicted by the dictated and typed report. On the other hand, I have the accused, who had four or five drinks in the space of two hours, was (like Constable Flogan) unable to recall where the conversation took place, and acknowledged that his memory is not clear because of the lapse of time.

He told me that he told the officer that his last drink had been three minutes prior to the stop. [ 26 ] Constable Flogan was a trained operator of the ASD and knew he had to wait at least 15 minutes if there was a concern about mouth alcohol. It would be very odd if, in the face of his training and a statement from the accused that his last drink was three minutes prior, the constable went ahead and administered the ASD at that point.

He would know that any result would be unreliable, and would presumably know that any actions he took based on such unreliable results would be at best highly suspect and at worst result in any charges laid as a result being thrown out. There was no reason even suggested as to why he would proceed with ASD testing at that point, knowing that it was pointless, rather than waiting a few more minutes. [ 27 ] I note that neither side called the passenger as a witness.

It may be that he or she was interviewed and had no recollection of events; it may be that this person is not available; it may be that there was some other reason.

[ 28 ] Weighing all of the above, and bearing in mind that the accused bears the burden of proof on a balance of probabilities, I am not satisfied that he has shown a breach of his Charter rights in this regard. I find on a balance of probabilities that he informed the constable that his last drink had been thirty minutes prior, and accordingly, it was not unreasonable for Constable Flogan to proceed with the ASD test. [ 29 ] As indicated above, however, I have found a breach of the accused’s Charter rights with respect to the ASD demand.

With respect to a remedy, what is requested is exclusion of the Certificate of Analyses. The Supreme Court of Canada, in R. v.

Grant [2] , established a three-point test for determining whether, in the words of s. 24(2), “having regard to all the circumstances, the admission of [the evidence] in the proceedings would bring the administration of justice into disrepute.” [ 30 ] The first part of that test is an evaluation of the seriousness of the state conduct in violating the accused’s Charter -protected right(s); the second is an assessment of the seriousness of the impact of that violation on the Charter -protected interests of the accused; and the third is an appraisal of society’s interest in an adjudication of the case on the merits.

It is the balancing of these three points which leads to a conclusion about whether or not to exclude the evidence under s. 24(2).

With respect to this balancing, the Supreme Court has made it clear that if the Court determines on the first two branches of the test that the Charter breach is serious, then the seriousness of the offence, the reliability of the evidence and the importance of that evidence to the Crown’s case are not determinative and should not lead to admission of the evidence. [3] [ 31 ] Subject to legal limits, people in Canada have the right to go where they wish, and do what they want, free from detention by police. Those limits are numerous, but the underlying principle remains.

In this particular case, the accused was required by the constable to accompany him and provide a breath sample into an ASD without, on the evidence, the officer having any basis for believing that the accused actually had any alcohol in his body. [ 32 ] I have to wonder whether the fact that the accused had just driven away from a drinking establishment was a factor.

Yet, in a day when drinkers are being encouraged (with some success, one hopes) to use designated drivers or otherwise obtain safe rides home, the fact that someone drove away from a bar should not be an overly-significant factor - particularly when there was another person in the vehicle, and an odour of alcohol present generally but not specific to the accused. [ 33 ] Although the circumstances may well have warranted further investigation, the constable did not do so: rather, he leapt directly into forcing the accused to provide information against himself.

I accept, however, the accused’s Charter rights were not violated deliberately, maliciously, recklessly or negligently. [ 34 ] The impact of that violation on the accused was middling - the degree and duration of his detention was minimal. It was the seizure of a breath sample, but that sample could not be used as evidence - it simply could provide grounds for further investigation. [ 35 ] Society’s interest in a trial on the merits certainly would argue in favour of admission. The Crown’s case on the .08 charge will stand or fall on the admission of the Certificate.

The Court’s truth-seeking function would be best served by admitting the Certificate. [4] At the same time, it is clear that this does not trump the other factors, as society will always have such an interest and yet the Supreme Court has directed that this only be one of several factors to be weighed together. [ 36 ] There is of course abundant caselaw on the subject. There are many cases on s. 9; there are many cases which employ the Grant analysis; there are many .08 cases. There are many cases which, like this one, combine all three. I do not propose to review even a sampling of them.

The cases are so numerous, and go in so many directions, that counsel can always find a case which supports their position, and the Grant analysis is always so fact-specific that such cases can always be distinguished. In the end, it comes down to each judge weighing, as reasonably and carefully as they are able, the facts of their particular case in the balance established by the Supreme Court. [ 37 ] In the situation of this accused and this officer, I conclude that the Certificate should be excluded. As soon as practicable

[ 38 ] The accused also argues that the Crown has failed to prove that the samples of his breath were taken “as soon as practicable”, as required by the Criminal Code , and that accordingly the Crown is not entitled to rely on the statutory presumptions arising from the Certificate resulting from such breath samples. [ 39 ] The evidence establishes that the accused blew “fail” on the ASD at 02:02, which caused Constable Flogan to believe that the accused was driving while over .08. The constable therefore arrested the accused at 02:05.

The accused was then read the demand, police warning and Charter rights, and was asked if he wanted to call a lawyer at that time. They left the scene at 02:16, arriving at the detention area of the Saskatoon Police Service building at 02:24. At 02:29, Constable Flogan assisted the accused to call the accused’s spouse for a ride home from the station once the testing procedures were completed. At 02:39, the accused was speaking with Constable Pozniak, who was to act as the breath technician that night. Constable Flogan did not make any note of when Constable Pozniak began speaking with the accused.

At some point during the entire process the accused asked for and received a drink of water and used the washroom. Constable Flogan started to complete certain notes and forms before Constable Pozniak began speaking with the accused. Constable Flogan testified that the forms he was completing typically take ten to fifteen minutes to complete, although he was not sure how long it took in this instance. He agreed that the accused was cooperative. The first breath sample was taken at 02:49, according to the constable; 02:53, according to the Certificate.

I believe I should accept the time as shown in the Certificate. The second sample was taken at 03:11. [ 40 ] After the accused gave a breath sample into the ASD, there was obviously some period of time before he was transported to detention. Specifically, he blew a “fail” at 02:02, was arrested at 02:05 and the vehicle departed at 02:16. During at least part of that time Constable Flogan’s partner, Constable Danielson was dealing with the accused’s passenger.

Although there is no evidence as to what was proceeding with respect to the passenger, there is some evidence that the vehicle was left parked which suggests that the passenger was for some reason (possibly including alcohol) not in a position to drive the vehicle and may have required assistance in getting a ride home. During this period, Constable Flogan was sitting and waiting, and making some notes. Having then departed the scene, they drove to the police station, arriving at the detention area at 02:24.

I see no difficulties with the timeline to this point: the amount of time taken has been adequately explained, and was occupied by reasonably-necessary police actions. [ 41 ] Twenty-five minutes then elapsed between arrival at the police station’s detention area and the first breath sample. I have very little information as to what occurred during that period and, more particularly, why the first breath sample could not have been taken earlier than 02:49. The accused was booked in through the detention facility. There was no call to a lawyer. There was a call to the accused’s spouse for a ride.

There was a discussion between the accused and Constable Pozniak. There was the completion of forms and notes by Constable Flogan. There was a drink of water and the use of the washroom, although since the evidence does not disclose if this was prior to the first test or thereafter; I cannot make any use of this information. The amount of time taken by any of these activities was not described, or even speculated upon. [ 42 ] What is “as soon as practicable” is largely dependent on the facts of each case. The test was the subject of considerable thought by the Ontario Court of Appeal in R. v.

Vanderbruggen . [5] Several of the comments in that case bear repeating here: the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances . . . There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. [6] The "as soon as practicable" requirement must be applied with reason.

In particular, while the Crown is obligated to demonstrate that — in all the circumstances — the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. [7] [ 43 ] While I recognize that there have been some courts that have taken judicial notice of the time required to prepare the approved instrument and prepare for testing [8] , I believe such a step would not be proper in this instance.

It may be appropriate, in some circumstances, to do so to fill in smaller gaps in the evidence. Here, the gaps are too large. How much time would be required to prepare the instrument for use? When did the breath technician arrive and begin to prepare it? Was it already in use? What else was going on that might have occupied almost a half an hour? I am not prepared, on the facts of this case, to fill in the blanks.

[44] There may well be a good explanation for the length of time between arrival and the first test. It does not appear in theevidence. I must conclude that the Crown has not shown that the tests were taken as soon as practicable. That being the case, the Crowncannot make use of the presumptions contained in the Criminal Code. Conclusion [45] I have indicated above that I have excluded the Certificate of Analyses pursuant to s. 24(2) of the Charter. Had I not done so,the Crown would not have been able to use it to prove the accused’s blood-alcohol level at the time of driving in any event.

There beingno other evidence of the accused’s blood-alcohol level at the time of his driving, I find him not guilty on count two. __________________ Q.D. Agnew, J [1]R. v. Butchko, 2004 SKCA 159, [2005] 11 W.W.R. 95, 257 Sask. R. 41, 192 C.C.C. (3d) 552, 10 M.V.R. (5th) 8, 64 W.C.B. (2d) 391;R. v. Smith, 2009 SKCA 139, 88 M.V.R. (5th) 34, 343 Sask. R. 199; R. v. Meyer, 2007 SKQB 428, 68 M.V.R. (5th) 33, 315 Sask. R.145, 77 W.C.B. (2d) 790; R. v.

Zapski, 2011 SKQB 67, 369 Sask.R. 184. [2]2009 SCC 32 , 2009 S.C.C. 32, [2009] 2 S.C.R. 353, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, 66 C.R. (6th) 1, 253 O.A.C. 124,82 M.V.R. (5th) 1, 391 N.R. 1, 193 C.R.R. (2d) 1. [3]See R. v. Coté, 2011 SCC 46 , [2011] 3 SCR 215, 87 C.R. (6th) 1, 97 W.C.B. (2d) 17, 421 N.R. 112, 276 C.C.C. (3d) 42, 342D.L.R. (4th) 77, 246 C.R.R. (2d) 213. [4]Grant, paragraph 79. [5][2006] O.J. No. 1138, 208 O.A.C. 379, 206 C.C.C. (3d) 489, 29 M.V.R. (5th) 260, , 69 W.C.B. (2d) 161. [6]Paragraph 12. [7]Paragraph 13. [8]See, for example: R. v.

Laybolt (1993), (NS SC), 127 N.S.R. (2d) 136, 22 W.C.B. (2d) 323 (N.S.S.C.); R. v. Tarr, (SK CA), [1998] 10 WWR 333; 168 Sask. R. 161 (C.A.).