Her Majesty the Queen - v. -, 2014 SKPC 19

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 019 Date: January 27, 2014 Information: 46423604 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyrell Stanley Appearing: Barbara Herder For the Crown Leslie Sullivan, Q.C. For the Accused DECISION D.C. SCOTT , J Introduction [ 1 ] The accused Tyrell Stanley is charged that on September 28, 2012, he operated a motor vehicle while his ability to do so was impaired by alcohol contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code and while his blood alcohol content exceeded the legal limit contrary to s. 255(1) and s. 253(1)(

b) of the Criminal Code . [ 2 ] The accused brought an application under the Charter of Rights and Freedoms alleging his ss. 8, 9 and 10(

b) rights were

violated and seeking exclusion of evidence under s. 24(2). [ 3 ] The Charter notice alleged the officer had insufficient grounds to make the breath demand thereby violating Mr. Stanley’s ss. 8 and 9 rights. At trial, this was not argued by counsel for the accused and the Charter application with respect to s. 10(

b) was also abandoned. [ 4 ] Rather, the Defence raised two issues: (1) that the breath samples were not taken as soon as practicable after the alleged offence, and; (2) that the Crown failed to prove the officer served a true copy of the Certificate of Qualified Technician upon the accused as required by s. 258(7) of the Criminal Code . Whether the Crown established the accused’s ability to operate a motor vehicle was impaired, was also in dispute. [ 5 ] Cst. Jason Kowalenko was the only witness for the Crown and no evidence was presented by the Defence.

At the conclusion of the voir dire , the Crown and Defence agreed to apply the evidence to the trial proper. Background [ 6 ] Cst. Kowalenko testified that on the evening of September 28, 2012, at 23:50 hours, he stopped a vehicle that had been travelling eastbound on 33 rd Street in Saskatoon. The vehicle had stopped a full car length into the intersection of 33 rd Street and Avenue D, when the light turned red. [ 7 ] The driver of the vehicle, who was Mr. Stanley, began to back up; the officer sounded the air horn to alert Mr.

Stanley as he reversed, because his vehicle came within two feet of the police vehicle. When the traffic light turned green, Mr. Stanley’s vehicle proceeded, signalled, pulled over to the right into the driving lane and stopped. [ 8 ] The officer activated his lights and siren to initiate a traffic stop. According to the officer, the stop was to check for sobriety because of the nature of Mr. Stanley’s driving. [ 9 ] Mr. Stanley was with three other males. The officer smelled alcohol on the accused’s breath and his eyes were a “little bit red and bloodshot”. When asked if he had consumed alcohol, Mr.

Stanley responded he’d had a couple of beer but did not say when. The officer believed the accused had alcohol in his body. [ 10 ] An ASD demand was made; Mr. Stanley failed the ASD test. Mr. Stanley was arrested and his rights and warnings were read to him. He did not wish to consult a lawyer. The officer made a formal breath demand and Mr. Stanley was taken to the police station, where a breathalyzer test was administered. Two consecutive readings of 110 milligrams were registered. Issues 1. Were the breath samples taken as soon as practicable after the alleged offence? 2.

Has the Crown proven that the officer served a true copy of the Certificate of Qualified Technician upon the accused? 3. Has the Crown proven the offence of impaired operation of a motor vehicle beyond a reasonable doubt? Discussion 1. Were the breath samples taken as soon as practicable after the alleged offence?

[11] Counsel for the accused argues that the breath samples were not taken as soon as practicable after the alleged offence.

Thereis no dispute with respect to the timeliness of the breath demand. [12] Section 258(1)(c)(ii) of the Criminal Code provides that if each breath sample is taken as soon as practicable after the timewhen the offence was alleged to have been committed and in the case of the first sample, not later than two hours after that time, theCrown may rely on the presumption (sometimes referred to as the presumption of identity) that the blood alcohol readings were the sameat the time of driving as they were when the tests were taken: R. v. Dolezsar, 2012 SKQB 6, para. 16. [13] In R. v.

Forsythe, 2009 MBCA 123; [2009] M.J. No. 438, the Court held that the question of compliance with the requirementto take the samples as soon as practicable ought to be raised by a Charter application. The remedy in such circumstances would be theexclusion of the Certificate under s. 24(2) of the Charter, following an analysis under R. v. Grant, 2009 SCC 32 , [2009] 2S.C.R. 353: see also Doleszar. [14] According to the Ontario Court of Appeal in R. v. Wylie, [2013] O.J. No. 5019, relying on R. v. Rilling, (SCC), [1976] 2 S.C.R. 183; R. v. Eden (1972), (SK CA), 84 Sask. R. 281 (C.A.); R. v.

Charette, 2009 ONCA 310, 94O.R. (3d) 721; and Forsythe, supra, “absent a Charter challenge, compliance with the demand provides a complete answer in theCrown’s favour”: Wylie, para. 12. [15] Although a Charter notice was filed alleging the violation of Mr. Stanley’s ss. 8 and 9 rights, it was not based upon theallegation that the breath test was not taken as soon as practicable. As counsel for the accused submitted in argument, the issue aroseunexpectedly during the course of the trial. Counsel for the Crown and the accused argued the issue within the context of the Charter.

Therefore, notwithstanding the decision in Wylie, I will consider whether the breath test was taken as soon as practicable after the arrest. [16] According to R. v. Vanderbruggen, (ON CA), 2006 O.J. No. 1138 (C.A.), “as soon as practicable” meanswithin a reasonably prompt time considering all of the circumstances. In that case, a 46 minute unexplained delay in the context of thetotal time taken between arrest and breath tests was found to have met the “as soon as practicable” requirement.

The Court explained thatthe Crown is not required to provide a detailed or exact accounting of every minute that passes while the accused is in custody. Neitheris it appropriate to focus on one aspect of the total time: R. v. Price, 2010 ONSC 1898 , 2010 O.J. No.1587, para. 17. Thequestion for the Court is whether in the whole chain of events, the police acted reasonably in all of the circumstances: Vanderbruggen; R.v. Carter (1981), (SK CA), 59 CCC (2d) 450 (Sask. C.A.). [17] In R. v. Burwell, 2013 SKQB 20 , [2013] S.J. No. 25 (Sask.

Q.B.), the Court agreed with Carter decision that the “assoon as practicable” standard must be applied with reason. Before finding that the circumstance is unreasonable, there must be evidencethat the circumstance is out of the ordinary in an unacceptable way. [18] The initial stop occurred at 23:50 hours; the ASD demand was made at 23:52 hours and the test administered at 23:54 hours. The arrest occurred at 23:58 hours. At 00:02 hours the formal breath demand was made. There was a brief discussion about themeaning of the right to counsel. The officers and the accused left the scene at 00:17 hours.

They arrived at the station at 00:24 hoursand in detention at 00:28 hours, as there was a line up. They waited fifteen minutes for the observation period to pass. The first samplewas taken at 00:51 hours and the second sample was taken at 01:11 hours, both providing a reading of 110 milligrams. [19] Between the time of arrest at 23:58 hours and the time of the first breath test at 00:51 hours, 53 minutes elapsed.

The crucialperiod, according to counsel for the accused, is the 15 minutes between the breath demand and the departure for the police station, whichshe argues is unexplained and unaccounted for. [20] When asked what occurred during this period, the officer testified that he and his partner, Cst. Meklutsch needed to determinewhat to do with the accused’s vehicle, as it was parked in a driving lane. He testified this took “a minute or two”. Eventually, the car wasmoved to the car wash parking lot. Cst. Meklutsch may also have talked to the other occupants of the vehicle, but Cst.

Kowalenkocould not be certain of this. He could offer no further explanation with respect to the time that elapsed at the scene. [21] As previously stated, the Crown is not required to provide an exact detailed accounting of every minute. The Court is not tofocus on one particular aspect of the process, but rather is to consider whether the police acted reasonably in all of the circumstances. Here, the officers needed to make a decision about what to do with the accused’s vehicle, find an appropriate place to store it and thentake steps to remove it from the street.

There were three other individuals who, according to the accused’s conversation with the police,were more intoxicated than he was. Those individuals would have had to be dealt with in some way. [22] There is nothing in the evidence to indicate the actions of the police were unreasonable, out of the ordinary or unacceptable inthe circumstances. During the approximately 15 minutes in question, the officers decided what to do with Mr. Stanley’s vehicle,removed it from the street, secured it, dealt with three other individuals and departed for the police station. The steps taken by theofficers were reasonable. Cst.

Kowalenko was not required to testify with certainty or exact detail regarding every minute of that period:Vanderbruggen. [23] The first breath test was taken within 61 minutes of the time of the stop, well within the outside limit of two hours from thetime of the offence to the time of the first test.

During that time a brief conversation occurred with the accused; an ASD demand wasmade and the test was administered; the accused was arrested and his rights were read to him; the breath demand was made promptly;the accused’s vehicle and his companions were dealt with; the accused was taken to the police station; there was a brief wait at detentionbecause of the line up of other accused persons; an observation period occurred and the breath test was administered.

[24] In the circumstances, I am satisfied there is sufficient evidence upon which I can conclude the breath test was taken as soon aspracticable, as contemplated by s. 258(1)(c)(ii). [25] Therefore, there was no breach of the accused’s ss. 8 and 9 Charter rights and no need to address the issue of remedyunder Grant. The Crown is entitled to rely on the presumption contained in the Certificate, unless other prerequisites in s. 258 have notbeen complied with. 2.

Did the Crown prove beyond a reasonable doubt that the officer served a true copy of the Certificate of QualifiedTechnician upon the accused? [26] Section 258(7) of the Criminal Code provides that no Certificate of Qualified Technician shall be admitted into evidenceunless the Crown has, before the trial, given to the accused reasonable notice of its intention to produce the Certificate and a copy of theCertificate.

The Crown may then use the Certificate as proof of its contents instead of calling the breath technician to provide evidence.In order for the Certificate to be admissible at trial, certain requirements must be proven, including compliance with s. 258(7). Inparticular, service of a true copy of the Certificate must be established: R. v. Glass (1973), (SK CA), 12 CCC (2d) 450(Sask. C.A.); R. v. Naidu, [2004] O.J.

No. 2471 at para. 5 (S.C.J.). [27] Because the Certificate provides conclusive proof of the accused’s blood alcohol concentration, I am of the view that thecriminal standard of proof applies to the service requirements of s. 258(7). Therefore, the Crown must establish beyond a reasonabledoubt that a true copy of the Certificate was served upon the accused: R. v. Egger, (SCC), [1993] 2 S.C.R. 451, para. 32;R. v. Redford, 2012 ABQB 768; R. v. Danielson, [2013] S.J. No. 709 (Sask. P.C.); R. v. Dillabough, [2013] S.J. No. 489 (Sask. P.C.). [28] Cst.

Kowalenko testified during examination-in-chief that a true copy of the Certificate of Qualified Technician “would havebeen photocopied and compared” and given to the accused. In cross-examination, the officer testified that “typically” the Certificate isphotocopied and compared to make sure it is a true copy, but in this case, he could not be certain that a true copy was served upon Mr.Stanley, as he did not make a note of it.

Because the event took place fourteen months prior he could not recall having done so. [29] As such, counsel for the accused argued that the Crown has failed to prove beyond a reasonable doubt that the officer served atrue copy of the Certificate and Notice on Mr. Stanley. [30] On the reverse of the Certificate of Qualified Technician and Notice of Intention is a signed statement of Cst. Kowalenkocertifying that he personally served a copy of the Certificate and Notice upon Tyrell Stanley on September 29, 2012. During histestimony, Cst. Kowalenko confirmed his signature.

Proof of service of the Certificate may be made in this way: see s. 4(6)(

b) CriminalCode; R. v. Spreen (1987), 1987 ABCA 189 , 40 CCC (3d) 190 (A.B.C.A.). [31] An Affidavit of Service is sufficient unless something in the evidence demonstrates that the accused did not receive a propercopy: R. v. Longley, (SK KB), [1997] S.J. No. 207 (Q.B.). As stated by the Court at para. 8: ...when a police officer completes the affidavit of service his memory is fresh.

As time passes between that moment and the trial of theaction it is reasonable to expect his specific recollection of one particular set of copies may dim and so the affidavit must be at least asreliable as his recollection of the events some weeks or months later. [32] The rationale in Longley would similarly apply to a certificate of service. Further, there is nothing in the evidence to suggestthat the copy is different in some way from the original. [33] Although Cst. Kowalenko could not recall the specifics in this case, he testified that typically a photocopy is made of theoriginal and given to the accused.

The Certificate in this case appears to be a photocopy or computer generated, rather than a carboncopy. Electronic or photocopied document reproduction is more precise and accordingly has been accepted as generating true copies ofan original without the necessity of close scrutiny: R. v. Danielson, 2013 SKPC 121; Naidu, supra. [34] Based upon the statement of Cst.

Kowalenko on the reverse side of the Certificate, certifying service of a true copy upon theaccused on September 29, 2012, coupled with the fact that the copy appears to have been a photocopy, as was the usual practice, I amsatisfied beyond a reasonable doubt that the accused received a true copy of the Certificate of Qualified Technician and Notice ofIntention. 3. Has the Crown proven beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impairedby alcohol? [35] The test for impairment is found in the case of R. v.

Stellato, [1994] 2 S.C.R. 468, holding that evidence of any degree ofimpairment is proof of the offence—if the evidence of impairment establishes any degree of impairment ranging from slight to great, theoffence has been made out. Stellato has been interpreted in R. v. Hall (1994), (SK CA), 125 Sask. R. 62 (C.A.) andR. v. McDonald, [1996] 146 S.J. No. 442 (Sask. Q.B.). In McDonald at para. 15, the Court refers to the case of R. v. Pelletier (1995),

(SK CA), 128 Sask. R. 214 (C.A.) wherein Tallis J.A. explains the Stellato test as follows: In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [36] Justice Baynton in McDonald endorses this statement from Pelletier as being a clear and concise statement of the law. [37] Counsel for the accused relied on R. v. Andrews, 1996 ABCA 23, however, Baynton J. in McDonald specifically states thatAndrews is not the law in Saskatchewan. Insofar as it requires conduct of a “marked departure” Andrews is inconsistent with Stellato.

Baynton J. preferred, instead, to follow the decisions of our Court of Appeal in Hall and Pelletier. [38] According to Stellato, impairment of one’s ability to drive is generally understood as meaning the alteration of one’s judgmentand the decrease in one’s physical abilities. [39] Justice Baynton’s approach in McDonald has been accepted in recent decisions of our Court of Queen’s Bench: R. v. Rice,2011 SKQB 412; R. v. Bonter, [2013] S.J.

No. 47. [40] In Bonter, the Court stated that a trial judge is required to consider all of the evidence in assessing whether there is sufficientevidence of impairment, to justify a conclusion that the accused’s ability to operate a motor vehicle was impaired by alcohol. Therelevant evidence before me is as follows. [41] The officer testified that Mr. Stanley stopped for the red light one full car length into the intersection. He then backed up sothat the officer needed to sound a loud air horn to alert the driver to his presence. After the light turned green, Mr.

Stanley pulled over tothe right side of the road in the driving lane and stopped, even before the officer activated his siren or lights. [42] The evidence was that the intersection in which Mr. Stanley stopped was staggered in that Avenue D, crossing 33rd Street wasnot aligned. A diagram made by the officer demonstrated the configuration of that intersection. The officer acknowledged that becauseof the staggered nature of the intersection, it was not surprising a vehicle might not stop at exactly the correct spot.

He admitted it mightbe confusing for vehicles to know where the stop line was located. [43] Further, he acknowledged that it was not unusual to see vehicles pull partially into an intersection and then reverse as the lightchanges. The officer accepted that the accused was backing up so that he would not be in the way of other vehicles crossing theintersection. [44] The accused waited for the traffic light to change to green. He crossed the street, signalled and pulled into the right handlane. He was driving very slowly as he pulled over—the officer noted that he did so in a careful and law-abiding manner.

The officerthought it was unusual for the accused to pull over before he activated his emergency lights and siren and suggested it indicated theaccused might not be of “sound mind” or sober. However, the officer’s vehicle was marked and he had sounded a loud horn. It seemsreasonable that Mr.

Stanley believed the police wanted him to stop. [45] The officer testified he had followed the accused’s vehicle for a couple of blocks prior to reaching the intersection and sawnothing in his driving which gave him cause to stop the vehicle. [46] The officer asked the accused if he’d had anything to drink, to which the accused responded “a couple of beers”, but theofficer did not find out when the accused had last consumed alcohol. At the police station, Mr.

Stanley admitted to having consumedfour or five beer, beginning at 8:00 p.m. [47] The officer testified he could smell alcohol coming from the accused, but acknowledged it could have been coming from thevehicle. The odour of alcohol confirms consumption of an alcoholic beverage but not necessarily impairment. At the police station, theofficer observed a moderate smell of alcohol from the accused’s breath. [48] The officer testified the accused’s eyes were slightly red, glassy and bloodshot, which he could see from the street lights.

Atthe police station, the officer observed the accused’s eyes continued to be bloodshot. [49] Mr. Stanley did not slur his words but his mouth appeared to be a bit dry and his movements were slow. He spokewith a lisp, but the officer did not identify that as an indicator of impairment. [50] With respect to Mr. Stanley’s demeanour, his manner was good, he was easy to talk to and cooperative. [51] The Crown has the burden of proving impairment beyond a reasonable doubt. There was a reasonable, alternative explanationfor the way in which the accused stopped for the red light and pulled over for the officer.

Backing up to within two feet of the policecruiser in the circumstances revealed in the evidence, coupled with glassy bloodshot eyes, odour of alcohol and admission ofconsumption, are not sufficient.

[ 52 ] Based upon the totality of the evidence, I am left with a reasonable doubt that the accused’s ability to operate a motor vehicle was even slightly impaired by alcohol. Conclusion [ 53 ] In all of the circumstances, I have found the breath test was taken as soon as practicable and that there were no Charter violations. Further, I have found that the Crown has established beyond a reasonable doubt that a true copy of the Certificate and Notice were served upon Mr. Stanley.

Therefore, the Certificate will not be excluded and the Crown is entitled to rely on it to establish the accused’s blood alcohol content at the time of driving. Both readings were 110 milligrams. Accordingly, the Crown has proven Mr. Stanley operated a motor vehicle while his blood alcohol content exceeded the legal limit and I find him guilty of that offence. [ 54 ] The Crown has failed to establish Mr. Stanley’s ability to operate a motor vehicle was impaired by alcohol and I therefore find him not guilty of that offence. __________________________ D.C. Scott, J