Her Majesty the Queen - v. -, 2011 SKPC 133

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 133 Date: August 24, 2011 Information: 32416794 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sean R.G. Wilson Appearing: Mr. C. M. Bliss For the Crown Mr. M. Brayford, Q.C. For the Accused Mr. S. E. Halyk, Q.C. ______________________________________________________________________________ JUDGMENT Q. D. AGNEW , J [ 1 ] Sean R.G. Wilson stands accused that on or about May 7, 2009, at or near Saskatoon he firstly operated a motor vehicle while his ability to do so was impaired by alcohol contrary to ss. 255(1) and 253(1) (

a) of the Criminal Code and secondly had care or control of a motor vehicle with over 80 milligrams alcohol in 100 millilitres of his blood contrary to ss. 255(1) and 253(1) (

b) of the Criminal Code . I heard the trial of this matter on June 27, 2011 and reserved my decision to today.

[ 2 ] The accused has raised a number of alleged Charter violations for which he desires a stay of proceedings, exclusion of evidence, costs, a declaration of invalidity or such other relief as I may consider proper. [ 3 ] Firstly, the accused alleges that his right to trial in a reasonable time, under s. 11(

b) of the Canadian Charter of Rights and Freedoms , has been infringed. [ 4 ] Secondly, he alleges that there was a lack of disclosure by the Crown resulting in violations of ss. 7 , 11(

b) and 11(

d) of the Charter . [ 5 ] Thirdly, he argues that ss. 254(2) and 258(1), as recently amended, infringe his right to make full answer and defence contrary to ss. 7 and 11(

d) of the Charter and should therefore be declared of no force and effect pursuant to s. 52 of the Charter . [ 6 ] Fourthly, the accused says that his arrest for impaired driving was made without reasonable and probable grounds, contrary to s. 10(

a) of the Charter ; that the Intoxilyzer breath demand made at that same time was made without sufficient grounds contrary to ss. 10(

a) and (b); that the approved screening device (“ASD”) demand made was not made immediately contrary to ss. 10(

a) and (b); that he should have been advised again of his right to counsel at the time the ASD demand was made; and that the failure to do so again constitutes a violation of ss. 10(

a) and (

b) of the Charter . [ 7 ] With respect to the .08 count itself, the accused argues that there is a reasonable doubt as to whether or not more than two hours passed between the time of the alleged driving and the time of the first breath test. The defence also argues that the tests were not taken “as soon as practicable”. If he is correct, the Crown is not entitled to rely on the statutory presumption that his blood-alcohol level as tested was the same as at the time of his driving.

Without that presumption, the Crown has no evidence of the accused’s blood- alcohol level when he was driving. [ 8 ] With respect to the impairment charge, the accused questions whether or not the impairment of his ability to operate the motor vehicle has been proven beyond a reasonable doubt. He also questions whether or not the Crown has proven beyond a reasonable doubt that he was the driver when the driving behaviour was being observed. 1. Facts [ 9 ] By comparison to the issues, the facts in this matter are relatively straightforward.

In brief, a driver on his way home from work observed a truck being driven erratically. He called police and followed the vehicle, reporting on its progress. The vehicle eventually pulled into a parking lot and stopped. [ 10 ] The following driver continued down the street and made a U-turn to return to where the truck was. In the process of so doing, he lost sight of the truck for a brief period of time. [ 11 ] Shortly thereafter, the police arrived and he directed them to the truck. [ 12 ] The accused was found by police behind the wheel of the truck, the engine running and his seat belt fastened.

He exited the vehicle, was arrested for impaired care and control of a motor vehicle, given rights and warnings and a breath demand. Subsequent to the breath demand, the arresting officer chose to demand that he also provide a sample of his breath into an approved screening device. He did so, and a “fail” resulted. The accused was transported to the police station and provided breath samples there. [ 13 ] The details relevant to each issue will be spelled out in necessary detail in the analysis below.

2. Delay - Charter , s. 11(b) [ 14 ] The accused argues that his right to be tried within a reasonable time, as guaranteed in subsection 11(

b) of the Charter , has been violated [1] . Determining this issue requires a review of the time line of this matter, and the reasons for each delay. [ 15 ] The accused filed an affidavit which set out a large number of material facts. The Crown filed factual information by way of attachments to its Brief. Even in the absence of objection from the defence, I do not consider this an appropriate way for evidence to come before the Court. Factual information should be sworn to. Presenting unsworn information risks the Court refusing to consider it, either at the behest of the other party or on its own motion.

Furthermore, introducing substantive information via a brief risks counsel being open to cross-examination on that material. In this regard, it seems to me that a person putting sworn information before the Court via affidavit should not be in a position of greater jeopardy than someone attempting to do the same thing without swearing to the veracity of such information: if it is intended that the Court accept the information as true, then the presenter of that information must accept the risk of the accuracy of such information being tested by cross-examination.

Counsel cannot on the one hand expect the Court to accept the information, and on the other hand seek to avoid the risks inherent in putting such information forward. An affidavit, even by someone else in the same office, would be a better way to present facts, rather than through a Brief. In any event, given the defence’s choice not to object to what is in all likelihood non-contentious material, I have considered the Crown’s material as well. In a different case, the outcome might well be otherwise. [ 16 ] Defence counsel was kind enough to remind me of my decision in this area in R. v.

Slavik . [2] In it, I reviewed with some care the Supreme Court of Canada’s directions in cases such as this, as well as other caselaw and the factors appropriate to consider in coming to a decision regarding delay.

I do not propose to repeat the entire analysis expressly, but will touch upon only those aspects I think of particular note in the case before me. [ 17 ] The sequence of events significant to the delay issue is as follows: ∙ May 7, 2009 - accused arrested, released to appear in court on May 20, 2009 ∙ May 8, 2009 - defence counsel requested disclosure ∙ May 20, 2009 - disclosure received, first court appearance ∙ June 15, 2009 - second court appearance, not guilty plea entered, trial set for April 22, 2010 - defence did not waive delay ∙ December 3, 2009 - matter brought forward to be spoken to at defence request to vacate trial date of April 22, 2010 - rescheduled to November 1, 2010 so defence counsel could play in a hockey tournament in Las Vegas ∙ August 23, 2010 - case management conference held ∙ November 1, 2010 - trial adjourned at request of defence due to late Crown disclosure; adjourned to June 27, 2011 ∙ June 27, 2011 - trial - decision reserved to August 24, 2011 [ 18 ] The seminal cases in this area are R. v.

Askov [3] , R. v. Morin [4] and R. v. Godin [5] , all from the Supreme Court of Canada.

[ 18 ] The seminal cases in this area are R. v. Askov [3] , R. v. Morin [4] and R. v. Godin [5] , all from the Supreme Court of Canada. Courts are directed to determine whether or not the delay involved has exceeded what is “reasonable” by balancing the factors which have caused the delay against the interests which the

section is designed to protect. This is done by analysing a number of specific factors [6] : 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, (

e) other reasons; and 4. prejudice to the accused. [ 19 ] I will assess the first three factors with respect to each delay, and assess prejudice at the conclusion of this segment. 2.1 May 7/09 - June 15/09 [ 20 ] In this period of roughly five weeks, or 1.2 months, the accused was arrested, disclosure requested very promptly and provided, and the accused entered his plea. There was no waiver, but this period seems to me to be reasonable for these steps to be taken. Time is simply required for certain things to happen, including the period between arrest and first appearance.

I am not inclined to give this period any significant weight, nor to attribute it to either Crown or defence. In the Askov scheme of attribution, I would call this simply institutional delay. In Morin , these types of delays were referred to as “intake requirements.” [7] 2.2 June 16/09 - April 22/10 [ 21 ] On June 15, 2009 a trial date of April 22, 2010 was assigned. This delay of 10 months is certainly lengthy, and was not waived by defence. At that time, it was not unusual for it to take that long to get a single-day trial in Saskatoon.

I would characterize this as institutional delay. 2.3 April 23/10 - November 1/10 [ 22 ] The trial did not proceed on April 22, 2010. Rather, the matter was brought forward on December 16, 2009, according to the endorsements on the Information, by the accused to request that the trial date be vacated and a new date set. The accused’s counsel wished to play in a hockey tournament in Las Vegas for a period which included the previously-scheduled trial date. The accused was willing to have his trial date set back to accommodate his counsel in this regard.

It is not clear to me from the accused’s affidavit whether or not he understood the exact length of the delay to which he was consenting. However, I do not consider it relevant. If the accused did not inform himself prior to requesting the adjournment, any consequences of that oversight can be laid at the feet of no one but himself. [ 23 ] The question which arises is how much of this delay should be attributed to the defence. The accused agreed to waive delay arising from the adjournment of the trial. On one view, there was a delay of 10.5 months from the date on which the adjournment

request was granted until the new trial date, namely December 16, 2009 to November 1, 2010. On another view, it is only the additional time to trial of approximately 6.2 months (from the original trial date until the new trial date) that the accused should be taken to have waived, having originally refused to waive the delay to the first trial date. [ 24 ] I am of the view that the latter attribution is correct. There are two reasons for this. [ 25 ] First, where a significant period of time is involved, a change from non-waiver of delay to waiver should be clear.

If there is significant ambiguity, I would be loath to automatically hold the delay against the accused. Certainly there could be circumstances in which an accused who had refused to waive could change his position, but I would want a clearer indication of that than I have here.

Absent a clear waiver of delay for the period between the adjournment request and the original trial date, that period should remain characterized as it would have been had no such adjournment request been made. [ 26 ] Second, it is in the interest of the effective administration of the Court’s functions to encourage both Crown and defence to come forward with adjournment requests as soon as possible. Attributing delay to the defence from the date of the request would in effect punish the accused for bringing his adjournment request early.

Counsel would be encouraged to seek adjournments as late as possible, in order to minimize the length of delay they will be taken to have waived. Thus, attributing waiver for the period to the first trial date would have the effect of discouraging an activity which this Court, in the interests of efficient management of its processes, seeks to foster. [ 27 ] Accordingly, I attribute a delay of 6.2 months to the defence. 2.4 November 2/10 - June 27/11 [ 28 ] Unfortunately the trial could not proceed on the scheduled date. Disclosure was provided late to the defence, resulting in an adjournment of 7.8 months.

The adjournment was due to a clerical error within the Saskatoon Police Service which resulted in certain material not being identified as being connected to this case and accordingly forwarded to the Crown. I consider this to be an adequate explanation, although not an excuse, for the delay. The fault for the adjournment lies with the Crown. There is, however, an issue as to how much of the delay to attribute to the Crown, notwithstanding its fault for the adjournment. [ 29 ] When the new trial date of June 27, 2011 was set, the Court offered dates of November 24, 2010 and apparently also February 7, 2011.

It appears that defence counsel was not in a position to take advantage of those dates. Thereafter, there were two exchanges of correspondence between Crown counsel and defence counsel regarding trial dates. I will examine and discuss each in turn.

They were of some considerable importance to the parties, judging from the argument that I heard, and they are of some importance to my decision with respect to this 7.8-month adjournment as well. 2.4.1 - the first exchange [ 30 ] On November 24, 2010 Crown counsel wrote to defence counsel noting that a trial which was to have taken place on December 7 in Kindersley in which both counsel were involved was not going to be proceeding. The Crown suggested that this accused’s trial could take place then.

That letter also invited defence counsel to offer a different date for an earlier trial. [ 31 ] In response, defence counsel wrote on November 26 indicating several reasons why he could not proceed on the suggested date: (i) “I really cannot imagine that Judge Jackson would be that eager to have a Saskatoon case travel 225 kms. out to Kindersley for

trial. If you have cleared that with His Honour, please let me know. ” [ 32 ] As defence counsel indicated in oral argument, the Crown is typically loath to have a matter tried at a location other than where it arose. Whether that means that Crown counsel here was bluffing or sincere, I cannot say. I also cannot say what response would have been given by Judge Jackson, the judge who typically sits in Kindersley, had he been asked if he would allow the matter to be heard there.

I do know that it would have been open to either counsel, if they in fact wanted the matter to proceed in Kindersley on December 7, to simply contact the Court to determine if this could be done. I do not think it open to defence counsel to usurp the Court’s scheduling of its business. (ii) There was no time in defence counsel ’s

schedule between November 26, the date of his letter, and the proposed trial date of December 7, for him to prepare for trial. He notes that he needed to spend “a considerable amount of time re-visiting a number of issues ” with both his client and two experts; [ 33 ] I would have some sympathy with this objection were it not for the fact that this exchange was occurring just three weeks after the trial had been scheduled to be heard. Defence indicated in their submission that they had been prepared to proceed on that date.

Three weeks does not seem like such a long time that such preparation would have to be done all over again. It might be, of course, that there was something in the disclosure, the cause of the adjournment, which required extensive new preparation; but there is no evidence of such a fact, if fact it is. The suggestion in the word “re-visiting” is the opposite: it implies a review of existing matters, not examination of new matters.

However, I do not want to read too much into the meaning of a single word; the fact remains that there is no evidence before me that there had been any significant developments which would require extensive new preparation for trial. (iii) One of his children was scheduled for an operation on November 27, and he accordingly had to “deal with ” his other child at home; thereafter he was going to be out of the province for several days; [ 34 ] I understand counsel’s need to deal with family matters.

However, my comments immediately above still apply: I do not understand how extensive work would have been required by defence counsel to prepare for the new trial date. (iv) “Given the eight to ten month backlog in most judicial centres from the time a trial date is set, my diary is already as full as is reasonable for the next eight to ten months at any given time. It is not feasible to get earlier trial dates when things get adjourned, everyone is booked that far.

Accordingly, if something causes an adjournment, there is simply no reasonable way around the fact that next date that is going to fit both the Court

schedule and other counsel ’s

schedule is going to be in about the same range where trial dates are being set because it is to be expected that people are going to be essentially fully booked up to that point in time. It is not fair to expect that other counsel, or the Court for that matter, should prejudice anyone else ’s time or preparation by dumping things in on top of it. ” [ 35 ] I have quoted this passage at length because I frankly do not understand it. [ 36 ] The first sentence appears to suggest that defence counsel is booked so heavily that no trial can be accommodated earlier than eight to ten months at any given time.

This is not relevant, however, to Crown counsel’s suggestion of December 7, as defence counsel was known to be available that date. [ 37 ] The second part of the quoted passage seems to state that “everyone” is booked eight to ten months in advance, so that it is never possible to use dates within that time frame that might come available (as had the Kindersley date). The suggestion is that it is not only defence counsel but also Crown and the Court which would not be able to accommodate an earlier date. Manifestly, this is not so.

It is not at all uncommon, in Saskatoon at least, for dates which are freed up by trials “falling through” to have other matters scheduled into them. Indeed, one of the main reasons the Court appreciates being advised as soon as possible that a trial will not be proceeding is precisely so that another trial can be scheduled in its place. The Court, obviously, is able to accommodate such a substitution, and frequently defence and the Crown are as well.

The accused had himself brought this matter forward at an early date to request an adjournment so that defence counsel could attend a hockey tournament; in his written materials, he makes reference to the fact that this was done “on a timely basis so that the first trial date could be used for some other matter.”

[ 38 ] The last part of the passage refers to prejudice occurring by earlier rescheduling of trials. It is not clear to me who would suffer such prejudice. It does not appear to be the accused; the Crown, presumably, is capable of looking out for itself; the Court is certainly not prejudiced by courtrooms being used as opposed to sitting idle.

It may be that it is other litigants who are prejudiced by the accused “jumping the queue” by taking advantage of a trial date which has become open; but this reading would be completely at odds with the second point, that no one is available to use trial dates which become available. [ 39 ] The overall impression I receive from this letter is that defence counsel simply was not willing to proceed any earlier than the newly-scheduled date. 2.4.2 - the second exchange [ 40 ] Several months later, on March 21, 2011, Crown counsel again wrote to defence counsel regarding the delay in this matter.

This was immediately after the case management conference, at which defence counsel apparently had suggested the possibility of a Charter application based on delay. The Crown’s letter enclosed a copy of the court docket and indicated that eight dates from April 12 through June 2 were available. The letter also stated, “Alternatively, if your client desires an earlier trial, perhaps he should be consulting counsel that has available time.” [ 41 ] Defence counsel did not reply to this correspondence, as far as the evidence discloses.

In his affidavit, the accused states that many of the dates proposed by Crown counsel “were actually dates that were reserved for in custody matters.” He also states that his counsel advised him that he, defence counsel, had trial commitments which interfered with the suggested dates. The affidavit also makes reference to (

i) counsel as the accused’s counsel of choice, (ii) the “very extensive preparation” which had been done by counsel and which would have to be duplicated by new counsel, and (iii) the fact that engaging new counsel at that point to attempt to find a trial date closer than the scheduled one, which was then only three months away, did not seem reasonable.

Finally, the accused states that his counsel, “although heavily booked, is available within the normal time frames where trials are being scheduled”. [ 42 ] I am very reluctant to use the issue of specific, presumably-available court dates to the credit of either side. There is no way for me to know whether or not such dates would still have been available, had defence counsel accepted any of them. I also do not know how dated the list of available dates was when it was under discussion by counsel.

Further, the question of whether or not dates are reserved for in-custody matters is an issue for the Court, not counsel; the fact that at one point certain dates are noted with that endorsement on an internal scheduling document does not mean that necessarily each of them will only ever be used for in-custody matters.

In addition, even if the trial co-ordinator whose job it is to set trial dates had refused to use an “in custody” date for this trial, if the matter had been brought forward before a judge it is certainly possible, given the obvious delay problem this matter was encountering, that the Court would have directed that such a date be used. [ 43 ] With respect to the suggestion that the accused consider retaining other counsel if he wished an earlier trial date than counsel’s

schedule could accommodate, I intend to discuss this proposition at some length. [ 44 ] This comment was apparently extremely offensive to defence counsel. He felt himself unable to remain objective, to the point of bringing in outside counsel to argue this aspect of the case. The position was very forcefully put forward that such suggestion was completely inappropriate. [ 45 ] With the greatest of respect, I do not entirely agree. Certainly the wording of the suggestion was not the most diplomatic. The subject is a delicate one, and a more oblique approach might well have been preferable. However, where the accused chooses a busy counsel whose

schedule cannot accommodate earlier trial dates, the accused will not be able to attribute the entire resulting delay to the Crown. In this regard, I have had the benefit of the very recent decision of Mr. Justice Smith of our Court of Queen’s Bench in R. v. Boutin [8] , in which defence counsel’s unavailability was one factor in the Court’s conclusion that one of the delays should be attributed to both Crown and defence. The Supreme Court of Canada in Godin also referred to defence counsel’s availability: “ [s]cheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11 (

b) purposes, require defence counsel to hold themselves in a state of perpetual availability” (emphasis added). [9]

[ 46 ] Thus, Godin confirms two propositions regarding defence counsel’s availability. The most obvious is that defence counsel does not have to accept the first date available to the Court and Crown: defence counsel’s

schedule too is entitled to some deference. However, the requirement of “reasonable availability” indicates that defence counsel whose schedules require lengthier adjournments will not be able to attribute the entire length of such adjournments to the Crown or institutional delays. [ 47 ] As a result, I would not consider it inappropriate for Crown counsel, in a situation where defence counsel’s availability is a significant factor which has markedly increased the length of time to trial, to make mention of that fact to the Court in a delay application.

Where such was the case, I would likewise not consider it inappropriate for Crown counsel to point out such a matter to defence counsel prior to the actual application. I would consider this to be the same as any other discussion between counsel, in which it would be perfectly appropriate for one to indicate a potential issue or line of argument and the other to point out possible flaws or lines of attack. [ 48 ] I would also expect such an exchange, as with any discussion between opposing counsel, to be courteous and respectful.

The language in which Crown counsel referred to defence counsel’s availability seems to me to be ill-chosen. By the time this letter was written, three months before the assigned trial date, it was not realistic to suggest that the accused retain new counsel to shorten the time to trial. It is now clear that the police, in implementing the accused’s right to counsel, have a duty not to cast doubt or aspersions on the accused’s counsel of choice. They may not, by word or deed, suggest to the accused that he has chosen poorly in selecting his lawyer. [10] Crown counsel has at least as strong an obligation.

The Crown must expect that their correspondence to defence counsel will likely be seen by the accused. The Crown must therefore take care that, in writing to discuss an issue of delay and the degree to which defence counsel’s availability has had an impact on the same, the accused could not reasonably interpret the Crown’s comments as casting doubt or aspersions on the accused’s counsel, or as encouraging the accused to seek a different lawyer. [ 49 ] What, in the end, am I to do with this delay from November 2, 2010 to June 27, 2011? The adjournment was unquestionably caused by the Crown.

An explanation has been provided; it is an explanation, not an excuse. At the same time, from defence counsel’s correspondence and submissions I am inexorably led to the conclusion that after November 1, 2010 he did not intend to go to trial before the new trial date of June 27, 2011. The reasons offered are vague, confused and unconvincing. The Crown made reasonable attempts to bring the matter to trial sooner; defence counsel would have none of it. [ 50 ] Fortunately, I am not required to attribute a delay solely to one side or the other.

In Boutin , Smith J. found that both Crown and defence were in pari delicto with respect to the delays. [11] While I would not find both sides equally at fault regarding this 7.8 months, neither do I think it reasonable to attribute the entire amount to the Crown. The delay was occasioned by the Crown, which must therefore bear the lion’s share of the delay; the Crown then took reasonable steps to minimize the delay, a practice to be encouraged. Defence counsel was uninterested in shortening the delay, a practice to be discouraged.

Weighing the factors outlined above, I consider it reasonable to attribute five months of this period of delay to the Crown, and 2.8 months to the defence. 2.5 Prejudice [ 51 ] The accused has not been under any onerous conditions since his arrest in this matter.

The only evidence from the accused of any prejudicial effect of the delay is a statement that he “ha[s] found it very stressful waiting for [his] trial dates.” He has this in common with all other accused, save perhaps for certain persons who, one suspects, would be just as happy if their trial day never arrived. [ 52 ] In addition, some prejudice is to be presumed simply by the passage of time. [12] [ 53 ] There is no indication that the accused’s right to a fair trial, to full answer and defence, was compromised by the delay. 2.6 Conclusion

[ 54 ] I have found that institutional delay comprised 11.2 months of the delay from the day of the charges until the day of the trial; 5 months of the delay was solely attributable to the Crown; and 8.8 months was solely attributable to the defence.

I recognize that, due primarily to rounding, these figures do not total exactly the number of months from charge to trial, but I believe they are close enough for the purposes of this analysis which is, after all, not an accounting exercise. [13] Indeed, the Supreme Court of Canada has cautioned against a “piecemeal analysis”, emphasizing that it is “the reasonableness of the over-all lapse of time” that is to be determined, albeit by means of focussing on specific time periods. [14] [ 55 ] Institutional delay is calculated against the Crown.

However, it is not necessarily to be given the same weight as delay caused by the Crown’s conduct. [15] [ 56 ] There is little prejudice arising from the delay. The trial was able to proceed, with as far as I am aware all relevant evidence being tendered and the accused not prejudiced in the fairness of his trial by the passage of time. The stress which he has undergone in awaiting his trial date is not to be discounted or ignored; at the same time, it is only one factor to be considered.

He has not been under significant restrictions while awaiting trial. [ 57 ] I have concluded that in the circumstances outlined above, the overall delay has not been unreasonable, that the accused has in fact been tried within a reasonable time and that accordingly his s. 11(

b) Charter rights in that regard have not been breached. 3. Disclosure - Charter , ss. 7 , 11(

b) and 11(d) [ 58 ] As noted above, the trial of this matter could not proceed on November 1, 2010 because of late Crown disclosure. The accused argues that this was in violation of his rights under the Charter , and specifically sections 7 [16] , 11(

b) and 11(d) [17] . As a result, the trial was adjourned. There was no indication from the accused that the length of the adjournment was not sufficient. In my view, that adjournment cured the breach and exhausted the accused’s remedies. There being no other issue of the Crown not complying with its disclosure obligations, I find that there is before me no Charter breach regarding disclosure for which a remedy is available or appropriate. 4. Constitutionality of amendments to ss. 254(2) and 258(1) of the Criminal Code [ 59 ] The accused argues that ss. 254(2) and 258(1), as recently amended, infringe his right to make full answer and defence contrary to ss. 7 and 11(

d) of the Charter and should therefore be declared of no force and effect pursuant to s. 52 of the Charter . [ 60 ] This issue was not pursued with any vigour by either the defence or the Crown. [ 61 ] On the accused’s side, the oral argument on the point was very brief. The issue occupies a single paragraph in the written brief. Reference was made orally to R. v. Jaycox [18] , a decision of the British Columbia Provincial Court, which considered this issue in great depth and which I have reviewed with considerable interest.

Counsel were apparently not aware that the case had been appealed and a decision recently released. [19] [ 62 ] On the Crown’s side, arguments of this nature are apparently handled by a separate division of prosecutors. For whatever reason, they did not choose to make an appearance at trial. Crown counsel asked for time to file a brief on the point, which I denied: it is my view that counsel should be ready to proceed on the issues when the appointed date for trial arrives.

Obviously there are exceptions, but the fact that a Crown office has chosen for whatever reason not to attend does not give the Crown the right to remedy that non- attendance by subsequent written submissions. As a matter of regulating conduct before this Court, I decided that it was not appropriate for the Crown to be allowed to do so in this case. [ 63 ] Neither side, therefore, provided a great deal of assistance with respect to this issue. There is no doubt but that the issue is a difficult and complex one: the trial decision in Jaycox runs to 177 paragraphs; the appeal decision, to 100.

Had either party before me

put a great deal of work into their submissions on this point, I would of course have dealt with it. As matters stand, neither side seems to have considered this issue to be worth any significant investment of time and effort; I am willing to bow to their joint opinion. Given the lack of full argument, I do not consider that I am in a position to make a ruling on this point, and I decline so to do. 5. Arrest without reasonable and probable grounds - Charter , s. 10(

a) Intoxilyzer demand without probable grounds - Charter , ss. 10(

a) and (

b) ASD demand not made immediately - Charter , ss. 10(

a) and (

b) Right to counsel not repeated when ASD demand made - Charter , ss. 10(

a) and (b) [ 64 ] I have included together all of these alleged breaches of ss. 10(

a) and (

b) of the Charter [20] as they arise from the same specific events that occurred that evening, and are intertwined. The details of what happened are as follows. [ 65 ] On May 7, 2009, at approximately 9:15 p.m., Terry Erickson was driving eastbound on Circle Drive in the City of Saskatoon. Somewhere between the intersection of Circle Drive with Idylwyld Drive and the 700 block of Circle Drive, he noticed a large silver pickup truck driving erratically.

He saw it swerving within its lane, two to three feet right and left from the centre of the lane, and on at least two occasions saw it almost strike the boulevard in the middle of the street. Coming up to a red light at the 700 block of Circle Drive, the truck stopped at the very last second, skidding on some gravel on the road. The truck was not able to stop until it was partially into the intersection. [ 66 ] The truck then continued onward on Circle Drive with Mr. Erickson following it. As the speed limit on Circle Drive increased, the swerving of the truck also increased to the point that it came into Mr.

Erickson’s lane. Mr. Erickson had to swerve and brake his own vehicle. The swerving of the other vehicle then increased, to the point that Mr. Erickson decided to call 9-1-1. By this point, the truck was swerving as much as half its width into the next lane. Mr. Erickson continued to follow the truck on Circle Drive, where on several occasions it looked like it was going to take an exit, straddling lanes as if leaving Circle Drive and then veering back into the through lane. The swerving continued until the truck took the 8 th Street exit, still with Mr. Erickson following.

Where the Circle Drive exit intersects 8 th Street, the truck almost struck a stopped car, avoiding collision only by braking hard and coming to what Mr. Erickson described as a “lurching” stop. [ 67 ] The truck turned eastbound onto 8 th Street, still with Mr. Erickson following it and observing. It turned right onto McKercher Drive and eventually turned from a left turn lane into a parking lot. Mr. Erickson stopped in that left turn lane, watching the car in the parking lot.

He then pulled back into the traffic lane, went down to the next intersection and made a U-turn to come back to the east side of 8 th Street. There he stopped and waited for the police. During that period of time, there was 15 to 20 seconds when the truck was out of Mr. Erickson’s sight. This occurred after nightfall, with normal street lighting. [ 68 ] Mr. Erickson testified that he did not see anyone come out of the truck or approach the truck. [ 69 ] The police arrived about one minute after Mr. Erickson parked his vehicle on the east side of McKercher Drive, at approximately 9:30 p.m. Mr.

Erickson directed a female police officer to the vehicle and then left. He did not see the police deal with any person in the vehicle. [ 70 ] I found Mr. Erickson to be a very credible witness. He appeared to be very careful in his testimony and very clear about what he actually recalled, what was speculation and what he could not recall. I have no difficulty in placing reliance on his version of events. [ 71 ] The officer to whom Mr. Erickson spoke was Constable Mitchell.

She testified that she received a dispatch at 21:23 hours regarding a possible impaired driver and received updates from dispatch as the events were proceeding. She also was advised of the licence plate of the vehicle in question. She testified that she arrived at the scene at 21:30 hours (9:30 p.m.) and that, based on the updates received from dispatch, she understood that the driving had been occurring almost immediately before her arrival. She spoke with Mr. Erickson, who pointed out the truck. The licence plate of the truck corresponded to the licence plate number she had received from dispatch.

[ 72 ] Dispatch had reported the subject truck’s driving problems, including the fact that it had almost rear-ended a vehicle and had gone the wrong way on McKercher Drive to enter a parking lot. With respect to the latter point, Constable Mitchell acknowledged that when she saw the physical layout of the boulevard on McKercher and the parking lot in question, she could see how someone would drive in such a way. I took her to mean that she did not consider such driving to be an indicator of possible impairment. [ 73 ] Mr.

Erickson, when she spoke to him, advised that he had not seen anyone get out of the vehicle but also stated that he had not had the vehicle under observation for approximately 30 seconds as he made his U-turn. [ 74 ] When Constable Mitchell approached the truck, the engine was running, the brake lights were on (not simply the running lights) and there was one person seated inside, in the driver’s seat. That person was the accused, who was apparently asleep. His head was leaning against the driver’s window and he was not moving.

His seat belt was fastened. [ 75 ] Constable Mitchell knocked on the window, at which point she testified the accused appeared to wake up. She asked him to shut off the engine and step out, which he did, and asked him to go to the patrol car. She said that this was so he would not get back into the truck. It was not clear why this was a concern. It was also, she stated, so she could observe him for signs of impairment. [ 76 ] Constable Mitchell testified that as the accused walked to the patrol car, he was walking slowly and had difficulty with his coordination. He was walking somewhat side to side.

She asked him for his licence and the accused indicated after searching that he did not have his wallet with him. Constable Mitchell was able to see his wallet in his jacket pocket, so she pulled it out and retrieved his licence. [ 77 ] She arrested the accused for impaired care and control of a motor vehicle at 21:40, and provided him with his rights and warnings and the breath test demand. The accused appeared to understand all of those. [ 78 ] At that time, the constable had the following factors available to her on which to base her arrest:

a) driving behaviour as seen by Mr. Erickson, reported to the constable via dispatch;

b) the fact that the accused had been found in the driver’s seat of the vehicle followed by Mr. Erickson;

c) the accused was found apparently asleep in the driver’s seat, shortly after the vehicle stopped;

d) the accused’s method of walking, being slow, deliberate and problems with coordination side to side;

e) the inability of the accused to locate his wallet; and

f) a faint smell of alcohol when the accused was in the patrol car, although Constable Mitchell said she had a cold at the time and her sense of smell was not then very good. [ 79 ] When asked where he had been drinking, the accused indicated at his sister’s place, which he said was about a half block away. Constable Mitchell testified that “drinking” referred to alcohol in this context. [ 80 ] In the police car, following the arrest and breath demand, there was further conversation between the accused and Constable Mitchell.

The accused stated that he had had “a couple” of cans of beer earlier that evening, and that it was not possible that anyone had seen him driving because he had just come out to listen to music, presumably denying that he had been driving at all. He also stated that he was very tired and had been under a lot of stress at work recently.

[ 81 ] As a result of that conversation with the accused, Constable Mitchell testified she began to doubt whether or not it was actually alcohol which was the cause of the driving problems. As a result, she testified, she decided to have him blow into the approved screening device. At 21:58 she read him the ASD demand, which the accused said he understood. He then blew into the ASD which registered a “fail” result. As a result of this, she believed that he was over .08.

She testified that the ASD result confirmed what she had previously thought, but had then begun to doubt. [ 82 ] On the basis of the above facts, the accused questions whether or not the constable had “reasonable and probable grounds” on which to arrest him, and reasonable grounds for making the Intoxilyzer demand. He also argues that the ASD demand was not made “as soon as practicable” and in any event a “right to counsel” warning was required and not given. I will deal with the first two together, and then each of the others in turn. 5.1 Arrest without reasonable and probable grounds - Charter, s. 10(

a) Intoxilyzer demand without reasonable grounds - Charter, ss. 10(

a) and (b) [ 83 ] The Criminal Code does not actually require reasonable and probable grounds for arrest. Under s. 495(1)(a), arrest is authorized where a peace officer has “reasonable grounds” to believe, and does believe, that a person has committed or is about to commit an indictable offence. However, I do not believe there is any meaningful distinction between “reasonable and probable” and “reasonable” for the purposes of this discussion. [21] [ 84 ] I have chosen to deal with these two issues together because they will stand or fall together.

If Constable Mitchell had reasonable grounds for arrest, she had reasonable grounds for making the breath demand, and vice versa. [ 85 ] As indicated above, Constable Mitchell had six factors to consider in deciding whether or not she had reasonable grounds at the time she made the arrest and Intoxilyzer demand.

With respect specifically to the breath demand, those factors must have caused her subjectively to believe that the accused had been driving while impaired by alcohol, and her belief must have been reasonable. [22] [ 86 ] The accused urges me to find that the constable lacked the necessary subjective belief. He argues that her own testimony, referring to her uncertainty after the arrest and demand, casts doubt on the validity of her claim that she believed at the time that the accused was impaired.

He points to the fact that in order to confirm her belief, she decided to use the ASD after she had already charged the accused with impaired driving. He suggests that this is evidence that her belief was not particularly strong - not, in fact, strong enough to ground either the breath demand or the arrest. [ 87 ] While I can see the argument the accused is making, it ignores several factors. First, the constable was at the time a very junior and inexperienced officer.

She had been a member of the Saskatoon Police Service for about a year and a half, and had performed less than five impaired investigations herself. Some uncertainty and self-doubt is to be expected. Second, she knew that she had a cold and that her sense of smell was deadened, so she doubted the odour of alcohol she thought she had detected from the accused. Third, the accused offered what she considered to be possible explanations for some of what she had considered to be indicia of intoxication.

It was for those reasons that she decided to investigate further, by means of the ASD. [ 88 ] I think it perfectly plausible that an officer could have a subjective belief at the time of the arrest and demand, and then begin to have second thoughts. Particularly if those second thoughts are based at least in part on information obtained after the arrest and demand, it seems eminently reasonable that the officer should investigate further. I do not see that further investigation necessarily means that the claim of subjective belief is incredible.

It certainly can weigh on the credibility of the claimed subjective belief, and potentially the reasonableness of that belief, but it goes no further. [ 89 ] It is the information known to the officer at the time of arrest or demand, and their belief at that time, that is critical. [23] [ 90 ] I find that when Constable Mitchell made the arrest and demand, she subjectively believed that the accused had been driving

[ 90 ] I find that when Constable Mitchell made the arrest and demand, she subjectively believed that the accused had been driving while his ability so to do was impaired by alcohol. Furthermore, I accept that the list of factors outlined above made such subjective belief objectively reasonable. Accordingly, I find that there has not been any Charter breach under either of these two heads. 5.2 ASD demand not made immediately - Charter, ss. 10(

a) and (

b) Right to counsel not repeated when ASD demand made - Charter, ss. 10(

a) and (b) [ 91 ] Again, I have considered these two issues together because they are integrally linked. [ 92 ] Constable Mitchell made an ASD demand after she had already arrested and charged the accused with impaired care and control.

It appears that she did this to reassure herself that the accused was in fact in such a state, and to investigate his claims that there were other reasons for what appeared to be indicia of intoxication. [ 93 ] Unfortunately, there are two problems with the process she adopted. [ 94 ] The first problem is that the ASD demand must be made and carried out “forthwith.” [24] The caselaw is clear that failure so to do constitutes a violation of the accused’s rights under ss. 8 , 9 and 10 of the Charter . [25] It is obvious that this was not done in the case at bar. [ 95 ] The second problem with the ASD demand and test is that by making a formal demand for an ASD sample after the accused had already been charged with impaired care and control, the officer overstepped her authority.

The accused having already been charged, and the breath demand made, there was no legally-valid reason for the police to require him to provide an ASD sample. The officer’s insecurity cannot justify it. Nor can the doubts which the accused had raised in her mind about impairment indicia. If she wanted to give the accused the opportunity to clear himself by showing that he was not over the legal limit, she could have offered the ASD to him, giving him the opportunity to test rather than attempting to make it an obligation with criminal consequences if he were to refuse.

Without deciding the point, it may be that she would also have had to point out to him that the results of the test could be used as evidence against him. Regardless, however, the sample would have to have been given voluntarily by the accused. Once he had been charged, the state had no power to compel him to give an ASD sample. Although it was not argued as such, in my opinion this likely amounts to a violation of s. 8 of the Charter . [ 96 ] As the issue of a s. 8 breach was not raised in the accused’s Notice, I will not consider it further.

Given that the same event has established a breach of s. 10, for which notice was properly given, it does not seem to me to be of any great significance in any event. [ 97 ] Having found a breach, I must consider a remedy. The accused has made a shotgun request for remedies for all of the breaches which he alleges, without specifying what remedies might be appropriate for what breaches.

He has left it up to me to attempt to sort out what remedies should be matched with which breaches: “[t]he Applicant is seeking a stay, or the exclusion of evidence, or costs, or a declaration of invalidity, or such other relief as this Honourable Court might deem just”. [ 98 ] The test for a stay is very high. [26] It has not been met here, and I therefore decline to direct a stay.

The Court undoubtedly has the power to award costs for a Charter breach, but such awards are a tool principally to assist the Court in controlling the trial process. [27] The breach had no connection with any such issue, and costs would therefore not be an appropriate remedy. There is clearly no purpose to a declaration of invalidity. The only potential remedy which I think would possibly be appropriate would be exclusion of evidence. [ 99 ] In R. v. Grant [28] , the Supreme Court of Canada set out a three-part analysis for determining whether or not evidence should be excluded as a remedy for a Charter breach.

The three lines of inquiry are: (1) the seriousness of the breach, or the conduct which caused the breach; (2) the severity of the breach; (3) society’s interest in an adjudication of the prosecution on its merits. [29]

[ 100 ] The police conduct was, arguably, not egregious, consisting as it did of simply obtaining the ASD sample. I view it somewhat differently, however. To begin with, it did not comply with the Code requirements regarding timing, and the officer should have known that she was in no position to demand it. In addition, it was not done for the proper purpose of determining whether or not grounds existed for making a formal breath demand, but simply to assuage the officer’s doubts about the course of action she had already adopted.

Further, it would have been very simple for the constable simply to ask the accused if he wished to give the ASD sample, explaining to him why she wanted it and the use that might be made of the result, whether positive or negative. Instead, she invoked the power of the state to compel him. Having said that, it was not a reckless or deliberate disregard for Charter values; rather, I think it would more appropriately be characterized as a mistake. [ 101 ] The severity of the breach was not great. The accused was not detained by reason of it, being already under arrest.

He was not significantly interfered with. [ 102 ] Society’s interest in the prosecution of this case on its merits is not greatly affected. The evidence, although considered reliable, is of little significance. [ 103 ] Weighing all of the Grant factors, I exclude the evidence of the ASD result. [ 104 ] Having done so, I have chosen not to address whether or not the accused’s Charter rights were also violated by not being advised again of his right to counsel when the ASD demand was made.

Had I addressed that issue, and had I found that there was a violation, I would have simply excluded the evidence, as I have already done, and for the same reasons. 6. Breath sample not taken (

a) within two hours and (

b) as soon as practicable [ 105 ] The Criminal Code requires that, for the Crown to use the accused’s blood-alcohol level at the time of the breath test as proof of the same blood-alcohol level at the time of driving, the first of the two breath samples must be taken as soon as practicable and no later than two hours after the time of the alleged offence. [30] [ 106 ] Constable Mitchell testified that she arrived at the scene at 21:30 (9:30 p.m.). After the accused failed the ASD at 21:58, she transported him to the police station.

The next noted time was 23:07, over an hour later, when the breath technician arrived. By that time the accused had gone through the booking procedure and was seated in an interview room with Constable Mitchell, who had completed a checksheet regarding the accused’s condition. When Constable Gabruch, the breath technician, asked the accused if he wished to speak with a lawyer, the accused indicated he did, although he had previously declined that opportunity. He was placed on the phone with his lawyer of choice at 23:09, and by 23:12 had hung up.

He indicated he was satisfied with his call and Constable Gabruch then asked if he understood the breath test demand. When the accused said he did not, Constable Mitchell again read him the demand, at which point he said he understood. The first sample was taken at 23:25 showing 180 milligrams of alcohol in 100 millilitres of blood. The second sample was taken at 23:49, showing 190 milligrams of alcohol in 100 millilitres of blood. [ 107 ] Constable Gabruch testified that he had been on bicycle patrol on the evening in question, and at 22:18 received a call to go to the station to administer a breath test.

It took him about 20 minutes to make it to the station, arriving in the detention area itself at 22:42. He began the necessary operations on the Intoxilyzer, including a self-diagnostic test at 22:49, and spoke with the accused at 23:03. 6.1 Breath sample not taken within two hours

[ 108 ] The accused argues that there is reasonable doubt that the first sample was taken within the two-hour limit. [ 109 ] Constable Mitchell found the accused behind the wheel when she arrived at 21:30, and the first breath sample was taken at 23:25. On the face of it, the time requirement has been met, albeit only by five minutes. [ 110 ] The accused argues otherwise.

The timings are taken from two different sources and, he says, it has not been shown that they were set to the same time. [ 111 ] Constable Mitchell testified that the time of her arrival was taken from the dispatch information in her patrol car, and that all other times were taken from her wristwatch. She could not confirm that the dispatch time and her wristwatch time were the same. She also testified that she recognizes the importance of accurate timekeeping in her work, and that she tries to “update” her watch time by “the going time” at the police station.

She acknowledged that there could be a discrepancy between the time shown by dispatch and the time shown on her watch. [ 112 ] Defence invited me to find, on the basis of the above evidence, a reasonable doubt as to whether or not the first breath sample had been taken within two hours. Such a doubt would have to be based on the possibility that the constable’s watch was off by over five minutes, a possibility which she discounted.

Furthermore, if her watch was off by five minutes, it could be either fast or slow; and only one of those possibilities benefits the accused. [ 113 ] One factor in favour of the accused’s argument is the fact, as can be noted in the narrative above, that Constable Mitchell notes Constable Gabruch’s arrival to have occurred at 23:07, while Constable Gabruch testified that he arrived at 23:03. [ 114 ] This still does not assist the accused.

Even if Constable Gabruch’s watch was correct, it only narrows the space of time the accused needs to bridge: it does not span it. [ 115 ] Furthermore, to say that two timepieces can differ by a few minutes does not require evidence: it is commonplace. The accused’s best argument comes down to this: I must have a reasonable doubt that both watches differ from dispatch’s time because at least one obviously does. That does not logically follow. The fact that the two disagree with each other obviously means that at least one of them must also disagree with dispatch; it does not specify which one that must be.

Without something more it is simply baseless speculation to suggest that timepiece A must differ from timepiece B simply because it has been found to differ from timepiece C. Baseless speculation does not amount to reasonable doubt. 6.2 Breath sample not taken as soon as practicable [ 116 ] The accused next argues that the breath sample was not taken “as soon as practicable”. There is no fixed time limit for this requirement.

Rather, the Court is to consider whether or not the actions of the police were reasonable under the circumstances, bearing in mind this undefined requirement. [31] [ 117 ] In the present case, as indicated above, there was just under two hours from when the accused was found behind the wheel to when the first breath sample was taken. On the face of it, this is a lengthy period of time, and warrants some explanation. [ 118 ] Constable Mitchell arrived at 21:30. She spoke briefly with Mr. Erickson, and then went to the truck, where she found the accused.

After a brief conversation, she asked him to go to her patrol car, at which time she advised him that he was being detained for an impaired-driving investigation. In the patrol car, the accused offered information which led the constable to wonder whether or not he was actually impaired, and therefore at 21:58 she made the ASD demand as referred to above. Prior to that, there had been an incident involving bystanders, in which Constable Taylor was also involved. At some point, Constable Mitchell searched the accused’s vehicle. Parenthetically, it is not at all clear to me why she did this, or by what authority.

In any event, she testified that she left the scene, with the accused in her vehicle, within a few minutes of the ASD test. She drove directly to the police station. The accused was booked in, offered an opportunity to speak with a lawyer which he declined, and the constable spoke with him while filling out a form. At 23:07, according to her, Constable Gabruch arrived and spoke with the accused. From 23:09 to 23:12 the accused spoke with a lawyer, the

breath demand was then made and repeated when the accused said he did not understand and, as noted above, at 23:25 the first sample was taken. [ 119 ] Unfortunately, Constable Mitchell’s evidence did not include a comprehensive time line. The times noted above seem to be the only ones she made specific note of. [ 120 ] Constable Gabruch’s evidence was that he was called in at 22:18 and arrived in detention at 22:42. It took him this long because he was on bicycle patrol and was 20 minutes away from the station when he received the call. He arrived at the detention area of the station at 22:42.

He began the necessary work on the Intoxilyzer, including having it perform a self-diagnostic test at 22:49, and spoke with the accused at 23:03. [ 121 ] The time line, then, is as follows: 21:30 Constable Mitchell arrives on scene, speaks with the witness, speaks with the accused, detains the accused, arrests him, charges him, gives him rights and warnings, converses with him and begins to doubt her conclusion of impairment, deals with bystanders. 21:58 Constable Mitchell makes the ASD demand, which is complied with; within a few minutes, she departs with the accused for the police station. 22:18 Constable Gabruch is summoned to the police station. 22:38 Constable Gabruch arrives at the police station. 22:42 Constable Gabruch arrives in detention and begins preparations for the tests. 22:49 Constable Gabruch has Intoxilyzer perform self-diagnosis. 23:03 Constable Gabruch speaks with accused (note: Constable Mitchell notes this time as 23:07). 23:09 accused speaks with lawyer. 23:12 accused completes call to lawyer, breath demand made again upon accused stating he did not understand. 23:25 first breath test. [ 122 ] I am satisfied that the period from 21:30 to 21:58 is adequately explained.

A half an hour from the time of arrival until departure for the breath test is a long time. In light of Constable Mitchell’s inexperience in impaired-driving investigations, I am not surprised that her investigation here did not proceed as expeditiously as it might have done in the hands of a more experienced officer. The necessity of dealing with the bystanders is obviously also a factor.

In addition, her willingness to hear, consider and test the accused’s explanations of the indicia she observed is to be encouraged, and can hardly now be held by the accused against her. [ 123 ] I am not entirely satisfied with the explanations for the period following Constable Gabruch’s arrival at the station at 22:38.

From preparing the Intoxilyzer, meeting with the accused, giving him his call to counsel and giving him the breath demand, and starting the first test, almost 50 minutes went by. [ 124 ] I am also concerned with the fact that Constable Gabruch did not arrive at the station until 22:38.

I do not mean that as a criticism of Constable Gabruch, as I hope will be made clear below. [ 125 ] In addition, I am concerned with the unexplained period between the departure of Constable Mitchell and the accused for the police station, just after 21:58, and the next event for which we have a defined time, Constable Gabruch’s arrival at the police station at 22:38. [ 126 ] I am personally very familiar with the area of Saskatoon where the accused was arrested, and the typical routes from that location to downtown Saskatoon, where the police station is located.

I take judicial notice that it would normally take no more than 15 to 20 minutes for that trip, and in typical circumstances somewhat less. There is no evidence that the trip on the evening in question was anything but typical. [ 127 ] Constable Mitchell, therefore, should have arrived at the police station at approximately 22:15. It was only a few minutes later that Constable Gabruch was contacted to come to the station to perform the breath tests. Being on bike patrol, it took him some time to arrive: 20 minutes, in fact.

I do not know why he was summoned, whether it was because there were no other breath technicians on duty, or because the others were temporarily unavailable, or were even further away. I have no reason to doubt that he used reasonable efforts to get to the station in good time. I do not know why, however, he was not summoned until approximately the time that Constable Mitchell arrived at the station: it would seem to be more efficient for him to have been summoned as soon as it was known that he would be required, which would have been some time before Constable Mitchell left the scene at approximately 22:00.

He would then have arrived at the station at approximately the same time as Constable Mitchell and the accused, and could have been preparing the Intoxilyzer while the accused was being booked into detention. [ 128 ] What should have been a very routine impaired-driving investigation managed to run right up against the two-hour time limit imposed by Parliament. There is a dearth of information from Constable Mitchell about the events which occurred in the period between the departure of herself and the accused from the scene, and the arrival of Constable Gabruch.

There is no explanation for the delay in summoning Constable Gabruch. I recognize that it is not necessary for the Crown to explain every incident or each minute from the time of the offence until the first breath test. Similarly, it is not necessary that the police move with what in hindsight is clearly the most efficient manner possible: “as soon as practicable” does not require machine-like efficiency.

Nonetheless, I have to be able to look at the totality of events and be satisfied that the tests were performed “as soon as practicable”. [32] I am left with almost an hour and a half from Constable Mitchell’s departure from the scene until the first test. I do not know why there was such a delay. It is an inordinate amount of time, demanding explanation. None has been forthcoming.

I cannot conclude that the first test was taken as soon as practicable. [ 129 ] Accordingly, the Crown is not entitled to rely on the results of the breath tests to prove that the accused’s blood-alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood when he was behind the wheel. There being no other evidence to prove that fact, I find the accused not guilty of the second count. 7. Impairment [ 130 ] As noted above, Mr. Erickson observed, over a space of some time, ongoing examples of problematic driving.

Without repeating all of the details, the truck which he was observing had a great deal of difficulty remaining in its lane, and indeed on several occasions it was unable to do so. It kept moving to freeway exits and then veering back onto the freeway. It almost drove through a red light. It almost collided with a stopped car at another red light. Mr. Erickson’s evidence satisfies me that there was a significant problem with the operation of the truck. [ 131 ] Constable Mitchell testified that she smelled a “faint” odour of alcohol from the accused at the vehicle.

Although, as noted above, Constable Mitchell subsequently doubted her own judgment, that does not necessarily make it incorrect. In addition, on two different occasions the accused acknowledged that he had been drinking prior to being found in the vehicle by Constable Mitchell.

[ 132 ] Combining those facts, I have no doubt but that, if the accused was the operator of the truck when it was being observed by Mr. Erickson, the accused’s ability to operate the truck was impaired by alcohol. [ 133 ] The question, then, is whether or not the Crown has proven beyond a reasonable doubt that the accused was in fact the operator. [ 134 ] There is no doubt on the evidence but that when Constable Mitchell approached the truck, the accused was sitting in the driver’s seat.

The engine was running, the accused had his seat belt fastened and presumably his foot on the brake, as the brake lights were on. He was resting his head against the window, eyes closed, apparently asleep. There were no other occupants in the vehicle. [ 135 ] Mr. Erickson did not see the person driving the truck. After it pulled into the parking lot and stopped, he did not see a driver exit. After a brief pause, he drove further down the street to perform a U-turn, during the course of which the vehicle was out of his sight for about 15 - 20 seconds.

Constable Mitchell arrived almost immediately thereafter, and was directed to the truck by Mr. Erickson. At no relevant time did any witness observe anyone leave, enter or approach the truck. It was dark outside, but with street lighting. [ 136 ] It is clear that any doubt as to the identity of the driver must come from the brief period of time in which the truck was not under Mr. Erickson’s observation. If nothing happened in that period, then necessarily the accused was the driver when the erratic driving was observed.

Is it, then, possible for a driver to have exited the truck and gotten themselves out of sight of Mr. Erickson, while the accused came from out of sight and entered the vehicle, within 15 to 20 seconds? It certainly is possible, in the sense that it could physically have been done. It does not seem that this period would be any too long for that to occur, but likely it would be sufficient. [ 137 ] Having concluded that it would be possible for two drivers to exchange positions in that period, is that possibility sufficient to raise a reasonable doubt?

In considering this point, I am bearing in mind that the 15 - 20 seconds is a very precise figure, as Mr. Erickson actually went back to the scene specifically to time how long the truck would have been out of his sight. I am also bearing in mind the fact that, from all the evidence I have, the driver of the vehicle did not know they were under observation; it would thus only be by sheer coincidence that this driver exchange happened at precisely the time when the truck was out of the sight of Mr.

Erickson. [ 138 ] I am therefore being invited to consider the possibility that, within at most 20 seconds, the accused and the actual driver changed places in the vehicle, with neither the accused being seen before this occurred, nor the driver being seen after. I am further invited to assume that this operation just happened to take place precisely within the 15 - 20 seconds when the vehicle was not under observation.

There is no evidence that any such event actually occurred; rather, by speculating that this could have occurred, the accused suggests that a reasonable doubt is thereby raised as to whether or not it did occur. [ 139 ] The onus is of course always on the Crown to prove the accused’s guilt beyond a reasonable doubt. An accused need not prove their innocence, or indeed anything at all.

An accused is perfectly entitled to argue that the evidence does not meet the required standard, or is consistent with an alternate theory from that of the Crown. [ 140 ] The Supreme Court of Canada in 2001 endorsed the following description of “reasonable doubt” from a jury address: “it must be reasonable doubt founded upon the evidence adduced, neither speculative, fanciful, illusory, imaginary, born of sympathy, nor animated by prejudice.” [33] Our own Court of Appeal in 2009, relying on the Nova Scotia Court of Appeal in R. v.

White [34] , addressed the matter thusly: “[t]he accused must simply cast reasonable doubt on the Crown’s case. This can be accomplished by offering evidence that raises the prospect of an innocent explanation that goes beyond mere conjecture or speculation .” [35] (emphasis in original) [ 141 ] The point raised by these quotes is that reasonable doubt must be based on evidence, not simply speculation. There is simply no evidentiary basis in the case before me to suggest that another driver exited the vehicle and the accused entered it within the extremely brief period when it was not under direct observation.

Any suggestion that this occurred is nothing more than speculation. [ 142 ] This is not to say that common sense must be proven through evidence. If, for example, the vehicle had been unobserved for several hours, there would be a reasonable doubt as to whether or not the person who was in the driver’s seat at the end of that period was the same person as had been in it at the beginning. “Reasonable doubt” cannot operate in such a way as to ignore common sense;

indeed, it relies heavily on common sense. [143] As a result, I am not led to a reasonable doubt as to the identity of the driver at the time the erratic driving was observed by Mr.Erickson. The suggestion that the “real” driver might have switched places with the accused in the 15 to 20 seconds the vehicle was notunder observation amounts to nothing but speculation. [144] I indicated earlier in this judgment that the only significant issue on this charge was the identity of the driver.

As I have foundbeyond a reasonable doubt that it was the accused, it follows that I find him guilty of operating a motor vehicle when his ability so to dowas impaired by alcohol. __________________________ Q.D. Agnew, J [1] 11. Any person charged with an offence has the right (

b) to be tried within a reasonable time [2] [2009] S.J. No. 647, 2009 SKPC 123, 201 C.R.R. (2d) 259, 345 Sask. R. 149 [3] (SCC), [1990] 2 S.C.R. 1199, 75 O.R. (2d) 673, 74 D.L.R. (4th) 355, 59 C.C.C. (3d) 449, 79 C.R. (3d) 273, 49C.R.R. 1, 42 O.A.C. 81. [4] (SCC), [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1, 12 C.R. (4th) 1, 8 C.R.R. (2d) 193, 53 O.A.C. 241. [5] 2009 SCC 26 , [2009] 2 S.C.R. 3, 309 D.L.R. (4th) 149, 245 C.C.C. (3d) 271, 67 C.R. (6th) 95, 192 C.R.R. (2d) 184,252 O.A.C. 377. [6] R. v. Morin, paragraph 31. [7] Paragraph 42. [8] 2011 SKQB 265 [9] Paragraph 23. [10] See, for example: R. v.

Burlingham, [1995] 2 S.C.R. 206, , 124 D.L.R. (4th) 7, 97 C.C.C. (3d) 385, 38 C.R.(4th) 265, 181 N.R. 1, 58 B.C.A.C. 161, 96 W.A.C. 161, 28 C.R.R. (2d) 244 at paragraph 14; R. v. Edmondson, 2005 SKCA 51, 342W.A.C. 270, 257 Sask. R. 270, 196 C.C.C. (3d) 164, [2006] 6 W.W.R. 74) application for leave to appeal to Supreme Court of Canadadismissed) at paragraphs 35 - 38. [11] Paragraph 35. [12] Godin, para. 34. [13] R. v. R.E.W., 2011 NSCA 18, 298 N.S.R. (2d) 154 at paragraph 51. [14] R. v. Conway (1989), (SCC), 49 C.C.C. (3d) 289 at 307. [15] Boutin, paragraph 31.

[16] 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordancewith the principles of fundamental justice. [17] 11. Any person charged with an offence has the right (

b) to be tried within a reasonable time; (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal [18] 2010 BCPC 140, [2010] B.C.W.L.D. 6100, 97 M.V.R. (5th) 205. [19] 2011 BCSC 662. [20] 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right [21] R. v. Menkerios, 2010 SKPC 67, [2010] S.J. No. 397 at paragraph 6. [22] R. v. Shepherd, 2009 SCC 35 , [2009] 2 S.C.R. 527, 309 D.L.R. (4th) 139, [2009] 8 W.W.R. 193, 245 C.C.C. (3d) 137,66 C.R. (6th) 149, 331 Sask. R. 306; R. v. Bernshaw (1994), (SCC), 8 M.V.R. (3d) 75, 53 B.C.A.C. 1, 87 W.A.C. 1, 26C.R.R. (2d) 132, 35 C.R. (4th) 201, 176 N.R. 81, [1995] 3 W.W.R. 457, 1994 CarswellBC 3038, 1994 CarswellBC 3039, 95 C.C.C. (3d)193, [1995] 1 S.C.R. 254. [23] R. v. Oduneye, 1995 ABCA 295 , [1995] A.J. No. 632 (Alta.

C.A.) (leave to appeal denied, [1995] S.C.C.A. No.494) at paragraph 20; R. v. Musurichan (1990), 1990 ABCA 170 , 56 C.C.C. (3d) 570 (Alta. C.A.), 107 A.R. 102 at paragraph10. [24] s. 254(2) “. . . the peace officer may, by demand, require the person . . . (

b) to provide forthwith a sample of breath . . .” [25] R. v. Woods, 2005 SCC 42 , [2005] 2 S.C.R. 205, 254 D.L.R. (4th) 385, [2006] 1 W.W.R. 1, 197 C.C.C. (3d) 353, 29 C.R. (6th) 240, 132 C.R.R. (2d) 168. [26] R. v. O'Connor, (SCC), [1995] 4 S.C.R. 411 at paras. 84: “It must always be remembered that a stay ofproceedings is only appropriate ‘in the clearest of cases’, where the prejudice to the accused’s right to make full answer and defencecannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution werecontinued.” See also: R. v.

Carosella, [1997] 1 S.C.R. 80, , 31 O.R. (3d) 575, 142 D.L.R. (4th) 595, 112 C.C.C. (3d)289, 4 C.R. (5th) 139, 41C.R.R. (2d) 189, 98 O.A.C. 81; R. v.

Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, 201 N.S.R. (2d) 63, 209 D.L.R.(4th) 41, 161 C.C.C. (3d) 97, 49 C.R. (5th) 1, 91 C.R.R. (2d) 51. [27] R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81, 56 O.R. (3d) 359, 206 D.L.R. (4th) 444, 159 C.C.C. (3d) 321, 47C.R. (5th) 316, 88 C.R.R. (2d) 189, 154 O.A.C. 345 at paragraph 81: “such awards, while not without a compensatory element, areintegrally connected to the court’s control of its trial process”; see also R. v. Kelln, [2003] S.J. No 529, 2003 SKQB 348, 236 Sask.

R. 167 at paragraph 7: the ability to award costs for a Charter breach is “part of the court’s inherent ability to control the trial process”;also R. v. Foster, (ON SC), [2003] O.J.

No. 1133, 64 O.R. (3d) 152 at paragraph 6: the power to award the ability ofthe Court to award costs for a Charter breach is, in addition to other uses, “to assist in the control of its trial process.” [28] 2009 SCC 32, [2009] 2 S.C.R. 353, J66 C.R. (6th) 1, 245 C.C.C. (3d) 1, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 391 N.R. 1, 253O.A.C. 124. [29] See paragraphs 72 - 75, 76 - 78 and 79 - 84 respectively. [30] s. 258(1)(c): “where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3),if (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the caseof the first sample, not later than two hours after that time . . .” [31] R. v.

Vanderbruggen (2006), (ON CA), 206 C.C.C. (3d) 489, 208 OAC 379 (Ont. C. A.); R. v. Carter (1981), (SK CA), 59 C.C.C. (2d) 450, 10 M.V.R. 187 (Sask. C.A.); R. v. Payne (1990), (ON CA), 56C.C.C. (3d) 548, 23 M.V.R. (2d) 37 (Ont. C.A.). [32]R. v. Carter (1981), (SK CA), 59 C.C.C. (2d) 450, 10 M.V.R. 187 (Sask. C. A.). [33] R. v. Pan; R. v. Sawyer, 2001 SCC 42 , 2001 S.C.C. 42, [2001] 2 S.C.R. 344, 200 D.L.R. (4th) 577, 155 C.C.C. (3d) 97,43 C.R. (5th) 203, 85 C.R.R. (2d) 1, 147 O.A.C. 1 at paragraph 127.

[34] 1994 NSCA 77 , 130 N.S.R. (2d) 143, 89 C.C.C. (3d) 336, 28 C.R. (4th) 160. [35] R. v. A.L.E., 2009 SKCA 65, 96 M.V.R. (5th) 48, 256 C.C.C. (3d) 476, 359 Sask. R. 59, 2009 CarswellSask 902, [2011] 3W.W.R. 656 at paragraph 52.