Her Majesty the Queen - v. -, 2016 SKPC 27

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 027 Date: March 1, 2016 Information: 24475828 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - Meagan Jade Woroschuk Appearing: Mr. Derek Davidson & Mr. Kelly Onyskevitch For the Crown Mr. Chris MacLeod For the Accused JUDGMENT D. KOVATCH , J [ 1 ] The accused, Meagan Jade Woroschuk, is charged with impaired driving and driving while her blood alcohol content exceeded .08%. It is alleged these incidents occurred on January 20, 2013 at Fillmore, Saskatchewan.

Defence counsel raised three arguments as to why the accused should be found not guilty. The Evidence

[ 2 ] Constable Preston of the Fillmore Detachment of the RCMP, testified that in the very early morning hours of January 20, 2013, he was on patrol in Stoughton, Saskatchewan. He saw a vehicle leaving the Crossroads Bar parking lot into the back alley, and then turn onto Assiniboia Street. He stopped the vehicle at Assiniboia and Main to check for identification and sobriety. Constable Preston approached the driver and asked her how much she had to drink. She replied: “I had like one”. [ 3 ] Cst. Preston was accompanied by Cst. Buttle. Cst. Preston advised Cst. Buttle of this reply and Cst.

Buttle then asked the accused to come back to the police vehicle for the approved screening device. [ 4 ] At the police vehicle, Cst. Preston sat in the driver seat and Cst. Buttle in the front passenger seat. The accused was seated in the back seat of the police vehicle. Cst.Buttle read the ASD demand. Cst. Preston testified that she had a difficult time but blew a fail result. The accused was then arrested and given her Charter rights. She indicated that she did not want to call a lawyer. She was given the police caution and said she understood.

Then the formal breath demand was made, and she said she understood. At Fillmore Detachment, she was again asked if she wished to call a lawyer and she said no. Cst. Buttle acted as the qualified technician, and Cst. Preston simply observed the accused. At 2:32 a.m., the accused provided a sample of 100 mg of alcohol per 100 ml of blood. At 2:52 a .m., she provided a sample that registered 90 mg of alcohol per 100 ml of blood. Documents were then prepared and she was released to her parents. [ 5 ] Cst.

Preston further testified that he asked her if she had anything to drink, and she admitted that she had one drink. He testified that he did not believe that she was being honest in stating that she had one drink. Her reply, that he didn’t believe her, and the fact that she was leaving the bar at approximately closing time caused him to have a reasonable suspicion that she had alcohol in her body. [ 6 ] Under cross-examination, the Constable agreed with defence counsel that there were no other obvious or overt signs of impairment.

When she was asked to produce her drivers license and registration, she had no difficulty doing so. [ 7 ] Also on cross-examination, it became apparent that Cst. Preston and Cst. Buttle were in separate vehicles. Cst. Preston made the stop, and Cst. Buttle arrived on the scene when Cst. Preston was beside the accused’s vehicle and speaking to her. [ 8 ] Cst. Buttle testified that he too was on patrol. At approximately 1:15 a.m., Cst. Buttle received a call on the radio from Cst. Preston, advising of a possible impaired driver. Cst.

Buttle went to that scene, as he had the approved screening device instrument. [ 9 ] Cst. Buttle testified that when he arrived, Cst. Preston advised the accused admitted to one drink. Cst. Buttle testified that the accused stated to him, that she had two beer. Cst. Buttle made the ASD demand and the accused provided a sample registering a fail. She was then placed under arrest and within minutes they left for Fillmore Detachment. Cst. Buttle said that he observed no overt signs of impairment. He did however detect a moderate smell of alcohol. [ 10 ] Under cross-examination, Cst.

Buttle said he did question the accused as to when she had her last drink. She advised it was about an hour ago. He admitted that he did not make a note indicating the accused told him she had two beer, but that was his recollection. [ 11 ] Cst. Buttle testified that he acted as the qualified technician and got the machine ready for the actual tests. During this time, Cst. Preston was sitting with the accused, preparing his notes and doing the observation. He said he asked Cst. Preston when the observation period started, and received a reply.

He was certain they had sufficient time between when the observation period began and when the actual test was taken. [ 12 ] Defence counsel also cross-examined Cst. Buttle regarding the machine truncating down and the margin of error. He said the machine truncates down to the nearest 10 mg of alcohol in the blood. Thus, a reading of 126 mg would truncate down to 120 mg of alcohol per 100 ml of blood. Counsel produced copies of pages from the operation manual. Cst. Buttle agreed with defence counsel that there is a 10% margin of error, or a 10 mg% margin of error.

He agreed with defence counsel that a reading of 90 mg% could in actual fact represent a blood alcohol content as low as 80 mg of alcohol per 100 ml of blood.

[ 13 ] At the conclusion of the Crown’s case, defence moved for non-suit. Defence counsel argued that according to Cst. Buttle’s evidence, the accused’s blood alcohol content could be as low as 80 mg of alcohol per 100 ml of blood. If it was this low, then no offence had been committed. I reserved on the non-suit. My decision on the non-suit focused upon s. 258(1) of the Criminal Code and the presumptions contained therein.

I concluded that given the readings and the presumptions, there was evidence upon which the Court could convict, and thus dismissed the non-suit. [ 14 ] After a number of adjournments defence counsel advised that there would be no defence evidence on the voir dire . Crown advised that the Crown case was closed. Defence advised that there would be no defence evidence in the trial proper. The Defence Argument [ 15 ] Defence counsel made three arguments for an acquittal. Firstly, he argued that there were no proper grounds for the ASD demand.

The officers did not have a reasonable suspicion that the accused had alcohol in her body. As a result, the seizure of breath in the approved screening device was unlawful and in breach of the accused’s Charter rights. He argued that all evidence obtained thereafter should be excluded. [ 16 ] Defence counsel argued that there was no proper observation period. As a result there was evidence to the contrary. [ 17 ] Thirdly, defence counsel returned to the argument made on the non-suit application. He argued that according to Cst.

Buttle’s evidence, the accused blood alcohol level could be as low as 80 mg of alcohol per 100 ml of blood. Given this evidence, the Court must have a reasonable doubt as to the guilt of the accused and must acquit. Analysis WAS THERE AN UNLAWFUL SEIZURE OF THE DEFENDANTS BREATH IN THE APPROVED SCREENING DEVICE? DID THE OFFICER HAVE AN OBJECTIVE BASIS FOR HIS SUSPICION THAT THE ACCUSED HAD ALCOHOL IN HER BODY? [ 18 ] It is well accepted that the reasonable suspicion standard is a low one. The officer observed the accused leaving a bar parking lot around closing time.

He asked her if she had anything to drink and she admitted that she did have one. He testified that he did not believe her. Obviously, he believed she had more than that. Cst. Buttle testified that he detected a slight smell of alcohol. I am satisfied that the officer had a reasonable suspicion and that the ASD demand was proper. I would add however, that even if I determined there was a Charter breach, on a Grant analysis I would still admit the evidence of the ASD failure, find that the intoxilyzer demand was proper, and admit the evidence obtained thereafter. WAS THERE A PROPER OBSERVATION PERIOD?

IS THERE EVIDENCE TO THE CONTRARY REBUTTING THE PRESUMPTION OF ACCURACY? [ 19 ] In making this argument, defence counsel substantially focused on the case of R v By , 2015 SKQB 86 . In my view in the circumstances of this case, this argument wrongly elevates an aspect in the operations manual for the intoxilyzer to an essential element of proof required in the prosecution under s. 253 of the Criminal Code . The officers testified that there was the proper observation period and there were no issues during that observation period. There is no other evidence to the contrary.

There is no evidence that there was burping or belching and that this fact was not detected by the officers. There is no evidence that the accused had anything in her mouth. There is no evidence she had anything to drink or was smoking or anything of a like nature. In my view section 258(1) (

c) allows the Crown to rely upon the presumption and indicates the accused must take into account the evidence of the test results “in the absence of evidence to the contrary”. The mere fact that very little evidence was led as to what took place during the observation period

is not evidence to the contrary. To say that no evidence of the observation period or what took place during that time is evidence to thecontrary, would raise proof of the events of the observation period to an essential element of the offence. If this essential element werenot proved, in every case there would be evidence to the contrary and the presumption would be rebutted. In my respectful view thissimply does not logically follow.

As a result, in this case, I conclude that there was a proper observation period and there is no evidenceto the contrary on this point, that would allow me to conclude that the presumption of accuracy was rebutted. IS THERE PROOF BEYOND A REASONABLE DOUBT THAT THE ACCUSED’S BLOOD ALCOHOL LEVEL EXCEEDED 80MG OF ALCOHOL IN 100 ML OF BLOOD? IS THERE EVIDENCE TO THE CONTRARY TO REBUTT THE PRESUMPTION OF ACCURACY? [20] To make this argument defence counsel relied substantially on the case of R v St.-Onge Lamoureux (2012) 2012 SCC 57, 3 SCR 187.

He argued that the Supreme Court of Canada had clearly stated that Parliament could not require the accused todo anything more than raise a reasonable doubt. He argued that his cross-examination of Cst. Buttle raised that reasonable doubt, and theCourt should acquit. In my view, this argument was very simple and appealing. I noted that s. 258(1)(c)(iv) provides in part: “if theresults of the analysis are different, the lowest of the concentrations determined by the analysis, ...” This portion of the

section requiresme to regard the lowest reading as being the accurate assessment of the accused blood alcohol level. When one puts that together withthe cross-examination and Cst. Buttle’s evidence, there was a reasonable possibility the accused’s blood alcohol level could be as low as80 mg of alcohol per 100 ml of blood; and thus I had a reasonable doubt. [21] However, my subsequent research indicated I was not able to utilize or interpret this evidence in this fashion, and come to theconclusion of reasonable doubt. Section 258(1)(

c) sets out the presumptions of accuracy and identity. In the words of section 258(1)(c).“evidence of the results of the analysis so made is conclusive proof that the concentration of alcohol in the accused’s blood both at thetime when the analyses were made and at the time when the offence was alleged to have been committed was (the lowest of the two testresults)”.

These test results are presumed accurate and are conclusive proof “in the absence of evidence to the contrary”. [22] As a result, I must then ask and determine whether this evidence in cross-examination is “evidence to the contrary” that rebutsthis presumption. The facts in the case of R v Moreau, (1979) (SCC), 1 SCR 261, were very similar to this case. Theaccused blew a breath sample in the Borkenstein breathalizer that registered 90 mg of alcohol in 100 ml of blood. The expert testifiedthat the Borkenstein breathalizer was subject to a margin of error of a 10 mg, more or less.

The Supreme Court of Canada held that thisevidence was not aimed at rebutting the presumption. It’s only effect was to demonstrate in general terms the possible uncertainly of thescheme or the inherent infallibility of the instrument which had been approved under statutory authority. Parliament must be taken tohave allowed for this in enacting these provisions. The Supreme Court concluded that this was not evidence to the contrary, thepresumption was not rebutted and the accused must be found guilty. The Moreau decision has been referred by courts across the countryon several hundred occasions.

In the case of R v Deck (1985) (SK KB), 45 Sask R 35, Chief Justice Batten quotedextensively from Moreau and entered a conviction where the accused blew .09. This case was particularly significant to me in that the Chief Justice’s decision was clearly rendered after the adoption of the Charter of Rights and Freedoms. I also reviewed the SupremeCourt of Canada decisions in R v St. Pierre (SCC), [1995] 1 SCR 791 and R v St. Onge, supra, to determine if thesedecisions altered or overruled the Moreau decision.

In my view they did not do that. [23] The result is that I cannot regard the evidence from the cross-examination of Cst. Buttle as evidence to the contrary rebuttingthe presumption. Without regard to that evidence as evidence to the contrary, I am unable to say that I have a reasonable doubt, and mustfind the accused guilty of the charge. Dated at Weyburn, Saskatchewan this 1st day of March 2016. ______________________________ D. Kovatch, J.