Her Majesty the Queen - v. -, 2015 SKPC 38

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 038 Date: March 19, 2015 Information: 24468520 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - James Cappie Appearing: Darren Howarth For the Crown Ron Piché For the Accused JUDGMENT B.D. WRIGHT , J Introduction [ 1 ] James Cappie (“the accused”) is charged that he did, on or about December 1, 2013, at or near Kindersley, Saskatchewan, commit the following offences:

1) operate a motor vehicle on Highway 21 in a manner that was dangerous to the public contrary to section 249(1) (

a) of the Criminal Code ; 2) while his ability to operate a motor vehicle was impaired by alcohol did operate a Dodge truck contrary to s. 253(1) (

a) and s. 255(1) of the Criminal Code ; 3) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle, to wit a Dodge truck contrary to s. 253(1) (

b) and s. 255(1) of the Criminal Code ; 4) unlawfully possess a substance included in

Schedule II to wit cannabis marihuana in an amount not exceeding thirty grams contrary to s. 4(1) of the Controlled Drugs and Substances Act ; 5) being at large on his recognizance entered into before a justice and being bound to comply with a condition of that recognizance, you shall remain within the Province of Alberta unless you have the written permission from your bail supervisor or the court to leave the Province of Alberta, without lawful excuse failed to comply with that condition by being n the Province of Saskatchewan contrary to s. 145(3) of the Criminal Code ; and 6) being at large on his recognizance entered into before a justice and being bound to comply with a condition of that recognizance, you shall refrain from the purchase, possession use or consumption of any non-prescribed illegal drugs, without lawful excuse failed to comply with that condition by being in possession of cannabis marihuana contrary to s. 145(3) of the Criminal Code . [ 2 ] The trial of this matter was held in Kindersley on September 16, 2014.

The accused filed a Charter application alleging violations of ss. 7 , 8 , 10(

a) and 10(

b) of the Canadian Charter of Rights and Freedoms . By agreement of the parties, all evidence with respect to the trial was led on the Charter voir dire , with an agreement that all such evidence would be applied to the trial proper, subject to my rulings on the Charter application. At the conclusion of the Crown evidence on the voir dire , the defence elected to call no evidence on the voir dire .

The Crown then closed its case, and the defence elected to call no evidence on the trial proper. [ 3 ] At the conclusion of the evidence on September 16, 2014, the Crown directed a stay of proceedings on count 4, the allegation of possession of cannabis marijuana. Furthermore, Crown counsel invited the Court to acquit the accused on counts 5 and 6, on the basis that the Crown had not proved an essential element of those charges, namely that the accused was, in fact, on a recognizance.

Accordingly, at the conclusion of proceedings on September 16, 2014, I acquitted the accused on counts 5 and 6 of Information 24468520. [ 4 ] As a result, the only outstanding allegations against the accused are those in counts 1, 2 and 3 of the said Information, for offences contrary to ss. 249(1) (a), 253(1) (

a) and 253(1)(

b) of the Criminal Code . Facts [ 5 ] Constable Fillion of the Royal Canadian Mounted Police was on patrol on December 1, 2013, and was heading northbound on Highway 21 approximately six kilometres south of Kerrobert, Saskatchewan. He testified that earlier that day the temperature had been warm, frost was coming up out of the highway, and the highway had been wet. When the temperature subsequently dropped that night, the road conditions were starting to get slippery. [ 6 ] At approximately 3:50 a.m., he observed another motor vehicle coming southbound toward him.

He reached over to grab his radar unit, and when he looked up he noted that the southbound vehicle had closed the gap, and appeared to be going quite fast. He activated his radar unit, which showed the speed of the approaching vehicle to be 176 km/hr. As a result, he activated his emergency

lights and turned his vehicle around to pursue the southbound vehicle. He also radioed to Constable Klassen, who was following in another patrol vehicle, and advised that the southbound vehicle was going 176 km/hr. Constable Klassen also then began to pursue the southbound vehicle. [ 7 ] Constable Fillion testified that it took awhile for him to catch the southbound vehicle, but he was able to maintain visual continuity on its taillights. He subsequently observed the vehicle’s brake lights come on, and the vehicle turned right onto a gravel road.

Constable Fillion testified it took him approximately one mile further to catch the vehicle and in order to do so he had to travel at a fairly high rate of speed, which he estimated to be 180 to 190 km/hr. [ 8 ] The vehicle being pursued pulled over while travelling westbound on the gravel road. Constable Fillion noted nothing unusual in the manner in which the vehicle turned off the highway or in the way it stopped. He pulled in behind the vehicle and approached on the driver’s side.

The accused was the driver and lone occupant. [ 9 ] Constable Fillion approached the vehicle and asked for the accused’s driver’s license and registration, which was provided. Constable Fillion observed that the accused appeared quite nervous, was avoiding eye contact, and was leaning over toward the centre of the vehicle while he spoke to Constable Fillion, rather than facing toward him, in an apparent attempt to hide the smell of alcohol on his breath. Despite this, Constable Fillion could still smell the odour of alcohol on the accused’s breath, and noted the accused had dry, pasty lips.

He also observed a case of Coors beer in the backseat of the vehicle, although he could not tell if it was open, or if anything was inside it. [ 10 ] At 3:54 a.m. Constable Fillion advised the accused that he suspected he had alcohol in his body and so was being detained for an investigation into impaired operation of a motor vehicle. He also advised at that time that the accused was being arrested for dangerous driving, given the high rate of speed and deteriorating road conditions which he had noted.

The accused was still seated in the driver’s seat of his vehicle, with Constable Fillion standing at the driver’s side door. Constable Klassen, who had taken longer to catch up to the accused’s vehicle because his patrol vehicle was a “4 x 4” and could not travel in excess of 160 kph, was standing at the passenger side of the accused’s vehicle.

Constable Fillion acknowledged that even though he advised the accused he was being arrested for dangerous driving, he did not provide the accused with his rights to counsel at that point in time because he wanted to administer the ASD demand as soon as possible, and, in addition, he was not conducting any further investigation into the dangerous driving. [ 11 ] With respect to the driving conditions at the time, Constable Fillion noted that the road was straight and in good repair, with no potholes and a normal shoulder.

The posted speed limit was 100 km/hr and Highway 21 was an undivided highway, with a single lane each way, running between Kindersley and Kerrobert, Saskatchewan, with a few rolling hills. Constable Fillion noted that it had been warmer during the day and the roadway had thawed and was wet, but when the temperature dropped the roads started to freeze and there was a white frosting on the highway.

As well, it was 3:50 in the morning and was dark with no sunlight. [ 12 ] Constable Fillion testified that aside from the accused, he and Constable Klassen in their two patrol cars were the only other vehicles on the road. Constable Fillion noted, however, that it is not unusual for one or two semi-trailer trucks to be on that highway at night. He further noted that there are other paved secondary highways which intersect the highway in that area. Constable Fillion therefore testified that at the time he arrested the accused for dangerous operation of a motor vehicle, his grounds for doing so were as follows:

a) it was dark;

b) the highway conditions were starting to deteriorate and were getting slippery;

c) the elevated speed of the accused’s motor vehicle, namely 176 km/hr on a highway where the speed limit was only 100 km/hr;

d) the longer braking distances which would result from the higher speed; and

e) the possibility of wild animals present and crossing the highway. [ 13 ] Constable Fillion had the accused return to his marked patrol car, where the accused was searched incident to arrest before being placed in the backseat at 3:55. [ 14 ] Constable Fillion then began a search of the accused’s vehicle, with the assistance of Constable Klassen. He instructed Constable Klassen to complete the search, and explained to Constable Klassen what had to be done, including getting the appropriate forms and showing Constable Klassen how to complete them.

He testified that this took a little longer than normal, as Constable Klassen had only approximately three months of service at that time. [ 15 ] At 4:09 a.m. Constable Fillion returned to his patrol vehicle and read the ASD demand to the accused, and asked him if he understood. The accused indicated that he did. Constable Fillion had an approved screening device, in proper working order and properly calibrated. He put a clean fresh mouthpiece on the instrument and presented it to the accused to provide a sample.

On his first two attempts, the accused did not provide a suitable sample, but on the third attempt at 4:15 a.m. a suitable sample was provided and a fail reading was registered. Constable Fillion testified that a fail reading signified that the accused’s blood alcohol concentration exceeded 100 milligrams of alcohol in 100 millilitres of blood. [ 16 ] Constable Fillion testified that prior to the accused providing the ASD samples, he had also noted additional signs of impairment.

He noted that the accused was starting to slur his speech more, and had to focus more on his pronunciation. [ 17 ] Constable Fillion concluded, as a result of the fail reading and his observations of the accused, that he had reasonable grounds to believe the accused’s ability to operate a motor vehicle was impaired by alcohol. He therefore arrested the accused for impaired driving and dangerous driving, and at 4:16 a.m. provided the accused with his rights to counsel, which he read from the card in his notebook. He then asked the accused if he understood and if he wished to call a lawyer. He received no response.

He asked the accused a second time if he understood and again, he got no response. The accused simply smiled at him. He asked the accused a third time if he wished to contact a lawyer. Once again, the accused just stared at Constable Fillion while smiling at him, but nodded his head up and down. Constable Fillion again asked the accused if he wished to call a lawyer. This time the accused did respond, saying: “Yeah, when we get back to Kindersley I will.” [ 18 ] At 4:20 a.m. Constable Fillion read the breathalyzer demand to the accused, and asked the accused if he understood.

The response from the accused was: “If I say no?” Constable Fillion re-read the breathalyzer demand to the accused and again asked if he understood. However, instead of answering that question the accused asked Constable Fillion: “What is back here?” Constable Fillion told the accused that it was important for him as a peace officer to make sure that the accused understood what was required. The accused then asked him to explain what was required, which Constable Fillion did. Cst. Fillion then asked, for a third time, if the accused understood. He received no answer, and so asked again if the accused understood.

At that point, the accused stated: “Yeah, but these instruments aren’t right.” [ 19 ] Constable Fillion testified that it was 4:23 a.m. by that time. He then read the police warning to the accused and asked if he understood, and the accused indicated that he did. Thereafter, Constable Fillion took a photograph of the radar reading he had originally obtained, to preserve as evidence.

That photograph was entered as Exhibit P-1 in this matter. [ 20 ] At 4:29 a.m., Constable Fillion began transporting the accused to the Kindersley RCMP detachment, the nearest detachment with an approved breathalyzer instrument, arriving at 4:58. He testified that it took longer than usual because heavy fog had rolled in and visibility was poor. As a result, Constable Fillion testified that he could drive no quicker than 80 km/hr. [ 21 ] After arriving at the Kindersley RCMP detachment, the accused was taken directly to an interview room.

The events in the interview room were recorded, and the recording was played, in part, during the voir dire , and entered as Exhibit P-3. I have reviewed the recording, from the time the accused enters the interview room, up to and including when he provides his first sample in the breathalyzer instrument. Utilizing the times noted on the time stamp of the recording (which are approximately two minutes behind the

times recorded by Constable Fillion on his watch), I note that the following is depicted on the recording:

a) At approximately 4:57:00 the accused enters the room with Constable Fillion. The officer tells the accused he will get him a phone book and leaves the room briefly.

b) At 4:57:14, the officer re-enters with a telephone directory and says: “So the way it works is you look and find and point and tell me which one and I`ll dial for you and then pass the phone off to you and leave the room. Sound fair?”

c) At 4:57:26 the accused responds: “Sounds perfect.” He immediately starts flipping through the phone book.

d) At 4:57:46 the accused puts the index finger of his right hand on a spot approximately half way down the right hand page of the telephone book and says: “Right there.”

e) After asking for a moment to complete some notes, Constable Fillion looks at the number the accused is still pointing at with his right index finger and says, at 4:58:05: “A-R-D Law Office. Ard Law Office.” He then reads the number out loud.

f) At 4:58:12 the officer picks up the telephone and dials, and then places the receiver to his ear. At 5:49:56 the officer says: “So far its ringing and ringing and ringing. Not even a messaging service.” The officer continues waiting with the receiver to his ear until 5:00:19, when he hangs up the phone and says: “No answer there. Do you want to try someone else? Or Legal Aid is available 24-7. You can try them. Its up to you.” This comment ends at 5:00:26.

g) At 5:00:30, the accused appears to say (although it is somewhat unintelligible as he is mumbling and slurring his words): “No, I’m good with where that’s going.” Constable Fillion responds: “What’s that?” The accused again says, somewhat unintelligibly, what appears to be: “I’m good with where its going.” Constable Fillion replies: “You’re good for what?”

h) At 5:00:36 the accused then asserts: “I’m good where that’s going. Ard. He’s mine. That’s it.”

i) At 5:00:48 Constable Fillion then asks: “Did you want to try somebody else then?” The accused immediately shakes his head no, and says at 5:00:52: “No, I’m good.”

j) As a result, the officer takes the telephone directory and leaves the room with it. After a brief absence he returns at 5:01:15, and indicates to the accused that they would now wait for 15 minutes (which the officer testified was the minimum observation period). At 5:02:44 the breathalyzer technician comes into the room and checks the accused’s mouth, and is done at 5:03:12.

k) The observation period continues until 5:11:37, when the voice of the technician is heard from off screen, asking Constable Fillion to come for a second. Cst. Fillion does not leave the room and remains in view on the recording, but a conversation ensues with the technician through the open doorway of the interview room, about the technician having difficulty inputting the start of the observation period. At 5:12:40 Constable Fillion exits the observation room, and the accused is in the room by himself for a period of 33 seconds, until the officer returns at 5:13:13. The accused does not burp, belch or vomit during this time.

l) Constable Fillion makes some additional notes, and then at 5:13:28 advises the accused that his partner found a small bud of marijuana in the accused’s vehicle. The accused responded that was news to him. Constable Fillion advised the accused that as he was on conditions not to possess illegal substances. After a short discussion about the accused’s conditions, at 5:14:40 Constable Fillion advised the accused that he was also now under arrest for possession of marijuana as well as for violating his conditions.

m) The observation period continues until 5:25:39, when footsteps are heard and the technician says, from off camera: “Okay. Ready for your first test.” At 5:25:42, Constable Fillion says: “Okay James, come on in, get your first breath sample done.”

n) At 5:25:55 the accused is seen leaving the interview room. Once he is out of the room, from off camera the technician can be heard giving instructions to the accused on how to provide the sample. On the first attempt, at 5:26:38 on the video time stamp (5:28 according to the voice of Constable Fillion on the recording), the accused does not provide a suitable sample. Shortly thereafter the technician can be heard telling the accused he has put on a new mouthpiece and to try again.

A second attempt to provide a sample is made, at 5:28:15 (5:30 according to the voice of Constable Fillion on the recording), but once again the accused does not provide a suitable sample. Shortly thereafter, the technician is again heard telling the accused that he has a new mouthpiece on the instrument, and gives instructions again to the accused. A third failed attempt occurs at 5:29:49. A fourth failed attempt subsequently occurs at 5:31:28.

o) A fifth attempt at a breath sample begins at 5:33:05, and on this attempt the accused provides a suitable sample. Constable Fillion can be heard on the tape recording indicating that the time of the sample is 5:35. [ 22 ] During his evidence on the voir dire , Constable Fillion confirmed that after getting no answer to the telephone call to the ARD Law Office, he advised the accused there was no answer and that he could call someone else, reminding the accused that Legal Aid was available 24 - 7. The accused told him that he was good and that ARD was his guy.

The officer again asked the accused if he wanted to try someone else and the accused indicated again: “No, I’m good.” Constable Fillion understood the accused’s responses to mean that ARD was his lawyer, that he did not want to talk to anybody else, and that he was satisfied with the opportunity he had been provided to contact ARD.

Constable Fillion also testified that the accused seemed to understand his rights to counsel, and that when the accused had been provided with the phone book he had quickly flipped through it and selected the telephone number for the ARD Law Office. [ 23 ] In cross-examination, Constable Fillion acknowledged that no “ Prosper warning” was given to the accused. He also testified that at no other time did the accused ever ask for a call to a lawyer or say he wanted to call a lawyer. [ 24 ] Constable Fillion began an observation period of the accused at 5:03.

He observed the accused until 5:15 a.m., when he stepped out of the room for approximately 34 seconds to help the breathalyzer technician in the adjacent room, with the door left open between the rooms. During the time he was out of the room he did not hear any burping, belching or vomiting. He then returned to the room to continue with his observation of the accused, and had no reason to believe that the accused had done any of those acts.

He never observed any of that behaviour during the period he had the accused under observation. [ 25 ] Constable Fillion testified that the purpose of the observation period was to ensure that no mouth alcohol was present, because the presence of mouth alcohol could result in a false reading. Constable Fillion acknowledged, however, that the breathalyzer machine will not accept a sample if it detects mouth alcohol. Instead, the instrument will indicate the presence of mouth alcohol and initiate a new waiting period.

Despite that, Constable Fillion testified he undertakes an observation period because that is how he was trained. [ 26 ] Constable Fillion maintained the accused under observation until he was advised by the breathalyzer technician that the approved instrument was ready. The accused was then taken into the breathalyzer room and subsequently provided two samples. As is indicated on the Certificate of a Qualified Technician, which was entered as Exhibit P-2 on the voir dire, the first sample was provided at 5:35 a.m., with a reading of 180 milligrams of alcohol in 100 millilitres of blood.

The second sample was taken at 5:58 a.m., with a reading of 170 milligrams of alcohol in 100 millilitres of blood. Issues 1. Have the elements of impaired operation of a motor vehicle been proven beyond a reasonable doubt? 2. Issues relating to the .08 offence:

a) Were the breath samples taken “as soon as practicable” pursuant to the demand made under s. 254(3) of the Criminal Code?

b) Was there a breach of ss. 7 and 8 of the Charter as a result of the alleged failure of Constable Fillion to maintain a properobservation period?

c) Were there reasonable grounds to arrest the accused for impaired driving?

d) Was there a breach of s. 10(

b) of the Charter in that the accused was not provided his rights to counsel upon being advised ofcharges for possession of marijuana and breach of recognizance?

e) Was there a breach of the implementational duty under s. 10(

b) of the Charter?

f) If there were violations of the accused’s rights, is a remedy warranted under s. 24 of the Charter?

g) Have the elements of the .08 offence been proven beyond a reasonable doubt? 3. Have the elements of dangerous operation of a motor vehicle been proven beyond a reasonable doubt? 4. If the offence of dangerous driving is proven, is a conviction precluded by application of the Kienapple principle? Analysis 1.

Have the elements of impaired operation of a motor vehicle been proven beyond a reasonable doubt? [27] The test to be applied in determining whether the offence of impaired driving has been proven is found in R v Stellato, (SCC), [1994] 2 SCR 478 at para. 74: 74 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. [28] In this case, the grounds noted by Constable Fillion for suspecting the accused was operating a motor vehicle while impairedby alcohol included that the accused was quite nervous, was avoiding eye contact, and was leaning toward the centre of his motor vehiclein an apparent attempt to hide the smell of alcohol.

Despite this, Constable Fillion could still smell alcohol on the breath of the accused,and observed that the accused had dry, pasty lips. [29] However, in cross-examination Constable Fillion acknowledged that there was nothing unusual in the manner of the drivingof the accused. There was nothing unusual in the manner in which the vehicle turned off Highway #21 and nothing unusual in themanner in which the vehicle subsequently stopped on the grid road. The officer did not observe any bloodshot or glassy eyes.

He didnot observe any problem with the motor skills of the accused when he exited his vehicle and walked back to Constable Fillion’s patrolcar. Finally, Constable Fillion acknowledged that if the accused had not failed the roadside screening demand, he would not have hadgrounds for a breathalyzer demand.

[30] Taking into account the totality of the circumstances, and applying the test in Stellato, I am not satisfied beyond a reasonabledoubt that the Crown has proved the accused operated a motor vehicle while his ability to do so was impaired by alcohol. Accordingly, Ifind him not guilty on Count #2 of Information 24468520. 2. Issues relating to the .08 offence:

a) Were the breath samples taken “as soon as practicable” pursuant to the demand made under s. 254(3) of the Criminal Code? [31] The accused alleges that the breathalyzer samples were not taken “as soon as practicable” as required by s. 258(1)(c)(ii), giventhat the observation period of the accused began at 5:03 a.m., but the first sample was not taken until 5:35. It is suggested that there isno explanation put forward for the delay other than the officer observing a “15-minute observation period”.

Not only does counsel forthe accused suggest that there is a further 17-minute period which is unexplained following that initial 15 minutes, but that the initial 15minutes was completely unnecessary by virtue of the technology of the instrument itself, which can detect the presence of mouth alcohol. [32] In R v McCoy, (1990) (SK KB), 86 Sask R 204 (QB), the Court held that as soon as practicablemeans “as soon as can be reasonably expected”. There is an acknowledgment that every case must be viewed on its particularcircumstances.

Gerein J. said: If the Crown is to be permitted to rely on the presumption it must establish that the samples were taken within a reasonable time. What isreasonable will depend on the particular circumstances of each case. As well, in each case the trial judge may have reference to his orher own experience. At the same time, the Crown cannot be expected to account for every minute or even several minutes lost over aperiod of time. However, when the time lapse is one of considerable or unusual duration, it is incumbent upon the Crown to provide an explanation forthe delay.

If that explanation is accepted as proper then the lapse of time remains reasonable. If the explanation is rejected then thesample is not obtained within a reasonable time and the presumption can have no application. (Emphasis added) [33] In R v Burwell, 2013 SKQB 20, Laing, J. states at paras. 12 and 13: [12] The phrase “as soon as practicable” is one which must be applied with reason. (Vide: R v Carter (1981), (SKCA), 59 CCC (2d) 450, 9 Sask R 1 (CA)). In this decision, Culliton CJS stated at para. 9: [9] The requirement that the samples be taken as soon as practicable is one which must be applied with reason.

As I read the section, aslong as the delay, if there is one, is explained to the satisfaction of the judge, there may be reliance on the presumption in paragraph (iv)as long as the samples are taken within the two hour limit.

It would only be when the learned trial judge concluded there was a delay notsatisfactorily explained, or such delay prejudiced the accused that the court would deny the prosecution the right to rely on thepresumption in paragraph (iv). [Emphasis added] The foregoing was quoted with approval in R v Tarr, (SK CA), [1998] 10 WWR 333, 168 Sask R 161 (CA), perCameron JA at para. 11. [13] As noted in R v Vanderbruggen (2006), (ON CA), 206 CCC (3d) 489, [2006] OJ No 1138 (QL) (Ont CA), thephrase “as soon as practicable” means “nothing more than that the tests were taken within a reasonably prompt time under thecircumstances . . . .”

[ 34 ] The phrase “as soon as practicable” was also considered in R v Kinzel , 2013 SKQB 201 , another case where counsel for the accused argued, as here, that there was no requirement for a 15-minute observation period, given the technology of the instrument. After referring to Burwell , the Court in Kinzel stated as follows at para. 30: [30] The essential principles to be extracted from the foregoing are that: i. The phrase “as soon as practicable” does not mean as soon as possible; ii. The phrase means nothing more than samples are to be taken within a reasonably prompt time under the circumstances; iii.

The requirement of “as soon as practicable” is one which must be applied with reason; and iv.

As long as the first sample was taken within two hours of the alleged offence, the second no sooner than 15 minutes after the first, and delays that impact the “as soon as practicable” requirement are explained to the satisfaction of the judge and those delays did not prejudice the accused, then the prosecution is entitled to rely upon the presumption. [ 35 ] Applying the above principles to this matter, I note that the first sample was taken at 5:35 a.m., within two hours of the time of the accused’s driving, as required by s. 258(1)(c)(ii).

In addition, Constable Fillion explained that before the accused was taken to provide the first sample he was placed under an observation period, which was to be a minimum of 15 minutes, in order to ensure that there was no mouth alcohol which could result in a false reading.

Constable Fillion proceeded in this manner because he was instructed to do so as part of his training on the breathalyzer instrument (he is a qualified breathalyzer technician). [ 36 ] In these circumstances, I have no hesitation in concluding that Constable Fillion believed that following a 15-minute observation period was an appropriate procedure, and was done in good faith in order to ensure that the test results were accurate and that a false reading would be avoided. [ 37 ] The accused further suggests that the minimum 15-minute observation period would have expired by 5:18 a.m., and given that the first sample was not taken until 5:35 a.m., there is a further 17 minutes which is unexplained and which results in the samples not being taken “as soon as practicable”.

However, in that regard I note that Constable Fillion testified that 15 minutes was only the minimum required period, and that he took the accused for his first sample as soon as he was advised by the breathalyzer technician that the instrument was ready. Furthermore, I also note from a review of Exhibit P-3, that although the first sample was not actually received until 5:35 a.m., the accused was taken for the purpose of providing the first sample approximately eight minutes before then.

In those intervening eight minutes, the accused made four unsuccessful attempts at providing the first sample, before finally providing a suitable sample on the fifth attempt at 5:35. [ 38 ] Accordingly, the only potentially “unexplained” portion is from approximately 5:18 a.m. until 5:27 a.m. (5:25:39 according to the video time stamp on Exhibit P-3), but in my view this period is satisfactorily explained by the fact that Constable Fillion testified that he took the accused for the first sample as soon as he was advised by the technician that the breathalyzer unit was ready. [ 39 ] Taking all of the above into account, and applying the principles noted above, I am of the view that the first sample was taken within a reasonably prompt time under the circumstances.

The police acted reasonably in the circumstances, and any delay occasioned by the “15-minute observation period” was intended to be for the benefit of the accused and the integrity of the analysis, not to prejudice the accused. Any delay has been satisfactorily explained to me, and I conclude that the samples were taken “as soon as practicable”.

b) Was there a breach of ss. 7 and 8 of the Charter as a result of the alleged failure of Constable Fillion to maintain a properobservation period? [40] The accused alleges that the failure of the police to maintain a proper observation period resulted in a breach of the accused’srights under ss. 7 and 8 of the Charter. [41] Given my ruling with respect to the observation of the “15-minute waiting period” noted above, I am of the opinion that theobservation of the waiting period was appropriate in the circumstances of this case.

Furthermore, although there was a brief period ofapproximately 34 seconds when Constable Fillion exited the interview room and did not have the accused under his visual observation, Inote that the officer testified that he was in the adjacent room, with the door open, and did not hear any evidence to suggest that theaccused had burped, belched or vomited in that period of time. In addition, my own review of Exhibit P-3 confirms there was none ofthat behaviour during the entire time of the observation period, including for the 34 seconds when Constable Fillion was in the adjacentroom.

In the result, I am of the view that the observation period was proper in the circumstances of this case, and there was no violationof the rights of the accused under ss. 7 or 8 of the Charter.

c) Were there reasonable grounds to arrest the Accused for impaired driving? [42] The accused argues that the evidence is uncontradicted that Constable Fillion arrested the accused for impaired operationwhile the accused still remained seated in his vehicle, very early in the investigation, and that Constable Fillion’s only grounds for doingso were the speed of the accused’s vehicle, and the odour of alcohol. [43] However, the accused’s argument is based on a misunderstanding of the evidence.

The evidence of Constable Fillion was thatwhen he first approached the accused, he immediately arrested him for dangerous driving, but only detained him for an investigationinto impaired driving. He was not arrested immediately for impaired driving. Constable Fillion’s evidence was clear that when he firstapproached the accused’s vehicle he noted that the accused was quite nervous, was avoiding eye contact, and was leaning toward thecentre of his vehicle, away from Constable Fillion, in an apparent attempt to hide the smell of alcohol.

Despite this, Constable Fillioncould still smell alcohol on the accused’s breath, and noted the accused had dry, pasty lips. Given those factors, Constable Fillionformed the suspicion at 3:54 that the accused had alcohol in his body, and the accused was detained for an impaired drivinginvestigation, in addition to being arrested for dangerous driving. Constable Fillion then had the accused return to his patrol car, wherehe was searched incident to arrest and placed in the back seat.

Constable Fillion administered the ASD demand at 4:09 a.m. and aftertwo unsuccessful attempts, a suitable sample was provided at 4:15 a.m., resulting in a fail reading. It was only after the fail reading thatConstable Fillion formed the reasonable grounds to believe that the accused’s ability to operate a motor vehicle was impaired by alcohol,and the accused was then arrested for impaired driving. [44] In these circumstances, the allegation that Constable Fillion did not have reasonable grounds to arrest the accused forimpaired driving must fail.

Constable Fillion was clear that he initially only detained the accused for an impaired driving investigation,and it was only after that further investigation that he eventually arrested the accused for impaired driving at 4:15. The accused was notarrested for impaired driving prior to that point. [45] The issue of reasonable and probable grounds for arrest was discussed in R v Storrey, (1990) (SCC), SCJ No12, where the Supreme Court of Canada stated at para. 17: ...an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest.

Those grounds must, inaddition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must beable to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need notdemonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case forconviction before making the arrest. [46] In my view, the grounds referred to in the evidence of Constable Fillion were more than sufficient to support the requiredbelief.

d) Was there a breach of s. 10(

b) of the Charter in that the accused was not provided his rights to counsel upon being advised ofcharges for possession of marijuana and breach of recognizance? [47] The accused argues that he was never arrested for the charges of possession of marijuana or breach of recognizance, and wasnot given his rights to counsel with respect to those additional charges.

The accused argues that an appropriate remedy is the exclusionof the Certificate of a Qualified Technician tendered as Exhibit P-2. [48] It is clear from the testimony of Constable Fillion that while he had the accused under observation at the Kindersleydetachment, he was advised by Constable Klassen that a search of the accused’s vehicle resulted in a small amount of marijuana beingfound. As soon as Constable Fillion learned of this, he immediately informed the accused and advised the accused that he was underarrest at approximately 5:16 a.m. for possession of marijuana as well as for violating his conditions.

Rights to counsel were not againgiven after this arrest, although they had been given earlier at 4:16. [49] An individual can only exercise his s. 10(

b) right in a meaningful way if he knows the extent of his jeopardy: R v Black, (SCC), [1989] SCJ No 81, at para. 24. [50] However, in R v Evans (1991) (SCC), 1 SCR 869, the Supreme Court of Canada touched on the issue ofwhether or not, in the course of an investigation, the police must reiterate the right to counsel every time that an investigation touches ona different offence.

The Supreme Court of Canada concluded at para. 48, as follows: . . . the police must restate the accused’s right to counsel when there is a fundamental and discrete change in the purpose of theinvestigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time ofthe warning. [51] In R v Lofstrom, [2014] SCJ No 241, the circumstances were similar to the present case. Mr. Lofstrom was arrested forimpaired operation of a motor vehicle.

In a subsequent search of the accused’s vehicle after the arrest, the investigating officer found asmall amount of cannabis marijuana. However, the officer focussed on the impaired driving investigation and did not place the accusedunder arrest for that offence or obtain any further evidence in relation to that offence. When the accused was taken to the policedetachment in order to provide breath samples, he was given an opportunity to contact counsel and did so. He subsequently providedbreath samples, resulting in charges under s. 253(

a) and 253(

b) of the Criminal Code. The accused was not advised of a charge for thepossession of marijuana until he was subsequently released from the detachment. In those circumstances, the Court held that there wasno breach of the s. 10 rights of the accused. [52] In R v Antoine, [2003] SJ No 557, a case relied on by the accused, the circumstances were that the accused was arrested forimpaired driving and provided with his rights to counsel. He was subsequently returned to the detachment, where he was given anopportunity to contact counsel and did so.

He was subsequently charged with impaired driving and was not advised he was beingcharged as well with dangerous driving until he was released on a Promise to Appear. Meekma, PCJ held that there was a violation ofthe accused’s rights under s. 10(

a) and (

b) of the Charter, noting that the jeopardy of the accused under s. 249.1 of the Criminal Code isas great as that for s. 253(a). However, despite concluding that there was a breach, the Court refused to exclude the evidence, concludingthere was no causal connection between the breach and the evidence sought to be excluded. [53] In the present case, Constable Fillion was not aware of any charges with respect to the marijuana or breaches until after theaccused was provided his opportunity to contact counsel for the impaired driving and dangerous driving charges.

As soon as ConstableFillion was advised of the additional charges, he informed the accused he was under arrest for those charges as well. However, therewas no further evidence gathered in relation to those charges. In my view, there was no fundamental change in the nature of theinvestigation being conducted by Constable Fillion, and the accused, in my view, was not facing any more serious jeopardy as a result ofthe additional charges.

Furthermore, the evidence which the accused seeks to exclude is the evidence of the breath samples of theaccused, which is completely unrelated to the marijuana and breach charges. [54] In these circumstances, I am not satisfied on a balance of probabilities that there was a violation of the rights of the accusedunder s. 10(b).

e) Was there a breach of the implementational duty under s. 10(

b) of the Charter? [55] The accused argues that he was not afforded a reasonable opportunity to contact his counsel of choice. Furthermore, it isargued that after the unsuccessful attempt to contact the lawyer was made, the accused changed his mind about contacting counsel, andtherefore a “Prosper warning” was required. The accused further argues that as no such warning was given, his rights under s. 10(

b) ofthe Charter were violated, and the Certificate of a Qualified Technician should therefore be excluded. [56] In R v Prosper, (SCC), [1994] 3 SCR 236, the Supreme Court of Canada held that s. 10(

b) of the Charterrequires, in situations where a detainee has asserted his or her right to counsel and has been duly diligent in exercising it, that the policehold off in order to provide the detainee with a reasonable opportunity to contact counsel. Furthermore, where the detainee has assertedhis or her right to counsel and has been reasonably diligent in exercising it, but has been unsuccessful in exercising that right andsubsequently indicates that he or she has changed his or her mind and no longer wants legal advice, the police have an obligation toadminister a warning (the “Prosper warning”).

The police are required to tell the detainee of his or her right to a reasonable opportunityto contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee toparticipate in any potentially incriminating process until he or she has had that reasonable opportunity. [57] The necessity of a “Prosper warning” was discussed by the Saskatchewan Court of Appeal in R v Basko, [2007] SJ No 564(Sask CA), 2007 SKCA 111.

Wilkinson, J.A. stated, at para. 21: [21] In R v Luong, the Alberta Court of Appeal had held that the onus is upon the detained person to establish that a breach of Charterrights has occurred, and they set out steps to be followed in making that assessment.

Section 10(

b) of the Charter imposes two duties onpolice officers. They must inform the detainee of his right to consult counsel without delay and of the existence and availability of LegalAid and duty counsel. If the detained person wishes to consult counsel, the police must provide a reasonable opportunity for thedetained person to exercise that right, and refrain from eliciting evidence until he or she has had that opportunity.

Where the trial judgeconcludes that a reasonable opportunity has been provided by the police, the trial judge must consider whether the detained person wasreasonably diligent in exercising that opportunity. The burden is on the person detained, not the police, to establish reasonablediligence.

If the detained person is unable to reach counsel after reasonably diligent efforts (which requires some evidence) then theissue of waiver will arise and a “Prosper” warning may be required. [58] The requirement expressed in Basko, that a detained person must be reasonably diligent in exercising his or her opportunity tocontact counsel, was discussed in R v Hobbs, 2012 SKPC 122. The Court concluded, at para. 29, that a lack of diligence and bona fidesby an accused in exercising his s. 10(

b) rights obviates the necessity on the part of the police to give a “Prosper warning”. [59] In the present case, there is no dispute that the accused initially expressed a desire to consult a lawyer. It is also clear thatwhen he was provided a telephone directory, he very quickly selected a number for the Ard Law Office. After being advised there wasno answer at that number, and that he could try someone else, including Legal Aid, the accused said on more than one occasion: “No,I’m good.” He further stated: “Ard. He’s mine.

That’s it.” When the Accused was again asked if he wanted to call someone else, heshook his head no and again said: “No, I’m good.” [60] In these circumstances, I am not satisfied, even on a balance of probabilities, that the accused was being reasonably diligent incontacting counsel. It was the accused, when he was presented with a telephone directory, who quickly selected the number for the ArdLaw Office. When there was no answer at the number which he himself selected (which is not surprising given that it was 5:00 a.m.),the accused expressed no further desire to contact anyone else.

Despite his assertion that Ard was his lawyer, he offered no othernumbers for Ard. Furthermore, he did not accept the offer to call other counsel, including the offer of Legal Aid. I fail to see, in suchcircumstances, how it can be said that the accused, having been given an opportunity to contact counsel, was being reasonably diligent inhis efforts to do so. Given that lack of diligence, I conclude there was no requirement, in the circumstances of this particular case, forthe police to administer a “Prosper warning”. [61] Accordingly, I conclude there was no breach of the rights of the accused under s. 10(

b) of the Charter.

f) If there were violations of the accused’s rights, is a remedy warranted under s. 24 of the Charter?

[62] Having concluded there were no violations of the accused’s rights under ss. 7, 8 or 10 of the Charter, it is unnecessary toconsider a remedy pursuant to s. 24.

However, if I am wrong in that regard, I would not have excluded the evidence of the breathalyzerresults in the circumstances of this case. [63] With respect to the alleged breach relating to rights to counsel for the marijuana and breach charges, there is no connectionbetween any such breach and the evidence sought to be excluded, and as was noted in R v Desrosiers, 2013 ABQB 24 at para. 8, “[a]prerequisite for applying s. 24(2) is that evidence must be obtained via breach of a Charter right.” The court there went on to concludethat as the evidence sought to be excluded was unrelated to the alleged Charter violation, it could not be excluded under s. 24(2). [64] Furthermore, with respect to the alleged breach of the implementational duty under s. 10, and the failure to provide a “Prosperwarning”, it is my view that any such alleged breaches would not warrant exclusion of the breathalyzer results, taking into account thetest enunciated in R v Grant (2009), 2009 SCC 32 , 245 CCC (3d) 1 (SCC).

Any alleged Charter violation was minor ortechnical in nature. Constable Fillion was acting in good faith throughout the investigation, and did not display any reckless or wilfuldisregard for the rights of the accused. Furthermore, the admission of the Certificate would have little adverse effect on the repute of thecourt process, given my finding that the accused was not being diligent in his exercise of his right to contact counsel. The accused wastreated reasonably and appropriately throughout, and the giving of breath samples is a relatively non-intrusive procedure.

Breath sampleevidence is considered reliable evidence by the courts, and society has a significant interest in adjudicating cases under s. 253(

a) and s.253(b). [65] Finally, I also note the following, at para. 111 of Grant, supra, in its discussion of the issue of exclusion of bodily evidencesuch as breath samples: While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity isdeliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded,notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe interms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted. For example, thiswill often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [Emphasis added.]

g) Have the elements of the .08 offence been proven beyond a reasonable doubt? [66] The evidence is undisputed that the accused was found operating a motor vehicle at 3:50 a.m. on the offence date. The firstbreath sample was taken within two hours of that time, and having found that the breath samples were taken as soon as practicable, therequirements of s. 258(1)(

c) of the Criminal Code have been met and the presumption of that

section applies. As a result, given theCertificate of a Qualified Technician, I am satisfied that the blood alcohol concentration of the accused at the time of driving was 170milligrams of alcohol in 100 millilitres of blood. As a result, the accused is found guilty of driving while over .08. 3. Have the elements of dangerous operation of a motor vehicle been proven beyond a reasonable doubt? [67] The Supreme Court of Canada fully considered the law with respect to dangerous driving in R v Beatty, 2008 SCC 5, andsubsequently in R v Roy, 2012 SCC 26.

The law with respect to dangerous driving , as established in those cases, was summarized by theSaskatchewan Court of Appeal in R v Alves, 2014 SKCA 82, as follows at paras 22 - 23: 22 The actus reus and mens rea of dangerous driving were set out in R v Beatty, 2008 SCC 5 at para. 43, [2008] 1 S.C.R. 49, in CharronJ.’s majority reasons. These were subsequently affirmed by a unanimous Supreme Court in R. v. Roy, 2012 SCC 26 at para. 33, [2012] 2S.C.R. 60.

In Beatty, Charron J. held that the actus reus of dangerous driving under s. 249 of the Criminal Code is “defined ... by thewords of the enactment.” The actus reus of dangerous driving therefore requires:

The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section,driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use ofthe place at which the motor vehicle is being operated and the amount of traffic at that time is or might reasonably be expected to be atthat place.” 23 The mens rea of dangerous driving is a modified objective test. As Charron J. held in Beatty: 43 . . .

The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct wasaccompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all theevidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from thestandard of care that a reasonable person would observe in the accused’s circumstances.

Moreover, if an explanation is offered by theaccused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have beenaware of the risk and of the danger involved in the conduct manifested by the accused. [Emphasis added] [68] I am also mindful of the two-step approach for assessing mens rea as suggested at para. 36 of R v Roy, supra: It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable personwould have foreseen the risk and taken steps to avoid it if possible.

If so, the second question is whether the accused’s failure to foreseethe risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in theaccused’s circumstances. [69] With respect to the actus reus of dangerous driving, the evidence establishes that the accused was operating his motor vehicleat a speed of 176 km/hr on an undivided highway with a posted speed limit of 100 km/hr at 3:50 a.m. when it was dark. The roads werefrosting over, conditions were deteriorating and the roads were getting slippery.

In addition to the traffic which the accused didencounter, namely the vehicles of both Constable Fillion and Constable Klassen, it was further noted by Constable Fillion that it is notunusual to encounter semi-trailer trucks on that highway at that time of night.

Other paved secondary highways intersect the highway inthat area. [70] On these facts, I have no hesitation in concluding the accused was driving in a manner that was “dangerous to the public,having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operatedand the amount of traffic that at the time is or might reasonably be expected to be at that place.” [71] In assessing the mens rea for dangerous driving, I am satisfied that the conduct of the accused, in driving as he did, amountedto a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.

Objectively, areasonable person in the accused’s position would be aware of the risk of injury to others resulting from driving at an exceedingly highrate of speed on an undivided highway, at night, in deteriorating and slippery road conditions, and would have taken steps to avoidcreating that danger. The failure of the accused to foresee that risk, and to take steps to avoid it, was a marked departure from thestandard of care expected of a reasonable person in the circumstances. [72] Accordingly, the elements of dangerous driving have been proven beyond a reasonable doubt. 4.

If the offence of dangerous driving is proven, is a conviction precluded by application of the Kienapple principle? [73] The accused contends that a conviction for dangerous driving is precluded by his guilty plea to a speeding offence arising outof these circumstances. The accused has not yet been sentenced for the speeding infraction. [74] The application of the Kienapple principle, that there should not be multiple convictions for the same delict, was reviewed inR v Galloway, 2004 SKCA 106 , at paras. 111-125.

In order for the principle to apply, there must be a relationship of sufficientproximity first as between the facts, and secondly as between the offences, for which it is sought to invoke the rule against multipleconvictions. The requirement of sufficient proximity between the offences will only be satisfied if there is no additional anddistinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple

principle. [75] In the present case, while a factual nexus exists with respect to the offences of dangerous driving and speeding, when one considers the legal nexus there are distinguishing elements in the offences which preclude the application of the Kienapple principle. The two offences are distinct.

With respect to dangerous driving, it is not just the speed of the vehicle that is determinative (as in the speeding offence), but rather the manner of operation, having regard to all the circumstances, that creates a danger to the public. [76] I therefore conclude that a conviction for dangerous driving is not precluded by the application of the Kienapple principle, and I find the accused guilty of that offence. _______________________ B.D. Wright, J