Her Majesty the Queen - v. -, 2015 SKPC 103

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 103 Date: July 15, 2015 Information: 43941775 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Margaret Ellen Andrei Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Merv Nidesh, Q.C. For the Accused DECISION ON CHARTER VOIR DIRE D. KOVATCH , J BACKGROUND [ 1 ] The accused, Margaret Ellen Andrei, is charged with impaired driving and driving while over .08. The incident occurred in the very early hours of February 1, 2014.

The defence raised a number of arguments that her rights under the Canadian Charter of Rights and Freedoms had been breached. THE EVIDENCE

[ 2 ] The only witness called on the Charter voir dire was Cst. Kent Westrum of the Moose Jaw City Police Service. He testified that it was right around midnight, right at the start of February 1, 2014. He was on patrol in full uniform and a marked police car in the vicinity of Chiller’s Bar and the Eagle’s Club. Right around midnight he saw a vehicle leaving the Chiller’s Bar area, travelling on Lillooet Street and then 9 th Avenue Northwest. He followed the vehicle, and saw that it weaved slightly. He turned on his emergency lights to stop the vehicle.

He said the driver of the vehicle had somewhat of a delayed or slowed reaction to the emergency lights, but pulled over and stopped relatively quickly. The defendant, Margaret Ellen Andrei was the driver and lone occupant of the vehicle. [ 3 ] He asked her for her driver’s licence and registration. Once again, he felt that she had a delayed or slow reaction in producing these documents. [ 4 ] He further testified that she had a freshly lit cigarette, and he felt that she may have this cigarette to mask any smell. As a result he asked her if she had anything to drink, and she replied: “three beer”.

He then asked her to come with him to the police car for the approved screening device test. She accompanied him to the police car. He testified that when she was in the police car, he could then smell beverage alcohol coming from her and noted she had bloodshot eyes. At 12:03 a.m., he made the formal ASD demand from the card. She provided a suitable sample, which registered a fail. At 12:06 a.m., he advised her of her Charter rights. At 12:09, he read the standard breath demand and gave her the police warning. [ 5 ] He testified that he believed she was impaired by alcohol.

He based this belief upon her slowed and delayed reactions, bloodshot eyes, the smell of alcohol, her admission of drinking alcohol, and the fail result on the ASD. [ 6 ] In Court, Cst. Westrum read the same ASD demand, Charter rights, breath demand and police warning that he read to her on that evening. He read these from the standard police issued card. These were read to the accused in the police car. With respect to Charter rights, he advised her that she was being charged, and could call any lawyer. Further, that Legal Aid could be provided.

He asked her if she understood and if she wished to call a lawyer now. In response to this last mentioned question, she said no. [ 7 ] As mentioned above, at 12:12, he read the police warning to her. Immediately after, at 12:13, he made a radio call requesting the assistance of another officer to move the accused’s car. At 12:18, Cst. Sills arrived and attended to that. At 12:25, Cst. Westrum and the accused left for the police station, arriving there at 12:30. She was then checked into cells and the observation period began at 12:33 a.m.

She provided two suitable samples of breath, one at 12:57 a.m. and one at 1:19 a.m. [ 8 ] The breath technician, Cst. Ryan Lawrence, then prepared the Certificate of Analyses, and supplied the Certificate of Analyses to Cst. Westrum. Cst. Westrum made copies, completed the Notice of Intention to Produce portion attached to the certificate, and served it upon Ms. Andrei. The accused was then issued an appearance notice, and released. [ 9 ] Defence counsel cross-examined the officer on a police issued document entitled the “Impaired Driving Investigation Report”. It recorded that she had high blood pressure.

The officer agreed this could account for her having a flushed face. It also indicated that her speech was fair and her walking and balance were fair. It indicated she was polite and courteous. Cst. Westrum agreed with defence counsel that when he made the ASD demand, he did so because he did not have sufficient grounds to proceed directly to the Intoxilyzer demand. [ 10 ] Under cross-examination, the officer also said that sometime after Ms. Andrei was placed under arrest and read the Intoxilyzer demand, she volunteered that she had her last drink about 20 minutes ago, shortly prior to being stopped by Cst.

Westrum. [ 11 ] Also under cross-examination, defence counsel had the officer reiterate that the concluding portion of her Charter rights involved him asking the question: “Do you want to call a lawyer now?” Her reply was no. Cst. Westrum agreed that once back at the station, he did not make any further inquiries about whether she wished to call a lawyer.

[ 12 ] Lastly, counsel cross-examined the officer with respect to his training on the ASD. The officer agreed that the manual indicates there should be a 15 minute time period between the last drink and providing a sample in the ASD. If this does not happen, there “may be” residual mouth alcohol which “may” produce a false positive test on the ASD. ISSUES [ 13 ] Based upon the defence argument, the following issues need to be determined: 1) Was the accused given sufficient reason to leave her vehicle and go back to the police vehicle? Was there a breach of her rights contrary to s. 10(

a) of the Charter ? 2) Did the officer have a lawful basis for the ASD demand? 3) Did the officer obtain a false positive reading on the approved screening device? Did this negate the validity of the Intoxilyzer demand, and require the officer to again administer the ASD test? 4) Was there a breach of the accused’s right to counsel, contrary to s. 10(

b) of the Charter ? Was the accused confused by the advice given to her? The accused was asked if she wanted to call a lawyer now, and replied no. Was the officer required to ask further questions about whether she wished to call a lawyer, back at the police station? ANALYSIS 1) Was the accused given sufficient reason to leave her vehicle and go back to the police vehicle? Was there a breach of her rights contrary to s. 10(

a) of the Charter ? [ 14 ] Cst. Westrum testified that he asked the accused if she had anything to drink, and that she replied “three beer”. He said that he then asked her to come back to the police car for the approved screening device. In cross-examination, Mr. Nidesh suggested that the officer only told her about the approved screening device once she was back at the police vehicle. The officer denied this and reiterated that he asked her to come back to the police car for the ASD. This is the only evidence presented on this point. There is absolutely no defence evidence or evidence to the contrary presented.

I have held on a number of occasions that the police officer is not required to advise in any technical or formal terms as to the reason for the detention. If that reason is clearly given, then s. 10(

a) of the Charter is complied with. In this case, and numerous others, I have held that when the police officer advises or requests an individual to return to the police car for the ASD, that is sufficient to comply with s. 10(

a) of the Charter . There was no breach of s. 10(

a) of the Charter . 2) Did the officer have a lawful basis for the ASD demand? [ 15 ] I have held on numerous occasions that the threshold for a lawful ASD demand, being simply reasonable suspicion, is relatively low. The officer need only have any reasonable suspicion that an accused person has alcohol in his or her body, and the ASD demand will be justified. In this case, the officer testified that the accused weaved slightly while driving, and had slow responses to demands. He asked her if she had anything to drink and she advised she had three beer.

I am satisfied that he had a reasonable suspicion that she had alcohol in her body when he asked her to come back to the police car for the ASD. Once back at the police car, he noted that her eyes were bloodshot and smelled beverage alcohol coming from her. He confirmed his reasonable suspicion and made the ASD demand. The demand was justified and there was no Charter breach. 3) Did the officer obtain a false positive reading on the approved screening device? Did this negate the validity of the Intoxilyzer demand, and require the officer to again administer the ASD test? [ 16 ] Mr.

Nidesh began by arguing that the ASD test produced a false positive result because of mouth alcohol. I suggested there was no evidence that there was a false positive reading. He then suggested that the reading might be a false positive, because the ASD test may have been taken within 15 minutes of the last drink. He then went on to argue that because this reading might be a false positive, this should nullify or invalidate the reasonable grounds for the Intoxilyzer demand, which had previously been made, and

require the officer to again administer the ASD test. [17] As indicated in argument, there is absolutely no evidence upon which the Court could conclude that the reading obtained bythe ASD was a false positive. There was no evidence presented as to when the accused had her last drink, or when that last drink wastaken in relation to the ASD. The only evidence was that after the Intoxilyzer demand had been made, when the officer filled out aquestionnaire or report form, the accused stated that her last drink was very shortly prior to leaving the bar and being stopped by thepolice officer.

On the basis of this hearsay evidence, I could not possibly conclude that there was residual mouth alcohol and a falseASD reading. No evidence was presented that the ASD machine was not operating properly, or that it produced any false results. Takenat its absolute highest, this evidence amounts to creating a mere possibility that the ASD result was a false positive. [18] With respect to this argument, I begin by observing that I am required by law to regard every ASD fail result as being apossible false reading. It is very clear that the ASD fail reading, in and of itself, has no evidentiary value.

An accused person hascommitted absolutely no criminal offence by simply failing the ASD test. The fail result of the ASD test can only provide the policeofficer with reasonable and probable grounds upon which he can then make the Intoxilyzer demand. It is only the failure of theIntoxilyzer test that will result in criminal charges. [19] This causes me to observe that the defence argument would have me determine that the Crown has not proved beyond areasonable doubt that the ASD test was accurate, when I am required by law to assume that the result may be inaccurate.

It would alsorequire me to conclude that proof of an accurate ASD test result is an essential element of the offence. It is not an essential element ofthe offence of driving while over .08. [20] On January 8, 2006, I gave an unreported written decision in the case of R v Joshua Douglas Knutson. It was a decision on avoir dire. It was argued on the basis of an agreed statement of facts, but the agreed upon facts were virtually identical to the case at bar. In that case, the accused was stopped at 20 minutes past midnight. He blew into the ASD at 28 minutes past midnight, obtaining a failresult.

The Intoxilyzer demand was made. At the police station, prior to supplying the first breath sample in the Intoxilyzer, the accusedadvised that his last alcoholic drink was consumed at 20 minutes past midnight, immediately prior to being stopped by police. [21] In that case, I was referred to R v Patchett, 2002 YKTC 29. In the Patchett case, in similar circumstances, the Court said theASD fail result might be inaccurate, and it excluded the Intoxilyzer test results. [22] I declined to follow the Patchett decision. I referred to three different groups of analogous cases.

In one group, the Crownhad not proved that the ALERT or ASD was an approved device. In the second group, there was evidence that the ALERT or ASD wasnot properly calibrated prior to the officer using it, and that this fact only became known to the officer some time after the incident. Inthe third group, after the demands and the charge being laid, but prior to trial, an RCMP breathalyzer expert wrote a letter advising ofalterations to the ALERT model, and the model was subsequently recalled.

I quoted from the Ontario Court of Appeal in R v Paradisi, (ON CA), [1998] OJ No 2336, as follows: The onus was on the accused to lead evidence at trial that there was a “high degree of unreliability with respect to the screening device”at the time that it was administered to the accused ...

In short, the expert testimony relied upon by the accused failed to meet the “highdegree of unreliability” threshold and instead, amounted to little more than speculation. [23] I also held that the most important factors were what the officer knew about the test results and the functionality of themachine, and what he believed respecting the accused’s intoxication or impairment. The reason for this was that the officer neededreasonable and probable grounds for the Intoxilyzer demand. [24] I quoted from Mr.

Justice Gerein in R v Borstmayer, (SK KB), [1993] 87 CCC (3d) 78, as follows: In the end, the trial judge was left with a singular uncontroverted fact i.e. that the A.L.E.R.T. into which the accused blew on January 9,1993, was recalled. There was no explicit evidence as to why it was recalled. Most importantly, there was no evidence that the particulardevice used by Cst. Henry was malfunctioning at the relevant time or was even likely to have been malfunctioning. Equally, there was noevidence to support a conclusion that the particular device was not an approved instrument.

Any inferences drawn from the letter would

be nothing more than speculation. It is my opinion that the evidence adduced about the A.L.E.R.T. was incapable of justifying a conclusion that the subject screeningdevice was defective and produced wrong results because of some malfunction. Equally the evidence could not justify a conclusion thatthe particular A.L.E.R.T. was not an approved instrument.

In the circumstances, the police officer was entitled to rely on the "fail"reading and the Crown was entitled to rely on the results obtained from an analysis of the accused's breath. [25] In the case at bar, there is no question that the ASD produced a fail result and that the police officer had reasonable andprobable grounds for the Intoxilyzer demand, when that demand was made. There is absolutely no evidence that the ASD result was notaccurate, and should not have been relied upon by the police officer. It would be pure speculation for me to conclude that the ASD resultwas not accurate.

There is also absolutely no evidence that the police officer doubted the accuracy of the ASD result, or doubtedwhether he had reasonable and probable grounds, and proceeded with the demand in the face of that doubt. As a result, I clearly have toconclude that there was no Charter breach by proceeding to obtain breath samples in the Intoxilyzer. [26] I now return to my earlier comments that there is a legal presumption that any ASD fail result may be a false result.

In theabsence of the officer doubting he has reasonable and probable grounds for the Intoxilyzer demand, it seems to me the officer wasrequired to deal with this possible wrong ASD fail result, the same way he would deal with every other ASD fail result. He would berequired to then make the Intoxilyzer demand, and determine whether there was evidence of an actual Criminal Code offence.

In myview, he did absolutely nothing wrong in proceeding in the fashion that he did. [27] Lastly, on this point, even if I were to accept the defence argument, I would conclude that there was at most a technicalbreach, without any ill will on the part of the police officer. At its strongest, the defence argument would be that the police officer erredby proceeding directly to the Intoxilyzer demand, instead of detaining the accused longer, and repeating the ASD test.

On a Grantanalysis, I would admit the evidence in any event. [28] For all of the above mentioned reasons, this argument must also fail. 4) Was there a breach of the accused’s right to counsel, contrary to s. 10(

b) of the Charter? Was the accused confused by the advicegiven to her? The accused was asked if she wanted to call a lawyer now, and replied no. Was the officer required to ask furtherquestions about whether she wished to call a lawyer, back at the police station? [29] As I understand the defence argument, there are two branches to the s. 10(

b) argument. Firstly, the accused may have beenconfused and misunderstood the s. 10(

b) Charter rights which were given. Secondly, the accused was asked at roadside if she wished tocall a lawyer now, and she said no. This was not a clear and unequivocal refusal. The officers were required to take further stepsregarding advising of her rights at the police station. [30] Dealing with the first branch of the argument, that the accused may have been confused about the Charter rights, the accusedhas not met the onus placed upon her. The law is very clear that the onus is upon the accused to establish a breach of Charter rights.

Inthe context of s. 10(b), the accused must establish that she was denied her right to consult counsel. She presented no evidence that wouldallow me to reach this conclusion. It would be pure speculation for me to conclude that she was confused and that is why she didn’texercise her right to counsel. [31] With respect to the second branch of the s. 10(

b) argument, this is the same argument that Mr. Nidesh made in the case of R vMytroen, a case now reported at 2015 SKPC 83 , 2015 SKPC 083. For the reasons that I enunciated in that case, this argumentmust also fail. CONCLUSION [32] For all of the above mentioned reasons, I have concluded that there is no breach of the accused’s Charter rights and all of theevidence admitted on the Charter voir dire will now be admitted in the trial proper.

[ 33 ] Dated at the City of Moose Jaw, Saskatchewan, this 15 th day of July 2015. D. Kovatch, J