Her Majesty the Queen - v. -, 2013 SKPC 70

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 070 Date: April 29, 2013 Information: 24297951 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - John Pavey Appearing: D. Gillespie For the Crown G. Worobec For the Accused DECISION ON VOIR DIRE J. BENISON , J CHARGES [ 1 ] The accused John Pavey is charged with driving while over .08 and impaired driving on November 16, 2011, at Estevan, Saskatchewan. CIRCUMSTANCES

[ 2 ] The accused was pulled over by a police officer in Estevan after he was observed making an illegal left turn. After a fail reading was obtained on the ASD, the officer took the accused to the Estevan Police Service where samples of breath were obtained with the readings in excess of the legal limit. VOIR DIRE [ 3 ] This matter proceeded by way of voir dire to determine if the accused’s Charter rights were breached and whether the Certificate of Analyses should be admitted in evidence. DEFENCE ARGUMENTS ON VOIR DIRE

(1) The investigating officer did not have reasonable grounds to demand samples of breath.

(2) The investigating officer did not make a demand for samples of breath as soon as practicable.

(3) The investigating officer did not advise the accused of his rights to counsel after making the demand for samples of breath. ANALYSIS

(1) The investigating officer did not have reasonable grounds to demand samples of breath. [ 4 ] I find that the officer had reasonable grounds to make a demand for samples of breath. I have reached this conclusion based on my findings of fact set out below. The officer observed the accused make an illegal left turn and immediately took steps to stop the vehicle. The officer observed that the accused’s eyes were watery and he detected an odour of alcohol. The accused admitted that he had consumed alcohol.

Based on this information and his observations of the accused, the officer administered an ASD test with a fail result. In examination-in-chief the officer testified that a fail reading indicated a blood alcohol level of over 1.00 milligrams percent. In cross-examination, he corrected this and stated that a fail reading indicated a blood alcohol level of 100 milligrams percent.

The officer further testified that he formed the opinion that the accused was impaired. [ 5 ] From the above circumstances, I am able to infer that the officer formed the opinion that the accused’s ability to operate a motor vehicle was impaired by alcohol. I am reinforced in this conclusion by the officer’s testimony that he arrested the accused for impaired operation of a motor vehicle. There is no requirement that an officer in stating his grounds must say that in his opinion the accused’s ability to operate a motor vehicle was impaired by alcohol. See R. v. Clarke , [2000] O.J.

No. 804 . [ 6 ] I am therefore satisfied that the officer had the requisite subjective belief for making the demand, albeit that he did not enunciate his grounds clearly while testifying. I further find that the officer had objectively reasonable grounds to make the demand based on the fail reading on the ASD test.

(2) The investigating officer did not make a demand for samples of breath as soon as practicable. [ 7 ] I find that the officer did not make the demand as soon as practicable. The officer frankly admitted that he had neglected to make the demand immediately after the fail reading on the ASD. It was only while he was filling out the investigation form at the Estevan Police Service that he realized his oversight. At this point he read the demand, approximately 27 minutes after the ASD test result.

On these facts there is no possible basis for an argument that the demand was made as soon as practicable. [ 8 ] The failure to make a demand as soon as practicable does not render the evidence inadmissible, although it may afford the

[8] The failure to make a demand as soon as practicable does not render the evidence inadmissible, although it may afford theaccused a Charter argument: R. v. Forsythe (2009), 2009 MBCA 123 , 250 C.C.C. (3d) 90. On the facts of this case, theofficer’s failure to make the demand as soon as practicable did not result in any breach of the accused’s Charter rights. The officer hadarrested the accused at the scene of the stop, advising him that he was under arrest for impaired driving.

In that I have previously foundthat the officer had reasonable grounds to believe that the accused’s ability to operate a motor vehicle was impaired by alcohol, the arrestwas lawful. The lateness of the demand did not cause any delay in the obtaining of samples of breath. The first sample was takenapproximately 27 minutes after arrival at Estevan Police Service; no prejudice was caused to the accused by the late demand.

(3) The investigating officer did not advise the accused of his rights to counsel after making the demand for samples of breath. [9] Defence counsel argued that the accused must be given his rights to counsel after the demand for samples of breath. Thebasis of this argument is that, if the accused had refused to provide breath samples, the Crown might not have successfully prosecuted acharge of refusal. This would be so if there was a finding by the Court that the officer did not have reasonable grounds for the demand,which was not the case here.

The investigating officer twice advised the accused of his rights to counsel, the first time after arrestinghim at the location of the stop and the second time at the Estevan Police Service when he placed the accused in the observation room. On both occasions the accused stated that he did not wish to consult legal counsel.

I must take into consideration that at this point theaccused knew that he had been arrested for impaired driving and must have known that he had been taken in to provide samples ofbreath. [10] The demand for breath samples was made 10 minutes after arrival at the Estevan Police Service; during this 10 minute period,the officer had advised the accused for a second time of his rights to counsel. The formal reading of the demand by the officer could notconceivably have changed anything in the mind of the accused whereby he would have wished to consult with a lawyer.

Despite the factthat the rights to counsel were not re-read to the accused after the officer made a formal demand for samples of breath, I conclude thatthe defence has not met the onus of establishing that the accused’s rights to counsel were breached. [11] In light of my findings as set out above, the Certificate of Analyses filed as Exhibit P-1 in this voir dire shall be admitted inevidence. J. Benison, J