Her Majesty the Queen - v. -, 2018 SKPC 78

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 78 Date: December 17, 2018 Information: 90020378 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Randall Scott Elgren Appearing: D.K. Jones For the Crown N.P. Robinson For the Accused RULING ON VOIR DIRE B. D. H ENNING , J [ 1 ] The accused is charged with offences of having operated a motor vehicle while impaired by alcohol and having operated a motor vehicle over the permitted blood alcohol limit contrary to the Criminal Code of Canada.

This occurred following an accident in Regina, Saskatchewan on December 18, 2016 when members of the Regina City Police were dispatched to the accident scene. The trial commenced on May 7, 2018 and continued on October 25, 2018. [ 2 ] This accident was a collision between two vehicles, one operated by the accused and the other by a Mr. Robert Livingstone who was accompanied by his wife. Both Mr. and Mrs. Livingstone gave evidence. Mr. Livingstone identified the accused as the other driver and described the collision, giving the occurrence time as about 6:00 p.m.

He was travelling on Sangster Boulevard and encountered a red light at Argyle Street. He came to a stop and waited for the light to turn green, and then proceeded into the

intersection when a dark colored truck which had been proceeding on the same street in the opposite direction turned left, right in front of him and he hit the passenger side of that vehicle. The impact was sufficient for the airbags to be activated in his vehicle. His description is clear and credible, and places blame for the accident on the other driver. I accept the narrative given by Mr. Livingstone. Mrs. Livingstone called 911 and police quickly attended.

Further facts will be set out as required when dealing with issues relating to the laying of a charge and the obtaining of breath samples for analysis. [ 3 ] At the commencement of the trial on May 7, 2018 there was considerable discussion with counsel regarding the question of a further adjournment.

The Court had been contacted a very short time before that date by the defence through a Judicial Officer of the Court with the information that the defence would be requesting an adjournment due to the unavailability of a police witness the defence wished to have present whom the Crown did not require for their case. The Court had directed that defence counsel be advised that because the case was scheduled for trial for a second time, that it should proceed with at least the Crown case.

Apparently this message from the Court did not reach defence counsel and all of these issues and the question of delay, including the date on which disclosure was complete, was discussed in court on May 7, 2018. The defence in court vigorously argued for an adjournment due to the absence of this witness and at the same time argued that any delay was prejudicial to the defence and was the fault of the Crown for reasons that are elaborated upon below. [ 4 ] The defence has filed formal notices of multiple Charter breaches, including delay, citing, inter alia , R v Jordan, 2016 SCC 27 , [2016] 1 SCR 631 [ Jordan ].

The trial was commenced on May 7, 2018 and conducted as a voir dire at and with the preference and consent of counsel so that issues relating to Charter breaches argued could be ruled on separately from any trial issues. [Transcript, T6-T7] [ 5 ] On the Charter delay application, the defence filed affidavits of office support staff with attached emails outlining messages between the Crown and his office on the subject of disclosure and other issues.

However, at the continuation date for the trial on October 25, 2018, defence counsel who had raised issues with the Crown disclosure clarified that he did in fact have full disclosure by January 9, 2018, but had not been aware of that fact due to confusion that I find is not attributable to the Crown. A prior adjournment of the trial occurred on January 25, 2018 due to disclosure issues raised by defence. The lateness of disclosure had been but one defence point in the argument over delay.

In fact, it appears that defence had the required disclosure at the time of the first trial adjournment because of disclosure issues that were raised at that time. Nonetheless, the defence still attributes delay in excess of the guidelines specified in Jordan , above, and has submitted a timetable of events that does indeed show a delay over the presumed Jordan time limitations. This is elaborated upon further in the defence brief. The defence timeline is below: Date Event Evidence Dec 8/16 Applicant is charged by police Information #90020378 Jan 17/17 Adjourn for disclosure.

Endorsements Feb 6/17 Initial disclosure package sent. Feb 7/17 Adjourn for disclosure. Endorsements Mar 7/17 Adjourn for disclosure. Endorsements Apr 6/17 Adjourn for disclosure. Endorsements Sept 7/17 First trial date. Adjourned at request of Crown to obtain complainant/witness statements Endorsements Jan 25/18 Trial Date #1: Adjourned by consent peremptory on Crown after disclosure confusion. Court seems to believe that matter was set for ½ day when full day was arranged through Trial Coordinator. Endorsements, Karapostolakis Affidavit sworn Oct 9 th , 2018 Jan 25/18 Crown undertakes to arrange for Cst.

Wood’s attendance at trial Karapostolakis Affidavit sworn April 18 th , 2018 May 1/18 Service of subpoena for Cst. Woods attempted on police. Karapostolakis Affidavit sworn April 18 th , 2018 May 7/18 Trial Day #2: Trial commences. Adjourned. Endorsements Oct 25/18 Trial Day #3: Continuation.

Time from Charge to October 25, 2018 trial: 21 months and 17 days. [ 6 ] The case did proceed on May 7 with Crown evidence, and the defence evidence was scheduled for a continuation day, which date was not immediately selected in court, but which was eventually determined to be October 25, 2018 by both counsel in consultation with the Provincial Court Case Manager (Case Manager) at Regina. The Court did not make any direction as to the time for continuation, and left the matter for counsel to conclude with the Case Manager.

[ 7 ] The Court takes notice of its own processes, and the fact that continuations are usually booked quite soon after the initial hearing of a case, and expedited dates are available to ensure that excessive delay is not necessary. The Court did not monitor this continuation, and as a result the trial was scheduled to continue on October 25, more than five months later. The case did continue on that date, again as a voir dire with further defence cross-examination of the last Crown witness and with defence evidence on the hearing.

Argument was agreed to be in the form of written briefs, and the matter was adjourned that day to December 17, 2018 for decision. Briefs were filed approximately ten days before that date, and the Court thanks counsel for their extensive briefs. [ 8 ] The defence analyzed the delay and one significant part of it concerned the fact that a police witness requested by the defence was not available for the second trial date of May 7.

The defence takes the position that the witness was a police witness that the Crown agreed to make available through the ordinary administrative processes used for procuring attendance of police witnesses, and consequently any delay relating to this witness was at the instance of the Crown. The witness could, of course, have been subpoenaed by the defence, and then the failure to attend would have been more clearly a defence-created delay. However, I do agree that if the Crown undertook to have this witness attend, even if only as a professional courtesy, then the defence could rely on that.

However, that is not the full extent of facts relating to this witness. [ 9 ] The witness was expected to be away for a month-long course at the time of the trial date and this was known in advance. A change of trial date to accommodate a witness with a good reason for being unavailable is normally allowed by the Court. The Crown asserts that defence counsel knew this a month before the trial date, in early April 2018, and notes that the defence did not initiate any change of trial date which would have been possible by asking to have the matter spoken to before a judge, or through the Case Manager.

This has not been challenged by the defence. Instead, the question of a further adjournment of the trial was passed to the Court only just before May 7 through a Judicial Officer of the Court. The defence has argued this issue as though the Crown became, effectively, the guarantor of the attendance of the witness on the original date, failing which any delay would be at the instance of the Crown, regardless of the difficulty or impossibility of having that witness available.

This was a defence witness, and the defence in the circumstances of this case, though relying on the Crown, cannot insist that the Crown was obligated to have that witness present on the date anticipated without fail, and take no steps for an alternative date when the defence became aware that the witness had a difficulty with the date scheduled. The defence was made aware of this well before the May 7 date.

The defence instead chose to wait until the trial date and then to ask for a complete adjournment of the case. [ 10 ] On May 7 the Court did not grant the adjournment requested, and had the case proceed, but indicated to the defence an adjournment to procure the witness in question would be allowed in order to preserve trial fairness. However, that has resulted in much the same delay for some witnesses as if the whole case had been adjourned on May 7. [ 11 ] The Court left the date of continuation of the trial for counsel to be concluded with the Case Manager, as noted.

The Court takes judicial notice of its own processes, including scheduling, and a continuation date would have been available on an expedited basis if required. This does in fact frequently occur if counsel indicates priority, and at times cases may be continued within a week of the commencement date. At other times, the commitments of counsel necessitate longer times of some weeks. In this case the Court left the matter to counsel and the Court Manager to arrange.

A delay greater than one or two months at most from the date of May 7, 2018 would be unusual, and not be necessary because of witness accommodation or any limitations within the Provincial Court. The period from May 7 to October 25 is a period of five and one half months.

I have not been advised by counsel why such a long period to the continuation date was selected, but I conclude that if defence counsel had wished to see this case proceed at a significantly earlier time, it would have been possible—at least three months earlier. [ 12 ] Counsel must be responsible and diligent in a matter such as this, particularly where the defence had already raised the issue of delay and asserted actual prejudice. Delay was an issue for the defence to be concerned with.

If no suitable continuation date that did not create further unreasonable delay to the defence was being proposed, the matter should have been brought before the Court for mention rather than leaving it with the Case Manager. However, I have not been advised why this long adjournment occurred which is not normal practice for a continuation. There is always responsibility on legal counsel in any case to be cognizant of delay and be reasonably diligent in avoiding delay in the course of a trial.

I would therefore conclude that any delay past two months from the original commencement date of May 7, that is, beyond July 8, 2018 up to the date of continuation of October 25, 2018 is not a delay to be credited against the Crown. This means that over three months of delay must be deducted from the delay ‘equation’ calculated by the defence. [ 13 ] Further, the adjournment of January 25, 2018 to May 7, a period of over three months was over a disclosure issue, where the defence was mistaken as to what had been received.

It was clarified by defence on October 25 that all relevant disclosure had been received in early January. The confusion by the defence on this issue necessitated the first adjournment and that is not delay attributable to the Crown. As a result there is a total of over six months delay in the year 2018 that I conclude was at the instance of the defence. I have not done a detailed analysis of delay from the date of the offence through the year 2017.

[14] Considering these facts, I do not accept the argument that delay in this case exceeds the guidelines established in Jordan thatwould be determined to be unreasonable and result in a stay of proceedings. This is in accordance with Jordan and subsequent casesdealing with this issue that are cited in

Part III of the Crown Brief. I accept these cases as correctly outlining the analysis to take place,and I find that the current state of this case is still within the guidelines established in Jordan. In addition, in hearing the Crown witnesseson May 7, rather than delaying all evidence until October 25, there was less delay for some witnesses in giving their evidence andconsequently somewhat less chance that their memory would have been further affected by passage of time. Witness memory is an issueraised by the defence.

While delay is always regrettable, it is not necessary for me to conduct a further analysis under the principles inJordan and no issue of delay exists at this time that exceeds the guidelines established in that case. [15] The defence has raised the issue of whether the investigating police officer, Cst. Dana Adams, had sufficient information or evidence, apart from anything obtained by way of a statement under

section 253 of The Traffic Safety Act, SS 2004, c T 18.1 [TSA] to permit her to make a demand pursuant to section254(3) of the Criminal Code. The question of whether the accused had been the driver of the vehicle was not raised, and I accept thatCst. Adams had information from other persons at the scene who indicated reliably that the accused had operated the truck at the sceneof the accident. [16] The Criminal Code provides as follows: 254(3) of the Criminal Code, RSC, 1985, c C-46:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, or . . . [17] Mr. Justice Caldwell in R v Gunn, 2012 SKCA 80 at paras 7 and 8, 291 CCC (3d) 265 [Gunn] states the law as follows: [7] A police officer may not demand a breath sample of an individual unless the officer has “reasonable grounds to believe” theindividual has, within the preceding three hours, driven while impaired or while over the proscribed limit.

This means the officer mustsubjectively (or honestly) believe the individual has driven while impaired or “over .08” within the preceding three hours and that beliefmust be rationally sustainable on an objective basis (see: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 48). Thisdoes not mean that the Crown has to demonstrate a prima facie case for conviction (R. v.

Shepherd, 2009 SCC 35,[2009] 2 S.C.R. 527, atpara. 23), the court enunciated the standard of “reasonable grounds to believe” that an offence had been committed by the person subjectof a demand is one of lesser probability which simply requires the reviewing court to determine whether the factors articulated by theofficer who made the breath-demand were reliable and were capable of supporting the officer’s belief that the individual had drivenwhile impaired or “over .08” within the preceding three hours. [8] Where an individual challenges the validity of a breath-demand on the basis that the police officer’s belief was not reasonable, thequestion for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officerwould have believed the individual’s ability to operate a motor vehicle was impaired (see: R. v.

Storrey, (SCC), [1990]1 S.C.R. 241, at p. 250; and R. v. Restau, 2008 SKCA 147, 314 Sask. R. 224 at para. 17). This is a question of law and a trial judge’sanswer to it is measured on appeal against the yardstick of correctness (see: R. v. Shepherd). [18] Constable Adams indicated she was the first police unit and the first officer on the scene, having been dispatched at 1756 hrs and got there very quickly from the location she had been at when she received the dispatchinformation.

The information in the dispatch was to the effect that the EMS personnel were on the scene and suspected alcoholimpairment by one of the drivers. Constable Adams stated that she went to the ambulance where she encountered the accused and aftersome limited conversation, she asked him to accompany her to her police vehicle, which he did. Constable Adams identified the accusedand she stated that he was cooperative throughout. She did not make any immediate arrest, but noted a ‘moderate’ smell of alcohol fromthe accused as he got into her vehicle.

It was very cold outside and remaining outside was not a reasonable thing to do. A second policeofficer, Cst. Wood arrived and who told her that he would deal with the accident. Constable Adams stated that she did not deal with thecollision at all and did not note road conditions. Constable Adams did not arrest the accused immediately when he was seated in her

vehicle. [ 19 ] Constable Adams returned after a short interval and proceeded to have a conversation with the accused and observe him. Conversation with him had begun in the ambulance where he volunteered that he had four ‘Coors Light’ and that he was ‘done’ and would ‘blow over’. After some moments in her vehicle she did arrest the accused for impaired driving, and read him ‘the Charter ’ and caution, and a breath test demand. This was done from a police-issue card that was read in court.

It covered the common wording for arrest and the right to legal counsel upon arrest, including the availability of free legal advice from Legal Aid. Constable Adams then proceeded with the breathalyzer demand, reading the common wording from a card, to which the accused answered affirmatively. This was followed by the standard caution with respect to incriminating statements.

The defence challenges the grounds for arrest and making of the demand, but no issue is raised with respect to wording or compliance with legal requirements. [ 20 ] The defence has included in their brief a great deal on the compelled statements that may be required under the TSA , and the prohibition that exists with respect to use of such statements in the Criminal Code or other proceedings. There is case law that has examined statements in detail to determine whether they fall within this conscripted area, and are therefore inadmissible in a criminal proceeding.

There are also numerous cases where conversation regarding the occurrence of driving and details surrounding it are admissible as part of the narrative of the events that are not subject to any special rules. This issue will be discussed further and concluded below. [ 21 ] Constable Adams went on to testify that she transported the accused to the police headquarters, proceeding to the area for breath tests, and that she observed him walk at this time. She had not had a significant opportunity to observe that earlier as she said her vehicle was only ten feet from the ambulance.

She stated that she noted only then that the accused appeared unsteady on his feet. Constable Adams also added that he said he had stated he had back surgery recently, and in any event that observation occurred after the arrest and breath test demand had already been made. However, I would note that in all of her testimony, including cross-examination, there was no sign of exaggeration or overstatement of any details relating to her observations or investigation. [ 22 ] Constable Adams stated she was with the accused continuously until the first sample was provided to Cst.

Patron who was the breath test technician. She stated that she observed no burps, belches or regurgitation. She did not identify in her narrative anything that suggests the accused took anything by mouth. She stated she had him under continuous observation for 19 minutes before the test, although he had been with her from their arrival at police headquarters a few minutes before. She stated the result of the first test was 170 milligrams per cent. The second test occurred twenty minutes later with a reading of 160 milligrams per cent.

The technician’s certificate was tendered and marked as Exhibit P-1. [ 23 ] On cross-examination Cst. Adams reiterated her evidence in somewhat more detail, indicating that when the accused was first in her vehicle that she was outside of it, and he was not under arrest. She stated that EMS had indicated nothing to her that suggested a medical issue. She stated that she made the breath test demand based upon the odour of alcohol and the statements that the accused had made regarding alcohol use and his other comments.

She did not refer to the fact of the accident, and I accept that she was not concerned with that. There is no evidence that she or any other constable at the scene spoke with the accused concerning the accident. [ 24 ] Constable Adams indicated that she continued to observe the testing operation and the accused in the interval between the tests, but that the accused had needed to use a washroom, and had been accompanied by Cst. Patron there and back.

She could not answer for what might have occurred in that period, but she related no occurrences that would jeopardize the testing while she was observing, and she had earlier indicated she knew the purpose of her observing the accused. [ 25 ] She was also questioned extensively about Approved Screening Device (ASD) demands and she indicated she had not reviewed or dealt with such a device in some time.

On being led in cross-examination, she agreed that the required test for such an ASD demand was ‘reasonable suspicion’ and was lead to use that term in relation to the demand she made to the accused which was for a breathalyzer test which requires ‘reasonable grounds’. That last had been the term which she had earlier used when she had made the demand. She also confirmed that the information that lead to her conclusion that the accused was the driver had come from a paramedic.

[ 26 ] Defence counsel further cross-examined Cst. Adams on the continuation date of October 25, but no change occurred of significance in her evidence. It is to be noted that at no time did she have contact with the driver or passenger in the other vehicle involved in the collision. The Crown then closed its case on the voir dire which continued with defence evidence commencing with Cst. Wood. He gave little additional information except to indicate that his role was investigation of the accident and that he did what he referred to as the ‘SGI Collision Report’. He spoke only briefly to Cst.

Adams and could not recall any detail of that conversation. There is no evidence indicating that he ever spoke with the accused regarding the accident investigation. [ 27 ] The next witness called was Cst. Cory Patron, the breathalyzer technician. He stated that he was the first police vehicle on the scene of the accident, before Cst. Adams, who had stated clearly that she arrived very quickly after the dispatch call and was the first police vehicle on the scene. In any event, he said that he knew that Cst.

Adams was doing an ‘impaired investigation’ and he went back to police headquarters to prepare to do the breath tests. He began this at 18:34 hrs and the first test was at 18:55 hrs, and the second at 19:15 hrs. He consulted notes to provide this information. [ 28 ] On cross-examination, by the Crown, Cst. Patron could not recall any visit to the washroom, but he stated he would have noted any burp or belch, and he appeared to know the significance of such questioning to the testing process, as might be expected of a qualified breathalyzer technician.

Constable Adams also testified that she would have noted any such occurrences. I therefore conclude that there were no such occurrences that would affect the validity of the tests. However, it must also be noted that while the interval of at least fifteen minutes between tests is a statutory requirement, the requirement to observe whether there were any occurrences that would introduce a substance to the mouth area that could affect a test reading is not a statutory requirement.

It is a very commonly known procedure that is followed, and there is older case law that the failure to properly conduct this surveillance may be ‘evidence to the contrary’ that would cast serious doubt on the accuracy of the test results. However, this requirement was not explained or detailed or established by evidence in this case.

I have concluded that such a thing did not occur, but if it had, the Court would need additional evidence, usually available from the technician, to establish that it could be a major issue on the accuracy of the testing. [ 29 ] The next witness was Gabrielle Elgren, wife of the accused. She came on the accident scene and saw her husband’s truck, the police vehicle and the ambulance, and she observed her husband taken from the ambulance to the police vehicle. She stated she did not see her husband in conversation with police, and he was not in handcuffs.

She observed the scene for fifteen minutes, she said, and then drove away. Mrs. Elgren said she spoke to Cst. Patron and other constables at the scene, and was not told whether her husband was under arrest. She also said she had texted her husband but little detail of that was related other than he indicated he had been in an accident. She said that she and her husband lived very close to the location of the accident and that she and her husband had “been fighting” that day. [ 30 ] The final witness was the accused, Mr. Randall Elgren.

He stated that he made a turn at the location in question on a yellow light, and that the other driver could not have had a green light. On this point I have no hesitation in accepting the evidence of Mr. Livingstone over that of the accused. He appeared as a mature and careful man who was out with his wife. He did not admit to having any recent conflict with his spouse nor admit to using any alcohol. I think it is very unlikely that he would have proceeded before the light had turned green. I conclude that the accused may have thought he would be able to ‘run’ a yellow light, but he misjudged it.

This finding, of course, does not determine any other issue in the case. [ 31 ] The accused described being initially in Cst. Adams vehicle, then going to the ambulance, being released by EMS, and returning to Cst. Adams vehicle. His narrative does not conform to what Cst. Adams indicated regarding her interaction with him, but some of those differences are not significant. However, he went further and stated he was outside of the vehicle for a significant period of time, and that he was never handcuffed, and continued to text all of the way to the police station.

He stated he could not remember any conversation with Cst. Adams and that included the arrest, warning and right to counsel. Though he indicated extensive texting, neither he nor his wife gave any details of what this texting consisted of other than her indication that he had said he was in an accident. When she drove off she did not indicate that any further texting continued after that point. She did not describe her husband being outside the car for any significant time or talking at any time with police, though she stated she was there for only fifteen minutes.

The accused states that he did talk to police while outside of any vehicle. He also stated that he was never in the ambulance, and spoke with EMS at the back of the ambulance. He did confirm telling Cst. Adams that he had ‘a few beer’, which he said in court was four pints. He also said he hit his forehead on the steering wheel at the impact, but he did not see any other car, which is difficult to reconcile with his assertion that he saw enough to know that the other vehicle could not have had a green light. [ 32 ] With respect to the accused’s evidence, I do not find it reliable or compelling. He states

he did not see the other car and has very little recollection of his interaction with Cst. Adams, though he does make some other assertions. I have already accepted the evidence of the other driver concerning the occurrence of the accident. I also accept Cst. Adams’ evidence that she had cooperative dealings with the accused and he appeared able to understand and respond to her. His statements denying the steps that Cst. Adams followed is not credible, in my opinion.

The giving of reasons for arrest or detention, the handcuffing of persons upon arrest, the giving of rights and warnings and making breath demands are very common police procedures. If those are not done, such omission would compromise police safety as well as any investigation. The fact that the accused does not now admit to recalling any of this does not, in my opinion, cause me to doubt the evidence of Cst. Adams on these points. [ 33 ] Counsel for the defence has argued that there is real prejudice due to delay in that witness memory deteriorates over time.

Some details of the police evidence are contradictory, such as who arrived first at the accident scene, and that may be due to the passage of time, but that and some other conflicting details are not of prime or significant importance. However, no other witness, including the other driver and his wife have had such a deterioration of memory as Mr. Elgren, and they experienced some injury in the accident, and indicated that some after effects are still present.

It is not necessary for me to speculate on the reasons for the accused stating he was unable to recall more than he does, notwithstanding his apparent lucidity at the scene. I do not find his evidence to be credible in saying that his memory has failed to the extent that it has. [ 34 ] The defence raises a number of issues including the question of whether the use of any conversation between the accused and Cst. Adams is precluded as being conscripted evidence under the TSA . However, it is clear from the evidence of Cst. Adams that she did not concern herself with the accident investigation because Cst.

Woods was doing that, and he confirmed it. Constable Woods said he did not discuss the accident with Cst. Adams, nor any other aspect of the case that she was dealing with. Constable Adams was so disinterested in the accident issues that she did not even note the condition of the roadway. [ 35 ] The cases cited by the defence on this point are very different factually from the present case where there usually was an accident and an impaired investigation being conducted simultaneously or close in time to each other.

Here, it was clear that the two investigations, the accident and impaired driving, were separate and conducted by different investigators, and further, that the investigators did not discuss each other’s aspect of the case. The accused was not questioned about the accident nor any touch upon any driving issue, other than the fact he was identified as the driver. She proceeded to focus on issues relating to the question of impaired driving such as alcohol consumption and the odour of alcohol. I find that the circumstances of this case do not raise any issue with respect to the TSA .

The accused, who denied much of what passed between him and Cst. Adams, could not provide anything that would suggest he was operating under any perceived compulsion under that legislation. There is no basis for an issue to be raised in this area. [ 36 ] In giving her testimony, Cst. Adams suggested that the accused was in her vehicle for a few minutes not under arrest, and this was necessary due to the extreme cold while waiting for the second ambulance. After the accused was cleared by EMS, she proceeded with the steps in her investigation. Timings are of significance. Mr.

Livingstone indicated the accident was around 6:00 p.m., and the dispatch had occurred according to Cst. Adams notes at 17:56 hrs which is close to Mr. Livingstone’s time estimate. Constable Adams indicated the sequence of events without describing any significant pauses or delays. She gave the time of arrest as 18:19 hrs, the breathalyzer demand as 18:24 hrs, the arrival at the police headquarters at 18:34 hrs and the first breath test at 18:55 hrs. Following the second sample at 19:15 hrs the accused was formally charged and paperwork required was done.

There does not appear to be any unexplained delay at the scene of the accident except what might be attributed to the checking by EMS. In my opinion, there is no unexplained delay at the accident scene or at the police headquarters that could be the foundation of any breach of the Charter . [ 37 ] The most significant point raised by the defence is whether the investigating officer, Cst. Adams had sufficient grounds to make a demand for a breathalyzer. Defence counsel has excerpted parts of the transcript which emphasize that there were minimal or no grounds for making this demand.

Further, he refers at length to the fact that in cross- examination of Cst. Adams on the ASD device which was not used that night. Constable Adams admitted to having little recent experience with that device, but she agreed that the test for giving that demand was at the lower level of reasonable suspicion (as opposed to reasonable grounds) for a breathalyzer demand. Constable Adams then went on to say that was the test for the breathalyzer demand.

However, when she gave her earlier evidence-in-chief regarding the giving of the demand she used the correct terminology of having reasonable grounds for the breathalyzer demand. Notwithstanding the cross-examination where she equated the tests for an ASD with a breathalyzer, I accept that she knew the grounds necessary for a breathalyzer demand and attempted to apply them. She indicated that the grounds she relied upon were the following, and she did not inflate, exaggerate or add to what she said she observed. They were: 1.

There was an odour of alcohol which suggested alcohol was in his system, although odour is no indicator of quantity; and 2. He made remarks admitting alcohol consumption with a number of details that would have suggested more than minimal

consumption. [ 38 ] Additionally, though Cst. Adams was not the investigating officer for the accident, and did not raise any related issues with the accused, she knew there was an accident. She would not have known which driver might have been at fault, but the fact of an accident would suggest a possible departure from the good driving practices by one or both drivers. [ 39 ] The test for such a demand has been outlined in the case of Gunn set out in paragraph 15 above.

I conclude that a reasonable person standing in the shoes of the investigating officer with the information available to her would consider that reasonable grounds for the breathalyzer demand did exist. The demand given meets both the subjective and objective aspects of the test for validity and was therefore lawful. [ 40 ] Given the timings and test details that are set out above, I conclude that the requirements for admission of Exhibit P-1 have all been met, and there are not any grounds for denying the admissibility of the Certificate of Qualified Technician. The defence application is dismissed.

Dated at the City of Regina, this 17 th day of December, 2018. __________________________________ B.D. Henning, J