Her Majesty the Queen - v. -, 2017 SKPC 77

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 077 Date: September 12, 2017 Information: 90130120 Location: Rosetown _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brayden Lee Weese Appearing: Robin Ritter For the Crown Ron Piche For the Accused JUDGMENT M.M. BANIAK , J [ 1 ] The accused, Brayden Lee Weese, was charged as follows: 1) while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle, contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code ; and 2) 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, contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code .

[ 2 ] The Crown’s first witness was Constable Blair De Bruin, an eight year member with the RCMP stationed in Rosetown. [ 3 ] On December 18, 2016, he was doing traffic enforcement on highway #31 near Herschel, Saskatchewan, a village some thirty kilometres from Rosetown. Around 00:47 hours he noticed a vehicle travelling on the main road towards them. When the oncoming vehicle was about 100 - 150 metres from the police vehicle it veered off the main road and down what Constable De Bruin called a “goat trail”.

This action triggered a response from the police officer: “I stopped the vehicle because it went down the trail.” He also testified that he stopped the vehicle for the purpose of checking for driver’s licence, registration and sobriety. [ 4 ] Once he pulled the vehicle over, he noticed an open case of beer in the backseat. The accused, who was the driver, had blood shot eyes. His speech was slurred.

He advised Constable De Bruin that he drank three beer. [ 5 ] At this point, Constable De Bruin testified “I formed the grounds to suspect that he had alcohol in his body . . . he said his last drink was about five minutes before I stopped him.

I had to wait fifteen minutes before I could take a sample into the ASD.” [ 6 ] The relevant time frame is: ∙ formulated grounds at 00:51 hours; ∙ ASD demand at 00:56 hours; ∙ ASD test administered at 01:06; ∙ accused place under arrest at 01:07 hours; ∙ breath test 01:08 hours; ∙ and right to counsel 01:09 hours. [ 7 ] The accused indicated that he understood his right to counsel, but that he did not wish to call a lawyer. [ 8 ] Constable De Bruin departed the village of Herschel at 1:13 a.m. and arrived at the Rosetown detachment at 1:35 a.m. [ 9 ] Once at the detachment, the accused was asked once again if he wanted to call a lawyer and he again declined to do so. [ 10 ] The area where the accused was held during the observation periods was monitored by surveillance cameras.

Constable De Bruin testified that he did not see or hear the accused vomit or do anything that might have compromised or elevated the readings by mouth alcohol. He was also of the view that since both readings were 100 milligrams of alcohol in 100 millilitres of blood this was indicative of no mouth alcohol. [ 11 ] During cross-examination, Constable De Bruin acknowledged that the main reason he stopped the accused is “ . . . because he went down a goat trail”, but not that he was also checking for licence, registration and sobriety.

He also testified that he would not give the accused his Charter rights to counsel prior to the first ASD test. [ 12 ] Constable De Bruin testified that he conducted the observation of the accused and that he did not hear any burps or belches. He also agreed with defence counsel that a burp could be silent. He also acknowledged that he left the accused alone for a short period of time and that he would not be able to see what happened during his absence. [ 13 ] Defence Exhibit D-2, which is a video of the Rosetown Detachment hallway (the location where the accused was being

observed) show that for a period of time Constable De Bruin was attending to some paperwork at the counter. His back was to the accused. At one point he left the hallway location altogether and went into another room. In total, the accused was not observed for approximately two and one-half minutes. [ 14 ] During examination-in-chief, Constable De Bruin testified that the detection system on the breathalyzer instrument would indicate if there was mouth alcohol present at the time the test was being administered. [ 15 ] During cross-examination, he acknowledged that he is not sure if the detector is 100% accurate.

Defence Exhibit D-3 is a manual for the INTOX EC/IR 11 - it is dated July 11, 2011 and that was the same manual that Constable De Bruin was familiar with: “this is the manual I was trained on”. [ 16 ]

Chapter D of this manual deals with the observation period. Page 2 of

Chapter D states in part as follows: While most breath testing instruments have methods to detect the presence of mouth alcohol in a breath sample, they are not 100% effective. As such, it is important that a continuous 15 minute observation period be conducted prior to the analysis of each breath sample to allow any alcohol which may be present in the mouth to dissipate . . . [ 17 ] Immediately following this paragraph, is a directive as to how a proper observation period should be conducted: 1. Search the subject to ensure they do not have products containing alcohol on their person.

Check the mouth of the subject and ensure it contains no foreign objects such as tobacco, gum, food or other unusual objects that may retain alcohol or present a choking hazard. . . 2. Place the subject in the observer’s field of view and within close proximity where clues of consumption, burps or vomiting can be detected. 3. Observe the subject for at least 15 continuous minutes prior to each breath test, ensuring the subject does not drink any alcoholic beverages or other liquids, and does not place anything in their mouth, burp or vomit. 4.

Restart the observation period if the subject is not maintained within close proximity and in the field of view of the observer or if the subject places anything in their mouth, burps or vomits. Position of the Parties [ 18 ] The Crown submits that the stop of the accused was proper and lawful. The police officer was checking for licence, registration and sobriety.

Defence did not establish on a balance of probabilities that this was not so. [ 19 ] Secondly, Crown argues that the accused was not deprived of his right to counsel during the time he was waiting to provide a sample into the approved screening device as the fifteen minute wait was justified because the accused admitted to just having consumed an alcoholic beverage five minutes before being stopped.

Moreover, the accused declined the opportunity to call a lawyer on two occasions after he was advised of his rights to counsel. [ 20 ] Finally, with respect to the observation period at the detachment, the Crown takes the position that it was conducted properly. The police officer never saw the accused put anything in his mouth; he never heard the accused burp or belch; and he was in close proximity to the accused. Further, both samples were 100 milligrams of alcohol in 100 millilitres of blood, and the breathalyzer instrument did not detect any mouth alcohol.

[ 21 ] Defence, for its part, argues that the stop and subsequent detention of the accused was not lawful. Stopping someone “because he drove down a goat trail” is not a good reason, and the officer’s notes do not provide any other reasons for the stop. Defence further submits the accused’s s. 10(

b) Charter rights were violated and relies on Saskatchewan (Attorney General) v An [1] . [ 22 ] Thirdly, defence takes the position that the observation at the detachment was not properly conducted. The police officer had his back turned to the accused for some two and one half minutes; he actually went to another room for a brief time leaving the accused unattended; and, accordingly, having regard to the Court of Queen’s Bench decision in R v By [2] [ By ], the Crown cannot rely on the presumption of accuracy in s. 258(1) (

c) of the Criminal Code . Analysis 1) On the issue of whether the stop of the accused was lawful I find that it was. [ 23 ] The evidence from Constable De Bruin was that he essentially stopped the accused because he had turned off the street he was driving on to what appeared to be a “goat trail”. He also testified that he wanted to check for licence, registration and sobriety. [ 24 ] Had the only evidence been that the accused was stopped because he turned off to a road that resembled a “goat trail”, and nothing more, defence’s position would have been stronger. Here, however, we also have evidence that Constable De Bruin wished to check for licence, registration and sobriety. [ 25 ]

Section 209.1(1) of The Traffic Safety Act , SS 2004, c T-18.1 [ Act] , authorized Constable De Bruin to stop Mr. Weese.

Section 209.1(2) imposed an obligation on the driver to answer a police officer’s questions with respect to the driver’s identity, address, birth date and whether the driver consumed any alcohol or drug which could affect the driver’s ability to safely operate a motor vehicle. [ 26 ] Therefore, even if the “random stop” aspect of the Act violates s. 9 of the Charter , it, nonetheless, is justified as a reasonable limit pursuant to s. 1 of the Charter . [3] [ 27 ] R v Orbanski [4] [ Orbanski ] gives police the authority to question a driver about his alcohol consumption within the context of a random stop authorised by the provisions of the Act . [ 28 ] On the issue of whether the accused was deprived of his s. 10(

b) Charter rights while awaiting to provide a sample into the approved screening device, I find that he was not. [ 29 ] For while it is true that when a roadside demand is made the driver is detained and as such his s. 10 Charter rights would be triggered, it does not follow that a breach occurs when a valid demand is made pursuant to s. 254(2) of the Criminal Code , as that is viewed as a reasonable limit prescribed by law and justified under s. 1 of the Charter . [5] [ 30 ] In Orbanski , supra , the Supreme Court held that if the demand is made forthwith, the right to counsel is suspended not only after, but before the demand.

In paragraph 52 of Orbanski Charron J. states as follows: In my view, it logically follows from Thomsen that a limit on the right to counsel is also prescribed during the roadside screening techniques utilized in these cases. If a limit on the right to counsel is prescribed during compliance with a s. 254(2) demand for a sample for analysis in the roadside screening device, then the limit must necessarily be prescribed during the screening measures preceding the demand, conducted with the very objective of determining whether there is a reasonable suspicion justifying the demand. . . .

[ 31 ] Defence relied on our Court of Queen’s Bench decision in An to support its argument that the accused’s s. 10(

b) rights were violated. [ 32 ] In my view, An does not stand for the proposition that an accused’s s. 10(

b) Charter rights must be implemented at a roadside during the screening techniques in every instance. The facts in An are materially different from the facts in this case and are clearly distinguishable. [ 33 ] In An the police officer did not have the ASD with him and it was unclear when it would arrive. During this detention period, Mr. An used his cell phone to call his workplace. He also wanted to call his sister who was a lawyer, but was not allowed to do so. In An the police officer was not in a position to take the breath sample forthwith and could not know when the ASD would become available.

Throughout, the police officer in An did not act with any sense of purpose or urgency. [ 34 ] This was not the case here. Constable De Bruin had the ASD with him and was ready to administer it forthwith and the reason he waited was because the accused advised him that he had just drank his last beer five minutes before the was stopped.

Our Court of Queen’s Bench just recently held that it was incumbent on a police officer to ask when the accused had his last drink and to delay the ASD test to ensure that 15 minutes had elapsed. [6] [ 35 ] Further, the accused in this case did not attempt to call anyone nor did he ask permission to do so.

When he was advised of his rights to counsel after his arrest and demand for a breath sample he declined to do so on two occasions. [ 36 ] Justice Barrington-Foote in An canvassed various decision of other courts on this issue and concluded at paragraph 45 as follows: These cases demonstrate that the question of whether the police must implement a detainee’s s. 10(

b) right at the roadside turns on the facts.

A non-exhaustive list of the factors that courts have referred to includes the following: • Did the police officer reasonably expect that the ASD would arrive before the detainee had a reasonable opportunity to exercise his or her rights? • Was a phone readily available, and if so, did the officer know? • Was it possible to provide the accused with privacy? • What was the time of day? • How much time actually elapsed between the time of the demand and the arrival of the ASD, the arrival of the ASD and the administration of the test? • Did the detainee say he or she did not wish to call counsel at the roadside: R v Veikle , 2016 SKQB 173 ? [ 37 ] Based on the above, I find that the accused’s s. 10(

b) Charter rights were not violated. However, even if they were, I am of the view that following the Grant Analysis , the breach was of such a minor nature as not to favour exclusion pursuant to s. 24(2) of the Charter .

2) Was the observation period at the detachment conducted properly? [ 38 ] The Crown takes the position that the observation was conducted properly. The police officer was in close proximity to the accused, and, further, did not hear the accused burp or belch at any time during the time he was observed. As such the Crown is entitled to the presumption of accuracy as per s. 258(1) (

c) of the Criminal Code . [ 39 ] Defence relies on the By decision and submits that since the observation period was not properly conducted the Crown cannot rely on the presumption. [ 40 ] Defence Exhibit D-2, the Rosetown detachment cell block video, shows that the police officer had his back turned to the accused for approximately 2½ minutes. During that time he was attending to some paperwork on the counter and did not appear to be paying much attention to the accused. At one point he actually left the hallway where the accused was sitting to go to another room.

The video had no audio component to it, and Constable De Bruin agreed during cross-examination that a burp could be silent. [ 41 ] While it is true that is not necessary that the police officer look “eyeball to eyeball” at the accused for the entire duration of the observation period, it is necessary that he pay careful attention to the accused and closely observe his behaviour. Close proximity, without more, is not sufficient to constitute proper observation. [ 42 ] There is sufficient factual similarity between By and this case that it cannot be distinguished on the facts.

In both cases the police officer was attending to other tasks and not focussing on the accused. In both cases the police officer was actually absent for a period of time from the accused’s presence. [ 43 ] Based on the above, I find that the observation period was not conducted properly.

According to By , if it is established that the observation period was not properly conducted, then that constitutes evidence that the breathalyzer test was not properly administered, for By holds that the observation period comprises part and parcel of the breath test itself. [ 44 ] Being bound by the decision in By , I find that the Crown cannot rely on the presumption of accuracy and rely on the accuracy of the readings on the Certificate of Qualified Technician. [ 45 ] Accordingly, I find the accused not guilty of count 2, over .08.

The evidence does not support a finding of guilt on count #1. __________________________ M.M. Baniak, J

[1] 2016 SKQB 378 [2] 2015 SKQB 86 [3] R v Ladouceur, (SCC), [1990] 1 SCR 1257. [4] 2005 SCC 37 [5] R v Thomsen (1988), (SCC), 40 CCC (3d) 411 (SCC) [6] Schlecter v R, 2017 SKQB 189