Her Majesty the Queen - v. -, 2013 SKPC 211

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 211 Date: December 12, 2013 Information: 24495639 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ricky Robert Goertzen Appearing: Ms. B. Herder For the Crown Ms. L. Sullivan For the Accused JUDGMENT B.G. MORGAN , J Introduction [ 1 ] Mr. Goertzen was the operator and sole occupant of a vehicle that was stopped for speeding one evening in January, 2013 near Blaine Lake, Saskatchewan. When Sergeant Redlich spoke to Mr.

Goertzen, he “observed a moderate odour of liquor from his breath”, and after a brief discussion with Mr. Goertzen formed a “suspicion of alcohol in his body”, prompting him to make a s. 254(2) approved screening device (ASD) demand.

[ 2 ] The result of that demand was an “F” reading, prompting Sergeant Redlich to make a s. 254(3) breath demand, all of which led to Mr. Goertzen being charged with what is commonly known as impaired operation of a motor vehicle and driving while over .08. [ 3 ] Defence counsel argues that there have been violations of each of ss. 8, 9, and 10(

b) of Mr. Goertzen’s rights under the Charter , and seeks exclusion of all evidence obtained based on those alleged breaches. The practical reality of that, if the application is successful, is that the Certificate of Analyses proving the “over .08" charge would be inadmissible, and on the facts of this case, the charge of impaired operation of a motor vehicle would result in an acquittal.

Thus, the trial proceeded on a blended trial/ voir dire basis, with all evidence being called on the voir dire , and with agreement of counsel, the voir dire evidence being applied to the trial proper, depending on the outcome of the Charter applications. Issues [ 4 ] The issues are as follows: 1. Did Sergeant Redlich have “reasonable grounds to suspect” that Mr. Goertzen had alcohol in his body such that the pre-condition for the making of an ASD demand was met? 2. Was the length of time it took to obtain the ASD sample excessive, such that the sample was not provided “forthwith”? 3.

Due to the length of time it took to actually obtain the ASD sample, was Mr. Goertzen’s s. 10(

b) right to “retain and instruct counsel without delay” infringed? 4. If any Charter breaches are established, should the Certificate of Analyses be excluded from evidence? [ 5 ] I will deal with the evidence in more detail under each heading. 1. Did Sergeant Redlich have “reasonable grounds to suspect” that Mr. Goertzen had alcohol in his body such that the pre-condition for the making of an ASD demand was met? [ 6 ] If the officer did not have reasonable grounds to suspect that Mr.

Goertzen had alcohol in his body, he would not have the statutory grounds on which to make the ASD demand, and as he relied on the fail result from the ASD demand to ground his s. 254(3) demand, he would therefore not have the necessary grounds to make that demand. The net result could be the exclusion of the Certificate of Analyses based on violations of Mr. Goertzen’s right to be free from arbitrary detention and his right to be free from an unreasonable search and seizure. To address this issue, more details need to be reviewed respecting the initial stop.

I find the following facts. [ 7 ] When the officer pulled Mr. Goertzen over, the latter pulled too far onto the shoulder, went into the ditch, and got stuck in the snow. Sgt. Redlich, while in his car and behind Mr. Goertzen’s car, called his dispatcher to inquire as to the ownership and registration of the vehicle he had stopped, and learned it was properly registered. He then approached the driver’s side of the Goertzen vehicle, and told Mr. Goertzen he was being stopped for speeding. The officer did not note any alcohol in the vehicle. It was as he spoke to Mr.

Goertzen that he detected an odour of alcohol from the latter’s breath. [ 8 ] The following conversation ensued: Sgt. Redlich: How much have you had to drink?

Mr. Goertzen: Nothing. Sgt. Redlich: How come I can smell liquor? Mr. Goertzen: I’m moving (indicating that the backseat of his vehicle was full of personal possessions, his meaning being that he was moving residences). Sgt. Redlich: How come I can smell liquor on your breath? Mr. Goertzen: (No reply.) Sgt. Redlich: There is no reason to lie. I can smell it on your breath. Mr. Goertzen: Okay.

It is at that point that Sergeant Redlich formed the suspicion and determined to make the demand. [ 9 ] In cross-examination, Sergeant Redlich agreed that the Goertzen vehicle getting stuck was something that could have happened to anyone. I am satisfied that it was the odour of alcohol that made the officer decide to continue the investigation. [ 10 ] It is also clear in cross-examination that the officer thought the response of “okay” to his final question was an admission by Mr.

Goertzen that he had been drinking alcohol, although he also agreed, on reflection, “okay” could mean any number of things [ 11 ] When pressed as to whether or not he felt it was important to know if Mr. Goertzen had been drinking, that is, to have Mr. Goertzen confirm he had been drinking the officer testified it was important information to have as to why the officer was smelling alcohol on his breath. However, as he put it, such an admission was not “absolutely required” for him to form the suspicion he had. [ 12 ] Ms. Sullivan essentially argues two things.

The first is that the officer never stated that he had a “reasonable suspicion” or “reasonable grounds to suspect”. [ 13 ] The second point she raises is that despite what the officer is saying, on these facts, I should conclude that the officer did not subjectively feel the odour was enough to make the ASD demand, because if he did, he would have made the ASD demand upon noting the odour of alcohol. Put another way, she argues that the fact that he determined to continue to ask questions to confirm alcohol consumption is proof that the officer himself was not suspicious that Mr.

Goertzen had alcohol in his body. [ 14 ] Further, she points out that “okay” is not an affirmative answer to anything, and that the officer chose an

interpretation that he felt would give him the grounds. Ms. Sullivan argues that the officer should have gone further to find out what “okay” meant. [ 15 ] Finally, she points out that at no point did the officer ever ask Mr. Goertzen if he had been drinking.

Had he done so, and received an affirmative answer, or even had he received the answer “okay” to a direct question as to alcohol consumption, that may have been viewed as being confirmatory evidence of alcohol consumption, such that it could ground suspicion of alcohol in the body. [ 16 ] The law is well-settled that an officer must subjectively suspect an individual has alcohol in his body as a pre-condition to making an ASD demand, and that officer’s subjective belief has to be objectively reasonable, the latter examination being done by the court based on all the circumstances, and all the information known to the officer at the time he made the demand. [ 17 ] With respect to the first leg of the argument, I can see no need for there to be any evidence that the officer himself “reasonably suspects” or has “reasonable grounds to suspect” that an individual has alcohol in his or her body.

If a court determines, on an objective basis, that the grounds were reasonable, it makes no difference if the person holding the subjective belief states that he or she had reasonable grounds. Similarly, if a court determines, on an objective basis, that the grounds were not reasonable, it makes no difference if the person holding the subjective belief states that he or she had reasonable grounds. To put it another way, if someone

were to say he suspects “x”, the reasonableness of that belief, when viewed objectively, would not be enhanced because the person stated that he reasonably suspected “x”. [ 18 ] With respect to the second part of the argument, whereas the officer did interpret “okay” to be confirmatory evidence that Mr. Goertzen had consumed alcohol, on these facts, I am satisfied that the officer asked further questions not because he felt he needed more grounds, but because he wanted to be sure of what he was dealing with.

In this case, Sergeant Redlich testified that he had learned that occasionally a person going through a diabetic crisis might exhibit what seems to be a smell of alcohol on his breath; I am satisfied that is what Sergeant Redlich was looking further into. [ 19 ] With respect to the argument that the officer should have gone further to ascertain precisely what “okay” meant, I note that only Mr. Goertzen could have provided that information, and he wasn’t being particularly verbose, as was his right. In these circumstances, however, the

interpretation made by the officer cannot be said to be unreasonable. [ 20 ] However, it doesn’t really matter, as the officer did not have to go that far. The fact that he wanted to rule out innocent explanations does not detract from the fact that the smell of alcohol he detected could form reasonable grounds for his suspicion (See R. v. Butchko , 2004 SKCA 159 , at para. 7 ). [ 21 ] Further on this point, as noted most recently in R. v.

Chehil , 2013 SCC 49 , “reasonable grounds to suspect” is a lower standard than “reasonable and probable grounds to believe” (see para. 27), and it is important for a trial court to keep that distinction in mind when reviewing the circumstances to see if the suspicion is in fact objectively reasonable. It is entirely possible that an officer’s reasonable suspicion will be wrong, that is, the detainee will “pass” the ASD demand. The requirement is that the officer, whether right or wrong, is reasonable. As was pointed out in R. v.

Gunn , 2012 SKCA 80 , “evidence of a “fail” result is also strong objective evidence which will assist the court in its after-the-fact assessment of the reliability of the officer’s belief” (see para. 21). [ 22 ] In this case, I am totally satisfied the officer’s suspicion was reasonable on an objective basis, looking at all the facts known to the officer. Thus, he had the statutory authority to make the ASD demand and there is no breach of any Charter right. 2.

Was the length of time it took to obtain the ASD sample excessive, such that the sample was not provided “forthwith”? [ 23 ] In this case, the time lines are as follows: approximately 9:30 p.m. : initial stop; 9:44 p.m. : the demand for ASD is read; 9:56 p.m. : Constable Horton arrives with the ASD, “fail” follows shortly thereafter; 9:59 p.m.: arrested for impaired operation etc. [ 24 ] I note that the officer had, at the time he had pulled Mr.

Goertzen over, checked in by radio with his dispatch to check the registration of the vehicle, and although I have no evidence how long that took, it obviously took at least a few minutes. [ 25 ] Further, of course, there was a discussion at the vehicle, following which Mr. Goertzen was taken to the police vehicle for the formal demand to be made. [ 26 ] The officer had testified that while Mr. Goertzen was in his own car, he was advised verbally that he would be required to provide a sample of his breath into the ASD. The officer then took Mr.

Goertzen to his car, after having the discussion referred to, did a cursory search of him for officer safety reasons before placing him in the police vehicle, and once he was n the vehicle, read the ASD demand from a card the officer carried. To this point, there was no excessive delay.

[27] What consumed some additional time was the fact that Sergeant Redlich was not authorized to operate an ASD, and in anyevent, did not have one with him in his vehicle. He testified as to calling Constable Horton, a fellow officer whom he knew to be in thegeneral area and whom he knew to be an authorized operator of an ASD, to bring one to the scene. That call was made at the time thatSgt. Redlich formed the suspicion that Mr. Goertzen had alcohol in his body. The narrow issue is whether or not the wait for Cst. Hortonto arrive violated the “forthwith” principle. [28] What constitutes “forthwith” is subject to a “flexible

interpretation” (see: R. v. Bernshaw, (SCC), [1995] 1S.C.R. 254, para. 70). [29] Ms. Sullivan fairly points to the two Saskatchewan cases of R. v. Ritchie, 2004 SKCA 9, and R. v. Janzen, 2006 SKCA 111,cases in which an ASD was not available for 11 and 10 minutes respectively. It was held in each case that the delay was notunreasonable. [30] Ms. Sullivan argues that sitting at the roadside waiting for the ASD to come for 12 minutes in the police car was excessive inthese circumstances.

One of the things the officer could have done to reduce that time, she argues, would have been to leave the sceneand drive towards the detachment to meet Constable Horton, which I find might have saved a few minutes. [31] Ms. Herder argues that the test is really whether or not the “as soon as practicable in the circumstances ”standard has beenmet, arguing it has, on these facts. [32] In my view, the time in issue in this case was not excessive. Even if there had been an ASD in Sergeant Redlich’s vehicle, hecouldn’t have administered the test.

Thus there was a need to wait for Constable Horton to come and do so, whether or not ConstableHorton brought an ASD with him, or whether or not there was one in the police vehicle that Sergeant Redlich was in. [33] However, a second equally compelling fact is that it does not really matter if there were other options available to SergeantRedlich; the option he took was reasonable and appropriate in the circumstances.

On that point, I am satisfied Sergeant Redlich,although he did not know the exact location of Constable Horton, had a general idea of where he was, and he fully expected ConstableHorton to arrive reasonably promptly, which he did. [34] Further, the officer was aware of the requirement to get an ASD test administered promptly, and in my view, he took allreasonable steps to do so.

This is not a case in which the officer was sitting idly at the roadside without considering relevant matters. [35] Finally, on the argument of whether or not the officer should have driven toward the detachment to meet Constable Horton,the reality and intent of the matter is that the ASD test is to be administered at the roadside. If detainees become shepherded around thecountry to comply with the demand, the “forthwith” requirement is not being met, nor is the intent of the procedure. Further, from apractical point of view, had Mr.

Goertzen passed the ASD test, he would then have had to be taken back to his vehicle, all the whileleaving his vehicle unattended at the side of the road, which raises a number of other issues. [36] In these circumstances, I am satisfied that the demand was provided forthwith. 3. Due to the length of time it took to actually obtain the ASD sample, was Mr. Goertzen’s s. 10(

b) right to “retain and instruct counselwithout delay” infringed? [37] The short answer to this is “no”. A detainee’s right to consult with counsel is suspended pending the determination of theASD (see R. v. Orbanski; R. v. Elias, 2005 SCC 37, para. 3). Ms. Herder’s argument on this is quite simple: as s. 10(

b) Charter rightsare suspended pending an ASD test being completed, Mr. Goertzen does not somehow acquire rights he does not otherwise have by dintof passage of that time. I agree with that.

[ 38 ] Thus, I conclude that Mr. Goertzen’s rights to retain and instruct counsel without delay were not infringed. 4. If any Charter breaches are established, should the Certificate of Analyses be excluded from evidence? [ 39 ] As I have not found any Charter breaches, I need not consider this matter further. [ 40 ] Thus, the Certificate of Analyses will become evidence at the trial and by agreement, all the evidence from the voir dire will be applied to the trial proper.

There being no further evidence, each counsel having candidly acknowledged that this case basically lives or dies on the basis of the Charter applications, I have irrefutable evidence that Mr. Goertzen’s blood alcohol level exceeded the permitted amount (the lower of his two readings was 120 milligrams of alcohol in 100 millilitres of blood), and the charge of operating a motor vehicle while his blood alcohol level exceeded the permitted amount is established beyond a reasonable doubt.

I find him guilty on that count. [ 41 ] With respect to the impaired operation charge, the evidence is not strong enough to result in a conviction. I find Mr. Goertzen not guilty of that count. [ 42 ] The end result is that I find Mr. Goertzen not guilty on count #1 the impaired operation charge, and guilty on count #2, the charge of operating a motor vehicle while his blood alcohol level exceeded the permitted amount, as each of those two charges are more formally particularized on the Information. _____________________ B.G. Morgan, J