Her Majesty the Queen - v. -, 2014 SKPC 163

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 163 Date: August 15, 2014 Information: 24399804 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Aaron Worden Appearing: C. Bliss For the Crown R. Piche For the Accused JUDGMENT R.D.

JACKSON , J I INTRODUCTION [ 1 ] The accused stands charged on or about August 27, 2011 that he had care or control of his motor vehicle while his blood alcohol exceeded .08 percent. [ 2 ] The accused filed no notice alleging any Charter violations however on the date of trial, April 3, 2014, Defence counsel advised that he had just been informed of a potential s. 10(

b) right to counsel breach. The Crown objected to this issue being raised at

this time noting that despite this being the fourth trial date, [1] this was the first mention of such potential breach. [ 3 ] The Court agreed to hear the evidence pertaining to same as the police officers were available to testify on the understanding that following final argument the Court would determine whether to adjudicate upon the application or alternatively, decline to do so given the lack of proper notice to the Court and the Crown. II ISSUES [ 4 ] Four issues emerged from the trial evidence:

a) whether the accused should be permitted to have the s. 10(

b) Charter breach argument adjudicated upon;

b) if so, whether a breach of s. 10(

b) had been established and the consequent remedy to be granted upon such a breach being found;

c) whether the investigating officer had reasonable suspicion that the accused had alcohol in his body at the time the ASD demand was made;

d) whether the investigating officer had the requisite subjective belief for reasonable grounds to make the. 254(3) breath demand upon the accused. III DETERMINATION Whether the Court should adjudicate upon the alleged s. 10 breach [ 5 ] Defence counsel asserted at the outset of trial that he had just been apprised that morning by his client of circumstances which might raise a possible s. 10(

b) breach of the Charter . If indeed his client had just informed him of this, then Defence counsel cannot be faulted for failing to provide adequate Charter notice. [2] In fact, he would be derelict in his duties on behalf of his client not to raise the issue notwithstanding the lack of prior notice. [ 6 ] The accused however bears responsibility, in the Court’s view, to impart all relevant information to his or her counsel in a timely fashion concerning the factual basis upon which a Charter application may be based.

Relevant information would be guided by the logical queries of counsel to ferret out the required information to base a potential Charter argument. It is inconceivable to the Court that Defence counsel in general, and Mr. Piché in particular, would not have done so on the very common Charter argument dealing with a s. 10(

b) breach. Putting it in its best light, the accused either forgot or neglected to provide such information to Mr. Piché prior to the start of the trial on the fourth adjourned date, nearly three years from the date of the incident. [ 7 ] For his part, the accused did testify that he gave Mr. Piché this information in September, 2013. This is hardly credible, otherwise the Charter notice undoubtedly would have been provided in a timely fashion thereafter.

If he did give this information as he suggested, which the Court rejects, then he would fall afoul of Practice Directive VIII, supra , where counsel knew of the factual basis and failed to provide timely and adequate notice to the Crown and the Court of this breach. [ 8 ] Denying a potential Charter remedy would be extreme and no doubt rarely applied. However, such procedure is not without

precedent. In the well-reasoned decision of R. v. Mellquist [3] my brother Judge Kovatch canvasses this issue of sufficiency of Charter notice. At para. 12 he cites from the leading decision of R. v. Kutynec [4] “ . . . failing timely notice, a trial judge, having taken into account all relevant circumstances, is entitled to refuse to entertain an application to assert a Charter remedy”. [5] [ 9 ] Having regard to all of the circumstances raised herein, the Court finds this case to be a proper circumstance to decline adjudication upon the alleged Charter breach.

This is not to say that the Court would not permit Charter arguments being raised where lack of notice is unavoidable, for example, issues arising during trial, however these circumstances are exceptional and certainly not the case here.

Section 10(

b) breach on its merits [ 10 ] A ruling upon whether an alleged Charter violation should be heard or adjudicated upon is beneficial for future guidance for both Crown and Defence. If the Court is in error however by refusing to adjudicate upon the alleged breach having heard the evidence pertaining thereto, the Court feels compelled to state that the application would have been unsuccessful on its merits in any event. [ 11 ] The accused testified that he had Morris Bodnar, Q.C. on retainer at the time of his arrest for other matters.

Yet when presented with the Saskatoon telephone directory he was unable to “make out” Mr. Bodnar’s telephone number. He stated he could not do so because he required his reading glasses to read the finer print. He did not impart this information to any of the officers present because “he didn’t like to admit” that he needed reading glasses, he testified. This is simply not credible evidence.

When facing potential criminal jeopardy surely the accused would not be dissuaded from telling the police his problem with his eyesight out of embarrassment, thereby depriving himself of the benefit of proper legal advice. [ 12 ] The accused stated further that the only assistance offered from Constable Rau, notwithstanding the accused told him he had Morris Bodnar, Q.C. on retainer, was that he only would give him the Legal Aid telephone number.

This again is highly illogical standing on its own but even more so when the accused testified that Constable Rau provided him with the Saskatoon telephone directory for the specific purpose of locating Mr. Bodnar. Armed with this knowledge, it is not believable that the officer would then choose to inform the accused he could only provide the Legal Aid number to him if it appeared the accused was having difficulty selecting the appropriate number. [ 13 ] Constable Rau testified that there was no discussion whatsoever concerning Mr.

Bodnar nor any other private counsel and that is why the Legal Aid number was provided. The Court prefers and accepts this evidence and rejects the accused’s version where it differs in this respect. [ 14 ] Finally, the accused informed Constable Rau he wished to speak to Legal Aid and thereafter obtained advice from the Legal Aid Duty Counsel lasting a period of approximately seven minutes. Thereafter he expressed no dissatisfaction concerning his call either to Corporal Pambrun or Constable Rau nor did he request to speak to any other legal counsel following his consultation. In such circumstances, no s. 10(

b) breach can be maintained. [6] Reasonable suspicion for s. 254(2)(

b) ASD demand [ 15 ] Section 254(2)(

b) C.C. requires the investigating officer to have a reasonable suspicion that the accused has alcohol in his or her body at the time of the demand. Reasonable suspicion has been recently defined by the Supreme Court in R. v. Chehil [7] and R. v. MacKenzie [8] to mean that one must determine in all the circumstances whether a “possibility” not a “probability” exists of criminal behaviour. [ 16 ] In R. v. Yates [9] our Court of Appeal at para. 28 endorsed this proposition:

28 In R. v. Jacques, (SCC), [1996] 3 S.C.R. 312, the Court held the term “suspicion on reasonable grounds” in the Customs Act, R.S.C., 1985, c. 1 (2nd supp.) only required there be a possibility of an offence having been committed. In R. v. Mitchell,2013 MBCA 44 , 2013 MBCA 44, 298 C.C.C. (3d) 525, the Manitoba Court of Appeal adopted the following statement from R.v.

Chipchar, 2009 ABQB 562 , 2009 ABQB 562: “Thus, reasonable suspicion requires only that the belief be one of a number ofpossible conclusions based on the supporting facts, not a probability [italic emphasis added]” (para. 20, bold emphasis in original). Further, at para. 31, the Court stated: 31 Although the decision in Chehil and MacKenzie discuss suspicion in the context of a “crime” or “criminal activity,” their ratiosequally apply to the standard of reasonable grounds to suspect that a person had alcohol or a drug in his or her body.

They also provideguidance on the burden borne by the Crown in circumstances where a s. 254(2)(

b) demand is challenged. [17] Corporal Pambrun, who made the ASD demand, had the following information available to him:

a) he observed sealed containers of Molson Canadian beer on the floor in the back close to the driver’s seat. He also noted an opencontainer of alcohol beverage on the console between the driver (accused) and his passenger;

b) Constable Rau advised Corporal Pambrun that he was going to issue a 24 hour suspension on the accused because he smelled alcoholon him;

c) Corporal Pambrun could also smell alcohol on the accused. At trial he testified it was coming from his breath however this was notrecorded in his notes nor his general report. The Prosecutor Information Sheet did indicate that he could smell alcohol but did notspecify it was coming from the breath of the accused. He detected the smell at a time and location however when he was dealing solelywith the accused;

d) the accused’s eyes were “A little bit watery and a little bit droopy. A little bit red”. “. . . Speech a little bit slurred. . .” (Transcript p.15, lines 22 - 25);

e) the accused when asked if he had anything to drink in the last 20 minutes stated “. . . no, it had been a little bit before.” (Transcript p.16, lines 18-22). [18] Taking all of the relevant information into account at the time the ASD demand was made, the Court is satisfied that thethreshold for reasonable suspicion of an accused having alcohol in his body as a possibility, has been met.

Subjective belief for breath demand [19] The final issue raised by the Defence related to the lack of subjective belief held by Corporal Pambrun necessary to make the formal breath demand pursuant to s. 254(3) C.C.[10] [20] Corporal Pambrun was candid in his evidence that he did not believe that the accused’s ability to operate a motor vehicle wasimpaired by alcohol.

Rather, he relied upon the “Fail” result on the ASD to found the formal breath demand. [21] The s. 254(3) demand encompasses both the offences of impaired driving and driving while over .08.[11] Accordingly, asubjective belief in either or both would suffice.

[ 22 ] Defence counsel in this case points to answers given by Corporal Pambrun that indicate he could not have had the subjective belief that the accused was committing the offence of over .08. This is so because he stated the ASD fail meant “80 or over”, a level of 80 milligrams of course not being a criminal offence. [ 23 ] Crown counsel takes the position that he simply misspoke when the entirety of his evidence is taken into account. In this regard, the following exchanges comprised the whole of his testimony on this point: Chief Q Okay. What is - what does an “F” mean to you?

A An “F” means that the person has - has failed and it is reading - that the person could be above the - the legal limit of 80 milligrams. Q Okay. And I - I don’t want to be pedantic here but, in terms of - what does that mean in relation to someone’s blood alcohol? A It - well 80 milligrams is the amount that any person can have in their body without - without being charged. That’s the - the highest. Q Okay. And so what does - how does the “F” relate to that at all and - I’m not sure if I understand.

A Well what the - the - the screening device reads, if I remember correctly, will read that the person is over the 80 milligrams. Is over 08. Q Okay. Do you know what - do you know what - were you trained or do you know - what the - the limits are of it in terms of when it will register a fail or - A Yah. Yah, anything over 80, a warn is anything over 60. And anything under 60 will usually give a numbered reading. Transcript p. 19, lines 21 - 26, p. 20, lines 1 - 17 Q Okay.

Just so I’m clear and now - now I’m talking about the breath demand that you read after the approved screening device, what were your thoughts at that point about his - either his ability to operate the vehicle or his blood alcohol? A Well at that point I - with - with the fail rating, I knew that he probably shouldn’t be driving because the device is telling me that he is over the limit. Transcript p. 37, lines 1 - 10 Cross-exam Q What triggers a fail? What - what triggers the - I think you talked about 80 milligrams.

A Anything over 80. Q Okay. Would it also include, according to your understanding, 80 and over or just over 80? A I believe it’s 80 and over. Transcript p. 58, line 17 - 22 Re-exam Q Okay. Now I think your testimony was, when you were asked questions by my friend, that you were - you told him that you were detaining him for operating a motor vehicle while over .08, do you recall saying that earlier? A Yes. Q Okay. And what was your basis for detaining him for - detaining him for operating a motor vehicle over .08? A Because of the roadside screening device - Q Okay. A - readings.

Q What belief, if any, did you have at the time you read the - the breath demand to him, about his blood alcohol? A Well I believed that he was over the legal limit based on the readings that I got from the ASD. Transcript p. 94, lines 5 - 16, lines 22 - 26 Q Okay. And he - he suggested to you that an “F” meant 80 or over, do you recall that? A Yes. Q Okay. Do you recall what you said in chief? When I asked you questions?

A I believe it was 80 to 100 is what I - asked - I answered to that. Transcript p. 99, line 17 - 23. [ 24 ] In assessing this argument, the Court has had the benefit of reviewing the entirety of Corporal Pambrun’s testimony from the transcript of these proceedings. To say that he was a less than impressive witness would likely be an understatement. Although not appearing insincere or flippant, he was nonetheless clumsy and often confusing with his answers requiring clarification from counsel and the Court on several occasions.

Whether this emanated from being highly unprepared, inarticulate or simply too far removed from the rigours of giving evidence, is difficult to say. [ 25 ] Although there are many examples, Corporal Pambrun’s response to Crown counsel in re-examination underscores his apparent confusion: Q Okay. Do you recall what you said in Chief? When I asked you the questions?

A I believe it was 80 to 100 is what I asked - I answered to that. [ 26 ] In Examination-in-Chief however Corporal Pambrun gave no such answers, rather, stating the following in response to questions relating to what was meant by the ASD fail ( supra at para. 21): The person could be above the legal limit of 80 milligrams. 80 milligrams is the amount that any person can have in their body without being charged - that’s the highest. The screening device reads, if I remember correctly, will read that the person is over the 80 milligrams. Yah.

Yah, anything “over 80” [ 27 ] In cross-examination Corporal Pambrun first answered “anything over 80” and then when questioned further “I believe it’s 80 and over”. [ 28 ] Considering the whole of his evidence, the Court is confident he simply misspoke by stating “80 and over” regarding his understanding of an ASD fail. Had he consistently stated in his evidence “80 and over” rather than overwhelmingly to the contrary, the Court would have taken the opposite view.

His overall evidence however clearly demonstrates he held a valid, subjective belief that the accused was over the lawful limit of 80 milligrams. [ 29 ] As far as the objective component is concerned, the evidence before the Court is that the ASD utilised was a Draeger Alcotest 7410, an approved instrument, which in all respects appeared to be working properly.

Fail results in such circumstances have been routinely accepted as meeting the objective component required to make a formal demand as viewed by a reasonable third party standing in the shoes of the investigating officer. [12] No issue is taken on this point in any event. IV RESULT

[30] On the basis that the Certificate of Analyses, Exhibit P-1, in these proceedings, demonstrated the accused’s BAC at thematerial time to be in excess of the legal limit, the accused is found guilty of the offence as charged. __________________________ R.D. Jackson, J [1] September 6, 2012, March 21, 2013, September 5, 2013 and April 3, 2014 [2] Practice Directive VIII from the Provincial Court starts out “1.

Where counsel is aware that a Charter application or an applicationunder s. 52 of The Constitutional Act will be made at trial, notice of that application in the attached form shall be given to each interestedparty at least 14 days prior to hearing or at such earlier time as directed by the Court. . .” [emphasis added] [3] 2014 SKPC 48 , 2014 SKPC 048 [4] (ON CA), [1992] O.J. No. 347 (C.A.) [5] See also R. v. Dwernychuk, 1992 ABCA 316; R. v. Ginther 2011 SKPC 83 [6] See R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429 (S.C.C.); R. v. Edgington, 2010 SKQB 381; R. v.

McLeod, 2013 SKCA(C.A.) [7] 2013 SCC 49 [8] 2013 SCC 50 [9] 2014 SKCA 52 [10] See R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at para. 48 [11] R. v. Gunn, 2012 SKCA 80, 399 (Sask. R.) 170 (C.A.) at para. 7 [12] See R. v. Bernshaw, supra, at paras. 49 - 50