Her Majesty the Queen - v. -, 2011 SKPC 59

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 059 Date: May 4, 2011 Information: 40593772 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Craig Evan Hatzel Appearing: Ryan Snyder For the Crown Aaron Fox, Q.C. For the Accused DECISION ON VOIR DIRE M. BEATON , J BACKGROUND: [ 1 ] The accused is charged with operating a motor vehicle at Regina, Saskatchewan on March 15, 2010, while his ability to do so was impaired by alcohol contrary to s. 253(1) (

a) of the Criminal Code and a second count of operating a motor vehicle while his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(

b) of the Criminal Code .

[2] Defence counsel argues that the approved screening device demand, referred to as “ASD” demand, was not made forthwithand therefore there was no valid demand or test pursuant to s. 254(2)(

b) of the Criminal Code and the result of the ASD cannot form partof the reasonable and probable grounds for making a further demand pursuant to s. 254(3) of the Criminal Code. Defence counselargues that if the Court concludes the demand was unlawful, the evidence obtained in response to the demand was unlawfully obtainedand therefore inadmissible without the necessity of applying s. 24(2) of the Charter. [3] In the alternative, defence counsel argues that the accused’s rights pursuant to s. 8, 9 and 10 of the Charter were breachedsince the ASD demand was not made “forthwith”.

Defence counsel asks that the Certificate of Analyses be excluded pursuant to s. 24(2)of the Charter. [4] Crown counsel concedes that the ASD demand was not made forthwith and that the accused’s Charter rights were breachedbut argues that the evidence should not be excluded pursuant to s. 24(2) of the Charter based on the analysis as set out in R. v. Grant,2009 SCC 32 , [2009] 2 S.C.R. 353. Crown counsel argues that R. v.

Rilling, (SCC), [1976] 2 S.C.R. 183, isstill the law and that defence counsel must rely on the Charter to obtain an order excluding evidence. [5] All of the evidence was called on a voir dire in relation to a Charter application with an agreement that it be applied to thetrial proper subject to the Court’s rulings on admissibility. FACTS: [6] On the day in question, the accused was travelling southbound on the Ring Road in Regina, Saskatchewan. While exitingoff the Ring Road to proceed westbound on Arcola Avenue, he slid and struck another motor vehicle which was eastbound on ArcolaAvenue.

Significant damage was done to both the accused’s vehicle and the vehicle which he had hit. Police officers, paramedics andfire officials were dispatched to the scene of the collision. Given the damage, it was surprising that no one was injured. [7] Cst. Hooker was dispatched to the scene at 2119 hours and arrived at 2024 hours. After ensuring that everyone who waspotentially injured was looked after, he began to investigate the cause of this collision. Cst.

Hooker identified the accused as the driverof one of the motor vehicles and in conversing with the accused, the officer determined that the accused had consumed a beer prior to thecollision. At 2030 hours, after speaking to other witnesses, Cst. Hooker asked the accused to sit in the police vehicle as he saw no otherreason for the motor vehicle collision and believed that he may be dealing with an impaired driver. Cst. Hooker stated that while in thepolice vehicle, he was observing and speaking with the accused to determine if he had reasonable grounds for a demand pursuant to s.254(3).

After three to five minutes of dealing with the accused, the officer asked that an ASD be brought to his location. Although theofficer could not remember when the ASD arrived, at 2103 hours the ASD demand was made to the accused and at 2105 the ASDshowed a fail result. A demand pursuant to s. 254(3) of the Criminal Code was then made and the accused was advised of his right tocounsel. He subsequently provided breath samples at the police station. [8] The accused was not advised at the time he was placed in the back of the police vehicle of the reason for his detention.

Hewas not advised of his right to counsel until after the ASD test had been administered. He had been detained for 33 minutes before theASD demand was made and 35 minutes before he was advised of his right to counsel. ISSUES:

(1) Given that the ASD demand was not made forthwith, are the results of the ASD test and subsequent breath tests inadmissible withoutthe necessity of an analysis pursuant to s. 24(2) of the Charter?

(2) Given the breach of the accused’s Charter rights, should the results of the ASD test and subsequent breath tests be excluded pursuantto s. 24(2) of the Charter?

ANALYSIS:

(1) Given that the ASD demand was not made forthwith, are the results of the ASD test and subsequent breath tests inadmissible withoutthe necessity of an analysis pursuant to s. 24(2) of the Charter? [9] Section 254(2) of the Criminal Code authorizes police officers to demand samples of breath for analysis at the roadside butonly if certain conditions are met. The officer making the demand must have reasonable grounds to suspect that the subject of thedemand has within the preceding three hours been operating or in care or control of the motor vehicle, and has alcohol in his or her body.

As well, the sample of breath must be provided “forthwith” after the demand is made and the breath must be analysed by means of anapproved screening device. A fail reading of the ASD test may give police officers reasonable and probable grounds to demand breathsamples for further analysis. [10] The enactment of the Charter which guaranteed the protection of certain rights impacted the application of the impaireddriving provisions of the Criminal Code in a number of ways.

Prior to the enactment of the Charter, the absence of reasonable andprobable grounds did not affect the admissibility of the Certificate of Analyses. Once breath samples were provided pursuant to s.254(3) of the Criminal Code, the police officer’s grounds for demanding such samples were irrelevant (see: R. v. Rilling (1975), (SCC), 24 CCC (2d) 81 (SCC)).

In other words, results of breath analyses establishing that an individual’s blood alcohollevel exceeded the legal limits were admissible notwithstanding that the ground for making the breath demand was an illegally obtainedfail result on an ASD. [11] The Charter and subsequent case law confirms that when a police officer makes an ASD demand on an individual, thatindividual is detained. Detention triggers the operation of a person’s right to counsel pursuant to s. 10(

b) of the Charter. However,detention for roadside screening constitutes a reasonable limit on the right to counsel, justified under s. 1 of the Charter, if the demandmeets the requirements of s. 254(2) of the Criminal Code (see R. v. Thomson, (SCC), [1988] 1 S.C.R. 640). Theobtaining of a breath sample pursuant to s. 254(2) is a warrantless search and seizure. Warrantless searches are prima facie unreasonableand are only justified if authorized by law. The law itself must be reasonable and the manner in which the search is conducted must alsobe reasonable.

Therefore, the seizure of a breath sample at the roadside can only be lawful if it is obtained in a manner authorized bylaw, ie. in accordance with the requirements of s. 254(2) of the Criminal Code. A demand for further breath samples pursuant to s.254(3) based on an unlawfully obtained roadside breath sample may also be unlawful. [12] Defence counsel relied on the case of R. v.

Woods, 2005 SCC 42 , [2005] 2 S.C.R. 205, in support of his position thatthe fail result of an ASD breath demand that is not made forthwith is inadmissible without resort to s. 24(2) of the Charter. [13] The Woods case dealt with an accused who had refused the ASD demand at the roadside and who had subsequently beenarrested for that refusal. One hour after the arrest, and after speaking to counsel, police made another ASD demand with which theaccused complied. The fail result gave the police reasonable and probable grounds to make a further breath demand. The accused’sconviction at trial was overturned by the

summary conviction appeal court which found a breach of s. 8 of the Charter since the sampleof breath analysed by the ASD had not been taken forthwith. The Manitoba Court of Appeal dismissed an appeal by the Crown and theCrown further appealed to the Supreme Court of Canada. The Supreme Court of Canada decision was not clear as to the basis forexcluding the breathalyzer results and made no direct reference to a Charter breach nor did it refer to s. 24(2) of the Charter. The Courtalso did not refer to the Rilling decision.

How is the Woods decision to be applied? [14] The Woods decision has been interpreted by a number of Courts of Appeal as being a Charter case. The Ontario Court ofAppeal in R. v. Gundy, 2008 ONCA 284 , [2008] O.J. No. 1410, per Rosenberg J.A. stated at para. 35: I find it difficult to believe that the Supreme Court of Canada intended to overrule Rilling without referring to it.

In my view, although itis troubling that there is no reference to the Charter in the reasons for judgment, the more reasonable explanation is that the Court foundthat the accused’s rights were infringed and excluded the evidence on that basis albeit without going through the full Charter analysis ....I find some support for this view from the reasons of the Manitoba Court of Appeal in Woods reported at (2004), 2004 MBCA 46, 185 C.C.C. (3d) 70.

Speaking for the Court, Philp J.A. held at para. 31 that the actions of the police in taking breath samplesfor the approved screening device test at the police station without consent or statutory authority and the subsequent admission ofevidence of the breathalyzer samples “resulted in an unfair trial” and a denial of “fundamental justice”. It seems to me that this isCharter language and other portions of the reasons show that the case was fought on the basis of a Charter challenge to the admissibility

of the breathalyzer results. [15] In addition, the Manitoba Court of Appeal in R. v. Forsythe, 2009 MBCA 123, para. 17 and 18, stated per Beard J.A.: Defence counsel pointed to the decisions of the Supreme Court of Canada in R. v. Deruelle, (SCC), [1992] 2 S.C.R. 663(S.C.C.), and R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 2005 (S.C.C.) as supporting his position that the Certificate of Analysesregarding the results of the breathalyzer test should be inadmissible where the time requirements of s. 254(3) have not been met.

While it is not clear from reading the Supreme Court’s reasons in Woods, a reading of this Court’s decision in that case (2004 MBCA 46(Man. C.A.) at para. 12) makes it clear that the decision of the

summary conviction appeal judge was based on a breach of s. 8 of theCharter. Thus, that case is of no assistance in determining the relatively narrow issue on this appeal (see also Gundy at paragraphs 34 to36). [16] The Rilling decision has never been overturned. The Supreme Court has mentioned Rilling as still being good law but theCourt has not had to rely on Rilling to resolve any legal issues (see R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, perCory J., and R. v. Pierman/Dewauld, (ON CA), [1994] O.J.

No. 1821). [17] Based on the Gundy and Forsythe cases, I am not prepared to interpret Woods as overruling the Rilling decision. In the casebefore me, based on Rilling, I would have admitted into evidence the results of the breath analysis by the intoxilyzer instrument. TheCharter breaches, however, require me to make further analysis. I also note that if the accused had refused to provide a breath sample atthe roadside, the lawfulness of the ASD demand would have been an issue.

(2) Given the breach of the accused’s Charter rights, should the results of the ASD test and subsequent breath tests be excluded pursuantto s. 24(2) of the Charter? [18] Section 24(2) of the Charter must be applied according to the new flexible approach as set out in R. v. Grant, supra, todetermine whether the admission or exclusion of evidence obtained as a result of the violation of an individual’s Charter rights wouldtend to bring the administration of justice into disrepute.

Under the new approach, the Court must ask whether a reasonable person,informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence wouldbring the administration of justice into disrepute.

The purpose of excluding evidence is not to punish the police or to compensate theaccused, but to consider the long-term repute of the justice system. [19] In essence, the Court is to consider the following factors: 1) the seriousness of the Charter-infringing state conduct; 2) the impact of the Charter-protected interests of the accused; and 3) society’s interest in the adjudication of the case on its merits. [20] In determining the seriousness of the Charter-infringing police conduct, the Court needs to look at whether the conduct was adeliberate or a reckless disregard for Charter rights or whether the police acted in good faith.

The Court must also determine whetherthe breach was merely technical in nature or a serious violation. [21] An inquiry into the second factor requires considering the interests engaged by the infringed right and the degree to which theviolation impacted on those interests. The Court has to assess whether the breach seriously infringed the rights of the accused, orwhether the breach was merely transient or trivial in its impact. [22] The third factor deals with the criminal trial process and asks whether its truth seeking function is better served by the

admission or exclusion of the evidence in question. It is in the interests of society to ensure that individuals who are accused of violatingthe law are brought to trial and are dealt with according to the law. The Court needs to consider the reliability of the evidence and howimportant the evidence is to the case of the Crown. The exclusion of reliable evidence forming the basis of the Crown’s case will alsobring the administration of justice into disrepute. In R. v. Harrison, 2009 SCC 34 , [2009] S.C.J.

No. 34 (S.C.C.), which wasdecided at the same time as the Grant decision, the Supreme Court of Canada held that the seriousness of the offence should not be theprimary concern under the third inquiry and should not overwhelm the s. 24(2) analysis. This stage should not be determined bydeciding whether the Charter breach is less heinous than the offence the accused has been charged with, as there is the expectation thatpolice officers are held to higher standards than alleged criminals. [23] Turning to the first factor, the power to detain an individual for a roadside screening test is not unfettered.

Detention of asuspect at the roadside without the right to consult with a lawyer is justified, but only if the police follow the pre-conditions of s. 254(2)of the Criminal Code. One of the pre-conditions as interpreted by the Courts is that the demand must be made “forthwith”. I agree withand adopt the comments made by Duncan J. in R. v. Beatty, [2009] O.J. No. 4121, at paragraph 31: There is no mystery or complexity to a straightforward temporally measured “forthwith” and the officer should have been aware that hewas stretching his authority in detaining the defendant for a later roadside screening test.

Quite apart from this particular officer, I find itas a serious matter that the constitutionally mandated requirement of near immediacy for roadside testing has crept ever forward to where“forthwith” is now regarded by some if not many as including “when we can” or “when it gets here” a view never endorsed by and infact sharply at odds with the Supreme Court of Canada. [24] Police officers ought to be aware that time is of the essence in obtaining roadside breath samples. In the present case, the bulkof the delay was due to awaiting the arrival of the ASD.

Should police officers choose not to carry an ASD in their vehicles, they do so atthe peril of unlawfully detaining accused people and potentially having critical evidence excluded by the Courts. There is a limit on howlong police can wait for the availability of the ASD. Given the reason for the delay, the police conduct showed a reckless disregard forthe accused’s Charter rights.

This breach is a serious one and not merely a technical one. [25] Regarding the second Grant factor, Duncan J. in the Beatty case again succinctly states at paragraph 32: The officer had grounds to make the demand and detain the defendant for the purpose - he was legally detainable and searchable - theonly defect being that the authority timed out. Had the ASD arrived earlier and the defendant been tested “forthwith” he would havebeen in exactly the same position - under arrest and heading for the station. His overall detention until tests on the Intoxilyzer werecompleted was less than two hours.

In my view the impact of the Charter-breaches on the defendant was quite minimal. [26] This factor favours admission of the evidence. [27] As for the third factor, test results are reliable evidence. The evils of drinking and driving are well known and have longbeen the subject of comment by the Courts and the public. It is in society’s interest that drunk drivers be brought to trial and dealt withaccordingly. This factor also favours admission of the evidence. [28] In this case, after balancing all of the factors, the seriousness of the violation outweighs the other two factors.

The long-termand prospective repute of the administration of justice requires that police officers are held to a high standard respecting Charter rights. As stated by Fish J. in R. v.

Morelli, 2008 SCC 8: In balancing these considerations, we are required by Grant to bear in mind the long-term and prospective repute of the administration ofjustice, focusing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of theconstitutionally protected rights of the accused. [29] I am satisfied on a balance of probabilities that the admission of the evidence would bring the administration of justice intodisrepute. The Certificate of Analyses is therefore excluded as evidence.

M. Beaton, J