Her Majesty the Queen - v. -, 2021 SKPC 57

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 57 Date: November 19, 2021 Information: 90406979 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Patrick Strong Appearing: Jennifer Souter For the Crown Ronald Piché For the Accused DECISION ON COMMITTAL L. STANG , J Background [ 1 ] Mr. Strong is charged that on or about the 4 th day of July, 2020 at the Rural Municipality of Three Lakes, in the Province of Saskatchewan, he did commit the following three offences: Count 1: while his ability to operate a conveyance was impaired by alcohol did operate a conveyance, and thereby caused the death of

Terry Bobyk contrary to

Section 320.14(3) of the Criminal Code ; Count 2: operate a conveyance in a manner that was dangerous to the public, and thereby caused the death of Terry Bobyk contrary to

Section 320.13(3) of the Criminal Code ; Count 3: without reasonable excuse knowing at the time of the refusal he was involved in an accident that resulted in the death of another person refuse to comply with a demand made to him by Constable Brendin Feere, a peace officer, under

Section 320.28 of the Criminal Code to provide then or as soon thereafter as was practicable samples of his breath as in the opinion of a qualified technician were necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood contrary to

Section 320.15(3) of the Criminal Code . [ 2 ] Mr. Strong elected to have his trial for these charges in the Court of Queen’s Bench for Saskatchewan, without a jury, and he requested a preliminary hearing be held in this court. The evidence at the preliminary inquiry was presented to the court on June 29, 2021 and both counsel made their initial submissions regarding the issue of committal that same day. During those submissions I raised a specific issue with counsel regarding Count 3. [ 3 ] The issue arose as a result of my observation that the police officer who made the breath demand to Mr.

Strong, pursuant to s. 320.28 of the Criminal Code , had provided no evidence as to his knowledge or belief concerning the time when Mr. Strong drove the vehicle that was involved in the accident which resulted in the death of Terry Bobyk. I then adjourned the matter to permit the parties to file jurisprudence and written argument. I then heard final arguments from counsel on August 30, 2021 after which I adjourned to today for my decision.

The Issue [ 4 ] Of course the ultimate issue at the conclusion of the preliminary inquiry is for me to decide if there is sufficient admissible evidence which could, if it were believed, result in a conviction. [1] This test for committal is not onerous. In practical terms it means that the Crown must present some admissible evidence, that could be believed, of each essential element of each offence. [ 5 ] With respect to Count 3, the more specific issue pertains to whether there is some admissible evidence that the breath demand made by the police officer pursuant to s. 320.28 was lawful.

To answer this question, I must determine if a police officer making the breath demand is required to have reasonable grounds as to the time of driving and that the officer’s grounds are formed within a specific amount of time following the time of driving. Stated another way: does the police officer need to consider when the driving occurred, or have information or knowledge that the driving occurred within a certain time frame prior to the breath demand, for the breath demand to be lawful?

Decision [ 6 ] For the reasons set out in this decision I find that there is no requirement that a police officer must have reasonable grounds as to the time of driving, nor is there a requirement that a police officer must formulate his or her reasonable grounds within a particular amount of time after the driving for a breath demand made pursuant to s. 320.28 to be lawful. Consequently, in this case I find that there is some admissible evidence that the s. 320.28 breath demand made by Constable Feere to Mr. Strong was lawful.

There was no other issue raised as to the test for committal being met for all other essential elements of Count 3. I find that there is sufficient admissible evidence, as to all the essential elements of the offence set out in Count 3, that could, if believed, result in Mr. Strong being convicted of the charge set out in Count 3. [ 7 ] With respect to Counts 1 and 2, while Mr. Strong did not expressly concede that the test for committal was met, his counsel did not make any argument against committal on these charges.

I find that, with respect to both Counts 1 and 2, there is sufficient admissible evidence that could, if believed, result in Mr. Strong being convicted on both of these charges. Defence submission regarding Count 3 [ 8 ] Mr. Strong argues that there is a time requirement regarding the amount of time between the time of driving the vehicle and the moment when the police officer formed his grounds to make the breath demand pursuant to s. 320.28 . He argues that this is required for the breath demand to be lawful, and that a lawful breath demand is an essential element of a “refusal offence” such as the one set out

in Count 3. In brief, if there is no evidence of what the police officer knew regarding the time of driving, then there is no admissible evidence that the breath demand was lawful; which is an essential element of the offence charged in Count 3. In its absence, even if all the other evidence was believed, it would not, and could not, result in a conviction. Crown submission regarding Count 3 [ 9 ] The Crown argues that, unlike its predecessor section, s. 320.28 does not include any temporal or ‘time limit’ component which must be considered by a police officer prior to making a lawful breath demand.

The Crown relies on the plain reading of s. 320.28 which sets out the only requirements for a lawful breath demand which include: firstly, that the peace officer have reasonable grounds to believe that the person has operated a conveyance while the person’s ability to do so was impaired to any degree by alcohol, [ or that the person has committed an offence under s. 320.14(1)(b) ], and secondly, that the peace officer makes the breath demand as soon as practicable. [ 10 ] The Crown argues in the alternative that if there is a requirement that the police officer’s grounds to make the breath demand must include a belief that the driving occurred within a specific period of time, then this can be inferred by the other evidence presented during the preliminary hearing.

Analysis [ 11 ] The Crown is correct that there are no express provisions or parts of s. 320.28 of the Criminal Code that mention any time requirements to be respected prior to the police officer forming the requisite grounds. In this case the relevant subsection is 320.28(1) which reads as follows: 320.28

(1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable, (

a) require the person to provide, as soon as practicable, (

i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to take one, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration; and (

b) require the person to accompany the peace officer for the purpose of taking samples of that person’s breath or blood. [ 12 ] Prior to the implementation of

Part VIII.1 of the Criminal Code , [2] the analogous subsection of the Criminal Code was s. 254(3) . It read as follows: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed , an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand as soon as practicable, 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, if any, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and (

b) if necessary, to accompany the peace officer for that purpose. [underlining added]

[13] Under the old s. 254(3) there was a requirement that the breath demand be made within three hours of the time of driving.Moreover, this was an essential component of a lawful breath demand.

In R v Deruelle, (SCC), [1992] 2 SCR 663 at p671 [Deruelle], Justice La Forest, wrote for the Court: In my view s. 254(3) should be interpreted as requiring only that a peace officer form a belief that an impaired driving offence has been committed by the suspect within the past two hours.[3] [underlining in original decision] [14] More recently, in its decision R v Guenter, 2016 ONCA 572, 340 CCC (3d) 351 the Court of Appeal for Ontario considered,in the context of a Charter of Rights and Freedoms [Charter] application, the requirements for a lawful breath demand under the old s.254(3).

The Court applied the above cited passage from Deruelle, and concluded, at paragraph 90, as follows: As applied to the present case, the

interpretation of s. 254(3) in Deruelle would permit the trial judge to find that a demand by thebreathalyzer technician, Cst. Casey, would satisfy the requirements of s. 254(3) provided he had formed reasonable grounds within thethree-hour time limit and made a demand “as soon as practicable” thereafter. [15] The Crown submits that there is no longer a requirement for a police officer to formulate grounds to make a breath or blooddemand within three hours of the time of the suspected driving.

The wording of the Criminal Code provision authorizing such demandshas changed substantively because the specific words that made this a requirement under the old s. 254(3), are no longer included in s.320.28(1). I find that I agree with the Crown submission in this regard. This is consistent with the plain meaning of the wording of s.320.28(1) and it is consistent with the modern approach to statutory

interpretation. [16] In its judgement, R v Alex, 2017 SCC 37 at paragraph 24, 349 CCC (3d) 383, the Supreme Court of Canada, Justice Moldaver,writing for the majority, wrote: The modern approach to statutory

interpretation is now well established. It requires that the words of a provision be read “in their entirecontext and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention ofParliament”: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, quoting E. A.Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. [17] Part of the context here is Parliament’s decision to substantially alter the Criminal Code as it pertains to impaired driving andrelated offences. Sections 249 through 261 of the Criminal Code were all repealed and replaced with the new

Part VIII.1 – OffencesRelated to Conveyances, of the Criminal Code. A significant number of the new provisions are designed to enhance the ability of thepolice to investigate these types of offences. Notably, s. 320.28, and various other sections are grouped together under the heading“Investigative Matters.” In considering the ‘scheme’ and ‘object’ of the provisions of

Part VIII.1, I have reviewed all of the sections andobserve that there are other provisions which also serve to enhance the ability of the police to investigate these types of offences. [18] The current provisions of the Criminal Code governing approved screening device demands do set out specific timerequirements within which the demand must be made.

Section 320.27(1) specifically requires that the peace officer must have therequisite “reasonable grounds to suspect…and that the person has within the preceding three hours, operated a conveyance…”[underlining added]. This specific time limit is the same as that which existed under the previous s. 254(2).

However, parliament alsoadded a new provision as set out in s. 320.27(2) which permits police officers, in certain circumstances, to make an approved screeningdevice breath demand without first formulating any grounds. [19] A significant change was also made to the provisions of the Criminal Code that authorize peace officers to obtain warrantsfor blood samples in the context of impaired driving investigations involving an accident that results in death or bodily harm. Paragraph320.29(1)(

a) sets out one of the prerequisites to obtaining a warrant for a blood sample as follows: …there are reasonable grounds to believe that the person has, within the preceding eight hours, operated a conveyance that was involvedin an accident that resulted in bodily harm to themselves or another person or in the death of another person; [underlining added]

This is a significant increase to the four hour time limit set out in the analogous previous s. 256(1)(a). [ 20 ] Interestingly, s. 320.29(1)(

b) sets out an additional prerequisite to obtaining a warrant for a blood sample that: “…there are reasonable grounds to suspect that the person has alcohol or a drug in their body;” [underlining added]. This provision is entirely in the present tense. In my view, this means that the police officer seeking a warrant six hours after the accident, for example, must still have – at the moment of seeking the warrant – a reasonable suspicion that the suspect still has alcohol or a drug in their body.

This requirement makes sense, because it ensures that even after several hours of time has passed there is still a reasonable expectation that a blood sample, once analyzed, will provide relevant evidence. This provision is new. It did not exist in the previous s. 256. [ 21 ] Notwithstanding the new requirement set out in s. 320.29(1)(b), s. 320.29(1)(

a) has clearly enhanced the ability of the police to investigate as it doubled the amount of time they have to obtain this type of warrant. [ 22 ] With respect to s. 320.28, the elimination of the time requirement within which a police officer must formulate grounds to make an evidentiary breath or blood demand will likely be of significant assistance to the police for certain investigations. Consider, for example, a “hit and run” investigation.

It may take the police longer than three hours to identify and locate the driver, and then only be able to formulate grounds for a breath demand after speaking with the driver. Under s. 320.28 the police can make a breath demand of such a suspect, whereas under the previous s. 254(3) they could not. Consequently, this change in law seems to be consistent with other changes designed to enhance the abilities of the police to investigate these types of offence. [ 23 ] However, I also observe that the elimination of this time requirement could result in incongruous, if not bizarre, outcomes.

For example, the police could be investigating a motor vehicle accident that has resulted in people being injured, including the driver of the vehicle who has remained unconscious and in the hospital since the accident. If, after seven hours of investigation, the investigating officer forms the grounds that the driver’s ability to drive was impaired that officer could seek and obtain a warrant for a blood sample under s. 320.29. If the investigating officer did not have those grounds until nine hours of time since the driving no warrant could be obtained.

However, that same officer could return to the hospital, wait an additional five or six hours until the driver regains consciousness, and then demand a blood sample pursuant to s. 320.28(1)(a)(ii). [ 24 ] For further example, as odd as it appears, there is nothing in the relevant provisions of the Criminal Code preventing a police officer from investigating an “impaired driving” case for several days, formulating the requisite grounds on the third or fourth day of the investigation, and then making a breath demand of the suspect under s. 320.28.

The police officer would still have to make the demand “as soon as possible” after formulating the grounds, however, there is simply no prescribed amount of time within which police officers must formulate their grounds to make the demand. [ 25 ] Notwithstanding the potential for incongruous results, the plain meaning of the ‘new’ wording of s. 320.28, is that the previous three hour time period within which the police had to formulate their grounds for an evidentiary breath or blood demand has now been eliminated. This plain reading is consistent with the modern approach to statutory

interpretation. [ 26 ] I note that I have not been presented with, nor do I know of, any jurisprudence or other authority that would permit me to interpret s. 320.28 in any way other than giving this plain meaning to the words used in that section. I find that since there is no longer a three hour time period within which a police officer must formulate grounds to make an evidentiary breath or blood demand, it follows that the Crown does not need to provide evidence that Constable Feere formulated his grounds to make the breath demand he made to Mr. Strong within any time limit following the time of driving.

Consequently, such evidence is not required to establish the lawfulness of the breath demand. [ 27 ] My

interpretation of the statutory effect of the provisions of s. 320.28 of the Criminal Code may well at some point attract scrutiny under the Charter ; however, in this case I am presiding as a preliminary inquiry judge and consequently have no jurisdiction to deal with any potential Charter issues. [4] [ 28 ] In light of my decision regarding the absence of a time requirement within which a peace officer must formulate the requisite grounds to make a breath demand pursuant to s. 320.28 . It is not strictly necessary for me to address the Crown’s alternative argument. However, in the circumstances I find it appropriate to do so.

[ 29 ] The Crown suggested that I could infer or reasonably deduce that Constable Feere had considered the time of driving based on the other available evidence. I disagree. While reasonable inferences are often drawn based on other evidence in criminal trials and preliminary hearings, this is not one of those situations. Of course, the only direct source of evidence of what Constable Feere considered, knew, or took into account in forming his grounds is what he recalled and stated to the court. His testimony did not include any indication at all that he considered the time of driving as part of his grounds.

It may have been possible to infer that he had considered it if there were evidence, from another witness for example, that the other witness had discussed time of driving with Constable Feere. However, there was no such evidence, or other evidence, upon which I could infer that Constable Feere had considered the time of driving as part of his grounds to make the breath demand. Conclusion [ 30 ] As a result of my decision set out in paragraphs 6 and 7 above, I hereby order that Mr.

Strong be committed to stand trial in the Court of Queen’s Bench for Saskatchewan on all three charges set out in Information 90406979. ____________________ Stang, J