Her Majesty the Queen - v. -, 2012 SKPC 141

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 141 Date: November 27, 2012 Information: 32298002 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Devon D. Sokulski Appearing: Dana Brule For the Crown Brian R. Pfefferle For the Accused DECISION C.C. TOTH , ACJ Cases Considered [ 1 ] I have considered the following cases: R. v. Anderson , 2009 SKQB 378 R. v. Beechinor , [2004] S.J. No. 187 (Sask. Prov. Ct.)

R. v. Bensmiller, 2007 BCPC 170 R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 R. v. Bonilla, 2009 YKTC 40 R. v. Burwell, 2011 SKPC 188 R. v. Camden, 2010 SKQB 299 R. v. Donald (No. 2), 2010 SKPC 123 R. v. Einarson, (ON CA), 183 C.C.C. (3d) 19, 70 O.R. (3d) 286 (Ont. C.A.) R. v. Elder, 2006 ABQB 343 R. v. Ellis, 2011 SKPC 148 R. v. Francis, 2011 SKPC 30 R. v. Goheen, 2010 ABPC 146 R. v. Grant, 2009 SCC 32 R. v. Grondin, 2012 SKQB 182 R. v. Hicton, 2009 SKPC 15 R. v. Hubbard, [2005] Y.J No. 40 R. v. Joubert, [2002] O.T.C. 495 (Ont. Sup. Ct. Jus.) R. v. Lennox, 2003 SKPC 99 R. v. Lewko, [2002] S.J.

No. 622, 2002 SKCA 121 R. v. Loree (1999), 44 M.V.R. (3d) 255, 41 W.C.B. (2d) 163 (SKPC) R. v. Lundrigan, 2007 SKQB 388 R. v. Lytle, 2008 SKPC 156 R. v. Mastromartino; R. v. Farrugia; R. v. Martins; R. v. Young, (ON SC), 70 O.R. (3d) 540; [2004] O.J. No. 1435(Ont. Sup. Ct.) (QL) R. v. Mazur, 2009 SKPC 124 R. v. Melnik, 2011 SKPC 120 R. v. Morrison, 2008 SKPC 19 R. v. Nahorniak, 2010 SKCA 68 R. v. Piotrovich, 2004 SKPC 58 R. v. Polischuk, 2003 BCPC 76 R. v. Robinson, 2008 ONCJ 588 R. v. Sapara, 2011 SKQB 9 R. v. Schmalz, 2005 SKPC 93 R. v. Smith, [2011] S.J. No. 650 (Sask. Prov. Ct.) R. v.

Thomspon, 2003 SKPC 56 Legislation Referred To

[ 2 ] Criminal Code , R.S.C. 1985, c. C-34 , s. 254(2), 254(5) Background [ 3 ] A blended trial and voir dire took place before me regarding Devon D. Sokulski who is charged that on or about the 27 th day of February 2011, at or near Regina, Saskatchewan, did: 1.

Without reasonable excuse, fail to comply or refuse to comply with a demand made by a peace officer pursuant to section 254(2) of the Criminal Code to provide a sample of his breath to enable analysis to be made by means of an approved screening device, contrary to section 254(5) of the Criminal Code . [ 4 ] Prior to proceeding with the voir dire , counsel for the accused made three admissions for the trial proper: that the date of the offence was February 27, 2011, that this Court has jurisdiction to try the matter, and the identity of Mr. Sokulski as the driver of the vehicle.

The trial proceeded with a voir dire on the Charter issues. Both counsel agreed that all admissible evidence heard on the voir dire was to be applied to the trial proper. During the voir dire the Crown called the arresting officers, Constable Tyler Bacon and Constable Janet Kemp. No evidence was called by the defence. [ 5 ] Counsel advised the Court that he would be arguing that the accused’s sections 7, 8, 9, 10(a), 10(

b) and 12 rights were breached. Issues [ 6 ] The issues to be resolved in order to render a decision are: a. Was the accused arbitrarily detained when he was stopped by the police officer? b. Did the investigating officer have reasonable grounds to make the Intoxilyzer demand pursuant to s. 254(2) of the Criminal Code ? If not, were Mr. Sokulski’s rights under s. 8 of the Charter breached? c. Was the demand made “forthwith” pursuant to s. 254(2) (

b) of the Criminal Code ? d. Was the officer obliged to suspend the test until sufficient time had passed for the observed vomit to not affect the ASD? e. Did the accused have a reasonable excuse for his refusal to provide a sample of his breath? Evidence Constable Tyler Bacon [ 7 ] Constable Tyler Bacon has been a member of the Regina Police Services for four and a half years. He has personally dealt with people under the influence of alcohol around four to five times a shift. He testified that he is a qualified technician on the Intoxilyzer 5000C and the Intox CIR.2.

Constable Bacon is a certified approved screening device administrator and calibrator and is trained in standardized field sobriety testing. Constable Bacon was on duty on February 27, 2011, with his partner, Constable Kemp, on general patrol on the east end of Regina. He testified that they were dispatched on a call from a citizen reporting a possible impaired driver in a specific vehicle. Constable Bacon and Constable Kemp performed an area check and located the vehicle headed westbound on the north service road of Victoria Avenue, in the area of the Sandman Hotel.

When asked how he knew that this was the same vehicle described in the call, Constable Bacon testified that, although he could not recall specifically, he believed that they had the licence plate from the citizen who made the complaint. He then stated that he wouldn’t have pulled the vehicle over if he wasn’t certain it was the same vehicle from the call.

[ 8 ] Constable Bacon testified that when the vehicle was located, he activated his emergency equipment and initiated a traffic stop. The driver of the vehicle pulled over to the right side of the road and stopped. Constable Bacon stopped the patrol car behind the vehicle. Constable Bacon testified that as soon as the vehicle stopped, the driver of the vehicle attempted to exit the vehicle. Constable Bacon opened his door and advised the driver of the vehicle to return to the vehicle.

The driver complied. [ 9 ] Constable Bacon testified that he exited the patrol car and approached the vehicle, stating that as soon as he reached the tailgate area of the vehicle he was able to discern the smell of beverage alcohol emanating from the vehicle. He testified that the smell continued as he approached the driver’s door and that while he was approaching the driver’s door he observed two unopened cans of Coors Light in the pocket of the door. [ 10 ] Constable Bacon stated that Mr. Sokulski indicated that he was driving a drunk friend home. Constable Bacon then asked Mr.

Sokulski for his driver’s licence and registration and was informed that Mr. Sokulski did not have those at the time. Having been informed of this, Constable Bacon took the driver’s name and date of birth and went back to the patrol car to confirm his identity. On cross-examination, Constable Bacon stated that he did not note any slurred speech, speaking difficulties, or bloodshot or red eyes with respect to Mr. Sokulski. As Constable Bacon was confirming Mr.

Sokulski’s identity, his partner, Constable Kemp exited the vehicle and approached the driver and spoke with him, convincing him to accompany her to the patrol car and have a seat inside while his identity was being confirmed. Constable Bacon testified that as Mr. Sokulski exited his vehicle and walked towards the patrol car he was swaying left and right, walking in a fast shuffling motion. When asked to describe the weather at the time, Constable Bacon was not able to recall what the road conditions were, but did remember that it was cold and that there would have been snow on the ground. [ 11 ] While Mr.

Sokulski was sitting in the back of the police vehicle, Constable Bacon observed a faint smell of beverage alcohol. He testified that he was not able to discern whether it was on his clothing or on his breath. Constable Bacon asked Mr. Sokulski if he consumed any alcohol. Mr. Sokulski stated that he had not. Constable Bacon then advised Mr.

Sokulski that he had a reasonable suspicion that he had alcohol in his system and, at 2:56 a.m. read him the approved screening device demand from a card. [ 12 ] When asked how long he had been at the traffic stop before making the demand, Constable Bacon stated that he did not recall the exact period of time, but that it could not have been more than five or six minutes. [ 13 ] When asked if he understood the demand, Mr. Sokulski stated that he understood and stated that he would provide a sample. [ 14 ] Constable Bacon testified that while Mr.

Sokulski was in the back of the patrol car he did not appear overly intoxicated.

Constable Bacon felt that he did not have reasonable and probable grounds to believe that he was impaired while driving, only that he had a reasonable suspicion that there was alcohol in his body and this was why he only made an approved screening device demand. [ 15 ] When asked what grounds he relied upon to make the ASD demand, Constable Bacon testified that he relied on the visual observation of the two unopened cans of Coors Light in the driver’s door pocket, the smell of beverage alcohol that emanated from the vehicle, and on Mr. Sokulski’s swaying while he was walking.

When pressed by the Crown as to whether or not the complaint to which they responded was a factor, Constable Bacon stated that it was, as the individual who called in believed that the driver was intoxicated, although he admitted that he could not recall the specifics of the complaint as this had not been recorded in his report. [ 16 ] Constable Bacon testified that they then began to administer the approved screening device. Constable Kemp held the device and Mr. Sokulski attempted to blow into the device. He further testified that as soon as Mr. Sokulski attempted to blow into the device, he began to dry heave.

Mr. Sokulski advised the officers that he had a gag reflex issue and couldn’t blow against pressure. Constable Bacon advised him that the ASD doesn’t require much pressure to activate the device. Constable Bacon testified that Mr. Sokulski continued to appear to force himself to dry heave describing the actions as excessive and almost comical. It was Constable Bacon’s opinion that he was over exaggerating all of his movements and attempting to force himself to vomit. He stated that at no time did it appear to him that Mr.

Sokulski’s health was in such danger as to require that he be transported to a hospital or have EMS attend. Constable Bacon testified that Mr. Sokulski brought up a small amount of vomit and continued in this manner for approximately five minutes. The officers subsequently advised him that if he was unable to provide a sample, he would be charged with refusal. Constable Bacon, reading from his notes, stated that Mr. Sokulski asked the officers to just charge him. It was at this point that Constable Kemp advised Mr. Sokulski that he would be charged with refusal and she began to issue him an appearance notice.

Constable Bacon stated that Mr. Sokulski stopped dry heaving shortly after he was advised that he was being charged with refusal, although he could not recall

the exact moment. [ 17 ] Constable Bacon stated that he then exited the patrol car to speak with the occupant in the passenger seat of the vehicle, who he described as obviously intoxicated, confrontational and belligerent when he attempted to get his name, address and telephone number. Constable Bacon warned the passenger that if he did not provide this information, he would be charged with obstruction. When he continued to be rude and belligerent, Constable Bacon asked him to step out of the vehicle, placed him in handcuffs and advised him that he was under arrest for obstruction.

He was escorted to the back of the patrol car, where Mr. Sokulski was able to calm him down and have him provide the required information. At this point Constable Bacon informed him that he was no longer under arrest for obstruction of justice and removed the handcuffs. [ 18 ] It was at this point that Constable Kemp completed the appearance notice, advised Mr. Sokulski of his court date and the date he needed to attend to the police station to have his photograph and fingerprints taken. Constable Bacon believed that he filled out the SGI licence suspension form and advised Mr.

Sokulski of the implications of that form. At this point, Mr. Sokulski and the passenger left in a cab and the vehicle was seized. [ 19 ] Constable Bacon testified that the dry heaving started as soon as he put the device to the mouth, or as soon as he approached the device. Constable Bacon was unable to recall if Mr. Sokulski actually attempted to blow into it, or if he had not touched the device before he began to dry heave. [ 20 ] Constable Bacon described the mouthpiece of the ASD as being about an inch to an inch and a half in diameter with a half inch opening at the end that the individual blows into.

He was unable to recall if the device made a tone indicating that air had been forced through the device. [ 21 ] Constable Bacon stated that the ASD used on the date in question was within its calibration period and in working order. He stated that it takes about five to 15 seconds to obtain a sample from an ASD, from the time the individual begins to blow. When asked if there are any reasons why some time would have to pass in relation to obtaining an ASD sample, Constable Bacon stated that the only time required before administering an ASD is to allow the device to warm up.

Constable Bacon then corrected himself and stated that a 15 minute period needs to be observed when the individual has vomited in his mouth to allow for any mouth alcohol to dissipate. [ 22 ] When asked why they had not waited 15 minutes in this instance, Constable Bacon testified that Mr. Sokulski had not vomited prior to beginning the ASD.

He testified that at the time he was unaware of the requirement for a 15 minute waiting period. [ 23 ] In cross-examination, when asked if the complaint that had initiated the traffic stop had been in regards to a male who was attempting to fight another male at the Hub Restaurant, Constable Bacon stated that he could not recall. Constable Bacon further stated that he did not observe any driving pattern which would have provided further indicia of impairment.

Constable Janet Kemp [ 24 ] As of February 27, 2011, Constable Janet Kemp had been a member of the Regina Police Services for approximately three and a half years. In her employment she deals with people under the influence of alcohol on a daily basis. She is authorized to use an approved screening device. On February 27, 2011, she was on duty in patrol. She was dispatched to 2635 East Starlight Street, at the Hub Pub, in response to a report of a possible impaired driver.

She testified that the information she received from the dispatcher was that a complainant had called to report a male driving a Dodge Ram truck, licence plate 493 HEW, was trying to pick a fight with her husband in the Hub parking lot. The complainant followed the truck to the Husky Restaurant, where she phoned the police, telling them that she last saw the truck headed westbound on Victoria Avenue.

Constable Kemp and her partner, Constable Bacon, arrived in the area and located the vehicle, matching the licence plate given by the complainant, driving westbound in the 1700 block of Victoria Avenue East, on the service road. They initiated a traffic stop and the driver pulled over. [ 25 ] Constable Kemp testified that both herself and Constable Bacon were exiting the patrol car when the driver’s door opened and a male stepped out of the vehicle. She stated that they both yelled at him to get back in the vehicle, which he did, leaving the door open.

She stated that she approached the passenger side door and Constable Bacon approached the driver’s side door.

[ 26 ] Constable Kemp testified that she observed two occupants in the vehicle. She stated that she noticed through the passenger side window that the driver was being argumentative with Constable Bacon, so she went around the back of the vehicle to the driver’s side, in the event that her partner needed help. When Constable Bacon went back to the patrol car to verify Mr. Sokulski’s identity, she stayed at the driver’s side and spoke with the driver. She stated that she asked him to step out of the vehicle and walk back to the patrol car.

When asked why she did this, Constable Kemp testified that as she approached the driver’s side of the vehicle, which had an open window, she smelled beverage alcohol coming from the vehicle and she wanted to be satisfied that the driver of the vehicle was not impaired. She stated that to investigate this matter further she required Mr. Sokulski to be out of the vehicle. When asked if Mr.

Sokulski complied with this request, Constable Kemp replied that he was argumentative but that he eventually came back to the vehicle. [ 27 ] Constable Kemp testified that she had not made any determination as to whether or not she was going to make an ASD demand at that time. When asked if she had made any physical observations regarding Mr. Sokulski, Constable Kemp testified that she had observed slurred speech, and red eyes appearing to have a glossy film to them. Once Mr. Sokulski was in the patrol car, Constable Kemp testified that there was a strong smell of beverage alcohol coming from his breath.

It was at this point that Constable Bacon read him the ASD demand. She testified that he appeared to understand the demand. [ 28 ] Constable Kemp testified that she prepared the machine and explained to Mr. Sokulski how to provide a sample. She explained that she was going to hold the machine for him, that he was not to touch it at any point. She put a new mouthpiece on and showed to him that it was a new mouthpiece.

She stated that she told him to blow by taking a deep breath in and to blow steady into the machine, that it would make a noise and that she would tell him when to stop. [ 29 ] As she was bringing the device up to the accused, Constable Kemp testified that he started to gag profusely, over and over. She stated that Mr. Sokulski said he had a gag reflex problem and that he could not blow against pressure. She described the gagging as Mr. Sokulski forcing himself to dry heave. She testified that the ASD did not touch his mouth and that at no time was he blowing against pressure.

She stated that this went on for approximately two minutes, during which time he was given many opportunities to put his lips around the mouthpiece, but did not. [ 30 ] Constable Kemp testified that she warned Mr. Sokulski that he could be charged with refusal if he didn’t blow into the machine, explaining to him the consequences of a refusal, that it was the same as being charged with impaired driving. After this, she believes that she gave him more opportunities to blow into the machine after which Mr. Sokulski asked that he just be charged.

It was at this point that she advised him that he would be charged with refusal. [ 31 ] When asked why she decided that he was refusing, Constable Kemp testified that he never actually put his lips on the device, he was given many opportunities to blow into the machine, he was warned that he was going to be charged with refusal and after being provided with further opportunity he still continued to gag and make excuses to not blow. She stated that he was charged with refusal at 3:05 a.m. It was her opinion that after Mr.

Sokulski was charged, he stopped gagging. [ 32 ] Constable Kemp confirmed that the ASD was, on February 27, 2011, working properly. She described the mouthpiece as being about two inches long and around half an inch in diameter. She stated that an individual does not have to insert the entire mouthpiece into his or her mouth to blow. She testified that no air entered the ASD as there is a steady noise that the machine makes when a sample is being entered and in this instance, there was no tone at any time. [ 33 ] Constable Kemp testified that she advised Mr.

Sokulski that he was going to be released on an appearance notice, and that she gave him a copy of the appearance notice. She believes that he left in a cab, but does not recall exactly. [ 34 ] On cross-examination Constable Kemp testified that she did not observe any driving problems with the vehicle. She stated that she did not observe Mr. Sokulski to be swaying or having difficulty in walking.

Analysis Was the accused arbitrarily detained when he was stopped by the police officer? [ 35 ] The officers were responding to a complaint and as such the stop was within their investigative powers. [ 36 ] The accused, on the evidence before me, appears never to have been informed that he was pulled over as a result of a civilian complaint concerning conduct towards another person. The officers, reacting to the smell of alcohol, initiated an investigation into impaired driving. While this would constitute a technical breach, the circumstances would not invoke a Charter remedy.

Did the investigating officer have reasonable grounds to make the approved screening device demand pursuant to s. 254(2) of the Criminal Code ? If not, were Mr. Sokulski ’s rights under

section 8 of the Charter breached? [ 37 ] The onus is on the Crown to prove that a lawful demand was made upon the accused to provide a proper sample of his breath for analysis by the ASD. If an officer makes an ASD demand without the requisite reasonable suspicion, it will be a violation of the accused’s s. 8 Charter right to be free from unreasonable search and seizure as well as his s. 9 right to be free from arbitrary detention: R. v. Burwell , 2011 SKPC 188 at para. 22 .

In refusal cases, such as this one, if the officer does not possess the requisite grounds for a demand, it will be an absolute defence to a charge of refusal: R. v. Lytle , 2008 SKPC 156 , 327 Sask. R. 148 at para. 18 . [ 38 ] Defence counsel argues that Constable Bacon did not have a reasonable suspicion to make the ASD demand. For the demand to be lawful the Crown must prove that the officer who made the demand had a reasonable suspicion that the accused had alcohol in his body and that he was the driver of the motor vehicle pursuant to s. 254(2) of the Criminal Code , which reads:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a) , in the case of a drug, or with either or both of paragraphs (

a) and ( b ), in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [ 39 ] Whether or not the officer had a reasonable suspicion that the accused had alcohol in his body involves both a subjective and objective analysis. The officer must have subjectively believed that the accused had alcohol in his body and this subjective belief must be objectively reasonable: R. v. Ellis , 2011 SKPC 148 , 383 Sask. R. 28.

The two-pronged test to be used when determining whether a police officer has the requisite reasonable suspicion was set forth in Lytle , supra at para. 20 : Reasonable suspicion under s. 254(2) of the Criminal Code is a two-pronged test. On the first branch of the test, the Crown must prove that the officer making the demand subjectively had the suspicion that the accused had alcohol in his body. The second part of the test is objective in the sense that one must ask whether a reasonable person, standing in the shoes of the police officer, would have believed that he had the necessary grounds.

Put otherwise, the question becomes: Do the facts and circumstances as they were known to the officer at the scene give rise to a rational suspicion that the accused had alcohol in his body? [ 40 ] This issue has been extensively canvassed by our courts. In R. v. Donald (No. 2) , 2010 SKPC 123 , Kalmakoff J. provided a review of the authorities in this area of the law at paragraphs 17 and 18:

There is no requirement that an officer articulate his subjective suspicion of the presence of alcohol in the accused’s body using theprecise wording of section 254(2) in order for an ASD demand to be valid, as long as the Court can properly infer from all the evidencethat the officer had such a suspicion. Cst. Lonsberry testified that he felt he had grounds for the ASD, based on his observations. I amsatisfied that Cst. Lonsberry suspected Mr. Donald had alcohol in his body, and that is what led him to make an ASD demand. The real issue is whether Cst. Lonsberry’s suspicion was objectively reasonable.

While a reasonable suspicion is something more thanmere suspicion, it is also less than a belief based on reasonable and probable grounds. It is a question of whether a reasonable person,observing the same set of circumstances, could hold the same suspicion. Reasonable suspicion of the presence of alcohol in the body is alower standard than reasonable grounds to believe the person is impaired by alcohol. Suspicion implies a belief or opinion based uponfacts or circumstances which do not amount to proof.

It does not need to be the only possible conclusion one could draw from theobserved factors in order to be reasonable. The smell of alcohol on a driver’s breath alone, or evidence of consumption in any quantity isenough to base a reasonable suspicion. The officer is not required to smell alcohol on the driver’s breath or obtain evidence ofconsumption of alcohol in order to have a reasonable suspicion, but the absence of such evidence may negate the existence of reasonablesuspicion. [41] In R. v. Beechinor, [2004] S.J. No. 187 (Sask. Prov.

Ct.), Jackson J. discussed reasonable suspicion at para. 23: Although the threshold is low, there nonetheless must be evidence capable of demonstrating that the officers have reasonable suspicionthat the driver has alcohol in his or her body in order to make the ASD demand. This does not mean simply that alcohol has beenconsumed at some point that day or the officer could detect alcohol in the vehicle or even on the person. The suspicion must be that theaccused had alcohol in the body at that time and there must be objective evidence to support this conclusion. [42] The Saskatchewan Court of Appeal in R. v.

Nahorniak, 2010 SKCA 68, commented on the factors to be considered whendetermining if there were grounds to make the demand at para. 23: In deciding whether an officer had grounds to make the demand and administer the test, a court must consider all the circumstances andevidence with respect thereto known to him when he made the demand. (See: R. v.

Shepherd, 2009 SCC 35 , 2009 S.C.C. 35, 309 D.L.R. (4th) 139, appealed from 2007 SKCA 29.) [43] In the present case, Constable Bacon stated that his grounds for making the ASD demand were as follows: - His visual observation of two unopened cans of Coors Light in the driver’s door pocket; - The smell of beverage alcohol emanating from the vehicle and from Mr. Sokulski; - Mr.

Sokulski’s slight swaying while walking; and - The 911 complaint. [44] Constable Bacon testified that based on this information, he formed a subjective belief that the accused had alcohol in hisbody, however, I am not satisfied that this belief is objectively reasonable. [45] In R. v. Schmalz, 2005 SKPC 93, 271 Sask. R. 236, Goliath J. found that the officer’s grounds for making a breath demandwere insufficient. The officer’s reasonable suspicion was based on the accused’s bloodshot, watery eyes, the odour of alcohol in the cabof the accused’s truck, and a wobbly gait.

The accused did not admit to consuming alcohol and there were no other indicia ofimpairment. Goliath J. noted that had the police officer made further inquiries he may have gained the reasonable grounds for hissuspicion. [46] In R. v. Thomspon, 2003 SKPC 56, evidence of speeding, bloodshot eyes, empty beer bottles in the vehicle and the smell ofalcohol on the accused were found to not objectively support a conclusion of reasonable suspicion of alcohol in the body of the accused.

[ 47 ] Constable Kemp noted indicia of impairment in her testimony that were quite different from those noted by Constable Bacon, stating that Mr. Sokulski had slurred speech, red and glossy eyes with a film on them and that there was a strong smell of beverage alcohol coming from his breath. However, these were not communicated to Constable Bacon and as such cannot form the basis for his requisite reasonable suspicion. [ 48 ] Although Constable Bacon may have had a subjective belief that Mr. Sokulski had alcohol in his system, objectively he lacked sufficient grounds.

The smell of beverage alcohol was noted by Constable Bacon, but according to his testimony, when Mr. Sokulski was in the police car he was unable to discern whether or not the smell came from his clothing or his breath. Constable Bacon also noted a slight swaying while Mr. Sokulski was walking, but was unable to recall the road conditions at the time. [ 49 ] Constable Bacon further testified that the 911 call was relied upon to form his reasonable suspicion that Mr. Sokulski had alcohol in his system.

However, the constable was unable to recall the reason for the complaint and whether or not the complaint had been in regards to Mr. Sokulski driving while impaired. Constable Kemp testified that the information she received with respect to the complaint was that a male driving a Dodge Ram had been attempting to pick a fight with the complainant’s husband. [ 50 ] Constable Bacon did not note any slurred speech, speech difficulties, bloodshot or red eyes, nor was there any driving pattern which may have been indicative that Mr. Sokulski was impaired.

Furthermore, the discrepancies in evidence as between Constable Bacon and Constable Kemp are surprising and thus call into question the veracity and reliability of the statements made regarding the impairment of the accused. [ 51 ] Given the paucity of indicia of impairment, I find that Constable Bacon did not have sufficient grounds to demand a breath sample from Mr. Sokulski.

This may have been a situation where further inquiries by Constable Bacon could have provided him with such, but that is not the case here. [ 52 ] The evidence must clearly and objectively support Constable Bacon’s reasonable suspicion that the accused had alcohol in his body. I am not satisfied that a reasonable person in the position of Constable Bacon could reach the conclusion that the accused had alcohol in his body and as such I find that Mr. Sokulski’s Charter rights under s. 8 have been breached.

Should the evidence of refusal be excluded pursuant to section 24(2)? [ 53 ] As the results of the test, in this case the refusal, were obtained in breach of the accused's Charter rights I must consider whether the results ought to be excluded pursuant to the remedial provisions under section 24(2) of the Charter . [ 54 ] In the seminal case of R. v.

Grant , 2009 SCC 32 , the Supreme Court re-explained and reformulated the three factors that a trial court, in considering an application for the exclusion of evidence, must have regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in adjudication of the case on its merits: Grant , supra at para. 7 . [ 55 ] With respect to the first factor, the Court explained that more deliberate or severe violations would be more likely to warrant exclusion and that while "extenuating circumstances" may militate in favour of justifying breaches, the Court must disassociate itself from "flagrant or wilful disregard" of Charter standards: Grant , supra at para. 75 .

[ 56 ] As regards the second factor, the Court stated that there must be an evaluation of the extent to which the violations undermined the accused's rights and that violations may range from "fleeting and technical to profoundly intrusive". In the case of an unreasonable search, the Court held that, a search which intrudes on an area where an individual has a greater expectation of privacy will be considered more severe: Grant , supra at paras. 76 and 78 . [ 57 ] Finally, the third factor requires a consideration of whether the "truth-seeking" function of the Court would be served by admission of the evidence.

This also requires a consideration of the importance of the evidence to the Crown's case and the seriousness of the offence: Grant , supra at paras. 79, 83 and 84 . [ 58 ] In the recent Saskatchewan case of R. v. Grondin , 2012 SKQB 182 , Justice Wilkinson upheld a trial decision where results of the test were admitted, notwithstanding the finding of a breach.

In that case the trial judge concluded that there was no bad faith on the part of the officer, the samples taken were relatively non-intrusive, and the evidence was considered reliable and necessary to the Crown's case and society's interest in prosecuting impaired drivers: Grondin , supra at para. 57 . [ 59 ] The trial judge relied on two cases, where the evidence was admitted, to support these conclusions. In R. v. Sapara , 2011 SKQB 9 , a roadside demand was insufficiently founded on the basis of slurred speech, watery eyes, and proximity to the bar at night. In R. v.

Anderson , 2009 SKQB 378 , the results were also admitted despite what were acknowledged as insufficient reasonable grounds to make the demand. [ 60 ] R. v. Francis , 2011 SKPC 30 , another recent Saskatchewan decision, provides further guidance on this issue. In that case the trial judge did not exclude evidence obtained by a blood warrant even though the accused's Charter rights were found to have been breached. It was found that the officer did not have sufficient grounds to obtain the warrant and the accused was unable to consent at the time.

In admitting the results, the judge held that the officer acted in good faith and did not recklessly or wilfully disregard the accused's right and that society's interests outweighed the "technical" breach of Charter rights. [ 61 ] The aforementioned Saskatchewan Queen’s Bench decisions would appear to narrow the circumstances where a Charter remedy will be applied when a Charter breach is found arising from insufficient reasonable grounds. [ 62 ] In the present case, there is no question that the officer did, subjectively, have reasonable suspicion to make the demand.

He did not, however, have sufficient objective grounds to make the demand. Thus, the demand was invalid and constituted a breach. The breach in this case could hardly be characterized as deliberate, flagrant or severe. The officer believed he had sufficient grounds and acted accordingly. He was acting in good faith on the basis of a telephone complaint and his observations.

At worst, the officer's persistence in making efforts to carry on the search despite the presence of vomit on the accused's lips was reflective of careless procedure or ignorance on the part of the officer with respect to matters of ASD training. [ 63 ] Furthermore, a breath sample was not even obtained in this case, thereby minimizing the nature of the breach and the impact on the accused's rights. Although the attempted search did cause the accused a certain amount of discomfort due to his over-active gag reflex, he was not forced or coerced in any way to comply with the attempted search.

Such a breach falls on the less serious end of the spectrum and may be characterized as more fleeting or technical than one which was intrusive. [ 64 ] Finally, given the importance of the evidence of refusal to the Crown's case and importance to society of investigating and prosecuting impaired drivers, it is clear that admission of the evidence is favoured on this point. [ 65 ] Overall, on balance, I decline to exclude the evidence obtained in breach of the accused's Charter rights. The breach was not a result of any deliberate or flagrant misconduct and it was of minimal impact on the accused.

This being said, societal interests tip the balance strongly in favour of admission. Was the demand made “forthwith ” pursuant to s. 254(2) (

b) of the Criminal Code ?

[66] Yes, although the exact time was not noted, the period from the initial vehicle stop to the demand was approximately five tosix minutes: R. v. Morrison, 2008 SKPC 19 at para. 19. Was the officer obliged to suspend the test until sufficient time had passed for the observed vomit to not affect the ASD? [67] Section 254(3.3) of the Criminal Code reads: If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made underparagraph (2)(

b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, assoon as practicable, a sample of breath that, in the evaluating officer’s opinion, will enable a proper analysis to be made by means of anapproved instrument. [68] I could not find any cases that dealt with instances wherein an approved screening device (ASD) test had not been delayed asthe result of vomit on the accused’s lips, or even a case where the accused had vomited or regurgitated in front of a police officer.

Thereare, however, several analogous situations that have been addressed by the courts. The majority of these cases deal with instances wherean accused has had, or there was a possibility that the accused had, beverage alcohol within 15 minutes of taking the ASD test andwhether or not a police officer must delay taking the test for 15 minutes.

Additionally, there are cases which consider whether or not adelay is appropriate in instances where the accused has smoked, chewed gum and/or burped in the 15 minutes prior to the administrationof the ASD test. [69] Generally what the courts have found is that a police officer may delay administering the ASD test if he or she has reason tobelieve that there are circumstances which warrant the delay. [70] The leading case regarding ASD demands is R. v.

Bernshaw, (SCC), [1995] 1 S.C.R. 254, 95 C.C.C. (3d)193 (S.C.C.), where the Supreme Court of Canada addressed the issue of whether or not a police officer was required to administer anASD test immediately or whether waiting to allow potential mouth alcohol to dissipate was permissible. In that case there was noevidence regarding the accused’s last drink and no inquiry was made by the police officer as to when the accused had his last drink.

Itwas held that there was no duty on the police officer to make any inquiries regarding an accused’s last drink, but that the ASD test maybe delayed if circumstances warranted it. Sopinka J. writing one of three decisions for the Court, advocated that a flexible approach beused in determining when it is appropriate for a police officer to delay administering an ASD.

Sopinka J. at paras. 74 and 81-83: 74 Although there is no doubt that the screening test should generally be administered as quickly as possible, it would entirely defeat thepurpose of Parliament to require the police to administer the screening test immediately in circumstances where the results would berendered totally unreliable and flawed. The flexible approach strikes the proper balance between Parliament's objective in combattingthe evils of drinking and driving, on the one hand, and the rights of citizens to be free from unreasonable search and seizure.

I do notbelieve that the matter is advanced by quoting statistics. Although we all agree that Parliament has every reason to vigorously pursue theobjective of reducing the carnage on our highways, that objective is not advanced by subjecting innocent persons to invasions of privacyon the basis of faulty tests.

I do not believe that this is what Parliament intended in enacting s. 254 of the Criminal Code. ... 81 It was suggested by the respondent that prior to demanding that a suspect submit a breath sample for the screening test, the policeofficer ought to inquire when the suspect last consumed alcohol in order to ensure an accurate test. However, in my view, there is noduty on the police to make any such inquiry. A suspect is under no obligation to answer such a question and thus it would be improper toimpose such a duty on the police.

That is not to say that the suspect may not volunteer such information, either spontaneously or inresponse to a query of the police. In such a case, where the officer is told that the detainee has consumed liquor within the last 15minutes, or where other reasons exist for the officer to believe that alcohol was recently present in the mouth of the suspect due toregurgitation, the officer may wait an appropriate period of time prior to administering the screening device.

However, the policeare not required to ascertain such information by posing the question to the suspect prior to administering the screening device test. 82 That is not to say that the mere fact the officer is told by the suspect that alcohol has recently been consumed automaticallyrequires the delay of the screening test. A police officer is entitled to disbelieve the suspect, in which case there will be no doubtin the mind of the officer regarding the validity of the screening device results. However, if the officer believes the suspect, thenin order to ensure an accurate test, a delay will be justified.

It must be assumed that the police officer will act bona fide in this

regard. If he does not, the trial judge is in a position to find that the officer lacked the necessary ground. 83 In other cases, the evidence establishing the fact that the person has consumed a substance which will skew the results is manifest andthe officer will no doubt wait a period of time to ensure that the screening test results are accurate. For example, the officer may haveactually witnessed the suspect consume alcohol within the last 15 minutes. See R. v.

Jackson (1993), (AB KB), 147A.R. 173 (Q.B.). [71] In Bernshaw, the Supreme Court of Canada held that where an officer has reason to believe that where the test results will beaffected by mouth alcohol, the test may be delayed for an appropriate period of time. Specific mention was made of mouth alcohol thatwas present due to regurgitation (Bernshaw at para. 81). [72] In the present case, officers had proof that Mr.

Sokulski had regurgitated, as there was vomit on his mouth; this should havebeen sufficient evidence to warrant a delay of the ASD test: Q Do you recall making any person - or physical observations of his person at that - at that stage? A When we began to administer the approved screening device the individual - my partner held the approved screening device aswe’re - always do, and he attempted to blow into the device, and began to dry heave. He advised us that he had a gag reflex issue andcouldn’t blow against pressure.

I advised him that the approved screening device doesn’t require much pressure to obtain a sample, it’sbeen proven to be used on small children and elderly people, who can’t provide a lot amount of - a large amount of pressure in order toactivate the device. And he continued to, what I appear, to force himself to dry heave. The actions appeared excessive and almostcomical, as he was over exaggerating all the movements attempting to dry heave and force himself to vomit.

He was able to bring up asmall amount of vomit at that time, and continued to do this for approximately five minutes, as we advised him that, if he was unableto provide us with a sample, then he would be charged with a refusal. (Transcript of proceedings at trial between R. v. Devon D. Sokulski. Held January 5, 2012 (“Transcript”) at pages 14-15.) [73] Following the decision in Bernshaw, the Ontario Court of Appeal addressed the issue of delaying the administration of anASD to allow for the dissipation of mouth alcohol in R. v. Einarson, (ON CA), 183 C.C.C. (3d) 19, 70 O.R. (3d) 286(Ont. C.A.).

In that case, the accused was observed leaving the parking lot of a bar. When asked, she denied consuming any alcohol. Itwas argued that the police officer was required to investigate further the possibility that the accused had consumed alcohol in thepreceding 15 minutes; failing which he should have waited 15 minutes before administering the test. The trial judge had determined thatthe officer was required to delay taking of the breath sample when the circumstances were sufficient to raise some doubt as to thereliability of the test results.

On appeal, the Court favoured a case-by-case analysis which focused on the officer’s belief as to theaccuracy of the test if that test were to be administered without any delay and the reasonableness of the delay. Doherty J.A. wrote(variously at paras. 26, 27 and 34): 26 The whole purpose of administering the test under s. 254(2) is to assist the officer in determining whether there are reasonable andprobable grounds to arrest the driver for a drinking and driving offence.

If the officer does not, or reasonably should not, rely on theaccuracy of the test results, it cannot assist in determining whether there are reasonable and probable grounds to arrest. Administeringthe test without delay in those circumstances would be pointless and would defeat the purpose for which the test is administered. 27 The flexible approach to the timing of the taking of the sample espoused by Sopinka J. demands a case-by-case analysis ofclaims that the demanding officer should have waited or should not have waited before administering the test.

It focuses on theofficer’s belief as to the accuracy of the test results if the test were to be administered without any delay and the reasonableness ofthat belief. 34 The flexible approach to s. 254(2) accepts that different officers may assess similar circumstances differently in deciding whethersome brief delay in the administration of the s. 254(2) test is necessary. Indeed, the reasonable and probable standard must reflect theparticular officer’s assessment tested against the litmus of reasonableness.

In considering whether to rely on test results absent somebrief delay, one officer may give more significance to the fact that the driver was seen leaving a bar just before he or she was stopped(particularly where the driver admits drinking in that bar) than another officer might give to that fact. The first officer might delay thetaking of the test for an appropriately short time while a second officer may proceed without delay. Neither officer has necessarily actedimproperly.

If the officer decides to delay taking the test and that delay is challenged at trial, the court must decide whether the officerhonestly and reasonably believed that an appropriately short delay was necessary to obtain a reliable reading. If the officer decides not todelay the administration of the test and that decision is challenged at trial, the court must decide whether the officer honestly andreasonably believed that he could rely on the test result if the test was administered without any delay.

[74] In R. v. Mastromartino; R. v. Farrugia; R. v. Martins; R. v. Young, (ON SC), 70 O.R. (3d) 540; [2004]O.J. No. 1435 (Ont. Sup. Ct.) (QL), Durno J. provided a

summary, which has been cited with approval by our courts (see: R. v.Lundrigan, 2007 SKQB 388), of the law on ASDs. The decision dealt with four appeals relating to four separate individuals who hadregistered a fail on an ASD within 15 minutes of leaving a drinking establishment. The common issue was whether the police officerwas required to delay obtaining an ASD sample due to concerns of residual mouth alcohol. Durno J. stated at para. 23: In

summary, I take Bernshaw, and Einarson to establish the following: 1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administeringthe test without a brief delay. 2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whetherthere are reasonable and probable grounds to arrest. 3.

Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causesthem to doubt the accuracy of the test result unless the test was briefly delayed. 4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before beingstopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officerfrom relying on the accuracy of the screening device. 5.

Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusingon the officer’s belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of thatbelief. 6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer todelay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they lastconsumed alcohol. 7.

If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officerhonestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading. 8.

If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether theofficer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay. [75] Both a subjective and objective belief is necessary when determining if an officer has an honest and reasonable belief in theaccuracy of the ASD test results. [76] In R. v. Camden, 2010 SKQB 299, the police officer did not delay administering the ASD test, as the accused claimed that hislast drink had been an hour prior to the stop.

The accused argued that the results should be excluded because the officer did not delaythe test. On appeal, it was found that the trial judge did not err in refusing to exclude the evidence holding that the officer was entitled torely on the accused’s answer as to when his last drink had been consumed, as he appeared to be truthful and there was no evidence thatthe accused had consumed alcohol in the 15 minutes prior to being stopped.

Chicoine J., at paras. 23 and 29 wrote of the need to satisfya reasonable belief both subjectively and objectively when considering whether or not to delay testing: 23 The decision to delay the taking of a test cannot be made arbitrarily, however, because the Criminal Code provision also requires thatthe test be administered “forthwith”. There are conflicting interests and constitutional considerations at play.

The subject is beingdetained in circumstances where his Charter right to counsel, right to silence and right to be free from unreasonable search and seizureare temporarily suspended on the mere suspicion that he has alcohol in his body.

On the other hand, there is a public interest inproviding police officers with tools to detect persons who commit drinking and driving offences. ... 29 The statement that the court must decide whether the officer honestly and reasonably believed that either a delay was necessary toobtain a reliable reading or that he could rely on the test result if the sample was taken without delay indicates that there is both asubjective and an objective test. The subjective analysis focuses on the officer’s belief as to the accuracy of the test results and theobjective analysis focuses on the reasonableness of that belief.

[ 77 ] In R. v. Polischuk , 2003 BCPC 76 , the police officer did not ask the accused when he had consumed his last drink and did not delay the ASD test, even though the accused had admitted to consuming alcohol. It was found that even though the police officer may have had a subjective belief, he did not have an objective belief in the accuracy of the ASD results. Brecknell J. expanded the test in Bernshaw to include instances where a police officer ought to have known that the accused had recently consumed alcohol, writing at para. 16: 16 I also have to keep in mind, however, the wording of Mr.

Justice Sopinka, and I think his wording, with respect, can be expanded in the first sentence to read, "Where there is evidence that the police officer knew or ought to have known that the suspect had recently consumed alcohol ...[et cetera]" should apply. [ 78 ] In R. v. Bensmiller , 2007 BCPC 170 , the British Columbia Provincial Court again expanded the ruling in Bernshaw , holding that not only must a police officer’s belief in the reliability of ASD test results be subjectively reasonable, it must also be objectively reasonable.

Blake J. held that so long as the police officer seriously considered whether the test could be relied upon this decision will not be second guessed, but that the officer must have at least turned his or her mind to the effect of both delay and immediate testing on the reliability of the result: Bensmiller at para. 40 . It was found that the police officer had not turned his mind at all as to whether or not a delay would be advisable, especially as the accused had just exited a bar and had stated that he had lots to drink.

Blake J. wrote at paras. 31-33: 31 At page 218 of Bernshaw , (citation above) Sopinka J. goes on to cite with approval an unreported Ontario Provincial Court decision, R. v.

Richardson (October 31, 1990) in which the court had held that an officer who was trained in the use of screening devices and who failed to wait 15 minutes prior to administering the test, in circumstances where he should have waited that long to allow for the dissipation of mouth alcohol, did not have reasonable and probable grounds to make a breath test based on the failed screening test. 32 Later on, at page 219, His Lordship states: If the scientific evidence establishes a high degree of unreliability with respect to the screening device when certain conditions prevail, and if a police officer knows, for example based on his or her training, that the resultant screening device test will provide inaccurate results where a suspect has consumed alcohol within the 15 minutes prior to administering the test, how can the police officer testify that he or she had an honest belief in impairment, absent other indicia?

Surely, the knowledge that the screening test is unreliable would vitiate any subjective belief that an officer may have regarding reasonable and probable grounds of the commission of an offence under s. 253 of the Code . A police officer will have difficulty in concluding that such a flawed test upgrades one’s suspicions into reasonable and probable grounds.

If the police officer is to give an honest answer as to his belief, I cannot see how, as a matter of law, we can tell the officer that the answer is wrong. 33 I would venture to say that His Lordship’s logic can be safely extended to say that the police officer’s belief could not be termed objectively reasonable either, in the factual circumstance described. [ 79 ] The police officer must turn his or her mind to the fact that the results of the ASD may be affected by such things as recent alcohol consumption, burping, smoking, chewing gum or regurgitation.

Once it is shown that the police officer has considered the reliability of the test, the decision as to proceed immediately or delay the test should not be second guessed lightly. [ 80 ] In the present case, Officer Bacon did not turn his mind to the reliability of the test despite the fact that he clearly took notice of the vomit on the accused’s mouth.

The test should not have proceeded until such a time as a reliable result could have been obtained. [ 81 ] Not only did Officer Bacon fail to consider the reliability of the test, he persisted in attempting to obtain a test result, notwithstanding that any such result would have been unreliable. [ 82 ] On the facts of this case, the officer should have suspended the demand until a valid sample could be obtained.

Police officer has no knowledge of waiting requirement [ 83 ] The next question that must be addressed is whether the police officer is required to turn his or her mind to the reliability of the ASD results if he or she has no knowledge of the effect of mouth alcohol on ASD test results. A police officer cannot claim an

honest belief in the reasonableness and reliability of test results if he or she has no knowledge of the effect of mouth alcohol on ASD testing. Although the police officer may have a subjective belief, given his or her lack of knowledge, they will not be found to have the requisite objective belief. However, if there is no credible evidence that mouth alcohol was an issue, the police officer’s knowledge (or lack thereof) will not be an issue. [ 84 ] R. v. Hubbard , [2005] Y.J No. 40 , is a decision from the Yukon Territory Supreme Court.

The officer in that case had evidence of the consumption of alcohol and made an ASD demand. The officer did not wait 15 minutes and did not ask any questions about the accused’s last drink. The police officer did not have any knowledge or memory of the significance of the 15 minute waiting period. The justice found that the officer had not turned his mind at all to the question of whether he could rely on the test result and that his reliance on it in these circumstances was not reasonable. The police officer could not rely on his lack of knowledge in his failure to address whether or not a delay was necessary.

Veale J. wrote at paras. 28-31: 28 However, from an objective point of view, I have two problems with the reasonableness of the officer’ s decision. Firstly, the officer had no knowledge about the operation of the roadside screening device when there was an issue of “ mouth alcohol ”. Quite simply, he was unable to address his mind to whether he could rely on the test result. By his candid admission, for which he should be praised and not condemned, he had not been trained on this issue.

I conclude that, from an objective viewpoint, the officer could not reasonably conclude that the test was reliable. 29 Secondly, he admitted that his practice was that he would wait five minutes if there was something in the driver’s mouth such as mouthwash. He made this admission in the context of his understanding that the instrument might be damaged if Hubbard had been smoking a cigarette.

This admission suggests that the officer had incorrect information on the issue from his training. 30 None of this evidence was in his notes and I have found the officer’s evidence to be unreliable when not based on his notes. 31 I can only conclude that I have no confidence that the officer understood the requirement to address the issue of whether to delay or not. He quite simply failed to address the issue, or addressed it incorrectly and his reliance on the “fail” result was not reasonable. [ 85 ] In R. v.

Robinson , 2008 ONCJ 588 , the police officer was not aware of the effect that mouth alcohol could have on the accuracy of ASD tests. It was found that the police officer was acting with an honest belief that the ASD test result was reliable and so had the requisite subjective belief. Karswick J. in considering whether the police officer had an objective belief that he could rely on the test results, held that in the circumstances before him a reasonable person should be assumed to know and understand the effects of mouth alcohol on the reliability of ASD test results.

However, Karswick J. found that on the facts and circumstances known to the police officer, there was no further obligation to make any further inquiries or to delay the testing.

Regarding an objective belief wherein the police officer does not have the appropriate knowledge and/or training, Karswick J. wrote at paras. 27-29: 27 The observations of Justice Doherty and Justice Durno persuade this court to conclude that it is reasonable to expect that all police officers who are assigned to the duty to investigate drinking and driving offences are properly trained in the basic and applicable principles of law and the generally accepted scientific findings concerning the effect of mouth alcohol upon the reliability of the screening device test result. 28 Moreover, public interest in the good and fair administration of justice requires that a failure to properly train police officers in the proper execution of their duties, should not, generally, be a reason for permitting a lowering of the objective standards of police accountability. 29 In the circumstances of this case, the reasonable person standing in the shoes of this police officer shall be assumed to know and understand the effects of mouth alcohol upon the reliability of the screening device test result. [ 86 ] In R. v.

Bonilla , 2009 YKTC 40 , the police officer, again, was found to have no knowledge of the effects of mouth alcohol on ASD tests and did not turn his mind to whether or not to delay the test due to the possibility of mouth alcohol. It was held that the police officer had a subjective belief that he could rely on the results of the accused’s ASD test. The Court found that the failure of a police officer to know what factors may contribute to an inaccurate ASD reading did not necessarily undermine the objective reasonableness of the police officer’s belief that the results could be relied upon.

Rather, the inadequate knowledge of the use and operation of the ASD and the criteria for obtaining a reliable test result were found to not have caused the police officer to miss any relevant evidence that would have raised any concerns as to whether or not the ASD was reliable and could be used. The issue is what credible evidence exists that should have alerted the police officer to question the reliability of the ASD results in the absence of a delay to eliminate the mouth alcohol concerns.

Cozens J. did note that it was disconcerting that the police officer had no more than a cursory knowledge of how the ASD machine could be operated. Cozens J. wrote at paras. 49-50:

49 Again, the issue is not what might have been seen or observed or what the answer to a question as to when the last drink was consumed might have been, the issue is what credible evidence exists that should have alerted the police officer to question the reliability of the ASD test results in the absence of a delay to eliminate the mouth alcohol concern. I say should have, because obviously a police officer who has no or a limited understanding of the potential effect of mouth alcohol will not see that an issue exists.

But a reviewing court can look at what evidence was available for the police officer’s consideration and, from an objective standpoint, decide the reasonableness of the police officer’s belief, taking all the available evidence into account. 50 Absent an application for a judicial stay of proceedings for an abuse of process, a police officer’s failures or shortcomings should not affect the outcome of an investigation unless these failures or shortcomings contribute in any meaningful way to unreliable evidence being gathered or to reliable and probative evidence not being gathered. [ 87 ] Constable Bacon was a qualified technician: Q And as part of being a police officer, do you have any specialized training in relation to alcohol, or issues surrounding alcohol?

A Currently I am a qualified technician on both the Intoxilyzer 5000C and the Intox CIR.2. I am a certified approved screening device administrator and calibrator, and I am also trained in the standardized field sobriety testing. Q And what kind of training do you have to take to get all of these qualifications that you’ve talked about? A The ASD course is a - I believe it’s a full day course, I’m not sure, it’s been a couple of years since I have taken the course. The calibration course is another full day course.

The Intoxilyzer course is a five day course, and the standardized field sobriety testing is also a five day course. Q In relation to the AS - the approved screening device in particular, how often have you used an approved screening device? A I don’t have any specific tally of how many times I’ve used the device. If I were to hazard a guess at a number, it would probably be in the range of 25 to 50 times. Q So how frequently would you be using one of these? A Probably once or twice a month. (Transcript at pages 8-9.) Q Now at any point, did the accused provide any air through the approved screening device?

A I don’t recall ever receiving a tone signal from the device which would indicate that any air has been forced through the device. (Transcript at page 17.) Q And so what did you do next? A We advised him that, if he was unable to provide us with a sample, he would be charged with refusal, as we had demanded a sample from him, and he advised us just to charge him then. (Transcript at page 19.) [ 88 ] At the time of the incident, he stated that he had no knowledge of any reason to delay administering an ASD: Q Are there any reasons particular to the subject that would require a delaying of the ASD device? A No.

Oh sorry, can I correct myself? Q In regards to what? A In regards to the subject and the ASD. I stated no, I forgot to mention that there is a 15 minute period that needs to be observed when the individual has vomited in his mouth, and that is to provide the subject with reasonable opportunity for any mouth alcohol to clear, and to obtain a proper, suitable sample of his breath, not the alcohol that is swishing around in his mouth. Q And in relation to this particular circumstance, is there a reason why you didn’t wait 15 minutes?

A The individual hadn’t vomited prior to us beginning the ASD and it was only after he vomited while we were trying to get the sample from him, that we stopped. Q And so you - sorry, you stopped for what reason?

A We stopped because we advised him that he was refusing to provide a sample, and at that time I wasn’t aware that we needed to initiate the 15 minute observation period, that was only brought to my attention when taking the ASD calibrator’s course in December. (Transcript at pages 28-29.) [ 89 ] A lack of obvious knowledge on the part of the police officer will not be sufficient to show that the officer had the requisite objective belief in the reliability of the ASD results, even though a lack of knowledge may be sufficient for a police officer to prove that he or she has the requisite subjective belief.

Here, Constable Bacon claims that he did not know that there should have been a 15 minute waiting period after an accused vomited. While he may have had a subjective belief in the reliability of the test results, he could not be said to have an objective belief, as a reasonable person should have known these circumstances would cause an unreliable result. [ 90 ] The officer not having an objective basis of reliability for any result obtained should have stopped the demand and waited an appropriate time.

There was no valid existent demand at the time the officer concluded the accused was refusing. [ 91 ] While the aforementioned conclusion would provide a complete defence to the charge, I shall also consider whether the accused had a lawful excuse. Was there a refusal by the accused to provide a sample of breath? [ 92 ] Counsel for the accused argues that there was no unequivocal refusal to provide a breath sample and has provided numerous cases for my perusal. I believe that the actual issue that needs to be addressed is whether or not Mr.

Sokulski had a reasonable excuse for his failure to provide an adequate sample. It is this argument that I will address. Did the accused have a reasonable excuse for his refusal to provide a sample of his breath? [ 93 ] Section 254(5) of the Criminal Code states as follows: Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section. [ 94 ] The defence takes the position that Mr. Sokulski had a reasonable excuse for failing to provide a breath sample as he suffered from hyperactive gag reflex issues. [ 95 ] In R. v.

Lewko , [2002] S.J. No. 622, 2002 SKCA 121 , Bayda C.J.S. set out the elements of the offence of refusal in relation to a roadside screening device as follows at paragraph 9: 9 The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existence of a demand having the requirements of one of the three types mentioned in ss. (2) and (3). Second, the Crown must prove a failure or refusal by the defendant to produce the required sample of breath or the required sample of blood (the actus reus ).

Third, the Crown must prove that the defendant intended to produce that failure (the mens rea ). [ 96 ] The Court went on to discuss the burden of proof when the question of a reasonable excuse arises at paragraphs 10 and 20:

10 The proof by the Crown of the three elements (and the defendant’s questioning of that proof by combatting the allegations of theprosecution without introducing any further issue) may be looked upon as the first stage of the proceedings. Once the Crown hasestablished the three elements of the offence in question, the defendant is presumed guilty and must be so found unless the defendantraises a defence.

That brings us to what may be looked upon as the second stage in the proceedings, namely, the presentation by thedefendant of his/her justifications or excuses – his/her defences. (I use the term “defence” in the narrow sense – for the distinctionbetween the broad and the narrow senses see Glanville Williams, Textbook of Criminal Law (London: Stevens & Sons, 1983) (2d ed.) at50-51.) In the case of the subject offence, a defendant is able to present not only a defence ordinarily cognizable by law, but a defenceconstituted by any excuse that is “reasonable”.

This is the effect of the use of the phrase “without reasonable excuse” in the context of s.254(5). 20 What is the extent of the evidential burden? The defendant need only raise the question of the possibility of a reasonable excuse. Inthe words of Dickson C.J.C. in Schwartz, supra, he need only put the “issue into play”. How does he do that? He produces sufficientevidence of something that is capable of being a reasonable excuse. And how does he do that?

McLachlin C.J.C. and Bastarache J.answer that question in relation to the air of reality test in this way: [53] In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by theaccused to be true. See Osolin, supra, (SCC), [1993] CanLII 54 (SCC), [1993] 4 S.C.R. 595; Park, supra, (SCC), [1995] CanLII 104 (SCC), [1995] 2 S.C.R. 836. The evidential foundation can be indicated by evidence emanating from theexamination-in-chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses.

It can also rest upon the factualcircumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by theaccused. See Osolin, supra; Park, supra; Davis, supra, (SCC), [1999] CanLII 638 (SCC), [1999] 3 S.C.R. 759. [97] In light of my earlier finding there was not a lawful demand, but if I am wrong and there was a lawful demand and as a samplewas not produced, then the requirements of section 254(2) have been met. I am not, however, convinced that Mr.

Sokulski intended tonot produce a sample, that is, I am not convinced that the Crown has shown that he had the mens rea necessary to prove the offence. Iam also mindful that Mr. Sokulski has put the issue of his gag reflex issues into play as a possible defence to the refusal charge. [98] A gag reflex problem, although I could find no examples in case law, could be a reasonable excuse to a charge of refusal. Mr.Sokulski need only raise a reasonable doubt about one of the elements of the offence. In this instance, it would be the mens rea elementof the offence. [99] In R. v.

Hicton, 2009 SKPC 15, the accused was charged with failure to comply with a breath demand and impaired driving. The accused had originally stated that he would not provide a sample and then attempted. He failed to provide an adequate sample. After his second attempt he claimed that he was having trouble breathing although officers did not note any breathing problems. Theaccused claimed that the reason that he was unable to provide a sample was because he had asthma. The accused provided noindependent medical analysis.

In finding that providing a breath sample was not physically impossible, extremely difficult or likely toinvolve substantial risk to the accused, Hinds J. canvassed the law regarding medical reasons for refusal at paras. 56-60: 56 In cases involving medical reasons for refusal, the courts have absolved the accused from complying with the demand in situationswhere it was physically impossible, extremely difficult or likely to involve substantial risk to the health of the accused. 57 In R. v. Collicutt (1971), (NS SC), 5 C.C.C. (2d) 447 (N.S. Co.

Ct.), O'Hearn J.C.C. in considering “reasonableexcuse” stated as follows at para. 9: In my view, what is contemplated here in the way of reasonable excuse is some factor that makes it impossible or dangerous or unhealthyfor the defendant to comply with the demand. For example, his lungs or his heart might be in such a condition that he could not performthe necessary exertion of blowing safely. 58 In R. v.

Nadeau (1974), 19 C.C.C. (2d) 199 (N.B.C.A.), Hughes C.J. held that a reasonable excuse requires some circumstance whichrenders compliance with the demand either extremely difficult or likely to involve a substantial risk to the health of the person on whomthe demand has been made. 59 In R. v. Bonnell, [1987] N.B.J. No. 73 (Q.B.), the accused was found to have a reasonable excuse because he suffered from asthma.Unlike the present case, his evidence was corroborated by the evidence of the police officers who observed he had difficulty breathing. 60 R. v.

Piotrovich, 2004 SKPC 58 , 2004 SKPC 58 also concerned a refusal charge where the accused testified he had severeasthma and allergy problems which affected his ability to provide a sample of his breath into an approved screening device. The Courtconvicted the accused on the basis there was no corroborative medical evidence and the fact that it appeared the accused failed to followthe police instructions as opposed to being physically unable to perform the breath test. The Court preferred the evidence of the police tothat of the accused.

[ 100 ] In R. v. Lennox , 2003 SKPC 99 , Bekolay J. accepted the accused’s defence that he could not blow into an ASD because of an inner ear infection. Medical evidence was presented at trial that on the date of the incident the accused had an ear infection. [ 101 ] It is not necessary to introduce medical evidence regarding his gag reflex, although, had Mr. Sokulski done so, this may have bolstered his claim at trial: R. v. Piotrovich , 2004 SKPC 58 , 250 Sask. R. 26 at para. 33 . [ 102 ] Counsel for Mr.

Sokulski argues that the reason he was unable to provide a sample was because he has a hyperactive gag reflex. The Crown argues that Mr. Sokulski was faking his gagging. The fact that Mr. Sokulski actually vomited provides an air of reality to the defence. I note the accused, other than being unable to provide a sample, was cooperative.

He was not quarrelsome or abusive and actually got his drunken friend to settle down for the officers. [ 103 ] I am not persuaded by the officer’s characterization of faking by the accused given the noted vomit and the wide divergence in impairment symptoms observed by the officers. The accused has established a reasonable excuse. [ 104 ] The accused is found not guilty. C.C. Toth, ACJ