Her Majesty the Queen - v. -, 2011 SKPC 123

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 123 Date: July 18, 2011 Information: 44659792 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Blair John Komarnicki Appearing: Mr. C. Bliss For the Crown Mr. M. Owens For the Accused JUDGMENT Q. D.

AGNEW , J [ 1 ] The Crown alleges that the accused, Blair John Komarnicki, drove whiled impaired by alcohol and “over .08”. [1] [ 2 ] During the course of the trial, Crown counsel acknowledged that the evidence was not sufficient to ground a conviction on the charge of impaired operation of a motor vehicle, and invited me to find the accused not guilty on that charge. I did so. I then reserved my decision on the question of whether or not the accused was guilty of operating a motor vehicle while his blood alcohol was “over .08”.

[ 3 ] This case raises Charter issues as to whether or not (1) the arresting officer had reasonable grounds to make the roadside screening breath demand, thus perhaps breaching the accused’s rights not to be arbitrarily detained or unlawfully searched, and (2) the police properly implemented the accused’s right to counsel. I will deal with each of those after a review of the facts. There are also technical issues with respect to the Certificate of Analyses, which I will discuss at the end of this judgment.

First, however, there is a preliminary point which I wish to deal with. [ 4 ] At the close of evidence, on April 4, 2001, I asked counsel to provide me with written argument. I discussed with them the appropriate timing for the filing of those briefs. As the defence called evidence, defence counsel was to file his written argument first. He indicated that there were certain personal reasons why he required some extra time to prepare his brief.

After discussion, I directed that his written argument be filed by May 6, 2011. [ 5 ] Crown counsel indicated that he too had unusual personal commitments that were going to be arising in May. At his request, I ordered that he file his written argument by June 10, 2011. [ 6 ] Defence counsel was then to file his rebuttal, if any, by June 24, 2011.

I reserved my decision to July 18, 2011. [ 7 ] The matter was therefore left that defence counsel would have approximately one month, ending on May 6, in which to prepare and file his written argument, as a result of the personal circumstances which he indicated to the Court. Crown counsel would then have a month of his own to prepare and file his argument in response. Again, this was in recognition of certain personal circumstances which he identified. The defence would then have a further two weeks in which to file a rebuttal.

In the event, no rebuttal was filed. [ 8 ] Defence counsel did not file his written argument on or before May 6, 2011. In fact, it was not until the morning of Tuesday, May 24 (after the long weekend) that I received his brief. The cover letter with it was dated Friday, May 20, 2011. I do not know when it was filed with the Court Clerk. The cover letter acknowledged that the written argument was being filed late and gave as the reason, “because of the reasons I specified in Court last day”. It then went on to state that “the delay was unfortunately unavoidable”.

No further details were given. [ 9 ] I consider this late filing to be an extremely unfortunate event. [ 10 ] There are two significant difficulties with the course of action which defence counsel has adopted. The most obvious is that he has ignored the order of this Court directing him to file his argument by May 6, 2011. The second is that, by filing his argument late, he has placed Crown counsel in an extremely awkward position.

Crown counsel indicated to me at trial, in front of defence counsel, the specific reasons why he required an extended period of time to prepare his submissions in response to those of the defence. I determined that those reasons were valid and deserving of the additional requested time.

By filing his argument late, defence counsel forced Crown counsel into the unpleasant choice of: (1) filing his own argument late; (2) preparing his argument within the specified deadline but with two weeks’ less time to do so than I had intended by my order; or (3) applying to Court for an extension of time, the cause of which would not be his fault but that of defence counsel.

I suspect that none of these were particularly welcome alternatives, and Crown counsel should not have been put in the position of having to choose between them. [ 11 ] I note that in fact Crown counsel chose the second alternative, presumably (based on his original submissions to me) at some personal cost which I did not intend him to bear. [ 12 ] It may well be that there were good and valid reasons for defence counsel not to file his brief within the time limit I imposed. If so, the proper course for him to take was to have this matter brought forward before me, so that he could request additional time.

Counsel are not entitled to grant themselves extensions of deadlines imposed by this Court. [ 13 ] I am therefore left with the question of what to do. The discourtesy offered to opposing counsel is a factor, but not nearly as important a factor as the suggestion that orders of this Court can be ignored if not convenient.

[ 14 ] In the end, I have concluded that the appropriate response is as follows. Defence counsel, on behalf of the accused, was to file his argument by May 6, 2011. No argument was filed. I am therefore of the view that the accused has offered no argument. I have not read the written argument submitted on behalf of the accused; I have not reviewed the cases which I assume he has provided in the material; I have not so much as looked at a Table of Contents, if there is one, to see what he thinks the issues are in this case.

I am treating the accused’s case on the basis that he has not offered any argument on the evidence or the law. [ 15 ] Even without argument from the accused, it remains my task to determine whether or not the Crown has proven his guilt beyond a reasonable doubt. I must therefore examine each element of the offence to determine whether or not the Crown has met its burden. I do not propose to do so explicitly, for the simple reason that except as referred to herein there is, in my view after due consideration, no viable issue to be raised.

There are, however, two matters which require detailed consideration. [ 16 ] I am aware, from a written notice provided by the accused in January of this year, that he believes that there was a violation of s. 10(

b) of the Canadian Charter of Rights and Freedoms . This violation is alleged to be on the basis that the accused was not provided a reasonable opportunity to contact his lawyer of choice, and that he at no time waived his right to speak to his counsel of choice. I am also aware, from the same notice, that the accused alleges that the officer making the breath demand did not have reasonable and probable grounds so to do, and that therefore there was an arbitrary detention, resulting in an unlawful search when breath samples were taken from the accused, contrary to sections 8 and 9 of the Charter .

I am further aware that the requested remedy for both of these alleged breaches is exclusion of any evidence emanating from them. In the context of this trial, that would be the Certificate of Analyses. [ 17 ] I will deal with each of these issues after making certain findings of fact. Facts [ 18 ] In light of the notices of Charter applications which had been provided by the accused, the trial proceeded on the basis of all Crown evidence was to be applied to both the voir dire and the trial proper.

Similarly, it was agreed that the accused, who testified on his own behalf, was testifying on both the voir dire and the trial as applicable. [ 19 ] The evidence disclosed that on June 12, 2010 at approximately 5:25 p.m., both the accused and Maury Decorby were proceeding east on Circle Drive, in Saskatoon. Circle Drive, a freeway, has two lanes for east-bound traffic at all pertinent points. At the time in question it was down to a single lane, due to an accident slightly further east. Traffic was therefore quite slow. The accused’s vehicle was immediately in front of the vehicle being driven by Mr. Decorby.

Both were travelling at approximately 40 to 50 kilometres per hour. Mr. Decorby testified that the accused’s vehicle braked suddenly and for no apparent reason, causing Mr. Decorby’s vehicle to run into the rear-end of the accused’s vehicle. Both vehicles then stopped, presumably so the drivers could exchange the necessary information. [ 20 ] Further east on Circle Drive, Constable Casselman was directing traffic at the accident scene which was the cause of the traffic restriction in which the accused and Mr. Decorby were caught.

She was advised by another officer that there had been an accident to the west, so she went to investigate. She found Mr. Decorby and the accused with their vehicles pulled onto the right shoulder. [ 21 ] After obtaining license and registration information from Mr. Decorby, she requested the same from the accused. He provided his license, and went to his vehicle to retrieve his registration. When she was examining his vehicle, he returned with the registration and at that time she smelled beverage alcohol on his breath.

She then demanded he provide a sample of his breath into an approved screening device, and took him to her patrol car for that purpose. On his third attempt, he gave a successful sample, which registered a “fail”. Constable Casselman testified that as a result of that fail, she formed the belief that the accused was over .08. She then charged him and read him his Charter rights. He indicated that he understood and that he wished to speak to a lawyer. She gave him the standard police warning, which he indicated he understood, and made the breath test demand, which again he indicated he understood.

In addition to saying he understood, Constable Casselman said that he appeared in fact to understand. Reasonable grounds for screening device demand

[ 22 ] The issue which arises from the above facts is whether or not the officer had reasonable grounds for the approved screening device (“ASD”) demand. If not, then I would have to decide whether or not the ASD result is admissible. If it is not admissible, then I have concluded that the officer did not have reasonable grounds for making demanding that the accused provide samples of his breath pursuant to s. 254(3) of the Criminal Code . I would then have to decide whether or not the Certificate of Analyses which resulted from those samples should be excluded from evidence.

As noted above, this issue was raised by the accused by way of a Charter notice. [ 23 ] Under s. 254(2) of the Code , a peace officer can make an ASD demand if the officer has reasonable grounds to suspect that a person: (

a) has alcohol in their body, and (

b) has operated a motor vehicle within the preceding three hours. [2] [ 24 ] The officer clearly had suspicions with respect to both of these qualifications. The question is whether or not her suspicions were reasonable. [ 25 ] With respect to the first ground, that the accused had alcohol in his body, I find the smell of beverage alcohol on the accused’s breath sufficient to make this suspicion reasonable. [3] [ 26 ] With respect to the second ground, namely whether or not the accused had been operating his motor vehicle within the previous three hours, the question is somewhat more complex.

The Constable did not question either driver as to the time that the accident occurred until after she had made the ASD demand. It is, of course, the information which she had at the time of the ASD demand which determines whether or not her suspicions were reasonable. [ 27 ] Constable Casselman appeared at the scene within two minutes of being informed by another officer that an accident had occurred. The accident occurred in bumper-to-bumper traffic, backed up as a result of another accident. Her conversation with Mr. Decorby, she testified, led her to believe that the accident had just occurred. Mr.

Decorby was travelling with two young persons (his son and nephew) who were still at the scene. [ 28 ] Constable Casselman testified that she believed that the accident had occurred within the previous 15 minutes, although it was not until after the ASD demand that she confirmed this. [ 29 ] In my view, it was reasonable for her to suspect that the accused had been operating his motor vehicle within the previous three hours. It would be unusual in the extreme for the officer to come across such an accident scene, under these precise circumstances, more than three hours after the accident had occurred.

The presence of the children, the accident occurring in backed-up traffic and the parties still being present, would in my view point to a recent accident, and in any event one which had occurred less than three hours before the constable appeared on the scene. [ 30 ] This is not to say that it would be logically impossible for the accident to have occurred more than three hours prior to the ASD demand; rather, that it was reasonable for Constable Casselman to suspect that the accident had occurred (and thus the accused had been driving) less than three hours prior to the ASD demand being made. [ 31 ] Accordingly, I am satisfied that Constable Casselman had, at the time she made the ASD demand of the accused, reasonable grounds to suspect that he had alcohol in his body and that he had been operating his motor vehicle within the preceding three hours.

[ 32 ] If I am wrong about this, then the question would arise as to whether or not the subsequent evidence obtained by the Crown should be excluded. This entails an analysis based on the Supreme Court of Canada’s decision in R. v. Grant . [4] [ 33 ] Under the first stage of the Grant analysis, I have to consider the seriousness of the breach. The breach here I would classify as minor. If the officer erred in concluding that her suspicion that the accident had occurred less than three hours previously, in my view it was an understandable mistake.

Admitting the evidence would not send a message to the public that the justice system condones state misconduct. Any such misconduct was not wilful or reckless. [ 34 ] The second stage of the Grant analysis is the impact of the breach on the accused’s Charter -protected interests. The accused does not, of course, have a right to drive over .08. However, he has the right not to be detained and not to be forced to participate in police investigations, except in accordance with constitutionally-valid laws.

The breach itself would be the accused being required to provide a breath sample into an approved screening device. For that purpose, he was detained from the period the ASD demand was made until he completed providing a sample. [ 35 ] According to Constable Cassleman, she smelled alcohol on the accused’s breath at approximately 17:42 hours. The Constable at that point asked the accused accompany her to her vehicle in order for him to provide a breath sample. In the car, at 17:46 hours, she read the ASD demand to him.

The “fail” sample was given at 17:49. [ 36 ] The entire process of obtaining the ASD sample took approximately seven minutes. The accused was not harmed, discomfited, publicly embarrassed or otherwise adversely affected by the procedure. In other words, the worst that happened to the accused was that he was deprived of his liberty by an arbitrary detention for approximately seven minutes as a result of the breach. While deprivation of liberty is always significant, the overall impact in this case was minimal.

In addition, Grant noted breath samples as a type of evidence which would not intrude in a particularly serious way on an individual’s bodily integrity. [ 37 ] I do not consider the time after the ASD sample to be part of the analysis, although obviously it flowed directly from the ASD result: had there been no ASD sample, it appears from the evidence that the accused would not have been charged, would not have been taken to the police station, and would not have been required to provide breath samples, a process which took about a further hour and three-quarters.

My reason for not considering this further period is that the breach itself was concluded when the ASD test result was obtained; thereafter, based on the ASD result, the officer had probable grounds for the breath demand and her subsequent actions.

This analysis, considering only the immediate impact of the breach, flows from the wording of Grant , where the analysis for the second branch of the test emphasizes the impact of the breach itself, and not the impact of all consequences flowing from it. [5] [ 38 ] The third stage of the Grant analysis is society’s interest in the adjudication of the case on its merits. This factor includes society’s interest in the case proceeding on its merits as well as whether or not the integrity of the justice system requires that the Court disassociate itself from the breach.

The reliability of the evidence is a factor in this stage. On balance, this portion of the test favours inclusion of the evidence. [ 39 ] On the basis of the above analysis, even were I to conclude that a Charter breach had occurred, under the Grant analysis I would not exclude the evidence of the ASD result or any evidence arising therefrom. Right to Counsel [ 40 ] The evidence is clear, from both Constable Casselman and from the accused, that following his arrest in the police car the accused was given his right to counsel promptly and properly, and that he stated that he wanted to contact a lawyer.

The evidence from the two of them then differs.

[ 41 ] The accused asserts that he repeatedly asked to telephone his mother in order to obtain the name of the lawyer his mother had previously dealt with. By the accused’s account, he made this request to Constable Casselman at least three different times, and possibly more: in the police car; in a holding room in the police station before the first breath test; and in a phone room between the first and second breath tests.

At no time did she allow him to make such a telephone call, nor make it on his behalf. [ 42 ] Constable Casselman, on the other hand, testified that the accused had not asked to speak with his mother, whether to obtain the telephone number of a lawyer or otherwise. Her notes of her conversations with the accused do not disclose such a request.

To the contrary, she testified that when given the opportunity to telephone a lawyer, the accused changed his mind, and as a result she gave his the Prosper warning [ 6] . [ 43 ] Constable Casselman acknowledged that her notes of the accused’s comments were not all verbatim, and at one point she stated that she was experiencing memory loss due to being pregnant. Her recollection of where certain conversations occurred is also at odds with the recollection of both the accused and the breath technician, Constable Gabruch. [ 44 ] The accused acknowledged that Constable Casselman had read him the Prosper warning.

He testified that he did not understand it and therefore asked her to read it again. According to him she did so, and he then understood it. At this point in the narrative, his evidence and that of Constable Casselman again agree: after receiving the Prosper warning, he stated that he did not want to call a lawyer. [ 45 ] The accused and Constable Gabruch both testified that prior to the first breath test, the accused was held in a room in which there was a telephone and phone book, and that Constable Gabruch expressly asked the accused if he had talked to a lawyer and if he wished so to do.

They also agreed that the accused answered both questions in the negative. [ 46 ] According to the accused, he eventually gave up asking Constable Casselman to be allowed to speak with his mother, and in the absence of being able to talk to her about the name of her lawyer, gave up trying to contact a lawyer.

When Constable Gabruch asked him about contacting counsel, the accused testified, he thought Constable Gabruch would give him the same response as Constable Casselman and therefore did not bother to ask to call his mother to get the name of a lawyer. [ 47 ] I will mention at this point that the accused testified that he has dyslexia, which he says is a learning disability which has resulted in him not having a large vocabulary and which causes him to have retention difficulties regarding written material. I mention these facts because they were brought out by the accused in his testimony.

There was no indication that such condition had any effect on the accused’s comprehension of any rights, warnings or other communications from the police officers, or on his own responses or thought processes. There is no evidence that such condition made the accused, to any greater extent than any other person being charged, require the assistance of a family member in finding a lawyer. The evidence does not support any suggestion that the accused needed any special assistance or handling as a result of this condition.

Furthermore, I find that the accused did not make this condition known to the police, so that even if there was any special consideration that he required, there was no reason for them to suspect it. I find that any difficulties the accused may encounter arising from his condition had no impact on any of the events relevant to the matter before me. [ 48 ] In

summary, then, according to the accused: (

i) the accused indicated that he wished to speak to a lawyer when he was arrested; (ii) the accused wanted to speak with his mother first, to obtain the name of her lawyer; (iii) Constable Casselman would not allow him to call his mother;

(iv) as a result, the accused abandoned his desire to call a lawyer, and communicated that abandonment to Constable Casselman; (

v) Constable Casselman then provided the accused with the Prosper warning, giving him another opportunity to contact counsel; (vi) the accused had her repeat the warning in order to understand it, and again indicated that he did not want to contact counsel; (vii) Constable Gabruch then gave the accused an opportunity to contact counsel, in the presence of a telephone and a telephone book; (viii) the accused turned down that opportunity, because he expected that Constable Gabruch’s response to asking to call his mother about her lawyer’s name would meet with the same refusal as he had received from Constable Casselman; (ix) the accused then provided his breath samples. [ 49 ] This sequence of events can be broken into three different stages.

The first stage was when the accused received his right to counsel, and Constable Casselman would not allow him to telephone his mother. The second stage was when, having indicated that he was abandoning his right to counsel, Constable Casselman gave him the Prosper warning, in effect inviting him to renew his attempt to contact counsel. The third stage was when Constable Gabruch made a separate inquiry regarding the accused contacting counsel.

There is no suggestion that Constable Gabruch was required at law to do this; from the accused’s perspective, however, and particularly in light of the accused’s testimony that he had given up with Constable Casselman, this was surely his opportunity to exercise his right to counsel. [ 50 ] Instead, however, the accused says that he had already resigned himself to not calling a lawyer, and therefore chose not to take advantage of the opportunity that Constable Gabruch afforded.

His reasoning, that he thought he would meet with the same response from Constable Gabruch as he had with Constable Casselman, seems defeatist. The accused had no reason to think that his request to call his mother for the name of her lawyer would fare no better with Constable Gabruch; certainly it could have fared no worse, and the attempt would have cost him nothing. [ 51 ] I have framed this analysis on the basis of the accused’s version of events because it presents the best possible case for him. I am not persuaded that events occurred as he suggested they did, but even if they did, it avails him naught.

In exercising his right to counsel, the accused is required to exercise diligence. [7] On the basis of his own version of events, I find that the accused did not do so. Accordingly, I find that there has been no violation of his right to counsel. The Certificate of Analyses [ 52 ] There is one further issue which warrants discussion. During the course of the trial, a question arose with respect to the admissibility of a copy of the Certificate of Analyses.

The Certificate is apparently on a type of form by which several copies are created at once - that is, any writing on the top copy also creates the same mark on the copies of the form below it. The evidence that I have is that Constable Casselman by mistake served on the accused the top copy of the several copies of the Certificate, rather than one of the lower copies as is more usual. She later tried to resolve this problem by contacting the accused to ask for the top copy back and to provide him with the copy he should have received. The accused referred her to his counsel, Mr. Owens; Mr.

Owens never returned her call. [ 53 ] To my mind, there is no question about the admissibility of the copy rather than the original in this case.

[ 54 ] Firstly, one of a set of copies such as this is prima facie admissible. [8] [ 55 ] Secondly, it is obvious that the accused cannot sit on this document and then complain that the Crown does not have it to provide to the Court. There is clearly no prejudice to the accused: the copies are identical; arguably, by receiving the copy with original writing on it, he is actually in a better position than he would otherwise have been.

There is no suggestion before me that the copies offered to the Court differed in any material respect from the top copy, served on the accused and in his possession. [ 56 ] Even if the Certificate were not admissible, the breath technician testified as to the time and result of each sample, as well as the procedure and approved instrument used.

That evidence would be admissible even if the Certificate itself were not. [ 57 ] The evidence establishes that the accused both readings were 140 milligrams of alcohol in 100 millilitres of blood. [ 58 ] In light of the above, I do not find it necessary to consider the Crown’s argument regarding the “best evidence” rule. [ 59 ] The final issue arises with respect to the Certificate. On the reverse of the last copy entered as an exhibit is a partially- completed “Affidavit of Service”. It purports to show that “Cst.

Casselman #655” served the accused with the Certificate and Notice of Intention to Produce Certificate on a specified date. I say “purports to show” because the document is not signed by Constable Casselman. Oddly, and disturbingly, it is commissioned - the jurat for the oath has been completed, and a Commissioner for Oaths has endorsed his or her signature, claiming that Constable Casselman had sworn the document before the Commissioner. [ 60 ] This problem has no effect on this case. Constable Casselman gave viva voce evidence of having served the documents on the accused.

It is, however, a matter of some concern that a Commissioner for Oaths, who appears to be an officer of the Saskatoon Police Service, signed the jurat without the affidavit actually having been sworn. Conclusion [ 61 ] I accordingly find against the accused with respect to the Charter issues which he had raised in his Notice. [ 62 ] After reviewing all of the evidence, I am satisfied beyond a reasonable doubt as to the accused’s guilt on the charge of operating a motor vehicle “over 80”, and accordingly I find him guilty. _________________________ Q. D.

Agnew, J [1] The accused is charged that on or about July 12, 2010, at or near Saskatoon, he did: 1. operate a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of his blood contrary to section 255(1) and 253(1) (

b) of the Criminal Code ; 2. operate a motor vehicle while his ability to do so was impaired by alcohol or a drug contrary to section 255(1) and 253(1) (

a) of the Criminal Code . [2] s. 254(2) reads as follows:

(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, withinthe preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment orhad the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officermay, 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 demandmay 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 anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [3]In this regard, see R. v. Butchko, 2004 SKCA 159 , [2004] S. J. No. 735, [2005] 11 WWR. 95, 192 CCC (3d) 552, 257 Sask R41 (C.A.). [4]2009 SCC 32 , 2009 S.C.C. 32, [2009] 2 S.C.R. 353, 309 DLR (4th) 1, 245 CCC (3d) 1, 66 CR (6th) 1, 253 OAC 124. [5]See paragraph 111. [6]From R. v. Prosper, (SCC), [1994] 3 S.C.R. 236, 92 C.C.C. (3d) 353, 33 C.R. (4th) 85. [7]R. v.

Smith, [1989] 2 S.C.R .368, , 61 D.L.R. (4th) 462, [1989] 6 W.W.R. 289, 50 C.C.C. (3d) 308, 71 C.R. (3d) 129,41 C.R.R. 1, 39 B.C.L.R. (2d) 145; R. v. Luong, 2000 ABCA 301 , 271 A.R. 368, 149 C.C.C. (3d) 571, 85 Alta. L.R. (3d) 217(C.A.). [8]See R. v. Bergstrom, (MB CA), [1982] M.J. No. 24, [1982] 2 W.W.R. 95, 16 Man.R. (2d) 372, 65 C.C.C. (2d) 351,30 C.R. (3d) 267, 14 M.V.R. 131, 7 W.C.B. 197 (C.A.); also R. v. Pederson, (BC SC), [1973] B.C.J. No. 679, [1974]1 W.W.R. 481, 15 C.C.C. (2d) 323 (S. C.).