Her Majesty the Queen - v. -, 2014 SKPC 177

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 177 Date: October 20, 2014 Information: 90005235 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Vanessa Rae Makelki (a.k.a. Vanessa Matechuk) Appearing: Leona Andrews For the Crown Brian Smith For the Accused JUDGMENT J.D. KALMAKOFF , J INTRODUCTION [ 1 ] Vanessa Makelki is charged with driving while her blood alcohol concentration exceeded the legal limit, contrary to section

253(1) (

b) of the Criminal Code . The charge arises out of a vehicle stop conducted by Cst. Stan Gendreau of the Regina Police Service on January 11, 2014. [ 2 ] The Crown’s case against Ms. Makelki relies entirely on the results of breath samples obtained from her by the police. Ms. Makelki argues that those breath samples were obtained in connection with violations of her rights under sections 7, 8, 9 and 10(

b) of the Charter and that, as a result, I should exclude the analyses of the breath samples from evidence. [ 3 ] At the conclusion of the voir dire on the Charter application, counsel for both the Crown and Ms. Makelki indicated that no further evidence would be called on the trial, regardless of my ruling on the Charter issues. They also agreed that any admissible evidence would be applied to the trial. IDENTITY [ 4 ] In addition to the Charter issues raised, Ms.

Makelki argues that even if the evidence of the breath samples is admitted, I should still find her not guilty, as the Crown has failed to prove beyond a reasonable doubt that she was the driver of the vehicle and the person who provided the breath samples. I will deal with that argument first. [ 5 ] Cst. Stan Gendreau of the Regina Police Service was the only witness to testify. I found him to be an honest witness, but like many honest witnesses, his memory is imperfect.

In this case, however, most of the relevant events - at least those which are important to the issues raised during the trial - were captured on the video recording device in his police car. While some of what was captured on video contradicted Cst. Gendreau’s original recollection of the events, I still consider his testimony, as a whole, to be credible and reliable. [ 6 ] Cst. Gendreau testified that the person he identified in Court as Vanessa Makelki was the same person driving the vehicle that he stopped on the night in question.

He said that she was the person he arrested and the person from whom breath samples were obtained. [ 7 ] I accept Cst. Gendreau’s testimony on that point. This was not identification based on a fleeting glance or brief encounter. Cst. Gendreau dealt with the driver of the vehicle immediately upon stopping her. He arrested her, and she remained under his observation until the breath testing procedure was completed. From the time of the stop until the breath testing was completed, Cst. Gendreau spent nearly 90 minutes with her.

I accept his testimony, and I am satisfied beyond a reasonable doubt that the person he stopped, arrested and accompanied through the breath testing procedure is the same person he identified in Court as Vanessa Makelki. [ 8 ] I am satisfied of this despite the somewhat unusual discrepancy with respect to the name of the accused person. The person Cst. Gendreau arrested produced a driver’s licence, with photo, in the name of Vanessa Matechuk, and identified herself using that name throughout her dealings with Cst. Gendreau. The Certificate of Qualified Technician was issued in the name of Vanessa Matechuk.

The Appearance Notice which compelled her to appear in Court bears the name “Vanessa R. Matechuk”, and has the signatures of Vanessa Matechuk and Cst. Gendreau at the bottom. The only document which bears the surname “Makelki” is the Information, which reads “Vanessa Rae Makelki”. It was sworn by another officer, not Cst. Gendreau. The only explanation Cst. Gendreau could offer for this discrepancy was speculative in nature: i.e. that he believed “Matechuk” was her maiden surname, while “Makelki” was her married surname. [ 9 ] In the circumstances of this case, this discrepancy in surname is of no significance.

Ms. Makelki has appeared, through counsel, throughout this matter, and has never taken exception to the Information. Furthermore, the only evidence before me indicates that Vanessa Makelki is the same person that Cst. Gendreau dealt with on January 11, 2014, and who identified herself as Vanessa Matechuk at that time. I am satisfied beyond a reasonable doubt that Vanessa Makelki and Vanessa Matechuk are the same person. [ 10 ] Section 601(3) of the Criminal Code permits the Court to amend the Information to conform to the evidence where the Information or any count in it is defective in form or substance.

I hereby make such an amendment. The Information will read “Vanessa

Rae Makelki, a.k.a. Vanessa Matechuk”. I have considered section 601(4), and I am satisfied that such an amendment can and should be made on the basis of the evidence taken on the trial. I am satisfied that it is appropriate for me to do so, because Ms. Makelki was not in any way misled or prejudiced by the Information as it originally appeared. I am also satisfied that making such an amendment does not prejudice her defence, and as such does not amount to an injustice. ISSUES [ 11 ] Based on the Charter notice filed and the evidence before me, the following issues must be determined: 1.

At the time of making the ASD demand, did Cst. Gendreau have reasonable grounds to suspect that Ms. Makelki had alcohol in her body; 2. Did Cst. Gendreau make the ASD demand forthwith, as required by section 254(2) of the Criminal Code ; 3. Did Cst. Gendreau have reasonable grounds necessary for a breath demand under section 254(3) of the Criminal Code ; and 4. If any of Ms. Makelki’s rights under the Charter were violated, is the remedy of exclusion of evidence warranted? FACTUAL BACKGROUND [ 12 ] On January 11, 2014, Cst. Gendreau was working traffic patrol.

In specific, he was assigned to the Dewdney Avenue nightclub strip, looking for possible impaired drivers. Shortly after midnight, he saw Ms. Makelki and two other women leave a bar and walk toward a vehicle parked nearby. While Ms. Makelki was not visibly under the influence of alcohol, her two friends appeared to be quite intoxicated. Given the time, the location, and the observed condition of Ms. Makelki’s friends, Cst. Gendreau suspected that Ms. Makelki may also have been drinking, so he made the decision to stop her vehicle to check for driver sobriety.

Section 209.1 of The Traffic Safety Act, SS 2004, c T-18.1, authorizes police officers to do that. [ 13 ] Ms. Makelki had driven her pickup truck only a short distance before Cst. Gendreau activated the emergency lights on his police car to effect the stop. Ms. Makelki brought her vehicle to a stop immediately. Cst. Gendreau did not observe Ms. Makelki to have any trouble driving in the short time he followed her. [ 14 ] According to the video recording in evidence, Ms. Makelki was brought to a stop shortly after 12:06 a.m. (12:06:40, to be exact). Cst.

Gendreau got out of the police car, went to the driver’s side window and spoke to Ms. Makelki for approximately one minute. Cst. Gendreau testified that, during this initial conversation, he observed that Ms. Makelki’s eyes were bloodshot, and there was a smell of alcohol coming from inside her vehicle. He also asked Ms. Makelki if she had been drinking, and she responded that she’d had two glasses of wine with supper, and a “shot” at the bar. I accept that this conversation took place, because the only reason Cst. Gendreau stopped Ms. Makelki was to determine her level of sobriety.

That being the reason for the stop, it makes complete sense that he would ask questions about her alcohol consumption that evening. [ 15 ] At 12:07:48, Cst. Gendreau returned to the police car, with Ms. Makelki’s driver’s licence in hand, and without saying anything further to Ms. Makelki about the reason for the stop or what further investigative steps he might take. Cst.

Gendreau conducted the types of inquiries normally conducted when a driver is stopped (i.e. checking for licence and registration validity, and checking CPIC for outstanding warrants, bail conditions or sentence conditions). [ 16 ] At 12:10:25, Cst. Gendreau asked another officer who happened upon the scene to bring an Approved Screening Device (ASD) to him. At 12:11:40, Cst. Gendreau returned to Ms. Makelki’s vehicle to advise her of this, and told her that she would be detained for the purpose of providing a breath sample for screening.

Approximately six minutes after that, at 12:17:15, the ASD arrived, and Cst. Gendreau approached Ms. Makelki’s vehicle and asked her to step out. [ 17 ] According to his testimony, it was only when Ms. Makelki stepped outside the vehicle that Cst. Gendreau was certain he could smell alcohol on her breath. At 12:17:50, he made a demand that Ms. Makelki provide a breath sample into the ASD. After some

explanation of the process, Ms. Makelki made her first attempt to provide a sample at 12:19:05. Eventually, she produced a “Fail”reading at 12:20:24. [18] From 12:21:00 until 12:25:12, Cst. Gendreau answered a number of Ms. Makelki’s questions, let her obtain personal itemsfrom her vehicle (as it was going to be towed), and dealt with her passengers (to make sure they knew they would need to make otherarrangements to get to their next destination). At 12:25:12, Cst. Gendreau told Ms. Makelki that she was being arrested, and brought herback to the police car.

Some further discussion, questions and answers followed, and at 12:27:56, Cst. Gendreau formally advised Ms.Makelki that she was under arrest, advised her of her right to counsel, and read the police warning to her. [19] At 12:29:15, Cst. Gendreau made a demand for a breath sample, pursuant to section 254(3) of the Criminal Code. After that,Cst. Gendreau arranged for another officer to check Ms. Makelki’s vehicle for alcohol, secure it for towing, and to attend to the policestation to conduct the breath tests. At 12:33:15, Cst. Gendreau left the scene with Ms. Makelki in the police car.

They drove directly tothe Regina Police Service building, arriving at 12:36:20. From 12:38 until 12:42, Ms. Makelki spoke to a lawyer. Then, at 1:06 and1:27, she provided samples of her breath for analysis. The results were 120 mg/% and 110 mg/%. [20] After that, Ms. Makelki was served with the necessary documents, and arrangements were made for her to be taken home. ANALYSIS [21] Ms. Makelki argues that her rights under sections 7, 8, 9 and 10(

b) of the Charter were violated. The determination ofwhether any of Ms. Makelki’s rights were violated hinges on the lawfulness of the roadside screening and breath testing procedurescarried out in this case. [22] In order for a roadside screening (Approved Screening Device, or “ASD”) demand to be lawful, it must comply with section254(2) of the Criminal Code. That means the police officer who makes the demand must: (1) have reasonable grounds to suspect that the subject of the demand (

a) has been operating a vehicle within the preceding threehours, and (

b) has alcohol in his or her body; and (2) make a demand that the person provide the breath sample forthwith. [23] If the ASD demand is not lawful, then (

i) a breath sample obtained in connection with it is an unlawful search and seizure,which violates

section 8 of the Charter; (ii) the detention necessary to obtain the breath samples is arbitrary, and violates

section 9 of theCharter, and (iii) the accused’s rights under

section 10(

b) are not suspended during the period of detention, and obtaining breath sampleswithout informing the accused of, and implementing, the right to counsel violates

section 10(

b) of the Charter: R v Thomsen, (SCC), [1988] 1 SCR 640; R v Grant, (SCC), [1991] 3 SCR 139. [24] In order for a demand for evidentiary breath samples to be lawful, it must comply with section 254(3) of the Criminal Code. That means the police officer making the demand must have reasonable grounds to believe the subject of the demand has committed animpaired driving-related offence within the preceding three hours.

The demand must be made as soon as practicable, and must requirethe subject to provide breath samples into an approved instrument as soon as practicable. [25] For the same reasons mentioned above, if the demand for evidentiary breath samples did not comply with section 254(3) ofthe Criminal Code, then Ms. Makelki’s rights under sections 8 and 9 of the Charter would be violated. [26] Finally, if either or both of the demands were not lawful, then the resulting deprivation of liberty would, arguably, alsoviolate

section 7 of the Charter. For the purposes of this case, however, I need not specifically deal with

section 7, as any violation ofthat

section would arise only from the same circumstances that led to violations of sections 8, 9 or 10(b).

1. At the time of making the ASD demand, did Cst. Gendreau have reasonable grounds to suspect that Ms. Makelki had alcohol in her body? [ 27 ] Reasonable suspicion is not an onerous standard. It deals with possibility, not probability: R v Chehil , 2013 SCC 49 , [2013] 3 SCR 220; R v MacKenzie , 2013 SCC 50 , [2013] 3 SCR 250 [ MacKenzie ].

In the context of the ASD demand, reasonable suspicion does not require the officer to hold a reasonable belief that the driver does have alcohol in her body; it merely requires the officer to hold a reasonable belief that the driver might have alcohol in her body, taking into account all the circumstances of which the officer was aware at the time: MacKenzie , at para 74 ; R v Yates , 2014 SKCA 52 , 438 Sask R 78 [ Yates ]. [ 28 ] There does not need to be direct proof that the driver had alcohol in her body.

Reasonable suspicion is established if a reasonable person standing in the shoes of the police officer, and aware of all the objectively verifiable evidence, would reasonably suspect the driver had alcohol in her body. This does not require that the officer be correct in his suspicion, nor does it require that the officer investigate further so as to rule out possible innocuous explanations for his observations. Furthermore, reasonable suspicion is not negated by the fact that other inferences may be drawn from the same set of circumstances: Yates , at para 34 .

Where a driver is stopped shortly after leaving a drinking establishment, and admits to having consumed alcohol, that alone may be enough to ground a reasonable suspicion, even without precise information as to the timing of consumption: R v Drysdale , 2013 SKQB 392 , 432 Sask R 46, or the officer being able to pinpoint the driver as the source of a smell of alcohol coming from the vehicle: Yates; R v Flight , 2014 ABCA 185 ; R v Mitchell , 2013 MBCA 44 , 298 CCC (3d) 525; R v Mason , 2013 ONCJ 328 . [ 29 ] Ms. Makelki also argues that I should find that Cst.

Gendreau did not have the required subjective belief that Ms. Makelki might have alcohol in her body when he made the ASD demand, because he did not use those specific words in his testimony. As such, Ms. Makelki argues that the ASD demand was made in the absence of reasonable suspicion, and did not comply with section 254(2) . [ 30 ] With respect, I disagree. In order for an ASD demand to meet the requirements of section 254(2) , the officer making the demand must subjectively suspect, on an objectively reasonable basis, that the driver has alcohol in her body: R v Plantje , 2014 SKQB 265 at para 27 .

However, there are no “magic words” that a police officer must utter in order for the demand to be valid. There is no requirement that an officer say the words “I suspected that the driver had alcohol in her body” in order for me to conclude that the officer was acting on the basis of such a suspicion when making an ASD demand. I am entitled to consider circumstantial evidence as well as direct evidence.

If, after doing so, I am satisfied that the existence of the necessary subjective belief on the part of the officer can be inferred from the evidence, then it does not matter that the officer fails to use the precise wording of the reasonable suspicion standard in describing that belief: R v Harrison , 2012 BCCA 339 , 37 MVR (6 th ) 194 [ Harrison ]; R v Donald (No. 2) , 2010 SKPC 123 at para 17 , 363 Sask R 195 (affirmed, 2011 SKQB 408 , 386 Sask R 26). [ 31 ] The time to determine whether reasonable suspicion existed is at the time the officer made the demand. In this case, Cst. Gendreau watched Ms.

Makelki walk out of a bar with two friends who appeared to be highly intoxicated. When Cst. Gendreau stopped Ms. Makelki, he observed that she had bloodshot eyes, and she admitted that she had been drinking at some point during the evening. Cst. Gendreau could also smell alcohol coming from inside the vehicle where Ms. Makelki was seated. Furthermore, before actually making the ASD demand, Cst. Gendreau had Ms. Makelki get out of her vehicle, at which point he could smell alcohol from her breath.

He then proceeded to make a demand which began with the words “I have reasonable grounds to suspect that you have alcohol or drugs in your body.” [ 32 ] I am satisfied, taking into account his observations and all the surrounding circumstances, that when Cst. Gendreau made the ASD demand, he honestly suspected that Ms. Makelki had alcohol in her body. Even though he did not specifically use those words when describing the reason for making the demand, I am satisfied from the evidence that this is the only reasonable inference to be drawn, given the observations he made and the investigative steps that he took.

I am also satisfied that his suspicion was objectively reasonable. There was, of course, a chance Ms. Makelki did not have alcohol in her body, but all of the circumstances suggested a real possibility that she did. That is enough for reasonable suspicion. 2. Did Cst. Gendreau make the ASD demand forthwith, as required by section 254(2) of the Criminal Code ? [ 33 ] Section 254(2) permits a police officer who has the requisite reasonable suspicion to demand that a driver provide a breath sample for screening “forthwith”, i.e. immediately, or without delay. An ASD demand under section 254(2) involves detention in

connection with a suspension of the right to counsel, which means that time is of the essence. There must be a prompt demand by thepolice officer and an immediate response by the detainee. This requirement of immediacy is crucial to the constitutionality of section254(2): R v Woods, 2005 SCC 42, [2005] 2 SCR 205. [34] Section 254(2) requires that a sample of breath be taken forthwith after the demand, and in this case, there was virtually nodelay between Cst. Gendreau making the demand and presenting the ASD to Ms. Makelki for her to provide samples.

However, Ms.Makelki argues that the demand itself was not made forthwith, given that it came some 11 minutes after Cst. Gendreau stopped her. [35] While section 254(2) does not specify that the demand itself be made forthwith, it must be made as soon as thepolice officer has reasonable grounds to suspect that the driver has alcohol in his or her body: R v Anderson, 2011 SKCA 13, 366 Sask R175 [Anderson 2011]; R v Quansah, 2012 ONCA 123, 287 OAC 383 [Quansah]; R v Anderson, 2014 SKCA 32, 433 Sask R 255[Anderson 2014]. That is the only

interpretation which is consistent with judicial acceptance of the infringement that section 254(2)places on the right to counsel provided for in

section 10(

b) of the Charter: R v Pierman, (R v Dewald) (1994), (ONCA), 19 OR (3d) 704 (CA) (affirmed by SCC, (1996), 103 CCC (3d) 102). [36] A delay in making the demand does not automatically violate the “forthwith” requirement. The Saskatchewan Court ofAppeal has interpreted “forthwith” as meaning “without unreasonable or unjustified delay”: R v Janzen, 2006 SKCA 111 at para 4, 285Sask R 296 [Janzen], or “as soon as possible and before there is any realistic possibility that the subject could successfully contactcounsel and get legal advice”: R v Ritchie, 2004 SKCA 9 at para 17, 241 Sask R 155.

The length of, and reasons for, the delay must beconsidered in the context of the circumstances of the case, while balancing Parliament’s objective in combating the dangers of drinkingand driving against the constitutional right to be free from unreasonable search or seizure and the fact that a person’s right to consultcounsel is suspended upon a demand for a screening sample pursuant to section 254(2): Janzen, at para 4. [37] Where delay occurs in making an ASD demand, there must be a valid reason for it, and it must be kept to a minimum if it is tocomply with section 254(2).

For instance, delay which occurs when an ASD is not immediately available may be justified. Delaysnecessary to ensure proper instrument function or negate the presence of mouth alcohol in the test subject, or due to articulated andlegitimate investigative or safety concerns are also examples of justifiable delay. However, in order to comply with section 254(2), thetime from the formation of reasonable suspicion to the making of the demand and the detainee’s response must be no more than isreasonably necessary to enable the officer to properly carry out his or her duties under that section: Quansah; Anderson 2014.

Anydelay not justified exceeds the immediacy requirement, and results in arbitrary detention in violation of

section 9 of the Charter:Quansah; Anderson 2011. [38] In this case, I conclude from the evidence that, after his initial encounter with Ms. Makelki (which lasted from 12:06:40 until12:07:48), Cst. Gendreau had decided that he was going to make an ASD demand, and felt he had the grounds to do so. I say thisbecause as soon as he got back to his police car and finished making CPIC inquiries and checking Ms. Makelki’s licence, he askedanother officer to bring an ASD to the scene. And, whether or not he was confident he had the requisite reasonable suspicion, he took nofurther investigative steps before doing this.

Furthermore, at 12:11:40, Cst. Gendreau advised Ms. Makelki that he was having an ASDdelivered to the scene, and that he would be detaining her for testing. [39] Despite not having isolated the smell of alcohol in the vehicle to Ms. Makelki until she got out of the vehicle at 12:17:25, it isclear from all the circumstances that Cst. Gendreau suspected Ms. Makelki had alcohol in her body by 12:07:40. While isolating thesmell of alcohol to Ms. Makelki after she got out of the vehicle bolstered the objective reasonableness of Cst.

Gendreau’s suspicion, I amsatisfied that his subjective suspicion existed within the first minute of his contact with Ms. Makelki, as he admitted in cross-examinationthat he had no more to ground his suspicion at the time he made the demand than he did after his first exchange with Ms. Makelki at12:07:40. The ASD demand was not made until 12:17:50. [40] Did this delay of 10 minutes and 10 seconds violate the “forthwith” requirement in section 254(2)? In my view, it did. Thiswas not an investigation that began as something else and unexpectedly evolved into a drinking and driving case. Cst. Gendreau stoppedMs.

Makelki for the sole purpose of inquiring into her sobriety. His investigation was not complicated by safety concerns or anyinterference from Ms. Makelki’s passengers. Cst. Gendreau quickly made observations that supported an ASD demand, which he hadevery intention of making; he simply chose not to make the demand until the device actually arrived, some 10 minutes later. Thecircumstances in this case did not justify such a delay in making the demand, and accordingly I am satisfied that the ASD demand wasnot made forthwith.

[41] Given that finding, I am satisfied that there has been a violation of Ms. Makelki’s rights under sections 8 and 9 of theCharter. Furthermore, the failure to make the demand forthwith means that the demand was not made in accordance with section254(2), and the suspension of Ms. Makelki’s

section 10(

b) right to counsel does not apply. As such, I am satisfied that her right tocounsel was violated as well. 3. Did Cst. Gendreau have reasonable grounds necessary for a breath demand under section 254(3) of the Criminal Code? [42] Section 254(3) of the Criminal Code permits a police officer to make a demand for an evidentiary breath sample where theofficer “has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, anoffence under

section 253 as a result of the consumption of alcohol.” The offences under

section 253 of the Criminal Code are (a)operating or having care or control while impaired by alcohol or drug, and (

b) operating or having care or control while one’s bloodalcohol concentration exceeds the legal limit. [43] In this case, Cst. Gendreau arrested Ms. Makelki for impaired driving, and expressed his reason for making the breath testdemand as being a belief that Ms. Makelki’s ability to drive was impaired by alcohol. Ms. Makelki argues that Cst. Gendreau did nothave reasonable grounds to believe that Ms. Makelki’s ability to drive was impaired, as there was, at most, evidence to support anopinion that her blood alcohol concentration exceeded the legal limit. Therefore, she argues, Cst.

Gendreau did not have the “reasonablegrounds” required by section 254(3) of the Criminal Code to make the demand that he made. As a result, she argues that the breathtesting process and resulting detention violated her rights under sections 7, 8 and 9 of the Charter. With respect, I disagree. [44] In order for a demand under section 254(3) to be valid, the officer making it must have an honest belief that the accused hascommitted an offence under

section 253 as a result of consuming alcohol, and this belief must be rationally sustainable on an objectivebasis: R v Gunn, 2012 SKCA 80, 399 Sask R 170 [Gunn]; R v Bernshaw, (SCC), [1995] 1 SCR 254 at para 48[Bernshaw]; R v Shepherd, 2009 SCC 35, [2009] 2 SCR 527. This is not an onerous standard. The evidence available to the officer needonly support the inference that the subject of the demand is slightly impaired by alcohol, and that inference does not need to be correct,just reasonable: Gunn, paras 9 - 22. [45] In this case, when Cst.

Gendreau made the demand, there was little evidence which suggested that Ms. Makelki’s drivingability was impaired. There was no evidence of bad driving, no slurring of speech, no evidence of reduced coordination, balance, orreaction time and no evidence that Ms. Makelki was disoriented or acting out of the ordinary. What Cst. Gendreau had observed was thefollowing: Ms. Makelki walked out of a bar, got into a vehicle, and began to drive. She had bloodshot eyes. Her breath smelled of alcohol. She admitted to having consumed some alcohol, and she produced a “Fail” reading on the ASD[1]. While Cst.

Gendreau mayhave subjectively believed that the combination of those facts meant that Ms. Makelki’s ability to drive was impaired, one may questionwhether such a belief would be objectively reasonable, even applying the standard identified in Gunn, in the absence of some evidencerelating the meaning of a “Fail” reading to a person’s ability to drive.

However, there is a line of authority which holds that a “Fail”reading on a properly administered ASD test can, by itself, constitute grounds for an evidentiary breath test demand under section254(3): Bernshaw at para 49; R v Black, 2011 ABCA 349 at para 44, 286 CCC (3d) 432, leave to appeal refused 2012 SCCA 49[Black]. [46] Even without consideration of Bernshaw and Black, however, I would still be satisfied that the demand in this case waslawful. Section 254(3) permits a breath demand to be made upon reasonable grounds to believe that the driver has committed theoffence under section 253(1)(

b) of the Criminal Code - driving with a blood alcohol concentration that exceeds the legal limit. The factthat Cst. Gendreau did not specifically state that he made the demand under section 254(3) on the basis of a belief that Ms. Makelki hadcommitted the offence under section 253(1)(b), as opposed to section 253(1)(a), makes little difference.

As I stated earlier, I am entitledto draw reasonable inferences from circumstantial evidence, and if the existence of the necessary subjective belief on the part of theofficer can be inferred from the evidence, then the precise words used in describing the belief are not important: Harrison; R v Clarke, [2000] OJ No 804 (QL) at para 17, 1 MVR (4th) 298 (Ont. SCJ); R v Shewchuk, 2006 SKQB 33, 274 Sask R 98. [47] In this case, Cst. Gendreau testified that, by virtue of his training and experience with the ASD, a “Fail” reading means thatthe subject’s blood alcohol concentration exceeds the legal limit. Ms.

Makelki produced a “Fail” reading when she blew into the ASD. Cst. Gendreau believed the ASD to be accurate, relied on that device, and based on the reading, took steps to make an evidentiary breathtest demand under section 254(3) and obtain samples. The only reasonable inference I can draw from the evidence is that, at the timeCst. Gendreau made the demand, he believed that Ms. Makelki’s blood alcohol concentration exceeded the legal limit for driving, ormore to the point, that she had committed an offence under section 253(1)(

b) as a result of the consumption of alcohol. Based on the

reading obtained from the ASD, that belief was objectively reasonable. [ 48 ] Therefore, the demand under section 254(3) was valid, as were the subsequent arrest and detention for the breath testing procedure. I am not satisfied that Ms. Makelki’s rights under sections 7, 8 or 9 of the Charter were violated in connection with that demand. 4. If any of Ms.

Makelki ’ s rights under the Charter were violated, is the remedy of exclusion of evidence warranted? [ 49 ] Section 24(2) of the Charter provides that where evidence is obtained in a manner which infringes the accused person’s rights under the Charter , that evidence shall be excluded if its admission at trial would bring the administration of justice into disrepute, having regard to all the circumstances. [ 50 ] I have found that Ms. Makelki’s rights under sections 8, 9 and 10(

b) the Charter were infringed because the ASD demand was not made “forthwith”. Therefore, I must determine whether the evidence obtained in connection with those breaches, namely the “Fail” reading on the ASD, and the breath samples provided at the police station, ought to be excluded. To do so, I will consider the three avenues of inquiry outlined in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353. [ 51 ] With respect to the first line of inquiry, the seriousness of the breach, I consider the breach of sections 8, 9 and 10(

b) in this case to be minor and technical, at most. I am satisfied that Cst. Gendreau did not deliberately violate Ms. Makelki’s rights. At worst, he was negligent in not making the ASD demand immediately at 12:07. While ignorance of Charter standards is not to be encouraged, this was not a case where Cst. Gendreau acted without a plan or with complete disregard for the Charter standards at issue. He quickly realized he would need an ASD before continuing his investigation, and made efforts to obtain one as soon as he could. He also promptly told Ms. Makelki that she would be detained for that purpose.

As soon as he obtained an ASD, he made the appropriate demand and continued with dispatch. Analysis of this factor weighs in favour of admitting the evidence. [ 52 ] In considering the second line of inquiry, I do not find the impact of the breach on Ms. Makelki’s Charter -protected interests to be particularly serious. The breach in this case flows from a technical misstep in terms of the timing of the demand. Once the demand was made, the ASD was immediately available, and Ms. Makelki was able to provide a sample without any further delay. In the end, only 11 minutes elapsed from the time Ms.

Makelki was stopped until the ASD demand was made. The amount of time she was detained would have been no different if Cst. Gendreau had made the demand immediately upon stopping her, and in all of the circumstances, the time it took for the ASD to be delivered was not unreasonable. Furthermore, Ms. Makelki was allowed to remain in her own vehicle until the ASD arrived, and was treated throughout the process with courtesy, respect, and professionalism by Cst. Gendreau.

Analysis of this factor weighs in favour of admission of the evidence. [ 53 ] Finally, I consider the third factor, namely society’s interest in adjudication of the case on its merits. Alcohol-related driving offences are a significant problem in Saskatchewan. As noted by Lane J.A. in similar circumstances in Anderson 2011 , at para 29: [29] Society has an obvious interest in litigating the matter on the merits. The issue of impaired driving and the potentially serious consequences thereof, including endangering the lives of others, leads to inclusion of the evidence. [ 54 ] Cst. Gendreau saw Ms.

Makelki walk out of a bar with two other women who appeared drunk. All three got into a vehicle and began to drive away. There was good reason for him to stop the vehicle, and once he did so, he quickly discovered that the grounds existed for an ASD demand and further investigation. The evidence gathered was reliable, obtained through non-intrusive means, and is crucial to the Crown’s case. In my view, society’s interest in adjudication of the case on its merits would be frustrated by excluding such evidence on the basis of a very minor and technical breach.

Analysis of this factor weighs in favour of admitting the evidence. [ 55 ] Balancing the three factors, I am of the view that this is a case where admission of the evidence would not bring the administration of justice into disrepute. The ASD “fail” and the Certificate of Qualified Technician will be admitted as evidence.

CONCLUSION [ 56 ] I have ruled that the Certificate of Qualified Technician is admissible as evidence. I am satisfied beyond a reasonable doubt that the person Cst. Gendreau observed driving the vehicle in question at 12:06 a.m. was Vanessa Makelki, a.k.a. Vanessa Matechuk, and that she is the same person who provided the breath samples referred to in the Certificate of Qualified Technician, at 1:06 a.m. and 1:27 a.m., and that the results of those samples were 120 and 110 milligrams of alcohol in 100 millilitres of blood, respectively. The presumptions in sections 258(1) (

c) and (

g) of the Criminal Code are applicable, and accordingly, I am satisfied beyond a reasonable doubt that Ms. Makelki is guilty. J.D. Kalmakoff, J [1] For reasons which are explained below, I have determined that the ASD “Fail” result will be admitted as evidence, despite the fact that Cst. Gendreau failed to make the ASD demand forthwith, and the breach of Ms. Makelki’s Charter rights arising from that.