Her Majesty the Queen - v. -, 2012 SKPC 157

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 157 Date: October 23, 2012 Information: 24297999 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Navjot Singh Mahal Appearing: Mr. Adam M. Breker For the Crown Mr. Michael Owens For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, Navjot Singh Mahal, is charged with refusing to provide a sample of breath into the approved screening device, and impaired driving.

It is alleged that both offences occurred in the very early morning hours of December 2, 2011, in Estevan, Saskatchewan. The trial proceeded before me on July 24, 2012. All of the evidence, of both Crown and defence, was adduced in the course of a Charter voir dire . The Crown and defence then made arguments with respect to both of the Charter issues and admissibility of evidence, and with respect to the guilt or innocence of the accused on the charges. I reserved my decision on all issues.

THE EVIDENCE [ 2 ] Cst. Evan Handley of the Estevan Police Service testified that he was on patrol in the City of Estevan during the early morning hours of December 2, 2011. At that time, he noticed a smaller vehicle approach 4 th Street, where it failed to come to a complete stop for the stop sign. The vehicle then crossed 4 th Street and the officer activated his emergency equipment. The driver crossed 4 th Street, pulled in behind some condos or apartments and parked. The officer pulled up behind the vehicle and stopped. The officer immediately approached the vehicle.

The accused, Navjot Singh Mahal was the driver, and there was one passenger in the vehicle. [ 3 ] The officer testified that he asked the accused for his driver’s licence and registration. At this time, the accused tried to give the officer the keys for the vehicle. The officer testified that he immediately noted a moderate smell of alcohol coming from the accused, and that the accused’s speech was slightly slurred and that the accused had glossy eyes. The officer immediately determined that he would make an ASD demand of the accused. He asked the accused to accompany him to the police vehicle for that purpose.

Very shortly thereafter, both the accused and the police officer are seated in the police vehicle. The officer is seated in the front seat and the accused is seated in the back seat, behind the silent patrolman. The in-car video camera is turned around so that the actions of both men are recorded. [ 4 ] Once in the police vehicle, the officer radioed and requested that an ASD machine be brought to him. He then read the formal ASD demand to the accused on at least two occasions and attempted to explain what would happen when the machine arrived.

It took approximately eight minutes until the ASD machine was delivered. In the meantime, in a fairly rambling conversation, Mr. Mahal attempts to explain and justify his predicament, and it appears he attempts to convince the officer that the officer should not proceed with the ASD test. Mr. Mahal told the officer that he was not that bad, and not that drunk. He told the officer he had only a couple of beer. He said he was terribly sorry, and respected the officer. Later, he told the officer that he had come from India and moved to Toronto. Fairly recently, he had moved from Toronto to Estevan.

He explained that he had been working with immigration authorities (Immigration Canada) to make arrangements to come to Canada. It became apparent that Mr. Mahal was quite concerned that a criminal charge and/or conviction would have a negative effect on his dealings with Canadian Immigration authorities, and perhaps might even result in his removal from the country. Mr. Mahal said things like: I’m a human man. ... You want me to cry. ... They’ll fuck me. ... [ 5 ] The ASD machine was delivered.

The constable put a mouthpiece on the machine, warmed it up, explained how the machine worked to the accused and asked him to blow. Thereafter, the accused was given 12 opportunities to blow into the ASD machine. On the vast majority of those occasions, he stopped too early so that a suitable sample for analysis was not obtained. [ 6 ] After the 12 th attempt, the accused said: “What do you want me to do? Die?” [ 7 ] The officer offered Mr. Mahal another opportunity. Mr. Mahal said that he was done, that he would try no more.

The officer then placed him under arrest for refusing to provide a suitable sample on the ASD machine and advised the accused of his rights. On the way to the police station, Mr. Mahal again said: “You fucked my life man”. Further: “If you put a charge on me, they’ll deport me, my life will be fucked”. [ 8 ] At the police station, the officer turned Mr. Mahal over to the officer in charge and Mr. Mahal was lodged in cells. He was released the following morning. [ 9 ] Mr. Owens extensively cross-examined the officer on all aspects of this investigation.

He suggested that the accused did not run the stop sign, but rather “came to a rolling stop”. He got the officer to agree that the officer did not have the requisite reasonable and probable grounds to immediately make the intoxilyzer demand. The officer volunteered that is why he made the ASD demand. Mr. Owens extensively cross-examined the officer regarding the officer’s observations of driving and of the accused, in an attempt to establish that the officer did not have a reasonable suspicion that the accused had alcohol in his body.

[ 10 ] Mr. Owens extensively cross-examined the officer regarding the various attempts to blow. He had the officer admit that during the testing process, the officer did not tell the accused to blow until the officer told him to stop. Rather, the officer indicated that he needed a continuous blow of breath for approximately five to seven seconds. He had the officer admit that on two occasions, the accused blew for approximately five seconds before stopping. [ 11 ] The defence called the accused’s friend, Ranbir Singh to give evidence. He testified that he and the accused only had two or three drinks.

He did not believe that the accused was drunk, and felt that the accused’s driving was fairly normal. [ 12 ] The accused Navjot Mahal also testified. He testified that he was frightened by being pulled over by the police officer. He didn’t know much about the Canadian Criminal Code or criminal laws. He testified that the officer told him to blow for five to seven seconds, and that on more than one occasion he did blow for five seconds. On cross-examination, he admitted that on some of these occasions he had more air and could have blown longer, but he stopped at approximately five seconds.

He denied that he intentionally stopped to avoid the results. He admitted that his look and speech were quite different than they appeared on the video of that evening. He testified however that this was not because he had been drinking on that evening. He testified that after a number of failed attempts, the officer appeared to be getting angry and frustrated with him. As a result, Mr. Mahal requested that somebody else be brought in for the testing.

ARGUMENT AND ISSUES 1) Whether the officer was justified in the initial vehicle stop. 2) Did the officer have a reasonable suspicion upon which to make the ASD demand? 3) Whether the ASD demand was made forthwith. The defence argued that eight minutes was required in order for the ASD machine to be delivered to the police officer. As a result, the demand was not made forthwith and as a result the accused could not now be convicted of failing to provide a sample in the ASD machine. 4) Whether there was a refusal by the accused to provide an adequate breath sample.

Whether the accused had the necessary intent to refuse. 5) Whether Mr. Mahal should have been earlier released by the Estevan police force. Assuming that there was an over holding of the accused, whether a judicial stay of the charges should be imposed. 6) Whether the accused could be convicted of impaired driving. ANALYSIS 1) Whether the officer was justified in the initial vehicle stop. [ 13 ] Defence counsel was successful in demonstrating that the accused did not flagrantly or aggressively blow the stop sign. He was successful in establishing that the accused “came to a rolling stop” at the stop sign.

In my view however, this is a difference without a distinction. Whether the accused blew the stop sign or “came to a rolling stop”, he failed to stop for a stop sign and committed an offence contrary to s. 209(6) of The Traffic Safety Act . As a result, the police officer was justified in stopping the accused’s vehicle. 2) Did the officer have a reasonable suspicion upon which to make the ASD demand? [ 14 ] There is abundant case law to the effect that reasonable suspicion for the ASD demand has both a subjective and an objective component.

The police officer must subjectively believe that the accused has alcohol in his body. There must be evidence upon which the Court can conclude that the officer’s decision was reasonable and supportable in the circumstances. The officer testified that he believed the accused had alcohol in his body. The accused clearly testified that he did. He testified that he had been drinking, but “he wasn’t that drunk”. The officer testified that the accused had a moderate smell of alcohol and had glossy eyes. I viewed the video of the

accused and would determine that he looked and sounded like he may be impaired. On all of the evidence, there is no doubt in my mindthat the officer quite reasonably and properly concluded the accused had alcohol in his body. As a result, the ASD demand was properlyjustified within the meaning of the section. 3) Whether the ASD demand was made forthwith. The defence argued that eight minutes was required in order for the ASD machine tobe delivered to the police officer.

As a result, the demand was not made forthwith and as a result the accused could not now beconvicted of failing to provide a sample in the ASD machine. [15] Mr. Owens argued that the ASD demand had to be made forthwith, and it was not because it took approximately eightminutes for the ASD machine to be delivered. I then asked Mr. Owens about the Court of Appeal decision in R. v. Janzen, 2006 SKCA111, and suggested that the Court of Appeal had specifically allowed for a short and reasonable delay in order for the machine to bedelivered. Mr.

Owens then argued that subsequent decisions of the Supreme Court of Canada, and in particular the Woods decision, hadcast doubt upon the Court of Appeal ruling. He argued that forthwith means forthwith. [16] I have attempted a cursory review of the case law and have found nothing that would indicate any reversal of the Janzendecision by the Supreme Court of Canada. In my view, the Janzen decision remains good law and is clearly binding upon me. In theJanzen case, Mr.

Justice Cameron delivered the judgment of the Court and stated as follows: [4] Turning to the first, we note that the leading cases on the issues raised by this ground of appeal stand for the proposition that“forthwith” means without delay, or its equivalent, and demonstrate that the expression without delay is to be taken as meaning withoutunreasonable or unjustified delay: R. v. Thomsen (1988), (SCC), 1 SCR 640; R. v. Bernshaw (1985), 1 SCR 254; R. v.Dewald (1996), (SCC), 1 SCR 68; and R. v. Woods (2005), 2005 SCC 42 , 2 SCR 205. (See, too, R. v.

Ritchie(2005), 2004 SKCA 9 , 11 WWR 593 (Sask C.A.).) We also note that the cases stand for the additional proposition that, indetermining whether a particular roadside screening test has been administered forthwith, it is necessary to have regard for thecircumstances of the case, including the extent of the lapse of time and the reason for it, and to assess the matter with the followingconsiderations in mind: (1) the balance between Parliament’s objective in combatting the evils of drinking and driving, on the one hand, and the person’sconstitutional right to be free of unreasonable search or seizure, on the other; and (2) of the fact that a person’s constitutional right to consult with counsel is suspended upon demand to provide a sample of breathpursuant to section 254(4). [5] With this in mind, and having regard for this Court’s decision in R. v.

Ritchie, cited above, we are of the respectful opinion that thetrial judge made too much of section 254(2) and its implicit requirement that the test is to be administered “forthwith”. In R. v. Ritchie,this Court held that a roadside screening test administered 11 minutes after demand (because the police had to await the delivery of aroadside screening device), had been administered lawfully, in the sense it had been administered “forthwith” and, therefore, incompliance with section 254(4).

Ritchie’s case is essentially indistinguishable from the present case, and we see no tenable basis fordeparting from it, having regard to the case law pertaining to the meaning of “forthwith” and the considerations bearing upon theapplication of the section. [17] On the basis of the case law and the evidence in this matter, I conclude that the demand was made forthwith, was properlymade, and must be complied with. The accused has not established any defence on this basis. 4) Whether there was a refusal by the accused to provide an adequate breath sample.

Whether the accused had the necessary intent torefuse. [18] Mr. Owens argued that the officer demanded a five second sample of breath, and the accused delivered that. As a result, thereis no refusal. He also argued on the basis of R. v. Lewko, 2002 SKCA 121, that the accused did not intend not to comply, but ratherintended to provide an adequate sample. As a result, the Crown had not established the necessary mental element. It had not establishedthat he intended to refuse. [19] I deal firstly with the issue of whether there was a refusal or failure to blow. I conclude there was a refusal or failure.

It istrue that the police officer stated that he required a continuous breath of five to seven seconds in duration. However, that was not thelegal or actual demand made of the accused. The legal or actual demand made of the accused was that he provide a breath sample

suitable for analysis. The statement regarding a five to seven second breath was merely an attempt by the police officer to describe in alayman’s terms what was required. Throughout the testing process, the officer repeatedly said as the accused blew into the machine:“Go, go, go ...”. At no time in this process did the police officer say stop or indicate the accused had provided a suitable sample. Contrary to the officer’s directions to “go, go, go”, on each occasion the accused disregarded that demand and stopped blowing. I notethat the accused appears to be a perfectly healthy and relatively fit individual.

There was not the slightest evidence that he stoppedblowing because of any medical impediment to providing further breath. To the contrary, under cross-examination, he admitted he couldhave continued to blow and extended his breath further. With this evidence, I am compelled to conclude that he terminated his breath,and in so doing he failed and/or refused to provide an adequate sample. [20] I would also conclude that the Crown has established the necessary mental element in that they have established that theaccused intentionally stopped blowing.

This is all the intention that need be established under the section. 5) Whether Mr. Mahal should have been earlier released by the Estevan police force. Assuming that there was an over holding of theaccused, whether a judicial stay of the charges should be imposed. [21] In cross-examination and argument, Mr. Owens suggested that there was a general policy within the City of Estevan to holdindividuals until morning, where there was a refusal to provide a breath sample. If such a policy exists, in my view it is of questionablevalidity.

As I understand the situation, the police make a determination as to whether an accused should be released based upon theaccused’s level of intoxication, and a determination that because of the accused’s level of intoxication, he may be a danger to himself orothers. In my view, this is the suitable and applicable criteria to determine whether an accused person should be released. The policeshould not avoid application of this criteria and in all cases remand an accused in custody until the following morning, simply on thebasis of a refusal to provide a breath sample.

Having stated this however, I would not be prepared to grant Charter relief or impose ajudicial stay on the basis of a possible over holding of this accused. In my view this issue was decided by the decisions of Mr. JusticeGerein and the Court of Appeal in R. v. Salisbury, 2012 SKCA 32, affg 2011 SKQB 153. I also note the very recent decisions in R. v.Hall, 2012 SKQB 233 and R. v. Yakubowski-Suderman, 2012 SKPC 115. In my view, if there was a breach in this area, it wascompletely unrelated to the charge against the accused.

Further, any breach was not flagrant in nature and I would not be prepared toimpose a judicial stay. 6) Whether the accused could be convicted of impaired driving. [22] I have had the ability to observe the accused in the witness box and the video of him during his period in the back of thepolice car, where he attempted on various occasions to provide a breath sample, but failed to do so. He looks and sounds very different inthe video than he appeared in the witness box. I would conclude that he was impaired on the night in question, and on the basis of R. v.Stellato (1993), (ON CA), O.J.

No. 18, that there was adequate evidence that the accused’s ability to drive wasimpaired by alcohol. However, given my decision with respect to the charge of refusing to provide an adequate sample in the ASDmachine, on the charge of impaired driving, I impose a judicial stay. CONCLUSION [23] I am satisfied beyond a reasonable doubt that the Crown has proved all of the requisite elements of the charge. Further, thatthe accused has not advanced any reasonable basis for failing or refusing to provide the breath sample.

Accordingly, the accused must beconvicted of the charge of refusal or failure to provide a breath sample. I impose a judicial stay with respect to the charge of impaireddriving. [24] Dated at Estevan, Saskatchewan this 23rd day of October, 2012. D. Kovatch, J