Her Majesty the Queen - v. -, 2011 SKPC 136

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 136 Date: August 23, 2011 Information: 24307701 (1)

(2) Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - Derek A. Gulka Appearing: Michael Morris For the Crown Ronald Piche For the Accused RULING ON VOIR DIRE J. BENISON , J CHARGES [ 1 ] Derek A. Gulka is charged that on or about June 13, 2010 at Weyburn, Saskatchewan, he did, while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to section 253(1) (

a) and section 255(1) of the Criminal Code , and that, on the same date he did, having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, operate a motor vehicle, contrary to section 253(1) (

b) and section 255(1) of the Criminal Code . CIRCUMSTANCES

[2] The accused was stopped for speeding at approximately 5:30 a.m. on June 13, 2010 at Weyburn. The investigating officerobserved signs of impairment and made an ASD demand, which resulted in a “fail” reading. The accused was taken to the WeyburnPolice Station where he provided two samples of breath at 6:33 a.m. and 6:54 a.m., both readings being 150 milligrams. ISSUES [3] A voir dire was held to determine the following issues: a. Was the ASD breath sample provided forthwith, within the meaning of section 254(2) of the Criminal Code? b.

Was the accused denied his rights to counsel at the Weyburn Police Station? c. Did the Crown prove service of a “true copy” of the Certificate of Analyses? d. Were the samples of breath obtained “as soon as practicable” as required by section 258(1)(

c) of the Criminal Code?

SUMMARY OF FINDINGS [4] In

summary, my conclusions are: a. The roadside demand for a sample of breath was not made “forthwith” and the sample of breath was not obtained “forthwith”within the meaning of section 254(2) of the Criminal Code. b. The accused’s rights to counsel under

section 10(

b) of the Charter were not breached at the Weyburn Police Station prior to theobtaining of Intoxilyzer samples. c. The Crown has proved service of a true copy of a Certificate of Analyses on the accused. d. The samples of breath were taken as soon as practicable within the meaning of section 258(1)(

c) of the Criminal Code. e. The evidence of the police officers, setting out signs of impairment observed on the accused, falls short of the standard requiredfor a conviction for impaired driving under section 253(1)(

a) of the Criminal Code. Accordingly, count 1 of the Information isdismissed. DETAILED ANALYSIS Was the ASD sample provided forthwith? [5] At approximately 5:30 a.m. on the day in question Constable Oberkirsch was driving on 18th Street in Weyburn: He met atruck coming towards him which he clocked at 81 kilometres per hour on his radar. The speed limit on that street is 40 kilometres perhour. The officer turned around, pursued the vehicle and brought it to a stop, observing that as the vehicle turned onto Highway 13, itwas in the oncoming lane for a short period of time.

The officer observed that the driver, identified as the accused, exhibited thefollowing signs of impairment: flushed face, dilated pupils and odour of alcohol beverage on his breath. At this point the officerconsidered it an investigation into impaired driving. He did not have an ASD in his vehicle and he immediately contacted another officerto deliver one to the location. At approximately 5:32 a.m. he asked the accused to enter the patrol car and advised him that he would berequesting a sample of breath.

Pending the arrival of the ASD, the officer started to make out a speeding ticket while the accusedremained in the back seat of the police car, making calls on his cell phone regarding his work duties. The ASD was delivered to thelocation at 5:42, at which time the officer made a formal demand for an ASD sample. The officer indicated that he allowed the accusedto take a few minutes to finish his phone call before making the demand.

A “fail” reading was obtained. [6] The Criminal Code does not explicitly require that the demand be made forthwith after the officer forms a suspicion thatalcohol is present in the accused’s body, but section 254(2) implicitly requires it: R. v. Dewald (1994), (ON CA), 92C.C.C. (3d) 160. [7] From the evidence presented in the voir dire, I find that Constable Oberkirsch formed the requisite suspicion atapproximately 5:32 a.m. Although he advised the accused that he would be making a demand for a breath sample, he did not in factmake the demand until the ASD was delivered to the scene at 5:42 a.m.

During this period of approximately ten minutes that theaccused was detained in the police car, his rights under

section 9 of the Charter were infringed. During this period the accused was notadvised of his rights to counsel; he was in possession of a cell phone. In these circumstances the officer is required to facilitate the

accused’s right to contact counsel if he has a realistic opportunity to do so: R. v. George (2004), (ON CA), 187 C.C.C. (3d) 289. Accused’s right to counsel at the police station [8] When the accused was taken to the Weyburn Police Station; he went into the counsel room at 5:57 a.m. to make a call tolegal counsel. While he was apparently talking to a lawyer, a rather bizarre, and certainly unusual, incident occurred. At approximately6:10 a.m., Constable Oberkirsch tapped on the glass portion of the door to the phone room, where the accused was and, upon attractingthe accused’s attention he held up five fingers.

Constable Oberkirsch explained that his intention was to let the accused know that hewanted to talk to him in five minutes because he might have to leave the office and turn the accused over to another officer.

He said thathe did not intend to cut short the accused’s consultation with his lawyer. [9] Regardless of Constable Oberkirsch’s intention in tapping on the glass and signalling to the accused, I find that his actions atthis point were unwarranted and improper. [10] About five minutes later, the accused came out of the phone room and advised Constable Oberkirsch that he was not happywith the lawyer he had talked to and wanted to talk to another lawyer. The accused was allowed to go back into the phone room andSergeant Hughes observed him using the phone during this period.

Constable Oberkirsch left the office and Sergeant Hughes was left incharge of the accused. Sergeant Hughes testified that he observed the accused for seven to eight minutes talking on the phone; he sawhim hang up the phone and come to the door of the phone room. Sergeant Hughes asked him if he was going to take the breath tests andthe accused answered “yes”.

In cross-examination Sergeant Hughes admitted that he might have said to the accused: “Are you going totake the breath tests or not?” Sergeant Hughes stated that this was not meant to be any kind of ultimatum but “a straight out question”. [11] The accused said nothing to suggest that he wanted further time to consult with a lawyer or that he had failed to reach anotherlawyer. In these circumstances, Sergeant Hughes was justified in concluding that the accused had exercised his right to counsel.

Therewas no indication of him waiving his right to counsel and therefore no requirement for the officer to give a Prosper warning. In essence, Constable Oberkirsch’s action in knocking on the glass ultimately had no effect on the accused’s right to counsel. After hecame out of the phone room, he was readily afforded a further opportunity to contact a lawyer beyond the five minute time limit that heclaims was imposed on him. [12] The accused testified on the voir dire. He said that he understood Constable Oberkirsch’s signal to mean that he had fiveminutes left to complete his call.

He also stated that he was not satisfied with the lawyer he spoke to. The accused further testified thatwhen he went back into the phone room he tried to contact another lawyer but it was mostly answering machines he got. He did notcontact another lawyer. The accused testified that there was another knock at the door and this led him to believe that his time was up. Ifound the accused’s account of this incident to be vague and sketchy. He stated in his testimony: There was another knock at the door...someone had motioned to speed it up...I don’t recall exactly.

I heard it and glanced over myshoulder...knowing what the knock had meant before. I didn’t get through to any lawyers and I figured my time was up anyhow, so I gotup and waited for someone to come to the door. [13] In cross-examination the accused was equally vague, saying: When I turned around there was a motion to the effect “hurry up”. I took it as hurry ... don’t even remember looking at who it was. [14] Under cross-examination, the accused claimed that he had a good memory whether drinking or not.

However his recollectionof the circumstances of the “second knock” is so vague as to be unreliable and not credible. [15] The only persons who could have knocked on the door were Constable Oberkirsch and Sergeant Hughes. ConstableOberkirsch had already left the building and Sergeant Hughes’ testimony was that he was observing the accused; there was no suggestion

that he knocked on the door and he was not questioned on this point in cross-examination. Both Constable Oberkirsch and SergeantHughes gave their evidence in a forthright manner and did not hesitate to make admissions under cross-examination that might reflect ontheir credibility. I found them both to be credible witnesses. I find that Sergeant Hughes did not knock on the door and I disbelieve theaccused’s testimony on this point. In arriving at this conclusion, I also considered some evasive answers given by the accused undercross-examination. Q. You had been drinking? A. The breathalyzer said I had. Q.

You said you weren’t? A. I’m not saying I didn’t. [16] The issue discussed in these questions is not particulary significant, but the exchange does give some insight into theaccused’s attitude to answering questions under oath. Was the Accused served with a true copy of a Certificate of Analyses? [17] The only basis of the defence argument on this issue is that Constable Oberkirsch did not compare the copy served on theaccused with the original Certificate of Analyses filed as Exhibit P-1.

Although he did not compare the copy to the original, ConstableOberkirsch identified Exhibit P-1 as the Certificate of Analyses given to him by Sergeant Hughes. In cross-examination he stated “I canexplain the copy I served”. He went on to say that the certificate comes in a pre-attached form and that he would have torn the accused’scopy from the form and served it. This is sufficient evidence to satisfy me beyond a reasonable doubt that a true copy was served on theaccused, even in the absence of the officer comparing the copy with the original.

There is no need for one copy of a pre-assembled formto be compared with the original when one is detached from the other. The case of R. v. Bergstrom (1982), (MB CA),65 C.C.C. (2d) 351, confirms this approach. Further I accept the reasoning in R. v.

Mavin (1997), (NL CA), 119C.C.C. (3d) 38, as authority for the proposition that proof that a copy has been served is prima facie evidence of its accuracy unless thereis an issue raised that the copy is not a true counterpart of the original; and that it is not a requirement that the police officer serving thecopy observed the certificate being typed or compared the copy with the original. [18] Mr. Justice Kyle in R. v. Longley (1997), (SK KB), S.J.

No. 207 at paragraph 9, sums up the approachthat the Courts should take on this issue: It would not be unreasonable to require that if there is to be a challenge under this subsection of the affidavit or of the copies supplied, itshould be based upon a discovered difference as between the copy and the original. Otherwise the refusal to admit the certificatebecomes merely the prize in a procedural game which can only bring the justice system into disrepute. The object of this

section is toassure that the accused knows the case he has to meet. Unless the copy which he receives is in some way different from the original,that object has been met. There is no reason to elevate the requirement beyond that level of importance. [19] In the unreported case of R. v. Vogel referred to by defence counsel, where the officer did not compare the original certificatewith the copy, there does not appear to be any additional testimony from the officer on which the Court might find, as I did here, that atrue copy was served.

Were the samples of breath obtained as soon as practicable? [20] The defence argument is based on Sergeant Hughes’ statement under cross-examination that he always waits 20 minutesbefore starting the tests: this is what he was taught to do. Sergeant Hughes further stated that he wants to observe the subject for 20minutes before taking the first sample to make sure that he hasn’t put anything in his mouth. He observed that the accused had somekind of mouth guard which Sergeant Hughes had to tell him two or three times to remove from his mouth. [21] Section 258(1)(

c) of the Criminal Code does not require that the test be taken at the earliest possible moment. The phrase “assoon as practicable” must be applied with reason. In this case, it is clear from Constable Hughes’ testimony that he was specificallyobserving the actions of the accused rather than just waiting out the 20 minute period. In particular, he had to give the accused directionson several occasions about removal of a mouth guard. In these circumstances, I am satisfied beyond a reasonable doubt that the samples

of breath were obtained as soon as practicable, in compliance with section 254(3) of the Criminal Code. Admission of Certificate of Analyses [22] In light of the above conclusions, the Certificate of Analyses filed as Exhibit P-1 is admitted into evidence. Application for Exclusion of Evidence under section 24(2) of the Charter [23] In view of my conclusion that the demand for a roadside sample was not made forthwith and that the sample of breath was notobtained forthwith, I must now consider whether the evidence obtained, in the form of the “fail” reading on the ASD, should beexcluded.

Following the procedures set out in R. v. Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1, I am required to balancethe seriousness of the breach, the impact of the breach on the Charter-protected rights of the accused and society’s interest in theadjudication of the case on its merits in determining whether admission of the evidence would bring the administration of justice intodisrepute. [24] In considering the seriousness of the breach, I consider that the normal procedure in a roadside screening device situation isthat the accused is not given the right to counsel.

Although there are cases where the courts have found that the accused had the right tocounsel in this situation, these are fact-based and it would impose a heavy burden on police officers if they were required to make such adecision in the case of a roadside stop. Constable Oberkirsch erred in not making a demand for a breath sample as soon as he had formedthe relevant suspicion. He did advise the accused that he would be requesting a sample of breath but he postponed the formal demanduntil the ASD was delivered to the location. The length of the arbitrary detention was brief.

I find that Constable Oberkirsch acted ingood faith in this part of the investigation. I find that there was no wilful or reckless disregard of the accused’s Charter rights and thatthe violation was minor. [25] The Grant case suggests with respect to the third line of inquiry that the Court will usually favour admission in casesinvolving bodily samples, given the reliability of the evidence and the risk of error in depriving the trier of fact of the evidence.

Theevidence obtained in this case is reliable and its exclusion would in effect result in the acquittal of the accused. [26] Considering all the circumstances of this case I am satisfied that society’s interest in the adjudication of the case on its meritsoutweighs any concern about the seriousness of the breach or its impact on the accused’s Charter-protected rights. I am not satisfied ona balance of probabilities that the admission of the evidence of the result of the ASD failed reading would bring the administration ofjustice into disrepute.

Accordingly, the defence application under section 24(2) is dismissed and the “fail” reading on the ASD isadmitted into evidence. _______________________________ J. Benison, J