Her Majesty the Queen - v. -, 2012 SKPC 96

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 096 Date: June 07, 2012 Information: 24426565 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Margaret Colborn Appearing: B. Bauer For the Crown M. Owens For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused was charged on June 19, 2011 at Delisle with Count #1, impaired driving and Count #2, driving while over .08. [ 2 ] The trial proceeded by way of voir dire with the admissible evidence being applied to the trial proper. The Crown called

the investigating officer, RCMP Constable Impey, as its sole witness. The Defence called no evidence on the voir dire or upon the trialitself. [3] At the conclusion of the trial, the Crown entered a stay of proceedings on Count #1 relating to the impaired driving charge. II ISSUES [4] The following issues remain for determination:

a) Whether the Crown proved that the roadside tester was an approved screening device within the meaning of the CriminalCode;

b) Whether the Crown proved the requisite elements for a valid s. 254(2) demand;

c) Whether the breath samples were taken as soon as practicable; and

d) Whether the Affidavit of Service on the Certificate of Analyses was deficient by reason of lack of compliance with s. 5(2) of theCommissioner for Oaths Act. III DECISION [5] At the outset, the Court can state that the principal issue to be resolved relates to

b) Whether the Crown has proved therequisite elements for a valid s. 254(2) demand, primarily based upon the reliability of the investigating officer’s recollection of events. This argument shall be dealt with last. [6] As far as the other three issues raised are concerned, the Court is satisfied on the evidence that they can be answered in theaffirmative, based upon the following brief reasoning:

a) Approved Instrument Constable Impey testified that he employed a “Draeger Alcotest 7410” to administer the roadside test. Defence counsel argued that thiswas not a proper description according to the Criminal Code Regulations. In a recent decision, R. v. Spilde, 2011 SKPC 97 ,2011 SKPC 097, this Court had opportunity to deal with this same issue at paragraphs 6 to 8: [6] Constable Gill described the instrument used as 7410 GLC and also provided the serial number for the device from his notes. He further testified that his reference to ASD meant “approved screening device”. In the recent decision R. v.

Helm[1], Mr. Justice Popesculheld on remarkably similar facts to the present case at para. 24: [24] It is an error in law to hold that the use of a shorthand description of the device employed, in the absence of any other evidence thatthe device was not approved, means that the device was not approved and cannot be used as the basis for the officer’s requisitereasonable and probable grounds. This amounts to applying the wrong legal approach to the proof of the charge that was before. Thecourt is entitled to draw reasonable inferences from all of the facts.

The officer referred to the device as an “ASD”, which, in all of thecircumstances, could only mean that she used that term as an abbreviation for an “approved roadside device”. Furthermore, the fact thatthe officer described the machine as an “Alcotest 7410”, rather than using the full trade name used in the regulations, such as the“Alcotest ® 7410 PA3” or “Alcotest ® 7410 GLC”, is of no legal consequence. To hold that the officer must use terminology that

precisely matches the gazetted regulations is an error in approach that amounts to an error in law. See R. v. MacLeod , 2009 YKCA 5 , 79 M.V.R. (5 th ) 171, where in similar circumstances, the Yukon Court of Appeal held that a trial judge’s finding that the screening device used must precisely match the devices listed in the regulations is an error in law. [7] Mr. Justice Popescul further states at para. 26: [26] The regulations list a number of screening devices that have been approved, two of which are the “Alcotest ® 7410 PA3” and the Alcotest ® 7410 GLC”.

The only reasonable conclusion that can be drawn from the uncontroverted evidence called at trial is that the “Alcotest 7410” described by the officer was either the “Alcotest ® 7410 PA3” or the “Alcotest ® 7410 GLC”. [8] In reaching his conclusions, Popescul, J. considered and relied upon the Ontario Court of Appeal decision in R. v.

Gundy [2] , paragraphs 47 and 48 of which state as follows: [47] In my view, cases holding that the officer did not have reasonable and probable grounds because, although the officer referred to the device as an approved screening device, he or she used a shorthand reference to the device or transposed some of the numbers of letters are wrongly decided. In the absence of some credible evidence to the contrary, it is not reasonable to infer that an officer who says that he or she used an approved screening device actually used an unapproved device. That was the holding of this court in R. v.

Kosa (1992), 42 M.V.R. (2d) 290 (Ont. C.A.), at 291 : We are of the view that the manufacturer’s model number given by the officer in evidence as Model JA3 rather than Model J3A as set forth in the regulations was no more than an innocent transposition of a number and letter and that the unchallenged assertion by the officer that it was an approved screening device is sufficient proof thereof .

If such is the case, there is no need to look further to justify the finding of reasonable and probable grounds. [Emphasis added.] Accordingly, the Court finds the Crown has proven the roadside tester utilised here was an approved instrument.

c) As soon as practicable The accused was stopped at 11:53 p.m. in the town of Delisle. An ASD demand was made at 11:56 p.m. Following one unsuccessful attempt, the accused gave a proper sample registering a “fail”. At 12:00 a.m. she was arrested for impaired driving and thereafter transported to the Delisle detachment arriving at 12:08 a.m. Prior to transport, Constable Impey called for a technician to attend at the detachment. Constable Reimer responded by radio that he was on the way. He then arrived at 12:34 a.m. Ultimately, the first test was administered by Constable Reimer at 12:46 a.m.

In cross-examination, Constable Impey stated that Warman, to his knowledge, was 71 kilometres away and Saskatoon 41 kilometres from Delisle and thereafter roughly ten to fifteen minutes to the detachment through the city. Given that Constable Reimer arrived at roughly the same time it would have taken to go directly to the Saskatoon detachment (approximately 35 minutes) the Court is satisfied the tests were taken “as soon as practicable”.

The situation may well have been different if Constable Reimer had in fact arrived well beyond the time it would have taken to go to Saskatoon since Constable Impey did not inquire as to his whereabouts. However, as stated, on the facts, this was not the case.

d) Affidavit compliance on Certificate of Analyses The Defence raised the issue post-trial that the jurat on the Affidavit of Service was improperly completed by the Commissioner for Oaths because his signature was not in the proper order on the document. However, the Certificate of Analyses was made a full exhibit at trial without objection as to such irregularity. Further, the decision of R. v. Marcil [3] would apply if the Court were inclined to accede to this argument.

In that case, the Court of Appeal held in such circumstances that if the trial judge were to consider reviewing his or her finding of fact admitting the Certificate, the Crown should then be permitted to re-open its case to prove the contents of the Certificate by viva voce evidence. [4] This is unnecessary in this instance in any event since the Court is not inclined to impugn the admissibility of the

Certificate of Analyses at this stage. b) Section 254(2) demand [ 7 ] The remaining issue of whether the Crown has proven that the investigating officer’s subjective conclusion of reasonable suspicion of alcohol in the body of the accused can be objectively supported, rests specifically on the reliability of the officer’s recollection of events at roadside concerning the grounds to make the ASD demand. [ 8 ] The thrust of the Defence position in this regard is two-fold:

a) the absence of any notes referencing his viva voce evidence at trial; and

b) his demonstrated inability in his testimony to accurately recall events including as recent as the day of trial itself. [ 9 ] On the first point, the Court must state at the outset, in itself, the dearth or complete lack of notes is not determinative of the issue of credibility or reliability. As pointed out by Crown counsel in argument, officer’s notes are for the benefit of the officer to assist in memory recall. Lack of detail or gaps relating to points testified to at trial does not mean that such evidence will be discounted out of hand by the trier of fact.

The Court however must consider this as a factor in assessing overall reliability of the evidence having regard to all the circumstances of the case. [ 10 ] In this instance Constable Impey’s notes were scant indeed. He recorded the time of the stop at 11:53 p.m. and the name and date of birth of the accused. The next entry is the bare notation of “11:56 p.m.”.

At trial Constable Impey testified that in the intervening minutes between 11:53 p.m. and 11:56 p.m. he had asked the accused if she had anything to drink to which she responded “a few.” He further testified that he made physical observations of slight slurring of speech, odour of alcohol on the breath, red eyes and a flushed face. None of this was referred to in his notes however and his evidence was that the first he had disclosed this was today i.e. on the trial date. [ 11 ] Constable Impey further testified that:

a) between the offence date of June 19, 2011 and the trial date of March 26, 2012 he had made approximately 2,200 traffic stops, 25 of which were impaired driving investigations;

b) he was not able to keep all investigations separate and apart but could keep the impaired investigations separate in his mind by “reviewing my notes” (in this instance, as indicated, there were no such notes to refresh from regarding the critical evidence of the grounds to make the demand).

c) he should be writing this stuff down;

d) his memory of events was better at the time of the occurrence. [ 12 ] On the second point concerning the officer’s alleged current memory deficiencies the Court noted the following:

[ 12 ] On the second point concerning the officer’s alleged current memory deficiencies the Court noted the following:

a) he did not recall whether he had in fact discussed the issues concerning the roadside conversation and observations with the prosecutor on the date of trial or not (approximately two hours beforehand);

b) on the issue of alcohol odour on the breath he stated specifically “. . . I might have told the prosecutor today . . . I believe that I told him - I am not 100% sure”;

c) regarding note taking concerning conversations the following exchange took place in cross-examination: Q Sometimes you write down conversations and sometimes you don’t? A I don’t recall. Q You don’t remember if sometimes you write them down? A No. Q So possibly you never write down conversations? A It is possible. Q But you don’t remember. A I don’t recall. [ 13 ] In all the circumstances, the Court has serious concerns about the reliability of Constable Impey’s recollection of events in this particular case.

In fairness, as Crown counsel pointed out, he did not waver or contradict himself on his evidence regarding the grounds which were more than sufficient to make the s. 254(2) demand. However, how can the Court have confidence that he is accurately recalling this incident, some other incident, or a compilation of the 24 other impaired investigations or over 2,000 other traffic stops he made in the past year?

By his own admission he should be “writing this stuff down” which would appear eminently sensible given the incredible number of traffic encounters and investigations he is involved with carrying out his duties in the traffic division. This is underscored by his demonstrated lack of recall on both general practice and recent events. [ 14 ] The onus lies on the Crown to establish that the requisite grounds to make the s. 254(2) demand (and a s. 254(3) demand which the officer conceded rested solely on the ASD fail) have been met.

In this case, the Court is not satisfied that the Crown has met its onus for the reasons stated. [ 15 ] By virtue of the Court’s finding, the accused has established breaches of her ss. 8 and 9 Charter rights. Having due regard to the Grant analysis [ 5] , it is appropriate the Certificate of Analyses be excluded from the evidence. [ 16 ] The accused is accordingly found not guilty on Count #2 of the Information, driving while over .08. _______________________________ R.D. Jackson, J [1] 2011 SKQB 32 (Sask. Q.B.)

[2] 2008 ONCA 284 (57 C.R.) (6th) 369 (Ont. Ct. of Appeal) See also: R. v. Donald, 2010 SKPC 123 (Sask. Prov. Ct.), R. v. Usselman, 2010 SKPC 83 (Sask. Prov. Ct.); R. v. Caplette, 2010 SKPC32 (Sask. Prov. Ct.) [3](1977) (SK CA), 31 C.C.C. (2d) 172 (Sask. C.A.) [4] The same reasoning would apply to service of the Certificate of Analyses. [5] R. v. Grant, 2009 SCC 32 , 2009 S.C.C. 32, [2009] 2 S.C.R. 353; See also R. v. Anderson, 2011 SKCA 13 (Sask. C.A.)