Her Majesty the Queen - v. -, 2015 SKPC 145

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 145 Date: October 13, 2015 Information: 90003807 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Se Jim Steven An Appearing: Ms. T. Denluk For the Crown Mr. A. Fox For the Accused DECISION ON CHARTER VOIR DIRE & TRIAL M. HINDS , J INTRODUCTION [ 1 ] Se Jim Steven An (Mr.

An) is charged that on or about October 4, 2013, at or near Regina, he did without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer pursuant to section 254(2) of the Criminal Code , to provide a sample of his breath to enable analysis to be made by means of an approved screening device contrary to section 254(5) of the Criminal Code .

[ 2 ] The defence takes the position that the approved screening device (ASD) demand was not made forthwith and the ASD test itself was not administered forthwith. As a result the defence maintains there was no obligation on Mr. An to comply with an unlawful ASD demand and hence there is no basis for a refusal charge. The defence also submits that as the ASD demand is not lawful then (1) the detention of Mr. An necessary to obtain the breath sample was arbitrary and violates

section 9 of the Charter , and

(2) Mr. An’s rights under

section 10(

b) of the Charter are not suspended during the period of his detention and attempts to obtain samples of his breath without informing Mr. An of, and implementing, the right to counsel violates

section 10(

b) of the Charter . As a result, the defence takes the position that any refusal evidence should not be admitted into evidence at trial. Alternatively, the defence submits that if this Court determines a lawful ASD demand was made and the refusal evidence is admitted at trial, that the Crown has failed to prove beyond a reasonable doubt that the accused intended to fail or refuse to comply with the breath demand. [ 3 ] At the onset of the trial, the Court entered into a voir dire in order to determine whether the refusal evidence should be entered into evidence.

There were four witnesses: Constables Jarrett Czernick, Chad Hesse, Peter Froh and the accused, Mr. An. At the conclusion of the Charter voir dire counsel for the Crown and for Mr. An indicated no further evidence would be called at the trial, regardless of my ruling on the Charter issues. Counsel also agreed that any admissible evidence from the voir dire could be applied to the trial. [ 4 ] During the Charter voir dire I have determined that there was a breach of the accused’s

section 9 and 10(

b) Charter rights. I embarked upon the section 24(2) analysis set out by the Supreme Court of Canada in R v Grant , 2009 SCC 32 , [2009] SCJ No 32, and found that refusal evidence should not be admitted into evidence at the trial. [ 5 ] After considering the evidence before me at trial, I also determined that the Crown has not proved beyond a reasonable doubt that the accused failed to comply with the breath demand. As a result I found the accused not guilty of the offence before the Court.

FACTS [ 6 ] Constables Czernick and Hesse of the Regina Police Service were working together on patrol duties in a marked police car during the early morning hours of October 4, 2013. Constable Czernick testified on October 4, 2013, there were not enough Approved Screening Devices (ASD) to equip each police vehicle with one. As a result, Constables Czernick and Hesse were not equipped with an ASD. At 3:16 a.m. the officers were dispatched to The Broken Rack, a pool hall/licenced premises located in the Golden Mile Shopping Mall, 3806 Albert Street.

The initial dispatch reported a domestic disturbance was in progress. A taxi driver lodged a complaint concerning a male and female who had been in his taxi. Both were said to be intoxicated and arguing. The report indicated that the male was attempting to put the female into a vehicle. An update indicated that the male was attempting to pull the female from a vehicle. A further update indicated the male and female got into a white BMW vehicle which was leaving The Broken Rack. [ 7 ] The police officers arrived near The Broken Rack at 3:21 a.m.

They observed a white BMW vehicle pull out of the parking lot of The Broken Rack followed by a taxi. The police got behind the white BMW at the intersection of Albert Street and Parliament Avenue and activated their lights and siren. The BMW soon came to a stop. Constable Czernick approached the white BMW at 3:21 a.m. At this time Constable Czernick knew he was investigating a possible domestic dispute and an impaired driving. He observed that the accused, Mr. An was situated in the driver’s seat of the vehicle and determined he had been driving.

Constable Czernick also observed a female, who he determined to be Faye Whitequill, who was either sleeping or passed out in the front passenger seat. [ 8 ] Constable Czernick spoke to Mr. An at roadside for a few minutes. Mr. An was initially asked to produce his driver’s licence. Initially Mr. An was less than compliant and he asked Constable Czernick why he needed his driver’s licence. After two requests, Constable Czernick obtained Mr. An’s driver’s licence. When asked to produce his vehicle registration, Mr. An was quite flippant and told Constable Czernick that he could “look it up”.

Constable Czernick detected the smell of alcohol coming from the vehicle. He then asked Mr. An to step out of the vehicle and come back to the police patrol car. Mr. An complied. Constable Czernick told Mr. An that he was looking into a complaint of a domestic dispute, he wanted to find out what was going on and that he wanted to separate Mr. An from his passenger. I find there were in fact two purposes for asking Mr. An back to the patrol car. The first purpose was related to an investigation concerning the domestic dispute, which was articulated to Mr. An. Constable Czernick wanted to separate Mr. An from Ms.

Whitequill and determine her condition. The second purpose, which Constable Czernick did not articulate to Mr. An,

was for the purpose of investigating a possible impaired driving charge. [ 9 ] Constable Czernick put Mr. An in the back of the patrol car and left him in the care of Constable Hesse who was situated in the front passenger seat. A silent patrolman separated the two men. Constable Czernick then checked on Ms. Whitequill for approximately one minute. He determined that she was passed out from alcohol consumption and was non-responsive. [ 10 ] Constable Czernick returned to the patrol car where he and his partner Constable Hesse both observed a smell of alcohol coming from the back seat where Mr. An was sitting.

I find that once in the patrol car the two officers spoke to each other and exchanged information regarding the general situation before them and also their observations of Mr. An for several minutes.

These observations included (1) the dispatch information that a male and female had been in a taxi near a business that served alcohol, (2) the dispatch information that the male and female were intoxicated, had been arguing, tussling and eventually got into a white BMW vehicle at The Broken Rack, (3) they stopped a white BMW vehicle a short distance away from The Broken Rack which was driven by a man with a woman passenger, (4) the smell of alcohol coming from the white BMW vehicle, (5) the smell of alcohol coming from Mr. An while situated in the back of the patrol car,

(6) Mr. An’s denial to Constable Hesse that he and his female passenger had been arguing,

(7) Mr. An telling Constable Hesse that he “wasn’t really drinking”, and

(8) Mr. An’s passenger Ms. Whitequill was passed out from consuming alcohol. The ASD Demand of Mr. An [ 11 ] At 3:34 a.m., Constable Czernick made a formal demand for Mr. An to provide a sample of his breath into the approved screening device (ASD). This demand was read from his police-issued card. Mr. An said he understood the demand. The Delay in Obtaining an ASD [ 12 ] As mentioned earlier, the police were not equipped with an ASD. At 3:37 a.m., Constable Hesse got on the police radio and requested that other nearby police units deliver an ASD to their location on Albert Street.

Constable Froh responded to the call for an ASD. He arrived on scene with an ASD eight minutes later and provided it to Constable Hesse at 3:45 a.m. [ 13 ] Constable Hesse confirmed the ASD had been recently calibrated and turned the ASD on. A battery test and a self test indicated to Constable Hesse that the ASD was functioning properly. Constable Hesse inserted a new mouthpiece into the ASD. He presented the ASD to Mr. An and gave instructions to Mr. An on how to use the mouthpiece and provide a suitable breath sample. Specifically Constable Hesse told Mr.

An he would have to form a tight seal with his mouth on the end of the mouthpiece and blow one continuous breath of air until Constable Hesse told him to stop. Constable Hesse also told Mr. An that the ASD will make an audible tone which he described as a “pinging noise” which indicates that air is actually going into the ASD. Mr. An ’s ASD Breath Attempts [ 14 ] Mr. An had eight opportunities to blow into the ASD over the course of five minutes between 3:46 a.m. and 3:51 a.m. None of Mr. An’s eight breath attempts produced a sample which was analysed by the ASD. During this time Mr.

An was told by Constable Hesse that he was not blowing hard enough into the ASD. Mr. An countered that he was blowing. Constable Czernick placed Mr. An under arrest for refusing to provide a sample of his breath at 3:51 a.m. Constable Czernick then went on to read Mr. An his Charter rights. Mr. An indicated that he understood his rights and that he wanted to call a lawyer right now. Mr. An was taken to the Regina Police Station [ 15 ] Officers Czernick and Hesse took Mr. An to the Regina City Police Station. They arrived at 4:00 a.m. at the cell block and provided him with a chance to call a lawyer.

At 4:40 a.m., Mr. An indicated that he wanted to call his sister who is a lawyer in Saskatoon. Mr. An did not speak to his sister. Police asked Mr. An if he wanted to contact another lawyer or Legal Aid. Mr. An declined. Mr. An was advised that he could call a lawyer at a later time.

CHARTER ISSUES 1. Were the requirements of s. 254(2) of the Criminal Code met? That is, has the Crown established that a lawful ASD demand was made? I will address this issue as follows:

a) Did the police delay in making the ASD demand of Mr. An?

b) Did the police administer the ASD test to Mr. An forthwith?

c) If there was police delay surrounding the ASD, did this result in a violation of the accused ’ s

section 9 and10(

b) Charter rights?

d) If the accused ’ s

section 9 and 10(

b) Charter rights were violated, should the refusal evidence be excluded pursuant to s. 24(2)? TRIAL ISSUE 2. Whether the Crown has proved beyond a reasonable doubt that Mr. An intended to fail to comply with the breath demand . The Approved Screening Device, Section 254(2)(

b) of the Criminal Code [ 16 ] At the time of the offence, section 254(2) (

b) of the Criminal Code in part read as follows: 254(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, within the preceding three hours operated a motor vehicle . . . or had care or control of a motor vehicle, . . . whether it is in motion or not, the peace officer may, by demand require the person to comply with . . . either or both of paragraphs (

a) and (b), in the case of alcohol: (

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 an approved screening device and, if necessary accompany the peace officer for that purpose ANALYSIS Whether the requirements of s. 254(2) (

b) of the Criminal Code were met. That is, has the Crown established that a lawful ASD demand was made? [ 17 ] In R v Birnie , 2013 SKPC 50 at paragraphs 9 - 11 , Judge Kalmakoff (as he then was) provided a helpful explanation regarding the interplay between an ASD demand, the offence of refusal and the Charter : 9 In order for a demand of this nature to be lawful, it must comply with section 254(2) (

b) 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 three hours, and (

b) has alcohol in his or her body; and (2) make a demand that the person provide the breath sample forthwith. 10 In a case of refusal, the Crown must prove the lawfulness of the demand beyond a reasonable doubt. A person who refuses to

10 In a case of refusal, the Crown must prove the lawfulness of the demand beyond a reasonable doubt. A person who refuses tocomply with a demand which does not itself comply with section 254(2)(

b) is entitled to an acquittal, because there is no obligation tocomply with an unlawful demand: R. v. Grant, (SCC), [1991] 3 S.C.R. 139; R. v. Lytle, 2008 SKPC 156. In such a case,no Charter application is required: R. v. Luider-Grebnev, 2013 SKPC 22. 11 Furthermore, if the 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 S.C.R. 640; R. v. Grant, supra. The accused is required to establish a Charter breach on a balance ofprobabilities. (

a) Did the police delay in making the ASD demand of Mr. An? [18] In R v Billette, 2001 SKQB 150 [Billette], Madam Justice Ryan-Froslie (as she then was) did an extensive review of the lawrelating to section 254(2) of the Criminal Code and held that an ASD demand by the officer must be made forthwith, not justadministered forthwith. Justice Ryan- Froslie determined that there is an immediacy requirement in respect of the ASD demand. Atparagraph 12, Justice Ryan-Froslie said: 12 It is obvious that the procedural scheme set out in s. 254 of the Criminal Code depends upon timing. Time is very important.

Thereason for this is obvious. If the Crown is to prove an offence within the necessary window, samples must be taken in a timely fashion.Thus, while s. 254(2) does not state that the demand must be made "forthwith", it is implicit that this is the case. Justice Arbour of theOntario Court of Appeal in R. v. Pierman (1994), (ON CA), 19 O.R. (3d) 704, speaking for the majority, held thisview and stated at para. 5 as follows: ... [I]t is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driverhas alcohol in his or her body. This is the only

interpretation which is consistent with the judicial acceptance of an infringement on theright to counsel provided for in s. 10(

b) of the Charter. If the police had discretion to wait before making the demand, the suspect wouldbe detained and therefore entitled to consult a lawyer. The basis upon which the courts have held that Parliament may infringe on asuspect's right to counsel is that there is no opportunity for the police to accommodate that right if the breath sample must be taken"forthwith". It follows, in my view, that for the

section to maintain its constitutional integrity we must assume it also contemplates thatthere be no opportunity for the suspect to consult counsel before the demand is made. [19] In Billette, Justice Ryan-Froslie also held that “forthwith” meant as quickly as possible in the circumstances. At paragraph 19,she states as follows: It is obvious that “forthwith” means as quickly as possible in the circumstances. There should be no undue delay because the normaloperation of s. 254(2) an individual’s s. 10(

b) Charter rights are being infringed and because under the general scheme set out in s. 254,time is of the essence. [20] In R v Janzen, 2006 SKCA 111, 285 Sask R 296 at para 4, the Saskatchewan Court of Appeal interpreted "forthwith" asmeaning "without unreasonable or unjustified delay".

The Court held it must consider the length of the delay and the reasons for it inthe context of the circumstances of the case, while balancing Parliament's objective in combatting the dangers of drinking and drivingagainst the constitutional right to be free from unreasonable search or seizure and the fact that a person's right to consult counsel issuspended upon a demand for a screening sample pursuant to section 254(2). [21] More recently, in R v Anderson, 2014 SKCA 32 at para 31, 433 Sask R 255 [Anderson], the Saskatchewan Court of Appeal heldthat the so-called “forthwith window”, being the time within which the police officer must require a driver to provide a breath samplebegins when the police officer develops a reasonable suspicion that the accused has alcohol in their body.

In Anderson, Mr. JusticeWhitmore went on to find that the immediacy requirement in s. 254(2) necessitates the courts to consider five criteria as set out by theOntario Court of Appeal in R v Quansah, 2012 ONCA 123 at paras 45-49, 286 CCC (3d) 307: 45. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mindParliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguardindividual Charter rights.

46. Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion. 47. Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible

interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2). 48. Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably neces sary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement. 49.

Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(

b) rights before requiring the sample. If so, the "forthwith" criterion is not met. [emphasis added] [ 22 ] Counsel for the defence takes the position that Constable Czernick did not make the ASD demand of Mr. An forthwith. In particular defence counsel points to the time period of approximately 13 minutes between 3:21-22 a.m. when Constable Czernick signalled Mr. An to stop and briefly spoke to Mr. An at roadside and 3:34 a.m. when he actually made the ASD demand of Mr. An. [ 23 ] I do not accept this argument.

On the contrary, I am satisfied that the Crown has established that both officers took a reasonable amount of time to discharge their duties to investigate a complaint of a possible domestic disturbance and impaired driving. [ 24 ] Beginning at 3:15 a.m., the two officers became aware of a possible domestic disturbance near The Broken Rack involving an intoxicated male and female who were arguing and involved in some type of physical struggle near a vehicle. The male and female were reported to have left the scene in a white BMW.

At 3:21 a.m., the officers were close to The Broken Rack and observed a white BMW driving away. The officers stopped the white BMW vehicle. Constable Czernick first encountered Mr. An and an unresponsive Ms. Whitequill at the roadside at approximately 3:22 a.m. At that time the smell of alcohol coming from the An vehicle could not be solely attributed to Mr. An. Given these circumstances, Constable Czernick made a decision to separate Mr. An and his passenger. He placed Mr. An in the patrol car with Constable Hesse.

This gave both officers an opportunity to assess the totality of the situation before them. [ 25 ] Constable Hesse spoke to Mr. An and obtained relevant information from him. Contrary to the dispatch information provided from a taxi driver, Mr. An denied that he and Ms. Whitequill had been arguing. In addition, Mr. An also told Constable Hesse that he “ wasn ’ t really drinking ” . Lastly Constable Hesse made note of the odour of alcohol coming from Mr. An. Constable Czernick went to check on Ms. Whitequill. Constable Czernick determined that she was passed out from alcohol consumption.

Upon returning to the patrol car, Constable Czernick also observed the smell of beverage alcohol coming from Mr. An. [ 26 ] I am satisfied that Constable Czernick ’ s ASD demand of Mr. An at 3:34 a.m. was made as soon as he formed the reasonable suspicion that Mr. An had been driving a motor vehicle and had alcohol in his body. While Constable Czernick was aware Mr. An was driving a motor vehicle at 3:21-22 a.m. and may be intoxicated, I find that Constable Czernick required further time to come to the reasonable suspicion that Mr. An (and not his passenger, Ms. Whitequill) had alcohol in his body.

This meant taking the time to separate Mr. An from Ms. Whitequill. This also meant isolating Mr. An in the back of the patrol car and making observations and gathering information solely in relation to Mr. An. I find this additional information gathering was concluded at 3:34 a.m. when Constable Czernick made the ASD demand of Mr. An. (

b) Did the police administer the ASD test to Mr. An forthwith? [ 27 ] In this case, the ASD test was administered to Mr. An at 3:46 a.m., twelve minutes after the ASD demand at 3:34 a.m. At 3:37 a.m., Constable Hesse got on the police radio and requested that other nearby police units deliver an ASD to their location. Constable Froh arrived on scene with an ASD eight minutes later and provided it to Constable Hesse at 3:45 a.m. Mr. An ’ s first sample into the ASD occurred at 3:46 a.m. [ 28 ] The evidence also reveals that despite the fact that the officers: (1) were engaged in early morning general patrol duties which

[ 28 ] The evidence also reveals that despite the fact that the officers: (1) were engaged in early morning general patrol duties which often involve the investigation of drinking and driving offences, (2) were well aware that they were not equipped with an ASD, (3) at 3:15 a.m. they were dispatched to investigate a complaint involving a possible domestic disturbance and an intoxicated driver, and (4) at 3:22 a.m. were actively investigating Mr. An respecting a possible drinking and driving offence and (5) did not look into the availability of an ASD unit prior to 3:37 a.m.

It is also of concern to this Court that for no good reason three minutes went by after Constable Czernick made the ASD demand of Mr. An (3:34 a.m.) before Constable Hesse got on the police radio (3:37 a.m.) and requested that other nearby police units deliver an ASD to their location on Albert Street. Overall, I was left with the impression that the two officers took what I would describe as a rather casual, laid-back approach to obtaining an ASD unit, as opposed to recognizing the requirement of immediacy.

This approach may be a result of a certain amount of indifference that has crept into the Regina Police Service given that there are not enough ASD ’ s in the Regina Police Service equipment room for each patrol car to have one. I am of the view that the testimony of Constable Czernick on cross-examination partially illustrates this casual, laid-back approach. Understandably Constable Czernick was unable to say how many ASD’s the Regina Police Service had on October 4, 2013. Nor could he say how many of those ASD’s were in working order at that time.

However, I found the following exchange telling: Q: So I take it then it is a situation then, if you were out on patrol and needed an ASD device, you then would have to summon to bring it to you? A: That’s correct. Q: Is that still the situation now? A: Yes. . . . Q: Did it occur to you to just, when you didn’t have one (ASD) after you made your demand to just take him (Mr. An) to the police station? A: Could you repeat that? Q: Yep. So you decided to make the demand. A: Right. Q: Did it occur to you, did the thought cross your mind, maybe we should just go to the police station?

We don’t have an ASD device here, why don’t we just go to the police station. A: There is many officers on patrol. I didn’t think of that at the time. We assumed it would be less than 15 minutes by the time we would have a roadside screening . . . for the ASD. Q: I take it that wasn’t the only time in your career you had to summon for an ASD device? A: No. Q: You hope it’s going to be there within 15 minutes or something like that? A: Yeah. Within reason, right. Q: Yeah. It depends where it is coming from in the city?

A: Correct. [ 29 ] This is not the first time this Court has commented negatively upon a situation where the police are not equipped with an ASD and require one. For example in R v Hatzel , 2011 SKPC 59 [ Hatzel ] at para 23 , Judge Beaton agreed with and adopted the comments made by Duncan J. in R v Beattie , [2009] OJ No 4121 (Ont CJ) at paragraph 31 : There is no mystery or complexity to a straightforward temporally measured “forthwith” and the officer should have been aware that he was stretching his authority in detaining the defendant for a later roadside screening test.

Quite apart from this particular officer, I find it a serious matter that the constitutionally mandated requirement of near immediacy for roadside testing has crept ever forward to where “forthwith” is now regarded by some if not many as including “when we can” or “when it gets here” a view never endorsed by and in fact sharply at odds with the Supreme Court of Canada. [ 30 ] In this case, I am of the view that the police officers did not heed the constitutionally mandated requirement of near immediacy for the roadside testing. A more casual approach was taken. No thought was given to taking Mr.

An to the police station for testing. Moreover, three minutes passed after the ASD demand was made and the radio call went out for an ASD. Constable Czernick

“hoped” that an ASD would be there within 15 minutes or something like that. [ 31 ] In Hatzel , Judge Beaton also went on to say as follows at paragraph 24: Police officers ought to be aware that time is of the essence in obtaining roadside breath samples. In the present case, the bulk of the delay was due to awaiting the arrival of the ASD. Should officers choose not to carry an ASD in their vehicles, they do so at the peril of unlawfully detaining accused people and potentially having critical evidence excluded by the Courts. There is a limit on how long police can wait for the availability of the ASD.

Given the reason for the delay, the police conduct showed a reckless disregard for the accused’s Charter rights. This breach is a serious one and not merely a technical one. [ 32 ] In R v Proskie , 2013 SKPC 149 , the case involved an accident near Kamsack, Saskatchewan, just after 3:30 in the afternoon . The police, after arriving at the scene, made the ASD demand to the accused. However, the officer did not have an ASD in the police cruiser and had to order it at the Kamsack Detachment. The ASD arrived 12 minutes later.

On the accused ’ s application to exclude the Certificate of Analyses and other evidence based on alleged Charter breaches, Judge Green held that it was not unreasonable and thus in compliance with the forthwith requirement of section 254(2)(

a) of the Code and the Charter for the officer not to have an ASD with him given the time of the day the accident occurred. Further, the 12 minutes taken by another officer to arrive at the scene with the ASD was not unreasonable.

Judge Green did not find any Charter breach and the evidence was consequently not excluded. [ 33 ] Given the time of day (after 3:00 a.m.), the fact the patrol officers were not equipped with an ASD, the three minute delay in calling for an ASD, the eight minute delay in an ASD arriving on scene and the one minute delay in starting the ASD, I am of the view that the police did not administer the ASD test to Mr. An forthwith. As a result of this determination, I am of the further view that the ASD demand was not lawful. There was no obligation on Mr.

An to comply with an unlawful ASD demand. [ 34 ] It follows that the detention of Mr. An was arbitrary and violates

section 9 of the Charter . [ 35 ] I also find that as the ASD demand was not lawful, Mr. An’s rights under

section 10(

b) of the Charter were not suspended during the period of his detention. Rather, I find that Mr. An’s rights pursuant to

section 10(

b) of the Charter were breached during his detention at roadside. I find it was during this critical time that Mr. An should have been advised of his s. 10(

b) rights. I also find that Mr. An’s s. 10(

b) rights could have been implemented before his attempts to blow into the ASD starting at 10:46 a.m. The evidence also reveals that during his initial detention from 3:22 to 3:34 a.m., Mr. An used his cell phone and made a call to his workplace. Mr. An indicated that he also wanted to use his cell phone to contact his sister, who is a lawyer. Unfortunately during the 24 minutes he was detained at roadside prior to blowing into the ASD (3:22 to 3:46), Mr. An was not permitted to attempt to contact his sister. Given Mr. An ’ s predicament, he would have undoubtedly benefitted from legal advice. If the accused ’ s

section 9 and 10(

b) Charter rights were violated, should the refusal evidence be excluded pursuant to s. 24(2)? [ 36 ] It is well established that upon finding a violation of a person’s Charter rights, the proper avenue to address whether evidence should be excluded under s. 24(2) is found in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ].

This test requires that the Court “assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct ... (2) the impact of the breach on the Charter- protected interests of the accused ... and (3) society's interest in the adjudication of the case on its merits ” : para 71. [ 37 ] With respect to the first avenue of the inquiry, I must consider the seriousness of the Charter -infringing state conduct.

I am of the view that the police conduct was deficient in various ways: In the first place police officers should be equipped with an ASD when conducting general patrols during the night and early morning hours. Secondly, the police had reason to foresee that they may require an ASD as early as 3:15 a.m. when they were first dispatched to investigate a complaint involving a possible intoxicated driver. The potential need for an ASD increased as the investigation proceeded. Constable Czernick smelled alcohol coming from the accused’s vehicle at 3:22 a.m.

By 3:34 a.m., the ASD demand was made without much, if any thought given to obtaining the ASD itself. Inexplicably, the officers further delayed calling for an ASD for another three minutes. I find this casual conduct by the investigating officers shows a reckless disregard for the accused’s Charter rights which should not be encouraged by the courts. Therefore, I am of the view that the first Grant factor favours exclusion of the evidence.

[ 38 ] Regarding the impact of the breach on the Charter- protected interests of the accused, I find the impact was moderate to serious. Had the officers been equipped with an ASD that early morning or had the officers made an earlier call out for an ASD, it is reasonable to conclude that the ASD testing would have occurred prior to 3:46 a.m. Instead Mr. An was arbitrarily detained for a period of 12 minutes. To be arbitrarily detained at roadside for 12 minutes in the middle of the night is certainly a very uncomfortable experience for most people and more than a mere annoyance.

Further, as found above (at para 32 and 33), the officer’s misconduct not only breached the accused’s right not to be arbitrarily detained, but also his right to counsel, which Mr. An could have used. Thus, also the second Grant factor favours exclusion of the evidence. [ 39 ] With respect to society’s interest in the adjudication of the case on its merits, I find that society’s interest is high. The offence is serious. The operation of a motor vehicle while intoxicated is a social problem in Saskatchewan, often resulting in significant injury or death.

As well, the evidence sought to be excluded is highly reliable, although it can be challenged in the trial itself. It is also important to the prosecution of the case ( Grant , para 81 and 83). All of this weighs in favour of inclusion. [ 40 ] Balancing these factors, I am of the view that the police misconduct and the impact on the accused’s Charter rights is serious enough to outweigh society’s interest in the case’s adjudication on its merits. The evidence consequently has to be excluded in order to maintain public confidence in the administration of justice.

TRIAL ISSUE Whether the Crown has proved beyond a reasonable doubt that Mr. An intended to fail to comply with the ASD demand . [ 41 ] While I have previously determined that the refusal evidence should not be admitted into evidence at trial, if I am in error on this, I have decided to examine the issue of whether the Crown has proved beyond a reasonable doubt that Mr. An intended to fail or refuse to comply with the ASD demand. Mr. An ’s ASD Breath Attempts - As described by Constable Hesse [ 42 ] Mr. An’s first attempt to blow into the ASD occurred at 3:46 a.m. Constable Hesse testified that initially Mr.

An blew “nothing” into the ASD at all. This was followed by seven other attempts by Mr. An to provide a sample of his breath into the ASD. Constable Hesse testified that on three of the seven other attempts, a small amount of air entered into the instrument, however Mr. An stopped blowing after a few seconds and as a result an error message was registered on the ASD on three occasions. An error message indicates that an adequate sample of air has not been provided. That is the individual blowing into the ASD was not blowing hard enough. Constable Hesse testified that after each attempt he warned Mr.

An that he could be potentially charged with refusing to provide a sample of his breath. Constable Hesse reminded Mr. An that he needed to blow long, hard and continuously into the ASD. Constable Hesse testified that Mr. An was argumentative saying he was blowing. After eight failed attempts, Constable Czernick placed Mr. An under arrest for refusing to provide a sample of his breath at 3:51 a.m. Constable Czernick then went on to read Mr. An his Charter rights. Mr.

An indicated that he understood his rights and that he wanted to call a lawyer right now. [ 43 ] On cross-examination Constable Hesse testified that Mr. An told him he was a smoker and suffered from asthma. Mr. An ’s ASD Breath Attempts - As described by Constable Czernick [ 44 ] Constable Czernick also observed Mr. An blow into the ASD on eight occasions. Constable Czernick was of the opinion that Mr. An was not trying to provide a suitable breath sample. He testified that Mr.

An would only blow one or two seconds into the ASD. [ 45 ] On cross-examination Constable Czernick testified that he is a qualified ASD operator. He agreed that it may take 4 to 12 seconds for a proper breath to be provided into the ASD as per page 5 item 8 in the operator manual for the Alcotest 7410 GLC (Exhibit D-1).

Mr. An ’s ASD Breath Attempts - As described by Constable Froh [ 46 ] Constable Froh also observed Mr. An blow into the ASD. Constable Froh testified that after he handed the ASD to Constable Hesse, he stepped back from the patrol car and watched Constable Hesse and Mr. An from about four feet behind the Czernick/Hesse patrol car. Constable Froh observed and overheard Constable Hesse give instructions to Mr. An on how to use the ASD. He also saw Constable Hesse administer the ASD to Mr. An on three occasions. On each occasion he heard Constable Hesse say to Mr. An that he was not blowing into the ASD.

He also heard Mr. An say “I am blowing”. After Mr. An’s third attempt to provide a breath sample, Constable Froh moved in closer. He was three feet back of Constable Hesse and looked over his shoulder. He observed Mr. An make three more attempts. Constable Froh testified that visually it looked like Mr. An was blowing - his cheeks were puffed out, however, he could not hear sound coming from the mouthpiece signifying there was not any air flowing through the mouthpiece device attached to the ASD. Constable Froh once again heard Constable Hesse say to Mr. An that he was not blowing into the ASD. He also heard Mr.

An say “I am blowing”. Constable Froh witnessed Mr. An attempt to blow into the ASD two more times. Constable Froh testified “Once again I could not hear that familiar sound of air moving through the mouthpiece.” Constable Froh thought Mr. An was trying to defeat the ASD. He added that he has administered the ASD at roadside more than 100 times in his 11 years of service. He explained that the mouthpiece makes a distinct sound when someone is blowing properly through the mouthpiece. Lastly, Constable Froh observed that Mr.

An appeared to be a young, capable and healthy male who had no difficulty talking or breathing. Analysis [ 47 ] Section 254(5) of the Code provides that “everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section”. Section 254(5) contains three elements which the Crown has to prove beyond a reasonable doubt in order to obtain a conviction ( R v Lewko , 2002 SKCA 121 at para 9 , [2003] 2 WWR 197): 1. There must have been a lawful demand under the subsections (2) or (3) of s. 254(5); 2.

The accused refused to provide the required breath or blood sample or failed to do so (the actus reus ); and 3. The accused intended to produce the failure (the mens rea ). [ 48 ] I have previously determined that the ASD demand was not lawful (paragraph 33). In the event I have erred in this determination, I have decided to complete my analysis of whether the Crown has proved that Mr. An failed to provide a breath sample. [ 49 ] I find Constable Hesse gave Mr. An clear instructions as to how to blow into the ASD. The evidence reveals that Mr.

An failed to produce a single suitable sample of breath into the ASD after eight attempts over the period of five minutes. Hence the Crown has proved the actus reus of this offence. [ 50 ] One remaining issue is whether the Crown has proved beyond a reasonable doubt that Mr. An intended to produce the failure. [ 51 ] In R v Dolphin, 2004 MBQB 252 , the Court discussed the necessary proof for this type of “failure” case as follows: There is clearly an overlap in the proof that is required to prove both the actus reus and the mens rea in "failure" cases.

Whenever there has been an outright refusal, mens rea can be presumed. However, where a failure is alleged, more proof is required. Usually, that proof will flow from the inference that a person intends the natural consequences of his/her acts. The inference is often drawn from proof that an adequate sample was not provided after a clear explanation was given as to how to blow into the device and after the accused was given an adequate opportunity to blow into a device that was in good working order. Having said that, often is not always.

Consequently, whenever the defence argues that the accused did not intentionally refuse to provide a sample, the court must analyze the evidence to determine if mens rea has been proved beyond a reasonable doubt. Trial judges must be cautious not to merge the concepts of mens rea and reasonable excuse. The evidence appropriate to each of these elements of the charge is often similar, but it is not always identical. Consequently, a trial judge is obliged to identify and adjudicate the issue of mens rea separately.

[ 52 ] The police evidence is quite consistent. Each of the three officers observing Mr. An were of the view that Mr. An was essentially trying to defeat the ASD by not continuously blowing into the ASD for a sufficient length of time. The officers also testified that Mr. An said he was trying to blow into the ASD and indicated that he was a smoker and had asthma. [ 53 ] In Dolphin the Court stated as follows at paragraph 12: In "failure" cases, the inference from the failure to register an adequate sample by a device is difficult to overcome if the Crown proves that the device was in good working order.

In contrast, direct evidence from police officers that an accused appeared not to be blowing properly is inherently less reliable. As such, it must be carefully evaluated. [ 54 ] I am of the view that in these circumstances where the evidence shows that the accused made numerous unsuccessful attempts to blow into the ASD and claims he was trying to blow into the ASD, the Crown needs to prove that the ASD and mouthpiece were in good working order.

While Constable Hesse confirmed the ASD had been recently calibrated and observed the initial battery and self test were successfully completed after he turned the ASD on, there was no evidence of any further testing of the ASD itself, nor of the mouthpiece. I find that the Crown has failed to prove that the ASD and mouthpiece were in good working order and as a result I have a reasonable doubt respecting the mens rea of this offence. CONCLUSION [ 55 ] Constable Hesse did not administer the ASD on the accused “forthwith” as required by s. 254(2) (

b) of the Criminal Code . The ASD demand was not lawful. The accused was therefore arbitrarily detained. He was also unlawfully denied his Charter right to counsel. Based on a Grant analysis, the Charter breaches lead to the exclusion of the evidence relating to the failure to provide a breath sample (s. 254(5)). In addition, even if the ASD demand was found lawful or the evidence was not excluded, the Crown failed to prove the mens rea of the s. 254(5) offence, i.e. the intention to produce the failure, because it did not prove that the ASD and the mouthpiece were in proper working order.

As a result of these determinations I find the accused not guilty of the offence before the Court. _____________________________ M. Hinds, J