Her Majesty the Queen - v. -, 2011 SKPC 120

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 120 Date: September 19, 2011 Information: 24422896 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lorne P. Melnik Appearing: T. Wellsch For the Crown S. Wagner For the Accused DECISION ON VOIR DIRES J.A. PLEMEL, J [ 1 ] Lorne Melnik is charged that on or about April 23, 2010 at or near Canora, Saskatchewan he: 1) while his ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle, contrary to section 253(1) (

a) of the Criminal Code . 2) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in 100 millilitres of blood, did operate a motor vehicle contrary to section 253(1) (

b) of the Criminal Code .

[ 2 ] In advance of the trial Defence counsel served notice alleging breaches of sections 8 and 9 of the Canadian Charter of Rights and Freedoms and that he would be seeking remedies under subsections 24(1) and 24(2) of the Charter . [ 3 ] His notice raised the following points which he now argues: 1) The accused was arbitrarily detained contrary to s. 9 of the Charter of Rights and Freedoms. 2) The officer did not have grounds to make an alcohol screening device demand or take breath samples from the accused.

This constitutes a warrantless search and seizure contrary to s. 8 of the Charter of Rights and Freedoms . 3) The officer did not have grounds to make a breathalyzer demand or take breath samples from the accused. This constitutes a warrantless search and seizure contrary to s. 8 of the Charter of Rights and Freedoms. 4) After giving the accused three attempts to provide a suitable sample into the alcohol screening device, the accused was unable to provide a suitable sample.

Rather than charging the accused with a failure or refusal pursuant to s. 254(5) of the Criminal Code , the officer arrested the accused for impaired driving. 5) The breath demand was not made forthwith or as soon as possible. This constitutes an arbitrary detention contrary to s. 9 of the Charter of Rights and Freedoms . 6) The accused was arrested without warrant contrary to s. 9 of the Charter of Rights and Freedoms. 7) The accused was held overnight unnecessarily.

This constitutes an arbitrary detention contrary to s. 9 of the Charter of Rights and Freedoms . 8) Admission of evidence obtained would render the trial unfair and bring the administration of justice into disrepute. Procedure [ 4 ] The case is proceeding by way of a blended trial and Charter voir dires . The Crown began by calling three witnesses on the trial proper. They were Bonnie Jenkins, Pat Horn and Margaret (Mildred) Pahlke. [ 5 ] After these three women testified two voir dires were held. The first was to deal with all Charter issues raised except the issue of over holding.

Constables Harbor and Coleman testified on the first voir dire and the Defence called no evidence. The second voir dire was to deal with the issue of over holding. Cst. Abbott and Cst. Harbor testified on this voir dire as did the accused and his daughter, Jennifer Melnik. [ 6 ] By agreement, the evidence from the trial was applied to both voir dires . Also, evidence which I rule to be admissible on each voir dire is then to be applied to the trial. The Evidence [ 7 ] Ms. Jenkins, Ms. Horn and Ms. Pahlke were travelling together in a vehicle from Hudson Bay, Saskatchewan to Yorkton. Ms. Pahlke was driving.

When she went to pass a vehicle, which I find was driven by the accused who was the sole occupant, it crossed over the centre line. As a result she decided to stay behind it. She followed the accused’s vehicle for about 15 to 20 minutes beginning somewhere near Crystal Lake and ending just north of Canora. Ms. Jenkins described how, whenever there was an oncoming vehicle the accused’s vehicle seemed to head straight for it and then return to its own lane at the last minute. Ms.

Horn described the accused’s driving as “very, very scary.” She testified that at one point there were three vehicles approaching in a row and it looked like he was going to hit them. Ms. Pahlke also testified about him entering the oncoming lane and then turning back into his own lane especially if the oncoming vehicles were large trucks. All three women testified about the car’s swerving, over-correction of steering and significant fluctuation of speed.

I find there were no traffic or road conditions that contributed to this erratic manner of driving. [ 8 ] The women feared there might be an accident and therefore called 911. As a result of this call, Constables Harbor and

Coleman of the Canora RCMP Detachment were dispatched. Just as they were leaving Canora they observed the accused’s approaching vehicle. The three women were still behind it and had not lost sight of it before it was stopped by police. The police waved the three women on without talking to them or getting statements at that time. Evidence - First Voir Dire [ 9 ] This voir dire dealt with all the Charter issues raised except the allegation of “over holding”. As the accused’s vehicle approached, the police saw it swerve from the yellow line to the white centre line.

They turned and followed it for a short distance and stopped it. [ 10 ] Cst. Harbor approached the driver’s door and dealt with the accused. He asked for his driver’s licence and registration. He described how the accused pulled out his wallet. He was unable to produce his driver’s licence. Cst. Harbor testified that the accused fumbled and dropped papers from his wallet onto his lap, however, Defence counsel pointed out how he had not recorded this in his notebook. Mr. Melnik’s eyes were glassy and Cst. Harbor could smell alcohol on his breath.

He told the accused he would have to come back to the police vehicle for a breath test. As he walked back to the police vehicle the accused stumbled and had difficulty walking a straight line. The road was level and the weather was clear. Cst. Harbor read the accused an Alcohol Screening Device (ASD) demand at 11:22 a.m. Cst. Harbor had the device with him and attempted to have the accused provide proper breath samples into it three times. After either the first or second attempt, it was noted that the accused had gum in his mouth and he was told to remove it which he did. Cst.

Harbor did not wait 15 minutes to perform the next ASD test. He acknowledged in his testimony that according to his training he should have done so. This is because the presence of mouth alcohol could give an inaccurate reading on the instrument and having something in one’s mouth could contribute to the presence of mouth alcohol. Cst. Harbor’s failure to wait 15 minutes was an oversight on his part. I do not find it to be significant in the circumstances of this case. After three failed attempts Cst.

Harbor felt that the accused was having problems following his very simple instructions on how to blow into the instrument. Having already made observations about the accused’s condition and adding to this the accused’s inability to follow his instructions about how to blow into the instrument, Cst. Harbor formed the opinion that his ability to operate a motor vehicle was impaired by alcohol.

Therefore, at 11:27 a.m. he decided to discontinue testing on the ASD and to arrest him for impaired driving and to make a formal breath demand on him to provide samples of his breath suitable for analysis pursuant to s. 254(3) of the Criminal Code . While being read his rights to counsel at roadside, the accused responded with words to the effect that he had not been drinking. After further explaining his rights to counsel, Cst. Harbor then proceeded to read the accused the standard police caution. He recorded the time of this to be 11:30 a.m.

Soon after, they left the scene to attend back to the Canora Detachment. While en route Cst. Harbor remembered that he had forgotten to read the accused a formal breath demand. Upon arrival at the detachment he read that demand at 11:37 a.m. [ 11 ] Cst. Coleman’s material evidence on the first voir dire supported that of Cst. Harbor and I will not review it in detail here. Evidence - Second Voir Dire [ 12 ] This voir dire was separated from the first at the request of both counsel so the issue of over holding would be separate from the other Charter issues raised. [ 13 ] Mr.

Melnik was stopped by police at approximately 11:00 a.m. on April 23. Cst. Harbor decided to arrest him at 11:27 a.m. although he did not advise him of the reasons for his arrest until 11:37. After the taking of two breath samples which resulted in readings of 250 and 260 milligrams of alcohol in 100 millilitres of blood, the accused was transported from Canora to the rural detachment of the RCMP in Yorkton. There are no holding cells in Canora.

A form entitled Prisoner Report filed as Exhibit P-2 on the second voir dire shows that he was lodged in Yorkton cells at 1:09 p.m. on April 23 and that he was released at 10:00. a.m. on April 24. Cst. Harbor testified that after his release from the Yorkton cells he drove the accused back to the Canora Detachment to serve him some documents and from there he drove the accused to his home near Hyas. It is not clear from the evidence if the accused was free to go after being released into Cst. Harbor’s custody at the Yorkton Detachment or if he was required to remain with Cst.

Harbor until the documents were served at the Canora Detachment. Cst. Harbor testified to the effect that when Mr. Melnik was released to him at about 10:00 a.m. on April 24 he wanted to be returned to Hyas which is about 40 kilometres northeast of Canora and that they stopped at Canora on the way to Hyas so he could serve him documents. He was dropped off by the constable at his farm near Hyas at about 1:00 p.m. on April 24. I will proceed on the basis that he was no longer in custody after he was served his documents at the Canora Detachment. Cst.

Harbor was not required to drive him to his farm but did that as a practical matter or a courtesy. I find the accused was in custody for approximately 24 hours prior to his release.

[ 14 ] After the breath tests were conducted in the Canora Detachment, there was some discussion between Constables Abbott and Harbor and also with the accused about his release. The accused left Cst. Abbott and Cst. Harbor with the impression that he needed to be released as he was required to drive the school bus that afternoon. Of course, given his readings and their observations of him, police were very concerned about his intentions to drive. Mr.

Melnik testified on the second voir dire and stated that, even if he did tell police he needed to drive the school bus, what he really meant was that he was responsible for driving the school bus and that he needed to arrange for another driver. He testified it was never his intention to drive the bus in the afternoon as he had some drinks. He testified that he had driven the school bus that morning and had parked it at about 9:30 a.m. and then consumed alcohol until about 10:30 prior to getting into his own vehicle and driving to Canora.

Constable Harbor testified that he asked the accused if there was anyone they could release him to rather than lodging him in the cells but that the accused did not respond to that question or give him any names. He did not record this in his notebook but did record it in his “can-say” which was prepared for court purposes a considerable time later. The accused testified he does not recall being asked if there was anyone he could be released to. He said he knew six or seven people he could have called. He admits however, that he became upset after providing breath samples and Cst.

Harbor could have asked him that question and that it just did not register with him. I find that Cst. Harbor asked him if there was anyone who they could contact and to whom they could release Mr. Melnik but that the accused did not give him any answer which satisfied him that it was safe to release him. [ 15 ] The accused’s 34 year old daughter, Jennifer Melnik, testified that she received a phone call from her sister Veronica who lives about two kilometres from the accused’s farm.

Veronica had reported to her at about noon on April 23 that someone had seen the police taking their father in handcuffs and that Veronica had phoned the police to find out what the situation was but that Veronica was unable to get a reply until midnight of April 23 at which time she was told he would be released at about noon on April 24. Veronica did not testify and I do not know what office of the RCMP she was phoning to leave messages. Was it Canora, Yorkton or perhaps a general number in Regina or elsewhere? I am satisfied that neither Cst. Harbor nor Cst.

Abbott were aware that family members were making inquiries about Mr. Melnik’s situation. Jennifer Melnik testified that she herself called the RCMP in the evening of April 23 and left messages but did not receive a call back from them. Jennifer was living in Regina at the time but indicated she could have picked her father up. Indeed she did drive to the Hyas farm before her father was returned home by Cst. Harbor the next day. The over holding of the accused was made worse by the fact that he has high blood pressure and did not have the medication with him that he normally takes every day.

Analysis of the first voir dire (regarding all Charter issues except over holding) [ 16 ] I find that the accused was not arbitrarily detained when he was initially stopped by Constables Harbor and Coleman. They were dispatched to stop a vehicle matching the description of the one the accused was driving. The report was of erratic driving. As it approached them they observed it to swerve or weave. They followed it and stopped it. There was nothing arbitrary about this stop. [ 17 ] I find that Cst. Harbor had grounds to make an ASD demand.

Grounds included the initial report of erratic driving, the accused’s glassy eyes and the smell of alcohol on his breath. At that point he had sufficient grounds to demand the accused to return to the police vehicle for an ASD test. I am not giving any weight to Cst. Harbor’s testimony that he dropped contents of his wallet into his lap. That was not in his notebook and given my comments on the other grounds he had, I do not find it necessary to make any findings regarding that testimony. On the way to the police vehicle Cst. Harbor observed the accused to stumble and have difficulty walking in a straight line.

It might be argued that objectively at that point he could have had reasonable grounds to make a demand for breath samples pursuant to s. 254(3) rather than an ASD demand for a roadside test pursuant to s. 254(2). However, I note that at the time of this event Cst. Harbor had been a police officer for only about one year. He had only made two or three ASD demands prior to this one. This is the first trial in which he has given testimony regarding an investigation into impaired driving or related sections of the Criminal Code .

Perhaps more seasoned police officers may have formed the opinion earlier in their dealings with Mr. Melnik that his ability to operate a motor vehicle was impaired by alcohol. However, I accept that Cst. Harbor only felt comfortable reaching the conclusion that Mr. Melnik had alcohol in his body when they took their places in the police vehicle. [ 18 ] I have no doubt whatsoever, that after dealing with the accused for a period of about five more minutes in the police vehicle, during which time he tried to get him to blow into the Alcohol Screening Device, that Cst.

Harbor realized he was dealing with a driver who was much more intoxicated than he initially thought. At that point he was not precluded from demanding breath tests pursuant to s. 254(3) of the Criminal Code rather than trying to obtain a roadside test or charging him with refusal. I accept Cst.

Harbor’s explanation that he believed the accused was incapable of following his simple instructions on how to blow into the roadside instrument so it was quite appropriate for him to discontinue that process and to make a breath demand pursuant to s. 254(3) . [ 19 ] Defence counsel argues that the accused should have either been charged with failure or refusal to comply with an ASD demand or he should have been allowed to provide further proper samples in the ASD and, if a fail reading were obtained, only then

should the 254(3) demand be made. He cites R. v. Weeseekase, 2005 SKPC 39 , 2005 CarswellSask 259, 263 Sask. R. 134(SKPC), in support of this argument. That case is readily distinguishable, however, because there the Court concluded the officer onlyhad grounds to make an ASD demand and never had grounds for breath tests pursuant to s. 254(3).

Similarly, other cases cited byDefence counsel are limited to their own facts. [20] If a peace officer, in the course of performing an ASD test and before obtaining results of those tests, makes additionalobservations of an accused from which he forms reasonable grounds to believe that his ability to operate a motor vehicle is impaired byalcohol, he need not complete the ASD test but may proceed directly to making a formal breath demand on that person pursuant to s.254(3) of the Criminal Code. (See: R. v. Restau, 2008 SKCA 147 , 2008 CarswellSask 741, 314 Sask.

R. 224 (SKCA); R. v.Frome, 2009 CarswellAlta 1593, Alta QB 2009; R c Bégin, 2004 CarswellQue 3015, (Que. C.A.)) [21] Mr. Melnik goes on to argue that the breath demand was not made as soon as practicable and that this constituted an arbitrarydetention contrary to s. 9 of the Charter. [22] It is a requirement of s. 254(3) of the Criminal Code that the breath demand be made as soon as practicable. In his noticealleging Charter breaches Defence counsel states “The breath demand was not made forthwith or as soon as practicable. This constitutesan arbitrary detention contrary to s. 9 of the Charter....”.

The word “forthwith” is not found in s. 254(3) but only in 254(2)(

b) whichrequires that ASD tests be conducted forthwith. [23] In this case Cst. Harbor, after making a proper ASD demand, proceeded forthwith to attempt to obtain samples on an theapproved roadside screening device as is required by s. 254(2)(b). While in the process of doing this, as already mentioned, he observedfurther signs of intoxication which gave him reasonable grounds to believe that the accused’s ability to operate a motor vehicle wasimpaired by reason of his consumption of alcohol. I have already found that he had grounds to make a demand pursuant to s. 254(3) ofthe Criminal Code.

When a peace officer formulates those grounds, in the words of s. 254(3) of the Code “the peace officer may, bydemand made as soon as practicable, require the person (

a) to provide as soon as practicable”....samples of his breath. [24] “As soon as practicable” is not to be equated with “as soon as possible”. “As soon as practicable” means within a reasonablyprompt time. [R. v. Fitzpatrick (1978), 2 M.V.R. 216, 22 A.R. 349; R. v. Squires (2002), (ON CA), 166 C.C.C. (3d) 65; 7 C.R. (6th) 277 (Ont. C.A.)] [25] It would have been practicable for Cst. Harbor to read Mr. Melnik the demand for samples before they left the location of thestop at approximately 11:30 a.m., however Cst.

Harbor acknowledged that he forgot to do so and that he only remembered whiletravelling to the RCMP Detachment. Rather than stop the vehicle and read the demand he decided to wait until he arrived at thedetachment which was only one and one half or two kilometres away. The demand was made at 11:37 a.m. after they arrived at thedetachment. I am satisfied that Cst. Harbor made the appropriate demand as soon as practicable as that term has been judiciallyinterpreted. [26] I am satisfied that there were no breaches of Mr. Melnik’s s. 8 or s. 9 rights guaranteed by the Charter up to this point.

Analysis of the second voir dire and the issue of over holding [27] Mr. Melnik argues that “Section 9 of the Charter of Rights and Freedoms states that ‘Everyone has the right not to bearbitrarily detained or imprisoned’. This includes the right to be released from police custody when detention is no longer required.” [28] He then quotes sections 497 and 498 of the Criminal Code as well as numerous cases including: R. v. Fox, 2007 SKPC 61,297 Sask. R. 203; R. v. Holbrook, 2008 SKPC 133, 323 Sask. R. 241; R. v. Sawatsky, 2010 SKPC 9, 349 Sask. R. 270; R. v. Poletz, 2009SKPC 121, 344 Sask. R. 161 and R. v.

Hall, 2010 SKPC 133, 365 Sask. R. 175. These are all decisions of this Court. He argues thatsince the accused was held in custody longer than was required or permitted pursuant to sections 497 and 498 of the Criminal Code,there was a breach of s. 9 of the Charter. He urges me to find that the only appropriate remedy would be to order a stay of proceedingsfor the violation of Mr. Melnik’s s. 9 rights.

[29] I am unable to accede to Defence counsel’s request. Referring to three of these very same cases, Gerein J. stated the followingin R. v. Salisbury, 2011 CarswellSask 272 (SKQB): 11 With respect, I hold the opinion that the cases cited do not correctly set out the law as it exists in this jurisdiction and as it shouldbe applied in the instant case. It is accepted that there was a breach of s. 9 of the Charter. However, it occurred after the commission ofthe offences and after the investigation had been completed. There was no connection between the breach and the charges.

That being so,the remedy in this case was disproportionate to the violation of the Charter. That is not to say there should be no remedy; only that theremedy should be different. [30] This decision applies to the present case and is binding on me. Also binding on me are the following decisions which GereinJ. refers to in R. v. Salisbury in support his conclusion: R. v. Charles (1987), (SK CA), 61 Sask. R. 166 (C.A.), 36C.C.C. (3d) 286; R. v. L. (S.L.), 2002 SKQB 425, 229 Sask. R. 96 (Q.B.) and R. v.

Lloyd (1988), (SK CA), 66 Sask.R. 100 (C.A.), [1988] 4 W.W.R. 423. [31] I am satisfied that in this case the accused’s initial detention after he provided breath samples was justified because the policebelieved on reasonable grounds that it was necessary in the public interest that he be detained having regard to all the circumstances andespecially to prevent the continuation or repetition of the offence of impaired driving. When asked, Mr.

Melnik did not provide policewith the name of someone he could be released to. [32] Although in the circumstances of this case a period of detention in custody following the taking of breath samples wasjustified I find that there was a breach of the accused’s s. 9 Charter right against arbitrary detention or imprisonment because he washeld in RCMP custody longer than was permitted under sections 497 and 498 of the Criminal Code. Instructions were left with theYorkton Rural Detachment of the RCMP that he was to be released to a Canora member.

There has been no adequate explanation as towhy his release could not have occurred well before noon the following day. I will give both counsel the opportunity to present furtherargument with respect to a suitable remedy. For the reasons given in R. v. Salisbury, the remedy pursuant to the Charter will not be ajudicial stay of proceedings nor an exclusion of the Certificate of Analyses. Ruling on the voir dires [33] I find that Mr. Melnik was detained in the Yorkton cells longer than the law permitted.

This over holding was a breach of hisrights guaranteed by s. 9 of the Charter of Rights and Freedoms. [34] I do not find any other breaches of s. 8 or 9 of the Charter. [35] The evidence from both voir dires is applied to the trial except the evidence of Mr. Melnik and Jennifer Melnik. Mr.Melnik’s counsel was clear that their evidence was tendered only on the voir dire and was not to be applied to the trial. [36] Arguments by Defence counsel against the admissibility of the Certificate of Analyses were all framed as Charter arguments.

If there are any further arguments against its admissibility that are not based on the Charter, I will hear them. Until that time, the Certificate of Analyses will be treated as an exhibit only for identificationon the trial.

________________________ J.A. Plemel, J