R. v. Krutkewich, 2013 MBPC 51

CITATION: R. v. Krutkewich, 2013 MBPC 51 Date: 20130906 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Richard Lonstrup, ) for the Crown ) and ) ) ) Christopher Krutkewich ) Mark Wasyliw, Accused ) for the Accused ) ) ) Reasons for Decision delivered: ) September 6, 2013 Elliott P.J. Decision on Voir Dire [1] Mr. Krutkewich (“the accused”) is charged under s. 253(

a) of the Criminal Code of Canada that on October 28, 2012 he didoperate a motor vehicle while his blood alcohol level was over the legal limit. The Crown conceded that it could not seek a conviction ona charge of operation while impaired. [2] Defence had provided the necessary Charter notices, raising s. 8 and, by implication, s. 10. The issues on the voir dire are asfollows:

I) Did the officer who made the Approved Screening Device (ASD) demand have the requisite grounds? II) Was the ASD demand one to provide a sample “forthwith”? III) If there is a breach of s. 8, should the eventual breath test results nevertheless be admitted under s. 24(2) of the Charter? [3] Case law referred to by the Crown: R. v. Higgins, (MB CA),

(1994) R. v. Misasi, 1993 CarswellOnt 4 (Ont CA) R. v. Christianson, 2008 MBQB 132 R. v. Mitchell, 2013 MBCA 44 R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 [4] Case law referred to by Defence:

R. v. Cote, (ON CA), [1992] 70 C.C.C. (3d) 280 (Ont CA) R. v. Kahlon, [2004] ONCJ 359 ( ONCJ) R. v. Koszman, [2001] SKQB 201(SKQB) R. v. Bond, [2006] NSPC 17 ( NSPC) R. v. Pavel, (ON CA), [1989]O.J. No. 2307 (C.A.) R. v. Orbanski, 2005 SCC 37 , [2005] 2 S.C.R. 3 R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 [5] Section 254(2)(

b) reads:

(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, withinthe preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment orhad the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officermay, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (

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

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demandmay be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

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 anapproved screening device and, if necessary, to accompany the peace officer for that purpose. (emphasis added) The Evidence: [6] The accused was stopped by the RCMP in Virden, Manitoba at 1:30 a.m. on October 28, 2012. He was stopped because herevved his engine and failed to signal a turn. He was alone in the vehicle.

As a result of both an odour of alcohol coming from his breathand a comment that he was coming from a nearby bar, the accused was asked if he had had anything to drink. He responded, “two orthree,” which the officer (officer #1) understood to be an admission of consuming alcohol. The officer went back to the police cruiser tocheck the accused’s licence and registration. At that time officer #1 decided that he had the requisite grounds to make an ASD demand –grounds that defence does not question. However, he did not have an ASD in his vehicle.

Although he could not recall the exact reasonwhy he did not have one on that particular occasion, he testified that officers sometimes had to go “out on the road right away and we justdon’t have time to grab all the necessary tools we would have in the vehicle in order to answer calls in a timely fashion.” [7] While he was in his cruiser waiting for the computer checks to be completed, officer #1 went on the radio to see if anotherofficer was at or close to the detachment, which was two to three minutes away.

He reached officer #2 who said he would bring an ASD.Officer #1 understood that that would be done immediately. Officer #1 then walked back to where the accused was sitting in his vehicleand advised him that he had called another officer to bring an approved screening device. Officer #1 did not read the demand; rather, heinformed the accused that officer #2 would do so when he arrived. At 1:35 a.m., five minutes after the stop, officer #2 arrived with theASD.

Officer #1 was writing his notes at the time and gave officer #2 “something brief and general and asked him to perform the ASD.”Officer #2 went to the accused’s vehicle and had a conversation with him there. Officer #2 then brought the accused back to officer #1’svehicle at 1:40 a.m. The sample was received at 1:44 a.m., 14 minutes after the stop, and nine minutes after the demand. It registered an“F” for Fail, which the officer understood to signify a blood alcohol level over the legal limit. As a result, officer #1 placed the accusedunder arrest for impaired operation of a motor vehicle at 1:45 a.m.

Officer #1 and the accused left the scene at 1:53 hours, after all therequired demands and warnings were read. Officer #2 remained to await a tow truck. Officer #1 and the accused arrived at thedetachment at 1:56 a.m., where the accused for a second time indicated he did not wish to talk to counsel. The first breath sample wasreceived at 2:24. [8] Officer #2 testified that at 1:30 a.m. he was at the detachment when officer #1 asked him to come to his location with an ASD.He believed he said “I’m on my way.” He already had an ASD in his vehicle. He arrived at the scene at 1:35.

Officer #1 briefed him onthe reason for the stop: officer #1 “said that he had observed the vehicle leaving the area of the bars. He mentioned that the vehicle hadtaken some turns quick and when he did, he kind of sped up – like hammered on it, kind of thing – and he had pulled him over and duringhis stop learned that he had had a few drinks”. Officer #2 then “spoke to Christopher. I read him the ASD demand. I go through a briefthing with everyone. I kind of explain it to them. I asked him when he had his last drink to ensure that it was not within the past 15minutes.

He had said that he had a drink about - it was over an hour ago. I asked if he had had a smoke, and he said, no, he was anon-smoker. I explained the ASD demand and everything. He understood. He provided a sample at 1:45 – provided a sample of F – fail.” Analysis:

I) Did the officer who made the Approved Screening Device (ASD) demand have the requisite grounds? [9] I find that officer #2 did have the requisite grounds – grounds that were communicated to him by officer #1 which heobviously accepted. These included that the accused had been observed leaving the area of the bars, his manner of driving and the factthat he had had a few drinks. II) Was the ASD demand one to provide a sample “forthwith”? [10] There was a delay of five minutes between the stop and the arrival of the machine.

When officer #2 arrived with the ASD, therewas a short conversation with officer #1, then officer #2 walked over to the accused’s vehicle, explained the machine and process, made

the demand, then questioned the accused about his drinking and smoking history, moved him to the police vehicle at his request, andadministered the ASD, which registered a fail result nine or ten minutes later. It is clear that nothing was happening during that periodthat did not relate to this case. [11] In my analysis, I look first to Higgins, the last time I am aware that our Court of Appeal dealt directly with the issue of themeaning of “forthwith” in relation to an ASD. In that case the test was administered 14 minutes after the demand, right after anotherofficer brought the ASD to the site.

The result was found to be admissible. [12] At paragraph 8 and following, the Court stated: 8 In R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640, 40 C.C.C. (3d) 411, the Supreme Court held the predecessor tosec. 254(2) of the Criminal Code which permitted roadside A.L.E.R.T. testing of the driver of a motor vehicle provided it wasadministered "forthwith" to be constitutionally valid. This is because, even though obtaining a breath sample without first providing theaccused with the appropriate Charter warning violated the accused's right to counsel under sec. 10(

b) of the Charter, it was justifiedunder sec. 1 in light of the importance of A.L.E.R.T. testing in detecting and reducing the dangers of impaired driving. Le Dain J.,writing for the Court, equated the words "forthwith" with "as quickly as possible" (at p. 653). 9 The relevant

section of the Code was subsequently amended to its present form in order to widen the net and include not onlymotor vehicles but aircraft and vessels. In the process the reference to roadside testing was omitted. 10 In R. v. Grant, (SCC), [1991] 3 S.C.R. 139, the issue as to the meaning of the word "forthwith" in the newsection came directly before the Supreme Court. In that case the accused who the officer believed to have been driving a motor vehiclewas detained for a period of thirty minutes while the necessary apparatus was delivered to the site by another officer.

The accusedrefused to take the test and was charged with such refusal. He was acquitted. Lamer C.J.C., writing for the Court, noted at the outset thatin light of the charge it was not necessary to consider the provisions of the Charter. After indicating that he was "inclined to agree" thatthe reasons of the Court in R. v. Thomsen were "directly applicable to the amended provision," he nonetheless concluded that it wasundesirable to deal with that issue since the constitutional question was not before the Court.

He then went on to say (at p. 150): In my opinion, the actions of the officer in this case fell outside of the ambit of s. 238(2). The demand made was not the demandauthorized by s. 238(2), that Mr. Grant provide a sample of his breath "forthwith." Instead, the demand made was a demand that heprovide a breath sample when the required apparatus arrived, which turned out to be half an hour later. It follows that Mr.

Grant wasunder no obligation to comply with the police officer's demand, and did not commit the offence under s. 238(5) when he failed to do so.The context of s. 238(2) indicates no basis for departing from the ordinary, dictionary meaning of the word "forthwith" which suggeststhat the breath sample is to be provided immediately.

Without delving into an analysis of the exact number of minutes which may passbefore the demand for a breath sample falls outside of the term "forthwith", I would simply observe that where, as here, the demand ismade by a police officer who is without an A.L.E.R.T. unit and the unit does not, in fact, arrive for a half hour, the provisions of s.238(2) will not be satisfied. 11 Counsel for the accused interprets the above statement to mean that any request by an accused to provide a sample "later" or otherthan "immediately" and on the spot is simply too late and does not come within the definition of the word "forthwith." In other words, apolice officer must have the A.L.E.R.T. device with him, or available in the vehicle.

Nothing else will suffice. 12 I do not agree. Examination of the critical quotation from R. v. Grant above leads to only one conclusion, namely, that LamerC.J.C. could not have intended to so restrict the meaning of the word "immediately." This is made clear by examining the entireparagraph in context and the example which then follows.

Further support is found in the French version which uses the words "tout desuite." Common sense and experience tell us that there must be some time gap between the demand and the administration of the test.Whether the test is demanded "forthwith" requires an examination of all of the surrounding circumstances. (emphasis added) 13 A number of cases were referred to us by counsel in which time delays as short as six minutes were held to be too long. See R. v.Davidson (1992), 37 M.V.R. (2nd) 244 (B.C.S.C.); conversely see R. v.

Tinker (J.F.) (1992), (AB KB), 137 A.R. 16(Q.B.) where a delay of nine minutes was found in the circumstances to comply with the requirement of the section, and R. v. Seo (ON CA), (1986), 25 C.C.C. (3d) 385 (Ont. C.A.), where the acceptable period of delay was approximately eleven minutes. 14 Of considerable assistance in determining whether the demand in this case was made "forthwith" is the decision of R. v. Cote (ON CA), (1992), 70 C.C.C. (3d) 280 (Ont. C.A.).

In that case the officer did not have the screening device with himand required the accused to accompany him to the police station - a drive of approximately nine minutes. Once there the accused wasrequired to wait another five minutes until the officer was ready. In these circumstances the court had no difficulty in concluding that thesample had not been provided "forthwith." What is particularly pertinent to the facts of that appeal however is the approach the OntarioCourt of Appeal used in arriving at its decision.

Arbour J.A., writing for a unanimous Court, said (at pp. 284-85): Applying the reasoning of the Chief Justice in Grant to this case, I have come to the conclusion that the demand made by the policeofficer did not constitute a demand made within s. 238(2) of the Code. The

section contemplates that the accused may be required toaccompany the peace officer for the purpose of enabling a sample of his breath to be taken "forthwith". Read in the context of the wholeamendment, the deletion of the word "roadside" from the

section has little significance (R. v. Yuskow reflex, (1989), 1989 ABCA 300, 52 C.C.C. (3d) 382 (Alta. C.A.) at p. 383). However, as interpreted by the Supreme Court in Grant, the sample must beprovided "immediately" after the demand. This obviously means very shortly after the accused has been requested to accompany theofficer for the purpose of providing the sample, usually at the side of the road or in the immediate vicinity. In this case, it took approximately nine minutes to drive the accused to the police department.

Once he arrived at the detachment, he wasrequired to wait in a place where telephones were readily available and where contact with counsel could easily have beenaccommodated. As Le Dain J. observed in Thomsen at p. 420 [40 C.C.C.]: That there is to be no opportunity for contact with counsel prior to compliance with a s. 234.1(1) demand is, in my opinion, animplication of the terms of s. 234.1(1) when viewed in the context of the breath testing provisions of the Criminal Code as a whole.

If the accused must be taken to a detachment, where contact with counsel could more easily be accommodated than at the side of theroad, a large component of the rationale in Thomsen disappears. In other words, if the police officer is not in a position to require that abreath sample be provided by the accused before any realistic opportunity to consult counsel, then the officer's demand is not a demandmade under s. 238(2). The issue is thus not strictly one of computing the number of minutes that fall within or without the scope of theword "forthwith".

Here, the officer was ready to collect the breath sample in less than half the time it took in Grant. However, in view ofthe circumstances, particularly the wait at the police detachment, I conclude that the demand was not made within s. 238(2). As thedemand did not comply with s. 238(2), the appellant was not required to comply with the demand and his refusal to do so did notconstitute an offence. 15 I adopt this reasoning. The determinant factor is not the length of the delay but the reasons for it. To determine these reasons, wemust look at all the surrounding circumstances. (emphasis added) 16 R. v.

Cote is also helpful for another purpose. It adopts an earlier decision of the Ontario Court of Appeal in R. v. Benson(unreported endorsement, June 12, 1990, per Brooke J.A.) which held that R. v. Thomsen was still applicable despite the subsequentamendments resulting in the present sec. 254(2) of the Code. 17 Applying the analysis recommended in R. v.

Cote, the facts and circumstances of this appeal can lead to only one conclusion,namely, that the A.L.E.R.T. test was administered "forthwith." It would be ironic indeed if a reasonable practice adopted to benefit theaccused should result in the A.L.E.R.T. being administered outside the scope of the section.” (emphasis added) [13] In Christianson, Justice Greenberg was dealing with a five-minute delay while the device was brought. The demand was madeas soon as the device arrived. There were 12 minutes before the breathalyzer demand – no issue was made of that period.

In her analysis,Justice Greenberg referred to a number of decisions of the Supreme Court. [14] At paragraph 20: ...“R. v. Grant, supra, and R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, both of which suggest that there must be someflexibility in applying the “forthwith” standard. 21 In Grant, the police officer stopped the accused because he suspected him of driving while disqualified. While talking to theaccused, the officer detected the smell of alcohol. As he did not have an ASD with him, he asked another officer to deliver one. It took 30minutes for the device to arrive.

The Court found that the subsequent demand was not made forthwith. Chief Justice Lamer said: 20 In my opinion, the actions of the officer in this case fell outside of the ambit of s. 238(2) [now s. 254(2)]. The demand made wasnot the demand authorized by s. 238(2), that Mr. Grant provide a sample of his breath "forthwith." Instead, the demand made was ademand that he provide a breath sample when the required apparatus arrived, which turned out to be half an hour later. It follows thatMr.

Grant was under no obligation to comply with the police officer's demand, and did not commit the offence under s. 238(5) when hefailed to do so. The context of s. 238(2) indicates no basis for departing from the ordinary, dictionary meaning of the word "forthwith"which suggests that the breath sample is to be provided immediately.

Without delving into an analysis of the exact number of minuteswhich may pass before the demand for a breath sample falls outside of the term "forthwith", I would simply observe that where, as here,the demand is made by a police officer who is without an A.L.E.R.T. unit and the unit does not, in fact, arrive for a half hour, theprovisions of s. 238(2) will not be satisfied. [emphasis added] 22 The Grant case does not say that there can be no delay at all between the demand, or the forming of a basis for the demand, andthe implementation of the test.

In fact, it is clear from the Supreme Court’s subsequent decision in Bernshaw that s. 254(2) does allowsome timeframe for implementation. In that case, the officer made an ASD demand when he stopped the accused and noticed signs ofimpairment. The test was taken and a fail was recorded. The accused argued that the test results could not be relied upon to form groundsfor the subsequent breathalyzer demand because the officer should have waited fifteen minutes before taking the ASD test to ensure thatit was not affected by the presence of mouth alcohol.

The Supreme Court held that the requirement that the test be conducted “forthwith”did not mean that it had to be conducted immediately. Justice Sopinka, writing for the majority of the Court, referring to a passage fromThomsen said: 64 Although the above passage states that the screening test should be administered as soon as possible, the fact that one should haveregard to the two-hour limit for the breathalyzer test suggests that a 15-minute delay would not offend the provision nor the scheme of s.254 of the Code.

Implicit in the requirement that the sample be provided forthwith is any operational time component. The peace officerhas to ready the equipment and instruct the suspect on what to do. In short, the statutory provisions must allow the time required to takea proper test.

The duration of this time requirement is constrained by the fact that there is an overall time limit of two hours if thescheme is to work. 23 Justice Sopinka then referred to the passage from Grant that I referred to earlier, regarding the meaning of the word forthwith,and said: 66 The above passage seems to indicate that the Grant case does not rule out the possibility that there is in fact some leeway toadminister the test after a certain period of delay. Lamer C.J. expressly declined to decide the exact length of time before which thedemand could be said to fall outside the term "forthwith".

In Grant, however, a half-hour delay in circumstances where no screeningdevice was even at the scene fell outside the ambit of the Criminal Code. ... 70 Accordingly, it appears that courts are willing to give a broad

interpretation to the meaning of "forthwith" as set out in the Grantdecision. In my view this is appropriate given the wording and context of the legislation. (emphasis mine) While Bernshaw dealt with asituation where the accused had suggested that a delay in implementing the test was necessary to ensure its accuracy, there is no reasonwhy a brief delay to secure a machine with which to conduct the test runs counter to the intent of s. 254(2) or the requirements of theCharter. The Supreme Court in Thomsen discussed the importance of having an effective means to detect impaired drivers considering

the danger to the public that these drivers pose. Allowing a driver the opportunity to consult counsel before the test is administered isincompatible with the effective use of this device. The Court found that it was reasonable to limit the driver’s right to counsel in thesesituations, considering the brief nature of the detention, the fact that the result of the test cannot itself give rise to a charge and the factthat the test results may work to the driver’s advantage and prevent the greater inconvenience of a breathalyzer test.

The case law doesnot suggest that, in order to comply with the Charter, the police must carry the ASD equipment with them. A short delay to secure adevice is consistent with the considerations articulated by the Court in Thomsen. While the 30 minute delay in Grant was too long, theCourt did not say that no wait is legitimate. 25 The Crown relies upon the decision of the Manitoba Court of Appeal in R. v. Higgins (MB CA), (1994), 92Man.R. (2d) 142, [1994] M.J.

No. 44 (C.A.)(QL) where the Court found that an ASD test was taken forthwith even though there was a14 minute delay between the demand and the taking of the test while the police officer waited for the device to be brought to the cruisercar. I find the facts in Higgins to be indistinguishable from those in the case before me. 26 The defence argues that Higgins is distinguishable because in that case, there was evidence of an “instituted and articulated”policy of the Brandon Police Service to have the ASD units brought to the scene rather than kept in the cruiser cars.

I did not find anyreference in Higgins to evidence of an articulated police policy. The evidence referred to by the court was only that the practice inBrandon was to have the device brought to the roadside, rather than kept in the cruiser cars because there were a limited number ofdevices available.

That appears to also be the practice in Flin Flon. 27 In any event, I do not think the issue is whether the police have a policy or practice to keep the ASD device in the cruisers or not.If the officer making the ASD demand does not have a device in his car, the issue should be whether he knows he can quickly accessone. If he does not know that, the driver should not be left indefinitely without an opportunity to contact counsel.

If the device can beaccessed quickly then the minimal delay would be consistent with the factors considered by the Supreme Court in justifying the limit onCharter rights. [15] The cases referred to by defence are, in my view, distinguishable on their facts. In Cote the accused was taken to thedetachment, and although telephones were available, he was not provided with access to counsel. Cote was also a refusal case. Dueparticularly to the wait at the police station, the demand was found not to have been made pursuant to the section. [16] In Kahlon, there was an off-duty officer who stopped the driver.

He called another detachment, an officer came with a deviceand then independently went about investigating for grounds. The officer who stopped the accused should have made the demand oncehe had the requisite grounds. Since he was not sure when the other officer would arrive, he should have given the accused access tocounsel in the interim.

Although there are similarities here, the second officer relied on the first officer’s grounds, rather thanreinvestigating. [17] In Kosman, there was a 13-minute delay while the ASD was brought to the scene, as opposed to five minutes in this case.“Forthwith” was reiterated to mean “as quickly as possible in the circumstances.” [18] In Bond, a delay of 13 minutes before the device was brought was found to not be “forthwith.” In contrast, here we are dealingwith a delay of only five minutes before the device was brought.

The rest of the time was taken up with “operational requirements” –speaking with officer #1, making the demand, questioning the drinking and smoking history, explaining the device, bringing the accusedback to the police vehicle and administering the test. I do not find that the 14 or 15 minutes until the fail result is the same as 13 or 14minutes waiting for the device. [19] Recently, our Court of Appeal made instructive comments on the use of approved screening devices.

In Mitchell at page 7,Justice Michel Monnin wrote: I start my analysis by considering the important investigatory function and purpose of the screening device test. Cory J. provided suchan explanation in R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, when commenting on the problems arising fromdrinking and driving. He wrote (at paras. 20-21): ... The ALERT testing devices are simply tools approved by Parliament for use at the first stage of the investigation of drivers who may beimpaired. They provide a means whereby drivers can be quickly screened.

The tested drivers will fall into two groups: those who havealcohol in their systems and those who do not or only have a low level. By this statutory scheme, Parliament has recognized the need tobalance the competing concerns of accuracy and convenience to the general motoring public. The ALERT test used as an investigatorytool obviously causes far less inconvenience to a driver than would a breathalyzer test.

A driver who fails an ALERT test is not subjectto criminal liability but may be required to take the more accurate breathalyzer test provided for in s. 254(3) of the Criminal Code. [20] At page 16, Justice Monnin wrote, “...the purpose of s. 254(2) is to provide an investigative tool that briefly detains a driverwith minimum inconvenience and intrusion.” [21] As reiterated then, the legislation was meant to provide minimal detention of drivers.

If the accused had not failed the ASD, hewould have been detained for at most 15 minutes, much less than if he had been taken to a detachment for breathalyzer tests. [22] There was not a period of time where the accused was left sitting where it would have been realistic to give him the opportunityto consult counsel. Nor were either officer at any point of time doing anything other than to attend to this matter. [23] I find, looking at the totality of the circumstances, that the demand was one to provide a sample “forthwith” and that there wastherefore no breach of s. 8 of the Charter.

If I had found a breach, I would have admitted the results under s. 24(2) and the criteria inGrant. [24] The breath test results are therefore admitted.

Original signed by Judge J. A. Elliott ___________________________ P.J.