Her Majesty the Queen - v. -, 2017 SKPC 15

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 015 Date: February 10, 2017 Information: 90102194 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Zachary Deiana Appearing: D. Stahl For the Crown M. Owens For the Accused JUDGMENT R.D. JACKSON , J I. INTRODUCTION [ 1 ] The accused is charged on or about April 6, 2016, at or near Kindersley, that he operated his motor vehicle while impaired by alcohol and while his blood alcohol content exceeded .08 per cent. [ 2 ] The Crown called two officers at trial, Constable Scott and Constable Lennea. The accused testified on his own behalf.

[ 3 ] The charge of impaired driving was stayed by the Crown at trial. II. ISSUES [ 4 ] The defence initially provided Charter notice involving alleged ss. 8 and 9 breaches by reason of the investigating officer requiring the accused to blow into his face to better determine the source of alcohol odour.

The contention was that this was conscripted evidence which could not be used to formulate an approved screening device (ASD) demand. [ 5 ] This position was subsequently abandoned in written argument as the authorities cited quite clearly established the contrary - that such is permissible for ascertaining ASD grounds, but not for proof of impairment itself. [1] As pointed out by the Crown, this issue was succinctly addressed by the British Columbia Court of Appeal in R v Wentz [2] at para 22 of the judgment: [22] Doherty, J.A. observed in Smith that he saw little distinction between evidence that flows from a physical sobriety test and evidence resulting from a driver’s answers to questions about drinking put to him by a police officer.

In the present case, I likewise do not perceive any distinction between those sorts of investigative procedures and asking a person to blow breath into the face of the investigating officer. All are simply different roadside screening methodologies utilised by a police officer to detect the presence of alcohol in the body of a driver. . . [ 6 ] The remaining issue advanced by the defence arose during the course of trial involving whether there had been proper compliance with the 15 minute observation periods leading up to the taking of the first and second samples on the Intoxilyzer.

Specifically, the defence alleged that proper observation periods had not been maintained because the attending officer was periodically preoccupied with texting on his cell phone and thereby distracted from his observation duties. III. THE EVIDENCE Traffic stop [ 7 ] The accused (as identified at trial) was stopped on highway #7 around 8:00 p.m. after exiting the parking lot of Boston Pizza on the western outskirts of Kindersley.

The accused’s truck was observed to pull out and pass a companion vehicle in an aggressive fashion which prompted the initial stop to check for driver’s license, registration and sobriety. [ 8 ] The investigating officer, Constable Scott, testified that the accused was the operator and lone occupant of the vehicle and that an alcohol odour could be detected coming from the interior of the cab.

Constable Scott then asked the driver to exit and had him blow into his face to determine if the alcohol smell was coming from the accused’s breath, which he was able to confirm. [ 9 ] The accused was accordingly administered an ASD which produced a fail result. He was then given the standard police warning, rights to counsel and breath demand and thereafter transported to the Kindersley detachment to provide formal Intoxilyzer samples.

Observation Periods [ 10 ] Constable Scott’s evidence was that he observed the accused continuously between the times of 8:23 to 8:38 inclusive, at which point he had to leave the room to prepare the Intoxilyzer instrument as he was the only qualified breath technician present. Upon

so doing, he turned over his observation duties to Constable Lennea, an officer in his thirteenth year of service.

He did not provide any instruction regarding the observation duties, assuming this was not required. [ 11 ] Constable Lennea then stayed with the accused for the approximate seven minutes until he was taken to the Intoxilyzer to provide the first sample which was received at 20:45 hours (8:45 p.m.) [3] . [ 12 ] Constable Lennea then remained with the accused for the entire second 15 minute period of observation while Constable Scott attended to other duties in the detachment and readied the instrument for a second sample. [ 13 ] In his evidence, Constable Scott, as qualified technician, acknowledged: T63, line 17 - 19 (referencing the Intoxilyzer EC/IRII Resource Training Manual): Q Okay.

Now this 15 minute observation period, I understand is a mandatory part of the proper operation of the instrument: correct? A The instrument won’t allow you to obtain a sample without it. T63, line 34 - 39 Q Okay. So tell me if you agree or disagree with this: “The subject must be observed for at least 15 minutes prior to each breath test to ensure there has been no burping, belching or regurgitation of stomach contents during this time . . .” A Yes. T 66, line 5 - 24 Q Okay.

And then it says . . .: “While most breath testing instruments have methods to detect the presence of mouth alcohol in a breath sample, they are not 100% effective”. A Yes. Q Alright. And then it says: “As such, it is important that the continuous 15 minute observation period be conducted prior to the analysis of each breath sample to allow any alcohol which may be present in the mouth to dissipate. A Yes. T 73, line 41, T 74, line 1 - 11 Q You can’t recall? You’re - essentially, whoever is doing this - this 15 minute observation period is supposed to watch the person like a hawk; right?

A Yeah, more or less. Q Okay. Well and it’s because a person can subtly burp or belch? A Yes. Q That’s why you have to maintain continuous eye contact on them; correct? A Yes. Q Okay. And that’s your training as well; correct? A Yes. [ 14 ] Constable Lennea testified, in part, as to how he conducted the balance of the first observation period and the entirety of the second. T123, line 28 - 36 Q Now, when you went into that room, you had a cell phone with you; correct? A Yes, I believe I did, yes. Q And during the first and second observation periods, I understand that you were communicating on that cell phone?

A No. Q You’re certain of that? Texting? A I don’t believe so. Q Okay. You don’t believe so? You’re not sure of that; fair? A I’m not sure. T 124, line 20 - 23 Q Okay. So you’re not sure - let me put it this way, fairness to you. You don’t recall whether you were communicating on that cell

phone in the 15 minutes prior to either breath test, fair? A Fair. T 135, line 9 - 35 Q I put it to you, Constable, that you in fact communicating ( sic ) on your cell phone, texting, while you were with the accused in this room, can you deny that? A I don’t know. Q And, of course, that would distract you from watching the accused to determine if there was subtle burps, belchs or regurgitations; correct? A I don’t know if - Ms. Stahl: Yeah, I - A - I was - it would be, yes. Mr. Owens: Alright. A If I wasn’t - Ms. Stahl: - I would suggest that speculative ( sic ) somewhat as well.

The Court: Well, I think it’s a proper question. Ms. Stahl: Thank you. The Court: (To Ms. Stahl) I think he can ask him if he was texting and if he’s answered, (To Mr. Owens) you’re saying if he were texting it would be a distraction? (Turning to Constable Lennea) Was that your answer? Did I understand you correctly? [4] A Yes. [ 15 ] The accused testified on his own behalf on this specific issue and in examination-in-chief stated: T131, line 33 - 40, T132, line 1 - 23 Q Alright. Tell us about what’s going on in that room, where you’re positioned, all that sort of thing with Lennea.

A I was on the west side of the room, and he would have been on the east. And I had my leg up and crossed, as well as he did. And I was on my cell phone and he was on his notebook once in awhile, and flipping his flip phone. Q Okay. What do you mean flipping his flip phone? A His phone. Q What was he doing with his phone? A I don’t - I’m just - he was just on it. Q Okay. For what duration of time would you estimate he was on it? Like, was it more than once? A Six times. Q Six times. And why do you say six specific times? A Because six times I remember very vividly. Q Okay.

And did you see him texting, or was he just looking at it, do you remember? A He was just - his thumbs were moving. Q Okay. Okay. And why did you take account of that. A I just - I just remembered it. I - I talked to a friend during texting and - Q What do you mean talked to - A I texted to a friend - Q Okay. A - and said, what’s your lawyer’s name and he gave me advice to just write down, remember everything. T 133, line 37 - 40; T 134, line 1 - 2 Q Okay. Did the officer do anything - well, let me ask it this way - did you see the officer with his phone, doing anything in the 15

minutes before the second breath sample? A Yes. Q And what was he doing? A Thumbs were moving. He was on it. He was just on it. [ 16 ] Further in cross-examination, the accused testified: T154, line 1 - 18 Q Okay. And how many times does Constable Lennea go on his phone? A Six. Q Six times? Exact? A Six times that I remember. Q Six times. Could be less? A Yes. Q Mmhmm. So you don’t really know? A No, I know it was six. Q But you said it could be less? You would agree with me that it was less? It could be less? A No. Q Okay. It’s six for sure?

A Yes. [ 17 ] The accused testified further that he regurgitated silently several times throughout the observation periods bringing up a bitter acid taste each time. He explained this was from consuming spicy hot wings at Boston Pizza which were unsettling on his stomach. Constable Lennea in his evidence testified that he did not observe any burping, belching, hiccoughs or regurgitating.

IV. THE LAW [18] By virtue of s. 258(1) of the Criminal Code, the Crown is able to rely upon the presumptions of accuracy and identitycontained therein, “ . . . in the absence of evidence tending to show that the approved instrument was malfunctioning or was operated improperly”.[5] [19] In R v St.

Albus[6] our Court of Appeal most recently stated at para 9: [9] The accused, in order to rebut the presumption of accuracy, must lead evidence tending to show that the approved instrument wasmalfunctioning or operated improperly, and that evidence must raise a reasonable doubt as to the accuracy of the result of the analyses. [20] In R v By[7], the issue raised here, i.e. whether the failure of the police to conduct the observation period raised a reasonabledoubt sufficient to rebut the presumption of accuracy, was squarely before the Court. [21] The evidence in By disclosed that the attending officer had physically absented himself from the observation room for aperiod of several minutes and that video surveillance was not maintained during such absence.

At trial, the Court found thatnotwithstanding, there was no evidence of burping or belching and that even if such did occur, there would have to be objective evidenceadduced demonstrating the relevance of this relating to the accuracy of the readings. [22] On appeal, Mr. Justice Barrington-Foote addresses these findings at paras 151 - 153: [151] Counsel for Mr. By disagrees.

He submits, based on the decisions in R v St-Onge Lamoureux, 2012 SCC 57 , [2012] 3SCR 187 [St-Onge] and R v Dineley, 2012 SCC 58 , [2012] 3 SCR 272, that the accused need only demonstrate that all relevanttesting procedures were not followed in order to rebut the presumption.

He also submits that both the reasoning in St-Onge and theevidence in this case confirm that observing the subject to watch for an event that might produce mouth alcohol for 15 minutes beforeeach test is a procedure that must be followed. [152] The question, accordingly, is whether evidence raising a reasonable doubt as to whether the breathalyser was operated properly issufficient to rebut the presumption, whether a failure to observe is improper operation, and whether some further evidence is requiredlinking that failure to a potential inaccuracy in the breath test results.

This is a question of law, and is accordingly reviewable on acorrectness standard. [153] The answer to these questions turns on the proper

interpretation of St-Onge. In that case, the court considered the constitutionalityof the 2008 amendments to s.258(1)(c). Those amendments provided that the presumptions of accuracy and identity would apply in theabsence of evidence tending to show three things:

i) that the approved instrument was malfunctioning or was operated improperly; ii) that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s bloodexceeded 80 milligrams of alcohol in 100 millilitres of blood; and

iii) that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time when the offence was alleged to have been committed. [ 23 ] Following a detailed analysis of St-Onge Lamoureux in the context of the issues raised, the Court concludes at para 159: [159] In the result, it is my opinion that St-Onge stands for the proposition that evidence which raises a reasonable doubt as to whether the breathalyser malfunctioned or was operated improperly may be sufficient, without more, to rebut the presumption of accuracy in s. 258(1) (c), at least where – as here – there is evidence that the improper operation might have produced test results which overestimated the blood alcohol content of the accused.

Further, it is my opinion that the evidence in this case meets that standard. I note, in particular, the evidence that the observation period was a mandatory part of the test process and that none of the police officers conducted the observation period at all, together with the evidence as to the reason for that observation period and the potential impact of mouth alcohol on the test results. That constituted evidence of deficiencies in the test process that raised a reasonable doubt as to the proper operation of the breathalyser .

I am comforted in this conclusion by para. 25 in St-Onge, where the court specifically referred to the observation of the subject for 15 minutes as one of the practices and procedures recommended by the expert committee to ensure accurate results. [Emphasis added] IV. DETERMINATION [ 24 ] The issues fleshed out for determination are as follows:

a) Has a proper evidentiary foundation been laid concerning the necessity of implementing 15 minute observation periods prior to samples being taken?

b) Is the Court satisfied that Constable Lennea was texting on his cell phone for portions of the observation periods, and

c) If so, whether, in the context of R v By , this amounts to failing to conduct proper observation of the accused prior to providing his breath samples thereby raising a reasonable doubt as to the operation of the Intoxilyzer? [ 25 ] On the first point the evidence here clearly demonstrates that the 15 minute observation periods leading to the taking of the breath samples are mandatory steps to ensure accuracy of the test results. [ 26 ] Similarly, the issue of whether Constable Lennea was texting periodically throughout must be answered in the affirmative.

Constable Lennea conceded that he may well have been so doing and the accused was definitive that he was. Unfortunately, there was no video evidence available to verify or refute this either way. [ 27 ] The final step in the analysis is the most problematic i.e. whether this comes within the framework of By since Constable Lennea was indeed physically present throughout, unlike in By where the officer left the room such that no observation was possible. Crown counsel urged strenuously that the Court should treat this as incidental, falling well short of the circumstances in By .

In particular, the evidence of the accused should be rejected, Crown counsel contends, as it relates to the frequency and extent of any texting by Constable Lennea. [ 28 ] Admittedly, the evidence of Mr. Deiana that he could specifically recall six times when Constable Lennea was texting - similar to an accused recounting quantum and timing of drinks in a bar, would ordinarily be met with healthy and justifiable skepticism by the Court. In this case however, the accused had never been arrested before and was told at the time by his friend (via his own texting) to “. . . just write down, remember everything”.

That he paid particular attention to what went on is plausible evidence in the circumstances.

[ 29 ] As to what effect texting has on the ability to observe, the Court does draw a parallel to the By decision. By focusing on texting, here as many as six different times, the officer cannot be said to be conducting a proper observation period of the accused to ensure no burping, belching or regurgitation occurs. He may as well have been physically absent during such activity. [ 30 ] In reaching this conclusion, the Court takes judicial notice of the steps currently being taken in law enforcement to curb texting and driving, recognizing that it is a significant and potentially disastrous distraction.

However, the Court need look no further than the evidence presented directly by Constable Lennea when he acknowledged that if texting, this would have amounted to a distraction from his observational duties. [ 31 ] While it is true that other senses are at play to assist observations such as hearing and smell, this begs the question as to whether the officer is nonetheless, in fact, distracted from his or her observation duties in the particular circumstances in question. In other words, there is no template as to what is proper in every situation.

Each case stands to be decided on its own facts having regard to the purpose and objectives of the observation period according to the evidence. [8] [ 32 ] In the case at bar, the accused testified that he actually did silently bring up bile on several occasions during the observation periods due to the spicy wings he had eaten at Boston Pizza just prior to the traffic stop.

Constable Lennea made no observation to support this, however, given that he was periodically distracted, on balance the Court accepts that this occurred. [ 33 ] Whether or not the stomach bile contained alcohol at all or in an amount sufficient to affect the Intoxilyzer readings would be mere speculation.

However, this is the very reason the Intoxilyzer manual and the machine itself requires the observation periods to be conducted - so there is no question of alcohol contamination in the process. [ 34 ] In any event, whether or not any alcohol may have been brought up is not something the accused need to establish. Mr. Justice Barrington-Foote in By rejected this conclusion of the trial judge who had relied upon R v So [9] , which required the accused to lead this evidence, and link this to a potential inaccuracy in the breath test results.

The mere fact that the mandatory observation period had not been done, according to Mr. Justice Barrington-Foote, was sufficient to raise a reasonable doubt concerning the testing process. V. CONCLUSION [ 35 ] For the reasons stated, the Court is satisfied that Constable Lennea did not conduct proper observation periods leading up to the taking of either the first or second sample of the accused’s breath.

As such, a reasonable doubt has been raised regarding the proper operation of the Intoxilyzer and, accordingly, the Crown is unable to rely upon the presumptions contained in the Certificate of Analyses. [ 36 ] The accused is therefore acquitted on count #2 of the Information of driving while over .08, there being no admissible evidence to substantiate same. ____________________ R.D. Jackson, J [1] See R v Laliberte , 2014 SKQB 242 at paras 26 - 28 [2] 2008 BCCA 233 [3] Both samples produced readings of 140 milligrams of alcohol per 100 millilitres of blood. [4] Bracketed portions added for clarity.

[5] As read down by the Supreme Court of Canada in R v St-Onge Lamoureux, 2012 SCC 57. [6] 2015 SKCA 121; see also R v Greenough, 2014 SKCA 57. [7] [2015] SJ No 148, 2015 SKQB 86 [8] For example, in R v Guichon [2010] BCJ No 2626, [2011] BCWLD 1933, 7 MVR (6th) 270, Bailiff J held that note takingby the officer was seen as a significant distraction in the circumstances as to not constitute a proper observation period. Seealso R v Bone [2016] SJ No 320, 2016 SKPC 51; R v Pfrimmer, 2016 SKPC 111; R v Woroschuk, 2016 SKPC27 , 2016 SKPC 027. [9] 2013 ABPC 93