Her Majesty the Queen - v. -, 2012 SKPC 72

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 072 Date: June 14, 2012 Information: 32415912 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Vernon Greenough Appearing: Christy Pannell For the Crown Mike Owens For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] Mr. Greenough was charged on May 8, 2008, with operating a motor vehicle while his ability to do so was impaired by alcohol and with operating a motor vehicle while his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[ 2 ] The Crown evidence was called on a voir dire as the accused asserted a violation of his right to counsel pursuant to s. 10(

b) of the Charter . In an oral decision on December 22, 2010, this Court held that the accused had not shown on a balance of probabilities that his right to counsel was violated and that the Certificate of Analyses was admissible. The trial of the matter then continued with the Crown evidence on the voir dire applied to the trial proper with the consent of counsel for the accused. The Certificate of Analyses was marked as a full exhibit on the trial. By further agreement the evidence of the accused given on the voir dire was applied.

Further, pages 7-3 and 7-4 of the Intoxilyzer 5000C Resource Manual were filed as Exhibit D-2 with the consent of the Crown. EVIDENCE [ 3 ] Constable McLeod was on routine patrol on May 8, 2008, with her partner when she observed a truck proceeding past a stop sign and coming to a halt in the middle of the intersection. This prompted her to conduct a traffic stop at 2:55 a.m. She approached the driver, who was the accused, and asked for his driver’s licence and registration.

He fumbled through some papers beside him in the vehicle in an apparent search for those documents and then appeared to realize that his wallet was in his back pocket. He removed his driver’s licence from the wallet and began to look in the glove box for his registration. Throughout, the officer continued to converse with the accused and noted that his eyes were somewhat glossy and a bit bloodshot, that his dexterity was poor and he was very slow and methodic in his motions.

When he was asked if he had been drinking he stated that he had two drinks a couple of hours earlier. [ 4 ] He was asked to accompany the officer to the patrol car so that she could administer a roadside screening test. He walked with long deliberate steps from heel to toe but without any swaying or lack of balance. The roadside screening demand was made at 2:58 a.m. and was administered on a Draeger Alcotest 7410GLC. The test resulted in a fail reading which the officer understood to mean a blood alcohol level in excess of 100 milligrams of alcohol in 100 millilitres of blood.

As a result, Constable McLeod formed the opinion that the accused’s ability to operate a motor vehicle was impaired by alcohol and proceeded to make a demand that he provide samples of his breath suitable for analysis. That demand was read at 3:01 a.m. and Mr. Greenough indicated that he understood.

At 3:02 a.m. the officer read his rights to counsel and he indicated that he understood those rights and did wish to speak to a lawyer. [ 5 ] The officers remained at the scene partly to wait for a tow truck to remove the accused’s vehicle and partly to await a friend of the accused to collect the dog which was in the vehicle. Once the vehicle and dog left, the officers proceeded directly to the police station arriving at 3:31 a.m. The journey took approximately four minutes.

The accused spoke to duty counsel and at 3:40 a.m. was presented to the Intoxilyzer operator, Constable Campbell. [ 6 ] The first attempt resulted in an invalid sample at 3:56 a.m. In the officer’s opinion, this was the result of the accused inhaling rather than blowing steadily into the instrument. The accused was told of the consequences of a refusal to provide proper samples and the officer again prepared the instrument to receive samples. At 4:09, the accused provided a second sample of his breath which resulted in a reading of 220 milligrams of alcohol in 100 millilitres of blood.

The third sample taken at 4:33 a.m. resulted in a reading of 230 milligrams of alcohol in 100 millilitres of blood. For reasons which were not explained, the time of the second sample was recorded on the Certificate of Analyses as 4:32. [ 7 ] In cross-examination, Constable Campbell acknowledged that the operational manual for the Intoxilyzer requires that 20 minutes elapse before a further sample is taken after the instrument shows an invalid sample.

He admitted that he did not wait as he misconstrued the indication of an invalid sample to mean simply that the sample was deficient and not the presence of mouth alcohol. When he realized his mistake, he told his sergeant who advised him to notify the prosecutor about what had occurred. Although pressed in cross-examination, he could not say what effect, if any, the failure to wait 20 minutes would have had on the reliability of the subsequent sample. [ 8 ] Karen Friesen testified that she had known the accused for approximately five years through her employment at a local restaurant and bar.

He came into the bar at 11:20 p.m. and had a coffee with one ounce of liqueur then had one ounce of rye with Coke. She was tending bar and was the only one serving drinks that night. She chatted with him on and off throughout the evening and noted that he left the bar for short periods to have a cigarette and to pick up a dog. She spent a minimum of 1½ hours with him and judged him to be sober based on her knowledge of him. She had no concerns about his sobriety that night and saw no symptoms suggestive of impairment.

She is aware that bartenders can be charged for over serving alcohol to patrons and would have either called a cab or given him a ride home if she had suspected that he was under the influence of alcohol.

[ 9 ] The accused testified that he was reaching for his cell phone which was on the floor of his vehicle as he approached a stop sign at about two miles per hour. By the time he retrieved his phone and set it on the seat, he had crept about six feet past the stop sign. He turned left, then noticed a police vehicle behind him. When signalled to stop, he immediately did so. A female officer approached and asked if he knew why he had been pulled over. When he acknowledged that he had not stopped for the stop sign, she asked him for his vehicle registration and his licence.

The paper licence had adhered to the nylon wallet, but he was able to remove and hand it to the officer. He could not locate the registration. In response to her further questions, he said that he had a couple of drinks and was coming from the Mediterranean Inn. He complied with her request to enter the patrol car for the purpose of performing a roadside breath test. He acknowledged that the test resulted in a fail reading and that he was told that he would be taken downtown. This did not occur immediately; rather, they waited approximately half an hour for a tow truck to remove his vehicle.

He was permitted to make a phone call to a friend to collect the dog which was in the vehicle but was told that the officers would wait only five minutes for the friend to arrive. The tow truck and the friend arrived almost simultaneously and once the vehicle was towed, he was taken to the police station. There he was searched and his property removed. He advised the officers that he was blind in one eye and was mocked by one of the several officers milling about.

After the accused exercised his right to counsel, he met Constable Campbell who took three breath samples from him. [ 10 ] In cross-examination, the accused was asked to define what he meant by a couple of drinks and acknowledged that he recalled consuming six alcoholic beverages over the course of the evening. [ 11 ] An excerpt from the Intoxilyzer 5000C Resource Manual pertaining to mouth alcohol detection was filed as Exhibit D-2.

This says, in part: The mouth alcohol detection system is simply another safeguard to add to the 20 minute waiting period and duplicate breath samples taken at least 20 minutes apart with truncated results that are within 20 mg% of each other. ...The slope requirements have been met with there being a difference of only -1 between the last two results. However, this would still result in an “INVALID SAMPLE” message when the final value (154) is compared to the highest value (170).

When this occurs, the subject must wait a further 20 minutes before providing another sample, and this would necessitate the taking of a third sample. There is no indication in D-2 as to the effect, if any, that a failure to wait would have in an accurate analysis of the samples. ISSUES [ 12 ] The issues are as follows: (

i) Were the samples taken as soon as practicable? (ii) Is the “evidence to the contrary ” legislation retrospective in nature? (iii) Can the breath analyses be relied upon so as to trigger the presumption of s. 258(1) (

c) of the Criminal Code ? (iv) Does the evidence prove the offence of impaired driving? ANALYSIS (

i) Were the samples taken as soon as practicable? [13] Section 254(3) of the Criminal Code says, in part:

If a peace officer has reasonable grounds to believe that a person is committing...an offence under

section 253 as a result of theconsumption of alcohol, the peace officer may, by demand made as soon as practicable, require a person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in a person’s blood... (emphasis mine) [14] Thus, the Crown bears the onus of proving both that the demand was made and the tests were taken as soon as practicable. [15] Section 258(1)(

c) creates a presumption about the concentration of alcohol in an individual’s blood at the time of driving and atthe time the analyses were made, but before any reliance can be placed on that presumption, certain things must be proven including thatthe demand was made as soon as practicable and that the tests were taken as soon as practicable. Counsel for the accused did not takeissue with the timeliness of the demand. [16] In R. v. McCoy (1990), (SK KB), 86 Sask. R. 204 (Sask. Q.B.), the Court held that as soon as practicablemeans “as soon as can be reasonably expected”.

There is an acknowledgment that every case must be viewed on its particularcircumstances. Gerein J. said: If the Crown is to be permitted to rely on the presumption it must establish that the samples were taken within a reasonable time. What isreasonable will depend on the particular circumstances of each case. As well, in each case the trial judge may have reference to his orher own experience. At the same time, the Crown cannot be expected to account for every minute or even several minutes lost over aperiod of time.

However, when the time lapse is one of considerable or unusual duration, it is incumbent upon the Crown to provide an explanation forthe delay. If that explanation is accepted as proper then the lapse of time remains reasonable. If the explanation is rejected then the sample is not obtained within a reasonable time and the presumptioncan have no application. [17] Counsel for the accused relies on R. v. Wetzel, 2011 SKPC 9, where the tests were found not to have been taken as soon aspracticable.

In that instance, the tests were delayed by 30 minutes while officers waited for a tow truck to remove the accused’s vehiclefrom the street. Several explanations were offered for its removal but the Court accepted that the vehicle was towed as a matter of policy,not for any valid reason. There was no other reason for the delay. [18] In the case at hand, the accused testified that he did not want to abandon the dog which was in his vehicle and made a phone callto a friend to pick up the animal.

On his version of events, which I accept since he was the one with the particular concern about thedog, the tow truck and the friend arrived at approximately the same time. Further, although Constable McLeod candidly acknowledgedthat she did not especially turn her mind to the manner in which the accused’s vehicle was parked, she was of the opinion that a vehiclecould not properly be left along the portion of Spadina Crescent where it was located. At page 31 of the transcript, the officer explainedthe wait of less than half an hour was to permit the vehicle and the dog to be removed.

In this instance, the demand for the breath sampleoccurred at 3:01 a.m. and was followed by the accused being advised of his right to counsel at 3:02 a.m. Arrangements were then madeto deal with the accused’s vehicle and dog. At approximately 3:27 they were en route to the police station having spent approximately25 minutes at the scene after the demand was made. At 3:56 a.m. the accused was presented to the Intoxilyzer technician for the firstsample.

In the 25 minutes immediately preceding this the accused was taken to the detention area, booked into the police station,searched, divested of his possessions and provided an opportunity to call a lawyer. [19] One might argue that the officers should have acted differently or more quickly; however, the role of the Court is to assess

[19] One might argue that the officers should have acted differently or more quickly; however, the role of the Court is to assesswhether the time which elapsed prior to the taking of the tests is reasonable and adequately explained, not to critique each step taken. Isthere a satisfactory explanation for any delay in this case? I find that there is.

To remain at the roadside for a few minutes to arrange forthe seizure of the accused’s truck in order to ensure that it was not damaged and that it did not become a source of liability, is reasonable.Similarly, to comply with the request of the accused that they wait for his friend to collect the dog is reasonable. The time spent at thepolice station prior to the tests being conducted also has been accounted for in an adequate fashion. On the whole, a satisfactoryexplanation has been offered for the 55 minutes between the demand and the first sample.

In any event, the accused was presented to theIntoxilyzer operator well within the requisite two hours and, in this case, as soon as practicable. (ii) Is the “evidence to the contrary” legislation retrospective in nature? [20] As counsel for the accused argued that the breath samples cannot be relied upon, a brief consideration will be given to the issueof the applicability of the amendments to s. 258(1)(

c) of the Criminal Code which says: ...where samples of the breath of the accused have been taken pursuant to a demand made under section 254(3), if ... (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case ofthe first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the sampleswere taken, (iii) each sample was received from the accused... into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at thetime when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of theanalyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of theconcentrations determined by the analyses, in the absence of evidence tending to show all of the following three things–that the approvedinstrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination thatthe concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood and, that the concentration of alcoholin the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100mL of blood at the time when the offence was alleged tohave been committed. (Emphasis mine) [21] The amendments to s. 258(1)(c)(iv) as set out above were enacted on July 2, 2008, approximately two months after this accusedwas charged.

The question is whether these amendments are substantive or procedural. If considered procedural, the amendmentswould apply retrospectively; if substantive, they would not. [22] This issue was considered in R. v. Shambel, 2009 SKQB 431, a decision which is binding upon this Court. In Shambel, WhitmoreJ. upheld the finding of the trial judge that the amendments were procedural in nature and were to be applied retrospectively. A similarconclusion was reached in R. v. Jones, 2008 CarswellSask 927 (Sask. Q.B.), R. v. H. (B.G.), 2009 SKPC 54, and R. v. MacKenzie, 2009SKPC 45 , 330 Sask. R. 163.

In the face of binding and persuasive authority, I find that the statutory requirements to establishevidence to the contrary are applicable. (iii) Can the breath analyses be relied upon so as to trigger the presumption of s. 258(1)(

c) of the Criminal Code? [23] Counsel for the accused argued that the failure to wait 20 minutes after obtaining a reading of “invalid sample” raises areasonable doubt with respect to the accuracy of the analyses and therefore the presumption of s. 258(1)(

c) is not triggered. In support of

this proposition, he relies on R. v. Asim, [2008] O.J. No. 3075 and R. v. Kirby, [2009] O.J. No. 5796, both decisions of the Ontario Courtof Justice. In Kirby, the Court found that a failure to wait the prescribed 17 minutes after receiving an indication of an invalid test likelydue to mouth alcohol did raise a reasonable doubt as to the accuracy of the analyses. A similar conclusion was reached in Asim oncircumstances virtually identical to Kirby. However it is noted that both cases dealt with offences which occurred prior to the enactmentof the amendments to s. 258(1)(

c) and neither considered whether the amendments applied. I find these decisions are neither binding norpersuasive. [24] By the enactment of the amendments to s. 258(1)(c), Parliament has clearly set out the evidence necessary to cast doubt upon theaccuracy or conclusive nature of breath sample analyses. In order to rebut the conclusive presumption set out in s. 258(1)(c), there mustbe some evidence to show: (

i) that the instrument malfunctioned or was operated improperly, (ii) that the malfunction or improper operation resulted in readings exceeding 80 mg of alcohol in 100mL of blood, and (iii) that the accused’s blood alcohol content would not have exceeded 80 mg of alcohol in 100mL of blood at the time of the offence. (emphasis mine) [25] Although the evidence before me establishes that the recommended manner of operation of the Intoxilyzer requires that 20minutes elapse after a reading of “invalid sample”, there is no evidence that waiting only 13 minutes would render a subsequent testunreliable or inaccurate.

The Intoxilyzer operator could not say what effect, if any, this failure would have had on the subsequent testresults. Further, the two subsequent tests recorded on the Certificate of Analyses are within 20 mg% of each other as required to ensureaccurate results and are supportive of the accuracy of the reading. Further, the fail on the roadside screening device supports theproposition that the accused’s blood alcohol level was in excess of 80 milligrams of alcohol in 100 millilitres of blood at the time ofdriving. Further, as indicated in D-2, the “mouth alcohol system is simply another safeguard”.

Based on the evidence before the Court,it would be mere speculation to conclude the results which were obtained were unreliable or inaccurate. [25] Parliament has clearly established the nature of the evidence required to rebut the accuracy of recorded breath test results.

In thisinstance, although the evidence is that the instrument was not operated in accordance with the operator’s manual, there is no evidencethat the manner in which it was operated created a result in excess of 80 mg of alcohol in 100 mL of blood when the accused’s alcohollevels at the time of driving would not have in fact exceeded that level.

The Court is therefore left with the statutory presumption that theresults of the tests are conclusive proof of the accused’s blood alcohol level of .22 both at the time of driving and at the time the testswere conducted. (iv) Does the evidence prove the offence of impaired driving? [26] R. v. Stellato, (ON CA), [1993] O.J.

No. 18 (C.A.), affd. (SCC), [1994] 2 S.C.R. 478 (S.C.C.),provides the test to be applied in determining whether the offence of impaired driving has been established; that is: if the Crown hasproven beyond a reasonable doubt that the ability of an accused to operate a motor vehicle is even slightly impaired by drug or alcohol,there is sufficient proof of the offence. This does not mean that only slight evidence will be adequate. Rather, the evidence as a wholemust establish that such an inference can reasonably be drawn from conduct which is a departure from the norm.

That departure may fallupon a continuum from slight to great, but it must lead to no other reasonable conclusion but that the accused’s ability to operate a motorvehicle was impaired to some degree by the consumption of alcohol and/or drugs. [27] In this case, the attention of the officer was drawn when the accused stopped his vehicle in an intersection some six feet beyonda stop sign. In addition to his admission that he had been drinking, the accused had glossy and bloodshot eyes, his dexterity wassomewhat compromised and his motions were slow and methodic.

He did not sway or appear to lose his balance when he walked, butmoved with long, deliberate, heel to toe steps. The accused explained that his failure to properly stop at the stop sign was the result ofbeing distracted by the retrieval of his cell phone, and thus presumably removing pressure from the brake pedal causing the vehicle toroll forward. This evidence indicates an impairment of the ability to perform divided attention tasks integral to operating a motorvehicle.

On the whole of the evidence, I am satisfied beyond a reasonable doubt that the accused’s ability to operate a motor vehicle wasimpaired by alcohol in accordance with the test enunciated in Stellato supra.

CONCLUSION [28] No issue was taken with respect to the proof of date, time, place or identity of the driver. I am satisfied that all other essential elements of the offence of impaired driving have been proven beyond a reasonable doubt and the accused is found guilty of Count 1 on the information.

Further, having found that the breath samples were taken from the accused as soon as practicable, and that there was no evidence to rebut the presumption that the accused’s blood alcohol level at the time of driving and at the time of the tests was .22 as indicated on the Certificate of Analyses, the accused similarly is found guilty of Count 2. The charge of impaired driving will be stayed conditionally pending any appeal. ______________________ M.L. Gray, J