R. v. Geisel, 2013 MBPC 16

CITATION: R. v. Geisel , 2013 MBPC 16 Date: 2013 03 19 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Garry Rainnie ) for the Crown ) and ) ) ) Christopher George Geisel ) Mark Wasyliw ) for the Accused ) ) ) ) Reasons for Decision delivered: ) March 19, 2013 MOAR P.J. I.

INTRODUCTION [ 1 ] As a result of an investigation in the early morning hours of December 22, 2011, the accused was charged with two criminal code offences. [ 2 ] At the outset of the trial, the crown directed a stay of proceedings to the charge alleging an offence of driving while the ability to operate a motor vehicle was impaired.

The crown then elected to proceed summarily on the sole remaining offence alleging that the accused operated a motor vehicle with a blood alcohol level in excess of the legal limit. [ 3 ] To that offence the accused entered a not guilty plea. [ 4 ] Prior to the hearing date, counsel for the accused had provided notice that they would be alleging a breach of the accused’s

Section 8 Charter right and seek to have the results of the approved screening device readings and breath readings obtained ruled inadmissible pursuant to s. 24 of the Charter . [ 5 ] Both counsel agreed that the case would proceed in a voir dire format and any evidence found to be admissible would be applied mutatis mutandis. Agreements [ 6 ] At the outset, counsel for the accused made the following admissions: • Identification of the accused as the person dealt with by police on the evening in question. • The jurisdiction of this court was admitted.

• No issue with handling of all documentation by the officers. [ 7 ] Finally, both counsel provided this court with case books for the courts consideration. II. EVIDENCE Crown Case [ 8 ] The Crown indicated at the outset that their case involved the calling of two police officers. Constable Tanner Newans [ 9 ] The first witness called was Constable Tanner Newans (“Cst. Newans”), who indicated he was a member of the Dauphin Municipal detachment of the Royal Canadian Mounted Police and had been so for a period of one month at the time of the incident now before the court. [ 10 ] On the date in question, Cst.

Newans indicated that he was working the night shift and was partnered with Cst. Harschall. There was a third officer, Cst. Dutch, also on duty in the detachment that evening conducting general patrol duties. [ 11 ] According to the testimony of Cst. Newans, he and his partner were performing general patrol duties in the city of Dauphin on the evening in question. The detachment had stepped up patrols in the areas of the town bars as it was observed to be somewhat busier which was surmised to be as a result of the holiday season.

Those patrols involved general check stops being done to check for licenses, registration and possible impaired drivers. [ 12 ] In the early morning hours the officers were set-up near the Boulevard Hotel watching people as they were going from and to their cars all evening. Just prior to 0228 hours they had noted a vehicle of interest in the Boulevard Hotel parking lot and did conduct a traffic stop of that vehicle. As that traffic stop was completed both officers then noted a black van proceeding with no lights on. [ 13 ] Cst.

Newans proceeded to follow the van and after a short while activated his emergency lights in order to initiate a traffic stop to conduct a further investigation. He exited his cruiser car and upon approaching the van found the accused, Mr. Giesel, to be the driver. In addition to the accused, Cst. Newans noted that there were six passengers within the van, all of whom appeared to be intoxicated. [ 14 ] When asked, Mr. Giesel (“accused”) indicated that he had been at the Boulevard Hotel. During this brief interaction, Cst.

Newans noted the accused to have bloodshot, watery eyes as well as an odour of liquor was detected on his breath. [ 15 ] At this time the accused was advised that he was being detained for further investigation and was asked to turn off the van, hand over the keys and accompany the officer back to the police cruiser car. The accused complied with each of those requests and was described as being cooperative throughout his interaction with the officers. [ 16 ] The original traffic stop was estimated by Cst.

Newans to have occurred at 0225 hours and that was based on the fact that in his notes he had recorded the driver license information of the accused in a notation entered at 0228 hours. In addition to recording that information, Cst. Newans testified that he would have also already ran the license plate of the van and received those results back prior to exiting his cruiser car. [ 17 ] Once at the cruiser car, the accused was placed into the backseat and then proceeded to answer a number of questions that were posed to him by both of the officers.

One of the questions asked of him at 0237 hours that was recorded by Cst. Newans was when he had his last drink and the reply recorded was 2300 hours the evening before. [ 18 ] At 0239 hours, Cst. Newans indicated that the passengers from within the van began to exit onto the street and he became concerned for their safety given their levels of intoxication previously observed. At that point he radioed for the assistance of Cst. Dutch and when he arrived, Cst. Newans exited the cruiser car to assist in moving the people off the roadway for their own safety. [ 19 ] During this period of time, the accused, Mr.

Giesel, was left in the cruiser with Cst. Harschall and neither of them ever left the cruiser car during this time. [ 20 ] At 0243 hours, Cst. Newans testified that he returned back into his cruiser car and noted Cst. Harschall demonstrating the Approved Screening Device (“ASD”) to the accused. At 0246 hours the test was administered by Cst. Harschall and he observed a fail reading on the device.

As a result of that reading being obtained, the accused was then advised of his arrest for the additional offence of drive over .08. [ 21 ] At 0247 hours the accused acknowledged his understanding to that charge and at 0248 hours he was read his right to counsel from a pre-printed card. When asked whether he wished to exercise his right to contact counsel, the accused indicated that he did wish to call a lawyer. [ 22 ] A breath demand was made of the accused at 0249 hours to which he indicated an agreement to provide a breath sample.

He was then advised of the police caution and again indicated he understood. [ 23 ] Cst. Newans indicated that he had formed the opinion that the accused was impaired based on his observation of blood shot watery eyes, the detection of the odour of liquor on the accused’s breath and the fail result obtained from the ASD device. [ 24 ] At 0251 hours they left the scene with the accused, making no stops on the way back to the detachment, arriving at 0256 hours. Cst. Dutch remained at the scene to watch the van and await the arrival of a tow truck.

[ 25 ] Once at the detachment, the accused was placed into a room and permitted an opportunity to speak with legal aid counsel in private. That call lasted from 0310 hours to 0314 hours after which Cst. Newans testified that he then began his observation period of the accused, while also beginning to fill out the C256 investigative form. [ 26 ] The first sample into the breathalyser began at 0333 hours but was found to be invalid as the accused did not provide a continuous breath that is required. A valid sample was subsequently obtained at 0334 hours with a reading of 110 milligram percent being recorded.

Almost immediately after that sample was obtained, the accused was noted to have belched and at 0338 hours was taken to the washroom. [ 27 ] The accused began to provide a further sample at 0354 hours however, as had occurred previously, that sample was found to be inconsistent and therefore invalid. Another attempt was made at 0355 hours resulting in a valid sample being obtained with a reading of 110 milligram percent noted. [ 28 ] At 0356 Cst. Newans seized the driver license of the accused and at 0402 placed the accused into cell #9 to permit the completion of various paperwork.

At 0448 hours the accused was released to his wife and served with a Promise to Appear with an undertaking. He was also served with a true copy of the Certificate of Analysis that is now marked as exhibit “A” for identification. [ 29 ] With respect to the readings obtained, Cst. Newans acknowledged that he was not the breath technician, but was present during the taking of the samples and observed the readings as they appeared on the machine. [ 30 ] In terms of any communications that occurred between he and Cst. Harschall, Cst.

Newans testified that he shared with her his observations made at the time of the traffic stop. Those observations included the bloodshot, watery eyes, the odour on his breath and the general condition of the others in the van. In respect of the odour of liquor on the breath, this was a distinct odour detected when he leaned into the van to speak with the accused. [ 31 ] During cross-examination, the officer confirmed that he was in field training and had been on the job for less than a month at the time of this investigation.

This, according to his recollection, was his second or third impaired investigation that he had been involved with. [ 32 ] During his interactions with the accused, Cst. Newans acknowledged spending extra time and being very cautious in his note taking. In that regard, he did complete a general report along with a Prosecutor Information Sheet (“PIS”) prior to the conclusion of his shift. [ 33 ] In his general report, Cst. Newans acknowledged that he did write that at approximate 0220 they were doing general patrol duties in Dauphin.

That time noted was clarified by the officer as being the time he started patrolling and not the time he pulled over the van being driven by this accused. [ 34 ] In terms of the traffic stop, Cst. Newans confirmed in cross-examination that the basis of the stop was the van not having headlights on. Prior to exiting his cruiser car, he had completed a computer check on the van and when those results were received, he then went to speak to the driver.

It was at this time he detected the odour of liquor on his breath and then detained the accused for an ASD demand. [ 35 ] The officer estimated that it took him about two minutes from the time of the initial stop to the time he placed the accused into the cruiser car. [ 36 ] The first entry in his notebook was acknowledged by this officer to denote a time of 0228 where he outlined the accused’s particulars as well as the visual observations he had made. During this time in the cruiser car, Cst. Newans testified that Cst. Harschall was also speaking to the accused while he was doing his catch up notes.

What conversation was occurring between them was something he could not recall but what he was able to confirm is that no ASD demand was made in his presence at that time. [ 37 ] As for himself, Cst. Newans acknowledged asking the accused various questions including one nine minutes after he placed the accused into the cruiser car. That question inquired as to the time the accused consumed his last drink. In that regard, Cst.

Newans acknowledged that he had already formed the necessary grounds for an ASD demand but did ask questions to help complete the investigation. [ 38 ] Approximately eleven (11) minutes after the initial stop, Cst. Newans got out of the cruiser car to deal with the individuals who had exited the van and were wandering onto the roadway. He remained engaged with that activity until returning back into the cruiser car at 0243 hours. It was at that point that he observed his partner demonstrating the ASD device to the accused.

That test was then completed at 0246 hours after which they went directly to the detachment. Constable Teresa Maria Harschall [ 39 ] Cst. Teresa Maria Harschall (“Cst. Harschall”) testified that she had been a member of the Royal Canadian Mounted Police for about ten (10) years at the time of the incident before the court. [ 40 ] On the evening of December 21, 2011 she was partnered with Cst. Newans and was acting as his field coach for that shift.

She testified that they were conducting general patrol duties and given the time of year, their focus was on impaired drivers. [ 41 ] In the earlier morning hours, both officers noted a black van being operated with no rear tail lights. That vehicle turned onto 4th Avenue SW and after following it for a short period of time, the officers decided to conduct a traffic stop. The emergency lights and siren were activated and the van in question soon came to a stop. [ 42 ] The traffic stop was called into dispatch at which time Cst. Newans then exited the cruiser car to attend and speak with the driver of the van.

Cst. Harschall advised that she also exited the cruiser car at this time in order to monitor the interaction between Cst.

Newans and the driver. She was able to hear that a conversation was occurring and at some point heard Cst. Newans ask the driver to turn off the van and hand him the keys. She then heard him ask the driver to step out of the van as he was being detained for an impaired driving investigation. [ 43 ] As Cst. Newans walked past her with the driver, he advised her that he could smell liquor on the breath of the driver. The accused was patted down and then placed into the rear of the cruiser car by Cst. Newans. [ 44 ] She then got into the cruiser car and testified that Cst.

Newans did not get back into the cruiser car at this time, instead he returned back to the van to deal with the passengers who were now exiting onto the roadway. She described the passengers as being quite loud and radioed for further assistance to help control the area. While awaiting the arrival of additional officers, Cst. Harschall testified that she maintained watch of Cst. Newans for officer safety reasons. [ 45 ] With respect to the accused in the cruiser car, Cst.

Harschall began to question the accused as to how much he had to drink, what he was drinking and further like questions as she continued to monitor the safety of Cst. Newans and his dealings with the passengers from the van. One of the questions posed by her to the accused was when he had been drinking that evening to ensure that he did not have any liquor within the proceeding fifteen minutes. Soon thereafter, she observed Cst.

Dutch arrive on scene and he began to assist with the passengers from the van. [ 46 ] It was at this time, 0242 hours, that she read the accused the ASD demand and began to prepare the instrument for use. She demonstrated to the accused how he was to take the test and while doing so, Cst. Newans returned back into the cruiser car. The accused then provided a breath sample which resulted in a fail reading being obtained. [ 47 ] Based on the totality of information available, including the fail result on the ASD, Cst. Harschall advised the accused he was now under arrest for drive over .08. She instructed Cst.

Newans to read the accused his Charter rights verbatim as he was the lead investigator. [ 48 ] Cst. Harschall confirmed that the traffic stop occurred at 0225 hours and that it was not until Cst. Dutch arrived on scene at 0242 hours that she then read the ASD demand to the accused. She attributed that delay occurring due to police having to deal with the passengers who had exited the van [ 49 ] As for the accused, Cst.

Harschall confirmed that although there were grounds present to make an ASD demand in this case, she saw no other overt signs of impairment that would have been sufficient to make an arrest for impaired driving at the time of the traffic stop. She did make notes of her own observations of the accused with the only notation recorded being that the speech of the accused was hesitant. [ 50 ] In cross-examination, Cst. Harschall confirmed that she was made aware that the timing of the ASD demand was going to be the legal issue in this case.

She acknowledged having prior e-mail correspondence with the crown on that matter and notified the crown that the justification for the delay was due to officer safety reasons, something she also indicated today. [ 51 ] After the accused was processed, she acknowledged that she did prepare a supplemental report concerning this investigation. She confirmed that the recorded time of the stop in this report was 0224 hours. At that time she exited the cruiser car and stood at the rear of the van to watch and listen as her partner dealt with the driver. From this position she could hear Cst.

Newan’s interaction with the driver and saw him bring that person back to the cruiser car and place him into the rear seat. [ 52 ] She confirmed that at the time the accused was being placed into the rear of the car, she had been made aware of grounds to justify making an ASD demand. [ 53 ] In her notebook, Cst. Harschall confirmed that the first time she has noted was 0225 hours. At that time she recalls being seated in the cruiser car doing her catch up notes.

She confirmed that she did not make an ASD demand of the accused nor did she begin to prepare the device for use at this time. [ 54 ] The notes she prepared while seated in the cruiser car contained details of the initial traffic stop and the background information of the accused which included information about his driver license status. She then proceeded to question the accused and recorded the contents of that conversation she had with the accused while in the cruiser car. She indicated that she will typically question individuals on occasions when they are placed into the rear of the cruiser car.

In this case she acknowledged that during this questioning phase, the accused was not under arrest for any offence. [ 55 ] One of the questions asked of the accused was when he had his last drink to which she received a reply of 1900 hours. With that answer she acknowledged that there was no basis to delay the taking of an ASD sample as a result of a concern for mouth alcohol being present. [ 56 ] When asked about her partner, she recalls that immediately after he placed the accused into the rear of the cruiser car, he went directly to deal with the individuals that were then leaving the van.

She was asked whether he could have got into the cruiser car first and sat for a period of time making notes before he then exited to go and deal with the individuals that were leaving the van. To that she testified having no recollection of him ever entering the cruiser car until after he had dealt with the individuals from the van.

She also denied seeing him prepare any notes while in the cruiser car just after the traffic stop occurred. [ 57 ] With respect to her own notes, it was pointed out by counsel that the only reference to the passengers of the van was that they were noted to be inside the vehicle at the time of the stop. There is no entry in her notes or in her supplemental report that the passengers were ever outside of the van. [ 58 ] When questioned as to why the ASD demand was not made sooner, Cst. Harschall testified that she was making notes, watching her partner and asking the accused questions.

[59] Again it was suggested to Cst. Harschall that her partner entered the cruiser car, after placing the accused in the rear seat, andsat next to her for about ten minutes before exiting to deal with the passengers from the van, to which she indicated no. Defence Evidence Counsel for the accused indicated that no evidence would be called by the defence. III. ISSUES [60] Counsel for the accused framed their argument by alleging that the ASD demand and taking of the samples was not doneforthwith as is contemplated by section 254(2) of the Criminal Code of Canada. If that is so, they allege that constitutes a

section 8Charter breach and the accused then seeks to have the results of the ASD test excluded pursuant to Section 24(2) of the Charter. (

a) Forthwith Defence Position [61] Counsel for the accused suggests that the evidence of the officers shows that the traffic stop occurred either at 0220 hours or at0224 hours. There is a short delay before officers approach the van and when they do speak with the accused it is clear that there is thesmell of liquor on his breath.

There then occurs a series of unnecessary delays before the test is taken at 0247 hours, a period of sometwenty-three (23) minutes that the accused suggests is egregious and a breach of the requirements of s. 254(2). [62] Counsel suggests that s. 254(2) sets out to protect an accused person by making the ASD process a quick stop and quickscreening process. [63] In the case at bar it is suggested that police had the necessary grounds to make an ASD demand immediately upon contact.There then was a delay during which time background information is being obtained, catch up notes are being done and furtherconversation with the accused is occurring.

Counsel suggests that what was being done by police during the time prior to the ASD testbeing administered is unnecessary to the taking of the ASD and therefore the demand was made outside the ambit of the

section and isnot a demand made forthwith. [64] Counsel points to the case of R. v. Woods, 2005 SCC 42, and suggests that the forthwith requirement set out in s. 254(2)depends on immediacy and any deviation from that deprives the crown of the

section 1 justification. Essentially counsel suggests thatpolice do not have the authority to delay the taking of the samples needlessly. Crown Position [65] Crown counsel set out what is suggested to be the time frame based on the evidence. The traffic stop is suggested to haveoccurred at 0225 hours and there was then a seventeen (17) minute delay before the ASD demand is made at 0242 hours. [66] During that period of time the officers described what was occurring and specifically the fact that they had to deal with anumber of passengers who had exited the van onto the roadway.

This resulted in one officer having to attend to deal with thoseindividuals causing the second officer to focus on what was happening for officer safety. Once that situation was under control thedemand was then made for a breath sample into the ASD. [67] Crown counsel suggests that the court must look at this case contextually (R. v. Higgins (1994) (MB CA),Carswell Man 102 (MBCA) and R. v. Christianson

(2008) Carswell Man 254 (MBQB)) as the legislation contemplates a built in timeframe for the implementation of the ASD test. [68] In light of the facts before the court, crown counsel suggests that the police were acting reasonably and that the demand wasmade forthwith as is contemplated by s. 254(2). Crown Evidence [69] An initial issue in this case is that the two investigating officers who conducted the traffic stop and further investigation are notat idem on the issue of timing and times.

That issue needs to be resolved in order that a time frame can be set out for analysis on the issueof forthwith. [70] Constable Tanner Newans was a fairly new officer with the Royal Canadian Mounted Police, essentially in his first month ofservice. On the date in question he was partnered with Cst. Harschall, a ten year veteran of the force who described herself as being thefield coach for Cst. Newans. [71] What was evident during the testimony of Cst.

Newans, and accepted by him during cross-examination, was that he was verymeticulous in terms of recording the details of this investigation within his notebook that evening. It was also evident that he possessedsome independent memory of the incident when asked to recount details that were not included within his notes. [72] During the course of his testimony he was able to provide precise times to the court as to when certain events occurred.

Notonly did he provide those times, he was generally also able to cross-reference his notes or provide a rational basis from his notes as towhy the time recorded for an event was accurate. An example of that was the noting of 0228 hours and working backwards to establishthe time of the stop being at about 0225 hours given what he had recorded in his notes and the time it would have taken to havecompleted those tasks. [73] His actions that evening certainly left this court with the notion that he was the lead investigator responsible for theinvestigation. That notion was also conveyed by Cst.

Harschall who after receiving the fail result on the ASD device directed Cst.Newans to provide the accused with his legal rights as he was the lead investigator.

[ 74 ] In that regard, it was Cst. Newans who recorded the replies made by the accused to each of the rights that were conveyed to him. [ 75 ] During the entirety of his time in police custody at the detachment, it was Cst. Newans who appeared to remain with the accused. He assisted the accused in exercising his right to speak with counsel at the detachment, it was he who filled out the C256 investigative report and it was he who was present for the release of the accused into the custody of his wife. [ 76 ] When the investigation was completed, Cst.

Newans then prepared his reports of this matter prior to leaving from his shift. [ 77 ] Cst. Harschall was certainly the senior officer in this investigation and was the officer who made the ASD demand of this accused. During the course of her testimony she consulted notes she had made that evening to refresh her memory. She had also prepared a supplemental report that was referenced during cross-examination. [ 78 ] She had noted that the time of the traffic stop as 0225 hours and testified that it was about three minutes before the accused was placed into the back of the police cruiser car.

It was her testimony that immediately after the accused was placed into the back of the cruiser car, the passengers in the van began to exit out onto the street. Although she had got back into the front passenger side of the cruiser, Cst. Newans did not do so. Rather, he went directly towards the van to deal with these individuals who were now entering the street area. She recalled that the passengers were being quite loud so she radioed for additional back-up and kept watch on Cst. Newans for his safety. [ 79 ] During this period of time, Cst.

Harschall testified that she continued to question the driver by asking a number of questions that can be summarized as being in relation to his alcohol consumption that evening. [ 80 ] Cst. Harschall was cross-examined as to the time when Cst. Newans got back into the cruiser car and maintained that he did not get back into the cruiser car until after Cst. Dutch had arrived on the scene to assist with the passengers from the van. [ 81 ] When cross-examined further on the issue of time frames, Cst.

Harschall only referenced the times of 0225 hours as being the time of the stop and 0242 hours being the time of the ASD demand from her notes. It was from these two times that she tried to provide assistance to the court as to the timing of other events. She acknowledged that she made no note of the fact that the passengers had exited the van, nor the time Cst. Dutch arrived on scene to assist. [ 82 ] In my view, the testimony of Cst. Harschall lacked the degree of detail and specificity that was given by Cst. Newans during the course of his testimony. She testified that Cst.

Newans was the lead investigator for this matter and as a result, it is not surprising that she would not have maintained a detailed set of notes. Essentially she permitted Cst. Newans to have full conduct of this matter while she remained in the background observing how he conducted this investigation. According to her testimony the only active role she played in this investigation was in administering the ASD demand and test based on the information that had been provided to her by Cst. Newans. [ 83 ] It was Cst.

Newans who initiated the traffic stop, spoke with the driver at roadside, formed the grounds for the ASD demand, and formally arrested the accused as a result of the fail result from the ASD test. He then processed the accused at the station, was present for the formal breath tests and later released the accused from custody. [ 84 ] Based on my observations and having heard the witnesses testify, I find that it is the evidence of Cst. Newans, the lead investigator, that I accept and it is that evidence that forms the basis of the evidentiary foundation. Where his evidence conflicts with the evidence given by Cst.

Harschall, it is his evidence that I choose to accept. Traffic Stop [ 85 ] Counsel for the accused does not contest the validity of the traffic stop nor is there any issue with the fact that Cst. Newans detected the odour of liquor on the breath of the accused and thereby had a reasonable suspicion that he had alcohol in his body. ASD Demand [ 86 ] With those issues decided, it is the validity of the ASD demand that is being contested.

I have read each of the cases that were filed by both counsel and will set out what I believe are the obligations of law enforcement under s. 254(2) of the Criminal Code of Canada . [ 87 ] Section 254(2) reads as follows: 254(2) Testing for presence of alcohol or a drug – If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, 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 demand may 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 an approved screening device and, if necessary, to accompany the peace officer for that purpose. [ 88 ] The issue of forthwith has been a highly litigated concept and the subject of significant judicial scrutiny. [ 89 ] Section 254(2) has been described as one of two steps that Parliament has set out as a means of detecting impaired drivers. It is a means for the state to gather what may be considered to be self-incriminating evidence respecting the issue of impairment although it is

acknowledged that no criminal sanction flows directly from a fail result being obtained. [90] It is a process where an individual can be detained at the roadside and directed to provide a breath sample solely on the basis ofthe minimal test that a peace officer reasonably suspects he or she has alcohol in their body. All of this being done without the individualbeing permitted an opportunity to speak with legal counsel prior to participating. [91] This was recognized by the Supreme Court of Canada in the 2005 case of R. v. Woods (tab 1, defence casebook) at paragraph30 where Mr.

Justice Fish said the following: “These screening tests, at or near the roadside, determine whether more conclusive testing is warranted.

They necessarily interfere withrights and freedoms guaranteed by the Charter, but only in a manner that is reasonably necessary to protect the public’s interest inkeeping impaired drivers off the road.” [92] At paragraph 29 of that same decision, Justice Fish said the following: “The ‘forthwith’ requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity…In interpreting the‘forthwith’ requirement, this court must bear in mind not only Parliament’s choice of language, but also Parliament’s intention to strike abalance in the Criminal Code between the public interest in eradiating driver impairment and the need to safeguard individual Charterrights.” [93] What one can take from these comments is that there is such a need seen in reducing the devastating effects of impaired driversto the degree that an individual’s

section 10(

b) right to counsel will be held in abeyance during the screening process that is set out in s.254(2). With that though, it is important to note that the suspension of a Charter right will not be permitted indefinitely. [94] As was noted in the case of R. v. Higgins

(1994) CanLII 6405 (MBCA) at page 6: “Common sense and experience tell us that there must be some time gap between the demand and the administration of the test. Whetherthe test is demanded ‘forthwith’ requires an examination of all of the surrounding circumstances.” [95] The Saskatchewan Court of Queen’s Bench in the case of R. v. Billette

(2001) Carswell Sask 258 conducted a reviewed of the‘forthwith’ concept by reviewing the Supreme Court of Canada decisions in R. v. Thomsen (1988), (SCC), 40 C.C.C.(3d) 411, R. v. Grant, (SCC), [1991] 3 S.C.R. 139 and R. v. Bernshaw (1994), 1 S.C.R. 254 and came to the followingconclusion at paragraph 19: “It is obvious that ‘forthwith’ means as quickly as possible in the circumstances. There should be no undue delay because in the normaloperation of s. 254(2) an individual’s s. 10(

b) Charter rights are being infringed and because under the general scheme set out in s. 254,time is of the essence.” [96] Implicit in that conclusion is the notion that the demand is to be made as quickly as possible given the presentingcircumstances. Therefore one can conclude that it is not a simple exercise of counting minutes to determine the issue of forthwith butrather it is an exercise in looking at the entirety of the circumstances put before the court to determine if there has been “undue delay”. [97] Any delay must be scrutinized by the courts and as was articulated by the Saskatchewan Provincial Court in the case of R. v.McMahon

(2002) CarswellSask 818 at paragraph 27: “Unnecessary or unwarranted delay will be viewed much more harshly at this step of the investigation simply because it is well settledlaw that no right to counsel exists prior to an ASD compliance…” [98] That being the case, it must be implicit that with time being of the essence, an individual cannot be asked to wait at the roadsidefor an indefinite period of time or simply at the pleasure of the officer. Any and all delay must be carefully scrutinized. [99] In the testimony of Cst.

Newans, he suggested that the traffic stop occurred at around 0225 hours based on the fact that he madean entry into his notebook at 0228 hours and his review of what his notes indicate to him would have been done up until that time. Hisexplanation on this point was certainly logical and capable of acceptance. [100] I appreciate that counsel for the accused challenged him on the issue of the time of the stop, suggesting that the stop may haveoccurred as early as 0220 hours based on the contents of his supplemental report.

However, that suggestion was not adopted by thisofficer and once again his explanation as to those notes and the notations made is a reasonable explanation that I accept. [101] According to the testimony of Cst. Newans, at the time he had placed the accused into the rear of the cruiser car and made hisnotations at 0228 hours, he had already conveyed his suspicion that the accused had alcohol in his body to his partner.

He had also cometo the opinion that he had a sufficient basis to make an ASD demand pursuant to s. 254(2) of the Criminal Code of Canada. [102] That same timing and conclusion was also acknowledged by Cst. Harschall during the course of her testimony. [103] With the accused now seated in the rear of the cruiser car at 0228 hours, it was not until 0242 hours that an ASD demand wasmade and the sample was not obtained until 0246 hours. The question to be asked is what caused Cst.

Harschall to wait until 0242 hoursto make the demand and was that a reasonable basis to delay the making of the demand for some seventeen minutes after the traffic stopwas initiated? In this regard, it was noted in the testimony of both officers that they were in possession of an ASD device from the startof their shift, meaning they did not have to wait for a device to be brought to the scene. [104] It is at this point that the evidence of the officers is not at idem. Cst. Harschall testified that after Cst.

Newans exited the cruiser atthe time of the traffic stop to speak with the driver, he remained outside of the cruiser car until the ASD demand was made at 0242hours. In addition to dealing with the accused at the van, she suggests that during that seventeen minute period of time he then had to go

back and immediately deal with the passengers that had exited the van. [105] As I had earlier indicated, it is the evidence of Cst. Newans that I accept when it comes to setting out the events and the time ofthose events. In this regard the traffic stop is noted to have occurred at 0225 hours and it was not until 0228 hours that the accused isplaced into the rear of the cruiser car. Cst. Newans is then able to return back into the car himself and make his first notation in hisnotebook that was made at 0228 hours. [106] Once in the cruiser car, Cst. Newans indicates that Cst.

Harschall asked the accused a number of questions related to his drinkingthat evening. Although he was able to recall the general nature and undertone of the questions being posed, he did not record any of thespecific questions posed or any of the responses made by the accused. [107] At 0237 hours Cst. Newans had noted that he asked the accused when he had his last drink and the reply received was at 2300hours the evening prior. Although it is unclear what happens for the next couple of minutes, at 0239 Cst. Newans notes that thepassengers from the van begin to exit out onto the roadway.

He at this time radioed for the assistance of Cst. Dutch and upon his arrival,exits the cruiser car to get the individuals to move off the roadway for their own safety. It is his notation that he did not return back intothe cruiser car until 0243 hours at which time he observed the ASD device being demonstrated to the accused by Cst. Harschall. [108] What is clear from the evidence that has been accepted by this court is that the officers had the necessary grounds to reasonablysuspect this accused had alcohol in his body while at the roadside.

It was on that basis that the accused was removed from the van andplaced into the rear of the cruiser car. [109] The evidence of Cst. Newans is that he had already run the license plates of the van before he exited the cruiser car to approachthe van. It was after the accused had been placed into the cruiser car that the officer was able to obtain and record the information fromthis accused’s driver license. [110] Up until this point, there was no formal ASD demand made of this accused by either officer.

It is at this point in time that Cst.Harschall begins to question the accused about his drinking that evening and at 0237 Cst. Newans asks the accused when he had his lastdrink. It is unclear what then happens for the next two minutes but it would seem reasonable to conclude that the questioning of theaccused probably continued. [111] Both officers have acknowledged that the accused was not under arrest at this time nor had he been provided with any formalCharter rights. [112] According to the notations of Cst.

Newans, he exits the cruiser car at 0239 hours in order to deal with the passengers who werenow coming onto the roadway and remained outside until 0243 hours when he returned back into the cruiser car. It was at this point intime that he observed Cst. Harschall to be demonstrating the ASD device and at 0246 hours a result was obtained. [113] Is a delay of seventeen or eighteen minutes between the formation of reasonable suspicion to make an ASD demand and theactual demand being made a “forthwith” demand? In this regard it must be remembered that this is not strictly a counting of minutesexercise.

Rather the question to be posed is whether the delay in making the demand can be termed a reasonably necessary delay giventhe entirety of the circumstances that were present? [114] It has been suggested that in reviewing the actions of the peace officers, as it relates to the issue of forthwith, what is really beinglooked at is whether the actions of the officers were in relation to the investigation at hand and can be seen as being necessary to theprocess. [115] What then is or is not a reasonable action necessary to delay the making of an ASD demand? [116] The courts have long recognized that there will be some delay in this process and although there is no stipulation as to how muchactual time is to be permitted, the question may be how much delay is too much delay. [117] As was noted by the Supreme Court of Canada in the Woods decision, “a brief and unavoidable delay of 15 minutes can thus bejustified when this is in accordance with the exigencies of the use of the equipment.” (Quoting from the Supreme Court of Canada casein Bernshaw.) [118] In the case of R. v.

Billette, 2001 SKQB 150, the court found that the police officer had immediate grounds to make an ASDdemand of the accused at the time of the traffic stop. The officer placed the accused into the cruiser car and then proceeded to conduct asearch of the car before coming back and then making an ASD demand of the accused.

The evidence from the officer did not establishany time frames for the length of the delay but the court found that the actions of the officer searching the car had nothing to do with theformation of reasonable suspicion and concluded the delay in making a demand pursuant to s. 254 of the Criminal Code of Canada wasan unnecessary and unreasonable delay. As a result, the court found that the demand was not a proper demand pursuant to s. 254(2) ofthe Code. [119] In the case of R. v.

Schmidt (2000), 31 M.V.R. (4th) 261, the court found that the officer detected the odour of alcohol on theaccused’s breath at the time of the stop. Despite having formed a reasonable suspicion, the officer decided to conduct furtherinvestigation to determine if grounds existed to make a formal breathalyser demand.

The ten minute investigative procedure undertakenby the officer was ultimately found by the Ontario Superior Court of Justice not to be a “reasonable investigative procedure” in relationto an ASD demand and therefore the resulting delay was found not to comply with the forthwith requirement of s. 254(2). [120] That line of reasoning appears in the case of R. v. McMahon (2002) (SK PC), 228 Sask. R. 217, where theSaskatchewan Provincial Court was dealing with a 15 minute delay between the time of the stop and the actual ASD demand.

What isnoted by the court is that grounds for an ASD demand, pursuant to s. 254(2), existed at the time of the stop. During the time periodindicated, the officer was engaged in conversation with the accused while also making notes. The basis for the delay was found by thecourt to be as a result of a series of unnecessary transactions and therefore brought the demand outside of the ambit of s. 254(2) and no

longer a forthwith demand. [ 121 ] That case can be contrasted with the case of R. v. Ferland , 2011 MBPC 66 , where my sister Judge Garreck dealt with the issue of delay in relation to an ASD demand. In that case, the traffic stop was made at 11:45 p.m. and the officer immediately formed the reasonable suspicion that the accused had alcohol in his body. The accused was brought back to the cruiser car and was seated in the rear. The officer then conducted various computer checks concerning the accused and also updated his notes.

The actual ASD demand was then made at 11:59 p.m. and the test was concluded at 0001 hours. [ 122 ] Counsel for the accused challenged that the demand was not made forthwith as is contemplated by s. 254(2) of the Code .

He suggested that the events of getting the accused to attend the cruiser car for the test, a pat down search, running various computer checks and updating of notes are all unnecessary to the taking of the sample. [ 123 ] In relation to that argument, the court made the following comment at paragraph 49 of her decision: “In this case I find nothing the officer did was unrelated to the taking of the test.

While the tasks may not have been necessary in the sense of physically required to obtain the sample they were nevertheless necessary to the process.” [ 124 ] The court concluded that the officer proceeded as quickly as is reasonably possible in the circumstances and complied with the forthwith requirement in dismissing this argument. [ 125 ] In the case at bar, the length of delay between the formation of the reasonable suspicion and the demand being made is seventeen minutes. The basis of that delay was not in dispute but rather it was the timing of events that was in dispute. [ 126 ] Cst.

Newans was clear in his evidence that he had run computer checks prior to his exiting the cruiser to initially deal with the driver at the vehicle. He then attended to the van and after a short conversation with the accused detained him for further investigation.

The accused was then removed from the van and brought back to the cruiser car; prior to being placed into the cruiser car, the accused was patted down by the officer. [ 127 ] By 0228 hours, both officers had already formed a reasonable suspicion that the accused had alcohol in his body, obtained information about the vehicle through a computer check and obtained identification information of the accused from his driver license. The basis for this delay of three minutes is similar to that addressed by the court in the Ferland decision. What Cst.

Newans had undertaken up to this point was deal with police safety issues through the computer checks and identify the driver of the vehicle, all of which in my view is necessary to the police process.

Had the ASD demand been made at this stage, I would have no difficulty in concluding that the officer had met the forthwith requirement of s. 254(2) of the Code . [ 128 ] With there being a legal basis to make the ASD demand at 0228 hours, what then occurs that delayed the officers from making the formal demand until 0243 hours? [ 129 ] Although the evidence of the officers diverged somewhat at this point, what I do accept is that both officers continued to remain in the cruiser car with the accused. During the next eleven minutes, as noted by Cst. Newans, Cst.

Harschall engaged in questioning the accused about his drinking that evening. This process of questioning the accused was something that Cst. Harschall identified in her own testimony as what she does each time a person is placed into the cruiser car. [ 130 ] This period of questioning was confirmed by Cst.

Newans and at 0237 hours he noted a question that he asked of the accused in relation to when this last drink occurred. [ 131 ] On that point, although I appreciate that question often goes to address the issue of whether mouth alcohol is something to be considered, there was nothing before the court in terms of observations or viva voce evidence to warrant such a question.

Even if there had been an observation made by the officers or a comment uttered by the accused or his passengers on the issue of recent consumption, that is a query that is often made soon after the formation of a reasonable suspicion in order to determine if the taking of a breath sample needs to be delayed to address that issue. That did not occur in this case. [ 132 ] The undertone left by the officers from the fact that the accused was being asked the series of questions was that those answers may be of assistance to law enforcement should the investigation proceed beyond the ASD process that morning.

That aside, what is clear is that there is no evidence before the court that would suggest that whatever the questions being asked by Cst.

Harschall, that any of them were necessary or integral to the ASD process. [ 133 ] In the end, I find the actions of the officers that resulted in the delay in making the ASD demand prior to 0239 hours were unnecessary for the process and therefore I find that the demand in this case was not made forthwith as that term is used within s. 254(2) of the Criminal Code of Canada . [ 134 ] In this regard I will just note that I use the time as being 0239 hours as the explanation for delay from that period of time for officer safety would have been something that, after hearing legal argument, may have been a necessary part of the process and therefore a necessary reason to delay the making of the ASD demand.

That being said, there were no officer safety concerns found as occurring before the noted time of 0239 hours. [ 135 ] With the ASD sample not being obtained forthwith, and therefore in a proper manner, I find that the accused’s

Section 8 Charter right has been violated. (b) Section 24(2) of the Canadian Charter of Rights and Freedoms [ 136 ] With the ASD demand having been found unlawful, the question becomes whether the results obtained are still admissible as evidence.

Defence Position [ 137 ] The ASD threshold is so low and not so onerous for police, and given that an individual’s right to counsel is suspended during this period of time, police have to be extra diligent during this stage of the investigation. When a breach does occur, it is a serious breach and the courts in those cases must exclude the evidence. Scenarios where officers do not turn their mind to the constitutionality of their actions or act as a result of poor training or neglect, cannot be seen as acting in good faith.

Crown Position [ 138 ] The crown suggests that the court has to consider the seriousness of the Charter infringing conduct. In this case, it is suggested that the actions of the officers were not a wilful or reckless disregard of Charter rights. [ 139 ] Counsel reminded the court that society has an interest in the adjudication of the case on the merits and it is up to counsel for the accused to show that the admission of the results would bring the administration of justice into disrepute. [ 140 ] Section 24(2) of the Canadian Charter of Rights and Freedoms falls under the “Enforcement”

section and reads as follows: Exclusion of evidence bringing the administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 141 ] The leading case setting out the parameters of the analysis to be engaged when determining whether the admission of evidence would bring the administration of justice into disrepute is the Supreme Court of Canada case of R. v.

Grant 2009 SCC 32 . [ 142 ] The factual background of the Grant case is not akin to the case at bar as that case involved what was found to be an arbitrary detention of the accused on the street by police, subsequent questioning of that accused without first providing him his right to counsel and the discovery that he was in possession of a firearm. [ 143 ] It is from that background that the court then proceeded to set out the parameters to be considered when determining whether evidence obtained through the breaching of an individual’s Charter rights ought to be excluded. [ 144 ] Briefly, the Grant case involved three police officers who were patrolling an area that had a history of student assaults, robberies and drug offences.

The officer’s general duties were to provide safety for the students in that area and they did so by having a presence and questioning individuals to ensure those on school grounds were students. [ 145 ] In that case, the police stopped and spoke with the accused and that interaction was later characterized by the court as an arbitrary detention.

The subsequent questioning of the accused was done without first providing him his right to counsel; all which led to the discovery that he was in possession of a firearm. [ 146 ] In light of the Charter breaches noted, the Supreme Court of Canada then had to deal with the issue of whether or not the firearm was still admissible in the trial proper.

It is during this analysis that the court restated the appropriate test to be considered to make that determination. [ 147 ] The court had the following to say in respect of the analysis to be undertaken at paragraph 71 of the decision: “A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2) , viewed in a long-term, forward-looking and societal perspective.” [ 148 ] With that the Supreme Court of Canada set out the following factors to be considered when assessing and balancing the effects of admitting evidence as it relates to society’s confidence in the justice system:

(1) Seriousness of the Charter -Infringing State Conduct [ 149 ] The inquiry before the court centers on an evaluation of the seriousness of the police conduct that was found to have breached the Charter rights of the accused. [ 150 ] Mr Justice Hill, in the case of R. v. Fildan [2009] O.J. No. 3604 , considered the Grant analysis and suggested at paragraph 45 that “it is recognized that there exists a continuum of unconstitutional departure from the minor, trivial, technical or product of an understandable mistake to wilful or reckless disregard of Charter rights.” [ 151 ] Mr.

Justice Hill summarized the analysis at paragraph 46 as follows: “The more severe or deliberate the unconstitutional departure, the greater the need for the court’s dissociation from the fruits of the unlawful conduct. Otherwise, the failure to exclude evidence risks undermining ongoing public confidence and respect for the rule of law and the administration of justice.” [ 152 ] The concern in this inquiry is ultimately to preserve public confidence in the rule of law.

The focus, as was identified in Grant , cannot be on punishing the police or with the aim of deterring the occurrence of further breaches. [ 153 ] An officer acting in what may be termed good faith, despite breaching the rights of an individual, may reduce the need for the court to distance itself from the repute conduct. In this regard, it is suggested that a court ought not to reward ignorance nor is the court to equate negligence or wilful blindness with good faith.

[ 154 ] In the case at bar, it is the accused’s

section 8 Charter right that is directly implicated although it must also be noted that the s. 10(

b) right that would arise upon detention of the accused was already being held in abeyance by operation of law. [ 155 ] Both officers acknowledged that within a few minutes of initiating the traffic stop they had formed a reasonable suspicion the accused had alcohol in his body and that alone was a sufficient basis for the making of an ASD demand. In fact, that suspicion had been formed prior to the accused being placed into the rear of the police cruiser car. [ 156 ] The decision to question the accused further at this time was something that Cst.

Harschall indicated she does whenever an individual is placed within the cruiser car.

That is a concerning statement as, in my view, it shows a complete disregard for s. 254(2) and its framework being time is of the essence. [ 157 ] Although I do not find that the actions of police were malicious or done with any ill-intent, I do find that they were intentional and certainly encroaching up the spectrum, well beyond trivial in nature. [ 158 ] The actions of the officers and the reasons thereafter for acting as they did, do not support an inference or finding of good faith and conversely I cannot conclude bad-faith.

(2) Impact on the Charter -Protected Interests of the Accused [ 159 ] This fact-based inquiry focuses on the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. [ 160 ] The choice to be a motorist brings with it the acceptance that it is a regulated activity.

Section 254(2) is a tool that can be utilized by law enforcement to combat the carnage that is caused by individuals who make a choice to drive while their ability to do so is impaired or with an excess blood alcohol level.

The officers in the case at bar had formed the necessary grounds to make an ASD demand and that was not disputed by counsel for the accused. [ 161 ] It is unclear whether the accused would have remained at the roadside for the time period noted had the ASD demand been made immediately, but the safety of the passengers would still have had to be addressed by the officers prior to leaving the scene. [ 162 ] The ASD test itself is minimally intrusive.

(3) Society’s Interest in an Adjudication on the Merits [ 163 ] The court in Grant at paragraph 79 noted, “Society general expects that a criminal allegation will be adjudicated on its merits”. The question is whether the truth seeking function is better served by the admission or exclusion of the evidence. [ 164 ] On its merits speaks of deciding cases based on reliable evidence. The instruments used to obtain breath samples, be it an ASD or a Breathalyzer, are generally seen as reliable instruments that produce reliable evidence.

The taking of an ASD sample is a relatively non-intrusive technique. [ 165 ] In terms of overall importance, the ASD sample obtained in this case is essential to this prosecution going forward. [ 166 ] During the course of the s. 24(2) analysis, it is the long term repute of the administration of justice that is the focus. The results of the three step process must be balanced with that in mind. [ 167 ] The latter two steps of the analysis are fairly straightforward in that the ASD process itself is relatively non-intrusive in nature and the evidence obtained through this process is generally reliable.

That being acknowledged, it is the first step of the inquiry that brings the greatest concern for this court. [ 168 ] Grounds for the demand existed and did so immediately at the roadside. Upon the accused being placed into the cruiser car, officers did not immediately make an ASD demand of the accused nor was the device being readied.

Instead, officers elected to question the accused about that evening, presumably, to gather further evidence should the investigation proceed beyond the roadside. [ 169 ] This was done under the guise of a regime, that being s. 254(2) , where the courts have repeatedly expressed that time is of the essence. An individual’s right to counsel is being held in abeyance during this process to permit police a chance to complete a relatively non-intrusive test. [ 170 ] The officer ignored the requirements of the

section and given Cst. Harschall’s comments, may in fact do so regularly.

Nonetheless, the detention of a motorist at the roadside for a period far in excess of that permitted in law is a serious breach and one that given the circumstances, would bring the administration of justice into disrepute if it was condoned. [ 171 ] As a result I do find that the admission of the ASD breath sample result would bring the administration of justice into disrepute and as such they will be ruled inadmissible. [ 172 ] Given the comments of both counsel at the conclusion of the voir dire that there is no further evidence to be proffered by Crown counsel, and defence counsel will call no evidence, there is no admissible evidence of breath samples obtained before the court.

The charge before the court is therefore dismissed. [ 173 ] I thank both counsel for their assistance. _________________________

MOAR P.J.