Her Majesty the Queen - v. -, 2017 SKPC 94

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 094 Date: November 17, 2017 Information: 35710269 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sean Riggs Appearing: Mr. Cory Bliss For the Crown Mr. Michael Owens For the Accused JUDGMENT B.M.

KLAUSE , J [ 1 ] Sean Riggs is charged on December 7, 2016 with one count of impaired driving and one count of driving while over .08 at Saskatoon, Saskatchewan. [ 2 ] The Crown directed a stay in regard to the impaired driving charge and the trial proceeded on the .08 alone with all the evidence being heard in the context of a Charter voir dire . [ 3 ] There are two main issues as far as the defence is concerned:

1. Did the “pat down” search and stay in the back of the patrol car prior to the ASD being administered violate the defendants Charter rights? 2. Did the police fail to make accurate observations of the accused prior to his taking the tests on the Intoxilyzer? Case for the Crown Cst. Tisdel [ 4 ] Cst. Tisdel was working on the date in question and observed the defendant’s vehicle at 2:18 a.m. speeding east on 22 nd St. in Saskatoon. The vehicle was stopped and he approached the passenger side while his partner Cst. Jenkins approached the driver’s side.

He observed the defendant to walk slowly with a deliberate stride and he appeared to be intoxicated. He was walked to the patrol car and “patted down”. His speech was slurred; he was given the ASD demand and failed on the second attempt. The officer usually does his testing in his patrol car, not on the street, and was unaware of any particular protocol as to where it was to be conducted. [ 5 ] A second instrument was used which eventually resulted in a fail reading on the ASD. The temperature was below zero that night, and would have been minus 12 or more. Cst. Jenkins [ 6 ] Cst.

Jenkins had been partnered with Cst. Tisdel and observed the same driving. He concluded the defendant was speeding and initiated a stop. The driver smelled of beverage alcohol and his eyes were semi-closed. He was advised he was being detained for an impaired driving investigation. He was patted down prior to being placed in the back of the patrol car as Cst. Jenkins prefers to do the testing in the controlled environment of the police car. It was his evidence that it was minus 17 but felt like minus 28.

He agreed he could have performed the test outside but it was a cold winter night and he felt it was better accomplished in the patrol car. He did a pat down search of the accused for officer safety and this is something he generally does. It took between 10 to 20 seconds. He further indicated that the accused had his hand or hands in his pockets and this further gave him cause for concern for officer safety.

He also asked the accused if he had anything on him that would concern the officer and specifically if he had any knives or needles as he did not want to put the accused in the back of the patrol car if he was carrying weapons. In his opinion, the accused was intoxicated and intoxicated people can be erratic and unpredictable. He was never handcuffed and the search, at most, lasted 15 seconds.

In his opinion, the police car was the best place to conduct the test given the outside temperature. [ 7 ] In cross-examination, when questioned about the necessity for a search of the defendant, he reiterated his position that it was necessary before he placed the accused in the patrol car and, although the accused was cooperative, intoxicated people can change very quickly; he was very clearly of the opinion that Mr. Riggs was intoxicated. [ 8 ] He was questioned both in examination-in-chief and in cross about his observation of the accused.

In examination in-chief he noted no belching, vomiting or anything consumed by mouth. [ 9 ] During cross, the video shows this officer sitting and talking and chatting with the accused and filling out a form. He was sitting very close to the accused and even when walking with the accused he was very close to the accused. During the second observation period, he was always in close proximity to the accused in what appeared to be a very small room. At the start of the second observation period he is seen checking his cell phone for a very brief period of time and then is shown leaning against the wall.

In cross- examination, he denied texting on his cell phone, indicating he was checking the score on a soccer game. It was his intent to develop a rapport with the accused. He could neither confirm or deny that the accused may have burped in the hallway or observation room but reiterated that he was paying significant attention to the accused at all times. [ 10 ] In redirect, he testified that essentially the accused was always either in his direct or peripheral vision, that he could smell things from the accused and that the accused was always in close proximity to him.

He noted no burps on any occasion and if he had

noticed he would have advised the breath technician. Cst. Munday [ 11 ] Cst. Munday was the technician who performed the two tests resulting in readings of 120 and 110. He was not the member doing the observations and testified that only one member is required to observe. He did note that the accused swayed slightly from side to side, slurred his speech and was not perfectly coherent. He testified about the machine’s tolerance for mouth alcohol. The instrument that was used had a mouth alcohol detection system which, in his opinion, was functioning properly and no error signal was produced.

He, therefore, had no concerns about mouth alcohol and had no concerns about the reliability of the breath samples in this case. The Defence [ 12 ] The accused testified on his own behalf. He agreed he had been patted down prior to providing samples on the roadside test. He insisted that he had burped at the police station and distinctly remembered doing so on three occasions. He did not tell anyone that he had burped as no one had told him that was important. [ 13 ] In cross-examination, he agreed he was wearing bulky white clothes and a needle or a knife could have been concealed in such apparel.

He agreed that he went through a different neighbourhood to avoid lights as opposed to avoiding police scrutiny. He thought his burps would have been slightly audible. [ 14 ] In redirect, Mr. Riggs attempted to qualify that by saying he was a very quiet burper as that is his common practice; he is a very polite burper. Analysis [ 15 ] This is a rather unusual case as the evidence from both sides is not wildly different.

Both the Crown and Defence agree that the accused was given a very brief pat down search prior to being placed in the patrol car for the purposes of providing a roadside sample. [ 16 ] The question is whether that renders the results of the testing inadmissible as being a breach of this defendant’s Charter rights? [ 17 ] The second issue is that of the detailed nature of the observation period. This calls for a brief analysis of credibility. [ 18 ] I did not find the accused to be a credible witness.

For one thing, he was clearly intoxicated on the night in question and the recollections of an intoxicated person are, in my experience, an unreliable barometer of what truly happened. His evidence was hesitant which is to be understood given the alcohol consumed and the time that had elapsed since the incident. I find his evidence on the issue of burping, which is really the only area I have to be concerned about, to be unreliable. No one else heard, saw or smelled a burp. All three police officers at various times were in close proximity to the accused. Cst.

Jenkins, in particular, was with him for both observation periods and in my opinion did exactly what was required to conduct a proper observation period. This was not a situation where he left the accused unattended. He was very temporarily on his phone but that was mere seconds. He neither saw nor heard nor smelled any belching. Nor was he advised of any belching by the accused. Nor did the accused ever utter the words “oh excuse me” as people routinely do when they burp in front of strangers.

The accused then provided two suitable samples into an instrument which has a mouth alcohol detection system without incident and without producing an error signal. This reinforces my belief that the accused did not burp and did not have any residual mouth alcohol when he provided his two tests.

[ 19 ] Wherever his evidence differs with that of the three, presumably sober police officers, I accept their evidence as being the truth of what actually occurred. [ 20 ] Therefore the questions left to be answered are: 1. Does the 10-18 second pat down search amount to a breach of s. 8 of the Charter? [ 21 ] A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. The legality of the search is dictated by the legality of the initial detention.

If the detention was unlawful, a search incident to that detention is unreasonable and therefore illegal. There are some circumstances where police officers have the power to conduct a pat-down search in the course of an investigative detention. The Supreme Court of Canada in R v Mann , 2004 SCC 52 , [2004] 3SCR 59 [ Mann ] , decided that a power to search in the course of an investigative detention arises where an officer believes on reasonable grounds that his or her safety or the safety of others is at risk (para 40).

However, if the detention itself is unlawful, it cannot provide a foundation for a warrantless search ( R v Aucoin , 2012 SCC 66 , [2012] 3 SCR 408 , at para 44 ). The Investigative Detention [ 22 ] In this case, the initial detention was pursuant to the accused’s speeding. The nature of the detention changed when Constable Jenkins noted that Mr. Rigg’s eyes were half closed, the smell of alcohol was apparent and he admitted to drinking. The detention became an impaired investigation, prompting the demand for an Alco- Sensor FST test.

To make a demand for a roadside screening device test under s. 254(2), an officer must have a reasonable suspicion that a person has alcohol in their body and reasonable grounds to believe they operated or had care and control of a motor vehicle within the past three hours. “Reasonable suspicion” is a much lower threshold to meet than “reasonable grounds to believe” ( R v Chehil , 2013 SCC 49 , [2013] 3 SCR 220 [ Chehil ] ). The officer need not suspect impairment or an illegal blood alcohol level, simply that some alcohol is in the body.

Given the objective observations of the officers, an Alco- Sensor FST demand was justified. [ 23 ] At this point in the investigative detention, the accused was asked to leave his vehicle as he was being detained for impaired operation of a motor vehicle (T53, 1-8). He was asked to accompany the officers back to the patrol car to administer the test. Before placing the accused in the backseat of the patrol car, he was subjected to a cursory pat-down search. The Pat-Down Search and s. 8 of the Charter [ 24 ] Constable Jenkins testified to the “cursory pat-down search” of Mr.

Riggs prior to placing him in the vehicle. He explained his rationale for the pat-down search was for officer safety, “to see if he had any knives or needles or weapons, or anything like that on him, as [he] would be putting him in the backseat of [the] patrol car” (T53, 11-12). The officer prefers to have the accused in a controlled environment to better ensure an ability to monitor him and see “if he’s consuming anything or putting anything in his mouth, which would alter the result of the ASD” (T54, 9-10).

Additionally, the stop occurred on December 7th and the temperature was minus17 degrees Celsius, feeling more like minus 28 (T54, 21-22). The officer provided evidence that the ASD only operates properly within a certain temperature range. Constable Jenkins also testified in cross examination that there was nothing about Mr. Riggs to cause immediate safety concerns. [ 25 ] Unlike an arrest, an investigative detention does not justify an incidental search as a matter of course .

Case law has established that the mere reliance on police policy or training is not sufficient to justify a detention or search ( R v Schwab , 2015 ABPC 180 [ Schwab ] ; R v Wondu (2014), 2015 CarswellAlta 612 (ABQB) [ Wondu ] . A detention and subsequent search must be justified in the particular circumstances of each case.

This is not to say that a full assessment of the risk the particular individual poses must be conducted. [ 26 ] Mann determined the scope of the power to search in an investigative detention: The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her safety, or the safety of others, is at risk.

I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances … The officer ’ s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition ( Mann , at para 40 ).

Mann emphasized that a search must be grounded in objectively discernible facts to prevent “fishing expeditions” on the basis ofunreliable or discriminatory facts or disingenuous searches based on “hunches”. [27] The standard to determine whether s. 8 has been breached is the reasonableness of the search in regard to the totality of thecircumstances (Mann, para 40). As explained in Mann, searches will only be permitted where the officer believes on reasonable groundsthat his or her safety, or that of others, is at risk.

The existence of a general common law power to detain where it is reasonably necessaryin the circumstances was settled in R v Clayton, 2007 SCC 32, [2007] 2 SCR 725 [Clayton]: The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information knownto the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to thesecircumstances, including its geographic and temporal scope.

This means balancing the seriousness of the risk to the public or individualsafety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is nomore intrusive of liberty interests than is reasonably necessary to address the risk (Clayton at para 31). [28] Clayton accords with Mann in its focus on the circumstances as a whole, rather than the individual suspect himself. [29] A consideration of the totality of circumstances and the reasonableness of a search as taken from Mann and appliedto this case must necessarily incorporate considerations unique to an impaired investigation.

Firstly, it is the totality of the circumstancessurrounding the detention that creates the risk of the unknown, not necessarily the detailed criminal background of the person beingdetained. Subjectively, the officers testified to their own concerns for safety (T56), although they admitted that nothing about Mr. Riggswas particularly concerning. However, the nature of this kind of investigative detention creates risk whether or not the officers know Mr.Riggs personally or not.

The nature of consuming alcohol causes erratic behaviour and changes in personality, a factor that differentiatesthe predictability of this kind of investigation from others. Objectively, an impaired investigation raises concerns for safety. [30] Subjectively, the police pulled over someone they observed to be driving somewhat erratically in the early hours ofa December morning, where visibility is not optimal. The driver was unknown and suspected of having alcohol in his body. The officertestified that he wanted to ensure the detainee had no weapons. The Defence frames the fact that the officers did not know Mr.

Riggspersonally as a factor that should not have given them cause for safety concerns. However, this factor can just as easily be framed as afactor that amplifies the need for precaution. In contemplation of the objective and subjective components of an impaired investigationand the subjective qualities of this impaired investigation, it was reasonable that the officer had some regard to his safety and took thesteps to ensure his safety throughout. [31] Mann focused on concerns for officer safety as grounds that could authorize a search.

Again, the nature of animpaired investigation presents other concerns that must be contemplated in assessing the reasonableness of a cursory pat-down search.Unlike other kinds of detentions, an impaired investigation is especially time-sensitive. It is a statutory requirement that once a peaceofficer has reasonable grounds to suspect, the officer must perform a physical coordination or breath test “forthwith”.

The term“forthwith” has been interpreted to mean “immediately” and failure to administer screening devices immediately has resulted in theexclusion of evidence in many cases (R v Woods, 2005 SCC 42, [2005] 2 SCR 205; R v Cote (1992), (ON CA), 70CCC (3d) 280 (ONCA)). [32] Aside from safety concerns, the officers also testified to their reasoning for detaining Mr. Riggs in the back of thepatrol car for reasons specific to the rigorous nature of an impaired investigation.

In particular, at T56 15-18, the officer suggests thatdetaining the accused in the back of a patrol car would facilitate proper monitoring, to “ensure he’s not consuming anything or puttinganything in his mouth that could alter the exam”( T56 15-18). The officer then indicates his concern that if the ASD demand was done inMr. Rigg’s own car he could turn the vehicle back on and drive away. In other cases, the court motivated the officer to consideralternative locations to administer an ASD.

In Schwab the Court contemplated other ways of administering an ASD: Why could the test not be administered through the open window of Schwab’s vehicle? Or outside both vehicles on the shoulder of theroad? Was the police vehicles equipped with a safety shield and, if so, why would this not sufficiently secure officer safety? (para 48). [33] However, in R v Kim, 2016 ABPC 9, Lepp PCJ commented on the unique circumstances of ASD testing. He placedparticular emphasis on the time constraints felt by police during these investigations.

Given these constraints, courts must give policesome latitude in their decision-making regarding where the ASD test should be conducted and whether to conduct a pat-down search. [34] Additionally, the evidence also demonstrates that the weather on the night of Mr. Rigg’s detention was minus 28 degrees

[34] Additionally, the evidence also demonstrates that the weather on the night of Mr. Rigg’s detention was minus 28 degreesCelsius with the wind. The ASD device is designed to be used between minus 12 degrees Celsius and 55 degrees Celsius (T80, 38-39).The practical concerns of operating the ASD itself add another layer of complexity to an impaired investigation that directly relates to thereasonableness of the police officer’s decision to conduct the test inside the police vehicle. [35] The decision of where to administer the ASD could be based on many considerations.

This is not a case wherepolice are relying on a particular policy, habit or training alone (Schwab, Wondu). There is no evidence of an ulterior motive for the pat-down search. The officer explained that the pat-down search was conducted for safety reasons and reasons specifically related to theparticular nature of an impaired investigation.

The totality of the circumstances of an impaired investigation are assessed for risk: In considering whether decisions to administer an ASD test in a police vehicle and to conduct a pat-down search are reasonable, theparticular nature of the investigative detention forms a significant part of the ‘totality of the circumstances’. The risks associated withsuch detentions, and the time pressures facing police officers, support a degree of latitude in the assessment of police decisions.

Thecircumstances justifying a decision to administer the test in a police vehicle are not limited to safety issues, but may also include otherfactors such as the need for a controlled environment. If the decision to administer the test in the police vehicle is reasonable, it willgenerally follow that a minimally intrusive pat-down search prior to placing the individual in the vehicle is reasonable.

Where theindividual is unknown to the police and there is little opportunity to interact prior to administration of the ASD test, police cannot beexpected to demonstrate reasonable grounds to believe that a particular detainee poses a safety risk in order to perform a pat-down search(R v Fournier, 2017 ABQB 533 at para 53). [36] In addition to the particular circumstances of an impaired investigation, practical concerns tend towards establishingthe reasonableness of a pat-down search. The external temperature when Mr. Riggs was detained was minus 28 with the wind ,which may have affected the operation of the ASD.

The operation of the ASD requires a close monitoring of the subject to ensure that nothingis consumed or ingested to obstruct or disrupt the proper operation of the testing. The patrol car offers a controlled environment whereproper monitoring can be better ensured. In this case, securing the accused in the patrol car to administer the ASD test was reasonablynecessary considering the safety of the officers, the precise nature of a ASD test which demands careful scrutiny throughout, and theextreme weather conditions of the night. The accused’s s. 8 Charter rights were not infringed. 2.

If so, what is the remedy? [37] Even if the accused’s Charter rights were infringed, the fail test results of the ASD would not be excluded applyingthe Grant factors. R v Grant, 2009 SCC 32, [2009] 2 SCR 353 [Grant] lays out three criteria to determine if the evidence should beadmitted or excluded: 1) the seriousness of the violation; 2) the impact of the violation on the Charter- protected rights of the accused 3)society’s interests in the adjudication of the case on the merits. [38] The first category is seriousness of the breach.

When considering this issue, the court looks at some or all of thefollowing factors: the intrusiveness of the search, the individual’s expectation of privacy in the area searched, the existence of reasonableand probable grounds, and the good faith of the police. The invasiveness of the search in question is minimal, lasting a mere 10-18seconds. The officer testified that the purpose for the search was for weapons, not additional evidence. Driving on a public roadway is ahighly regulated activity because of the potential for danger, especially by persons who drink and then drive.

It is not a right, but alicensed privilege. Privacy concerns in a motor vehicle are generally viewed as “less than” the privacy attached to a private home sincedriving is a licensed activity (R v Belnavis, (SCC), [1997] 3 SCR 341, 118 CCC (3d) 405. There was no evidence orsuggestion of bad faith on the part of the officers. The steps that they took during the interaction were well-reasoned and particularlyattuned to the precise nature of an impaired investigation. In my opinion, this was not a serious breach and it would not bring theadministration of justice into disrepute.

The pat-down search was done to provide a safe and secure environment in which to conduct theroadside test on a cold winter night. The search was at most an 18 second non-intrusive search. It was not a strip search, or other invasivesearch. It was done prior to the police officer placing the accused in the patrol car for officer safety concerns. Given the proliferation ofweapons and the current drug culture pervasive in Canadian society it would seem self-evident that a sensible precaution is to search anunknown intoxicated accused prior to placing him behind you in a police car.

The police officer acted in good faith throughout and theaccused was treated politely and professionally. The police officer acted throughout in a calm, courteous manner and afforded theaccused his rights to counsel before the taking of any samples. There was no wilful or reckless disregard of the accused’s rights. [39] As for the impact of the breach of the Charter- interests of the accused, the cursory pat-down search was brief in duration andminimally intrusive. The search that occurred in this case was described as “cursory” (T53, 10).

In R v Ottenbreit, 2016 ABPC 77, theviolation of the accused’s privacy rights arising from the “pat down” search was significant because the accused was a young femalewho was searched by a male police officer. In Schwab, the officer inserted a finger into each of the accused’s front pockets and checkedthe pockets of his coat. The search in Schwab “exceeded what one might normally consider to be a ‘pat down’ search” (supra, para 66).In relation to these other cases, the search conducted in this instance was minimally intrusive. Clearly the admission of this evidence willhave an impact on the accused.

If the test results are admitted, he will be convicted and lose his ability to drive. He at no time objected to

the very brief search of his person. The search was conducted in a very quick and apparently private manner. He was given his rights tocounsel which he apparently understood before any samples were obtained. He chose not to exercise them at that time, as is hisconstitutional right. In my opinion because his Charter rights were respected prior to the actual taking of the samples, the impact isminimal.

Even if there is a breach of a right to be free of a random search, there is no direct connection between the cursory search of hisperson and the subsequent obtaining of samples of his breath. [40] The third question from Grant is whether excluding the evidence would have a more serious impact on the repute ofthe administration of justice than admitting it. This factor generally relates to the seriousness of the offence and the importance of theevidence to the case for the Crown. In this instance, to exclude the evidence would result in the Crown having no evidence to prove itscase.

The ASD test was a key component that determined how the police proceeded. If the evidence of the tests is excluded the Crown’scase on the driving while over .08 will fail. It has often been stated by all levels of court in Canada of the effects of impaired driving andthe negative consequences suffered by the driving public and in particular, those who are directly affected when that impaired drivingleads to a death or significant injury. Under this line of inquiry, I would again admit the evidence.

In my opinion, given the increasingprevalence of driving while impaired in Saskatchewan, when an individual chooses to consume alcohol in any amount and then drive, heshould expect a modest reduction in his individual rights in the context of an impaired driving investigation whose purpose is to makethe roads safe for all users of the road. [41] Given the importance of the initial ASD to the case, the admittance of this evidence would not bring the administration ofjustice into disrepute. It is more likely to bring it into disrepute if excluded.

On the balance, the Grant factors would militate againstexclusion. 3. Did the police conduct a proper observation period within the meaning of the Criminal Code of Canada? The Presumption of Accuracy [42] Section 258 (1)(

c) creates a presumption of accuracy; according to the scientific evidence on which Parliamentrelied, if the instrument functions properly and all the relevant procedures are followed, the results should be reliable (R v St-OngeLamoureux, 2012 SCC 57 [St-Onge], at para 38). Section 258(1)(

c) has been significantly read down in subsequent case law. TheCriminal Code states that to rebut the presumption under section 258(1)(c), the accused must show that the approved instrument wasmalfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that theconcentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100ml of blood, and that the concentration of alcohol in theaccused’s blood would not, in fact have exceeded 80mg of alcohol in100ml of blood at the time when the offence was alleged to havebeen committed.

The statutory provisions were read down by the Supreme Court in St Onge: . . . Requiring an accused to prove not only a malfunction or improper operation of the instrument that is serious enough to raise areasonable doubt, but also a causal connection between that malfunction or improper operation and the determination that the bloodalcohol level of the accused exceeded the legal limit, constitutes a serious infringement of the right to be presumed innocent (St-Onge, atpara 59). [43] Causality linking the malfunction to the determination of alcohol in the accused’s blood is no longer required.

AsBarrington- Foote J. states in R v By, 2015 SKQB 86, 470 Sask R 185 [By], St-Onge stands for the proposition that evidence which raises a reasonable doubt as to whether the breathalyser malfunctioned or wasoperated improperly may be sufficient, without more, to rebut the presumption of accuracy in s. 258(1)(c)… (at para 159). [44] The impetus of the 2008 changes to s. 258(1)(

c) were to give priority to the reliability of test results (St- Onge at para 59).Since the science of a breathalyser was prioritized and protected by the presumption of accuracy, it was seen as logical that the results ofa breathalyser can be challenged only by raising problems that can be “objectively identified and that relate to possible deficiencies in theinstrument itself or in the procedure followed in operating it” (St-Onge, para 38).

However, if the arguments tending to cast doubt on theproper functioning or operation of the instrument are frivolous or trivial, the defence must fail: “ it is necessary to proceed on the basisthat the accused must not simply show that a deficiency is possible, but raise a real doubt that the instrument was functioning or operatedproperly” (para 53). The Supreme Court in St-Onge pointed to R v Crosthwait, (SCC), [1980] 1 SCR 1089 [Crosthwait]as an illustration of a defence that did not cast doubt on the proper functioning or operation of the instrument.

The standard of proof thatmust be met to rebut the presumption of accuracy is reasonable doubt.

The Observation Period [45] By suggests that a problem with the 15 minute observation period between tests may be considered a “malfunctionor improper operation” necessary to rebut the presumption. The Court relied on the evidence that the observation period was a mandatorypart of the test process, that none of the police officers had conducted the observation period at all and the potential impact of mouthalcohol on the test results (para 159).

The Court in By also relies on St- Onge where the Court specifically referred to the observation ofthe subject for 15 minutes as one of the practices and procedures recommended by the expert committee to ensure accurate results By, atpara 159 citing St-Onge para 25). It should be noted that although Parliament recognized the importance of following such practices andprocedures in s. 258(1)(c), Parliament did not adopt the Committee’s recommendations (St- Onge, para 27). Nonetheless, Saskatchewancourts have generally accepted the inclusion of an observation period as a necessary component of proper testing.

The observation periodinstructions vary depending on the model of breathalyser used. [46] From the manual entered into evidence, it is clear that the 15 minute observation period between breath tests is toensure that nothing is put into one’s mouth and to ensure that there is no mouth alcohol commonly occurring by burping, vomiting, etc.

Chapter D states that if something is present in the subject’s mouth that contaminates the subject’s breath, it could lead to a falsely highdetermination of an individual’s blood alcohol concentration. The manual cautions that while most breath instruments have methods todetect the presence of mouth alcohol in a breath sample, they are not 100% effective. Therefore, a continuous 15 minute observationperiod conducted prior to the analysis of each breath sample will allow mouth alcohol to dissipate. Qualified technicians may conductthe observation period themselves or delegate the duty to other members.

The subject must be in the observer’s field of view andwithin close proximity where clues of consumption, burps, or vomiting can be detected. [47] The question of whether the observation period has been conducted properly is a question of fact specific to thecircumstances of each case. Several Saskatchewan cases have found that the observation period was not conducted properly, thereforeraising a reasonable doubt. In By, Barrington-Foote J, found that the observation period consisted of observation for less than nineminutes of the 15 minute period.

In R v Greenough, 2013 SKQB 208, 421 Sask R 295 the administering officers failed to wait the 20minutes that the manual required after receiving an invalid sample. In R v Guichon, 2010 BCPC 335 the officer was multitasking byfilling out forms in a nearby desk out of the field of view of the subject for about nine minutes of the 24 minute observation period. In Rv Graf, (unreported, August 11 2016, Bazin J), the officer left the room completely for five to seven minutes of the 15 minute period.

InR v Bone, 2016 SKPC 51 the technician knew that a belch had occurred but failed to restart the observation period for at least a further15 minutes as the manual required. In R v Deaina, 2017 SKPC 15 , 2017 SKPC 015 [Deaina]the observing officer was sofocused on texting during the 15 minutes that his behaviour was equated to being physically absent. [48] Conversely, in R v Daoust, 2015 SKPC 144, [Daoust] the observing officer admitted that he may not havemaintained constant visual contact but that he was in close proximity to Daoust at all times and that he also utilized his sense of hearingand smell.

A reasonable doubt as to the proper operation of the breathalyzer was not made out in that case. In R v Edwards, 2016 SKPC154, the Court held that making notes during the observation period was insufficient to lead to a finding that the instrument was operatedimproperly. In Petrin v HMTQ, 2013 NWTCA 1, the Court was not convinced that there was alcohol in Mr. Petrin’s stomach such thathis acid reflex symptoms resulted in some alcohol being brought to his mouth.

The Court indicated that medical evidence might havehelped to provide the proper evidentiary foundation to constitute “evidence tending to show” that the breathalyser apparatusmalfunctioned or was not operated properly. In Crosthwait, the accused tried to argue that the instrument was not operatedproperly according to the instruction manual. The manual indicated that for accurate results, the temperature of the solution and room airmust be within 1°C of each other.

Although the technician did record the solution temperature, he did not verify that it was within 1°C ofthe air temperature of the room in which it was kept as the manual instructed.

The Court in Crosthwait emphasised that the “merepossibility of some inaccuracy will not assist the accused” (Crosthwait, at para 16). [49] The defence states in its brief that the law in Saskatchewan can be summed up as follows: if the Intox EC/ IR II breath testing instrument is not operated according to the specifications, then a reasonable doubt exists because‘evidence to the contrary’ as defined by the Supreme Court exists and therefore the accused is to be found ‘not guilty’” (Defence brief, pg13). [50] This is a misstatement of the state of law as it exists post St-Onge and By.

A reasonable doubt is not automatically

raised for each and every malfunction or improper operation of a breathalyser; the onus is on the accused to raise problems that can be “ objectively identified and that relate to possible deficiencies in the instrument itself or in the procedure followed in operating it ” ( St- Onge at para 38 ). A mere possibility of malfunction is insufficient ( St-Onge , at para 52 ). [ 51 ] Additionally, where the accused raises a reasonable doubt that the instrument functioned or was operated properly, this simply means that the prosecution loses the benefit of the presumptions under s. 258(1)(c).

The prosecution can still tender evidence to prove that, despite the proven deficiency, the blood alcohol level of the accused exceeded .08 as shown by the test results ( St-Onge para 58 ). To be clear, the effect of successfully raising a reasonable doubt in this specific context is not an automatic finding of “ not guilty ” as the Defence suggests; but rather causes the loss of the presumptions under s. 258(1)(c).

Application to the Facts of this Case [ 52 ] The Intox EC/IR II manual directs that the subject of an observation period be placed in the observer’s field of view and within close proximity where clues of consumption, burps or vomiting can be detected ( Intox EC/IR II Manual , D-3). According to testimony, the first observation period began at 03:09 hours. The first sample was taken at 03:31 hours and the second sample was taken at 03:52 hours. Throughout the first observation period, the officer sat near the accused and filled out an impaired investigator checklist.

The officer testified that during this time, he asked the accused a series of questions, “ observing him, noting anything significant …” (T117 34-36). The officer testified that he mistakenly believed that the observation period was to be 17 minutes long to be on the “ safe on the side short of 15 ” (T119, 16-17). At the start of the second observation period, the officer was seen checking his cell phone for a brief period of time. [ 53 ] Manuals and other recommendations shed light on the circumstances that might explain how an instrument malfunctioned or was used improperly.

Although the science of breathalysers is prioritized in s. 258 (1)(

c) and breathalyser manuals may be entered as evidence, the manuals themselves are not law. In R v So , 2014 ABCA 451 , the appeal court reiterated: [42] With respect to the appellant ’ s reliance on Bernshaw and Crosthwait for the proposition that manuals of the sort excerpted into evidence here are authoritative, we accept that in both of those cases such information was received into evidence. In each case the manual was accorded the weight considered due in the circumstances.

In neither case, however, did the Court hold that such manuals are authoritative in the sense urged upon us by the appellant, that whatever such a manual says ought to be done or must be done or should not be done becomes mandatory before the Crown can rely on the presumptions. If that were so, the drafters of such manuals would be exercising the power our constitution bestowed exclusively on Parliament. [ 54 ] It is clear from the manual and from the testimony of Constable Jenkins that other senses were engaged to assist observations.

As stated in Deaina , 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 ( R v Deaina , para 31 ). [ 55 ] During the first observation, Constable Jenkins was filling out paperwork at a table across from the accused who was sitting on a bench. It is clear from Constable Jenkins’ testimony that he was mindful of the overall goal of the observation period: Q Okay. And when you’re filling out these forms, what is it you are doing?

Like describe the mechanical process for us. A I’m sitting at the table with the forms in front of me on the desk, asking him a series of questions. Observing him, noting anything significant… (T11732-36). [ 56 ] At the start of the second observation, the officer glanced down at his phone to facilitate conversation with the accused. The manual does not discuss “observation” in terms of eye to eye contact for 15 minutes; the definition of “observation” is more robust and directs officers to maintain close proximity and keep the subject within their field of view.

Even if “observation” were to be understood on the more onerous standard of eye to eye contact for 15 minutes, noticing a small belch that does not make a sound or smell could potentially escape detection. The intention behind the manual’s directive is to prevent inaccurate results due to mouth alcohol; the manual itself directs that the best way to do this is to maintain proximity and a field of view with the subject. In this case, the officer was seated across from the accused during the first sample, asking him questions on an impaired investigation checklist.

At the start of the second observation, the officer briefly glanced at his phone in an effort to establish rapport with the accused but testified that he

maintained either direct or peripheral vision and activated the use of other senses to make sure that if a belch occurred, he would advise the technician. [ 57 ] Given the objective components of the observation period (i.e. uninterrupted close proximity and directed attention of the officer) and the subjective understanding of the officer in regards to his role in an observation period and the purpose of the observation period, I am satisfied beyond any reasonable doubt that a proper observation period was observed.

Evidence of the Accused Belching is Unnecessary [ 58 ] Therefore in conclusion, the application to exclude the evidence pursuant to an alleged Charter breach is denied and all evidence is admitted on the trial proper. Further to my findings on the issue of the observation period, I am satisfied that in the specific circumstances of this case that the observation period was complied with and that the results obtained are capable of intrinsic reliability. [ 59 ] I therefore convict the accused of the charge as laid. _________________________ B.M. Klause, J