Her Majesty the Queen - v. -, 2013 SKPC 034

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 034 Date: February 26, 2013 Information: 37252497 Location: Moose Jaw, Saskatchewan ______________________________________________________________________________ Between: Her Majesty the Queen - and - Albert Renouf Appearing: Rob Parker For the Crown Barry Nychuck For the Accused JUDGMENT M. GORDON , J I. INTRODUCTION

[ 1 ] Albert Renouf is charged that on or about the 17 th day of January 2011, at or near Moose Jaw, Saskatchewan, did, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code ; and count 2, on or about the 17 th day of January 2011, at or near Moose Jaw, Saskatchewan, did, while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to s. 255(1) and s. 253(1)(

a) of the Criminal Code . The Crown proceeded summarily on both counts. [ 2 ] Prior to the proceeding on the trial counsel for the accused made the following admissions: that the date of the offence was January 17, 2011; acknowledgment of Service of the Notice of Intention with respect to the Certificate of Analyses. Counsel agreed that all admissible evidence heard on the voir dire was to be applied to the trial proper. II. FACTUAL BACKGROUND [ 3 ] Chris Kitchen was a Cable Field Technician with Shaw at the time and was driving his work van south on Main Street in Moose Jaw on January 17, 2011.

Directly ahead of him proceeding in the same direction was a large, blue, newer model F-350 Ford truck, with Alberta plates. Mr. Kitchen was stopped behind this vehicle at a red light and noticed that this vehicle was straddling both lanes and swerving to the extent that it just about sideswiped a vehicle. This truck turned into the liquor store at the south end of Main Street. Mr. Kitchen continued east on Manitoba Street to his workplace. A few minutes later he was returning and heading north on Main Street. He again found himself behind this same Ford F-350. On this trip north on Main Street, Mr.

Kitchen observed this blue truck to swerve more frequently almost hitting a pole and swerving into oncoming traffic. The driving was so erratic over several blocks that Mr. Kitchen suspected that the driver may be impaired. As a result Mr. Kitchen called 9-1-1 and relayed to the dispatcher his observations, including the Alberta licence plate number of the vehicle. Mr. Kitchen continued to follow this truck which turned west off of Main Street onto McDonald Street, and near Algoma Street, the truck turned down an alley. Mr. Kitchen saw a police vehicle approaching and pulled over and stopped.

He indicated to the police officer the direction that the truck had proceeded. Mr. Kitchen testified that when the truck was travelling south on Main he saw the truck driver’s face via the truck rear-view mirror. He observed the driver to have glasses and a beard. When the vehicles were northbound on Main Street he saw a side profile of the driver and again noted glasses and a beard, and a middle-aged driver. Mr. Kitchen testified that the person he saw in Court today, being the accused, Albert Renouf, “matches” the person who was driving this blue truck. [ 4 ] Cst.

Jessica Forrester has been a police officer in the City of Moose Jaw for ten years. On January 17, 2011, she was working the 7:00 a.m. to 7:00 p.m. shift. She was dispatched to the area of the 1300 block Algoma for a possible impaired driver operating a blue F-350 truck and she was given the licence plate number. A man in a Shaw service van pointed her down the alley near Algoma. [ 5 ] A global voir dire was entered into at this time to deal with any Charter or other issues. Cst. Forrester located a truck matching the description and plate number she had been given parked behind an apartment building.

No one was in the truck. A tenant of the apartment building indicated the truck belonged to a fellow living in apartment number four and this person opened the rear secure outside door of the apartment building to the officer. [ 6 ] Cst. Forrester knocked on apartment number 4 and inquired of the male who opened the door if he owned a blue truck in the parking lot and advised him she was investigating a possible impaired driver. The male’s initial response was that he had been home for an hour so it couldn’t have been him and then the same male said he had just been to the liquor store.

The male also said he had way too much to drink and he did not want to go to jail. Cst. Forrester took this as a confirmation that he indeed was the driver of the truck and she recorded this in her notes. She asked the male for his driver’s licence and registration, and as she was communicating with this male individual he backed away from the door. He stated he had a rough night and had broken up with his girlfriend. He said his last drink was at 9:30 a.m. He got his jacket and produced identification showing that his name was Albert Renouf.

The officer stepped no more than five feet into this very small apartment. Mr. Renouf did not ask her to leave. Cst. Forrester testified that since she was satisfied he was the driver of the truck by his own admission, and that he had come from the liquor store, and she observed Mr. Renouf to have slurred speech, bloodshot eyes, and alcohol on his breath, she concluded he had been operating a motor vehicle while impaired, she had also noted an unopened beer on the counter.

She made what she called an informal request for him to provide a sample in an approved screening device and to accompany her down to the police vehicle. Mr. Renouf cooperated and put on his shoes and accompanied the officer to the police vehicle. At 15:15 hours, in the police vehicle, Cst. Forrester made an ASD demand that she read from a card issued by Moose Jaw Police Service. Mr. Renouf replied, “yes” that he would provide a sample. A total of about five minutes had elapsed

from the time she knocked on the individual’s door to when they were in her police vehicle and she made her first notes. A fail was recorded on the ASD at 15:19. She placed Mr. Renouf under arrest, provided him with his Charter rights and police warnings. Mr. Renouf indicated he did not want to call a lawyer. At 15:22 hours, Cst. Forrester made an Intoxilyzer demand and provided the police warning at 15:23. Mr. Renouf agreed and she drove directly to the police station in Moose Jaw. At 15:44, Mr. Renouf spoke to Gladys Johnston at the Legal Aid office. Mr. Renouf was then booked and at 16:02, Cst.

Forrester turned over Mr. Renouf to Cst. Sukenik, the technician, and she remained out in the hallway until the tests were completed. When she was chatting with Mr. Renouf between the first test and the second test, Mr. Renouf said he’d had 12 beer on Saturday, 12 beer on Sunday, that he’d been on a real binge as he had broken up with his girlfriend. The accused was lodged in cells until he sobered up. III. POSITION OF THE PARTIES [ 7 ] Mr. Renouf alleges that the identification evidence is insufficient to convict. Mr.

Kitchen could only say that the male person that he observed on the day in question “matches” the accused who was present in Court. In addition, the defence argues the admissions of driving made to Cst. Forrester, by Mr. Renouf, should not be admitted for the truth of their contents, as a separate voir dire had not been held to determine voluntariness. [ 8 ] Mr. Renouf also argues violations of his rights under the Charter starting with Cst. Forrester’s entry into his apartment building and continuing until the conclusion of the breath tests.

This evidence, which the defence argues should be excluded, includes all contact and observations made by Cst. Forrester and anything that flows from these observations (ASD result and breath test results should be excluded). The defence filed a Brief of Law which included several cases in support. [ 9 ] The Crown argues that Mr. Kitchen, as a civilian witness, provided a description of the driver of this F-350 truck, which matches the accused. There was ample time for observation. Mr. Renouf admitted to Cst. Forrester that he was the driver of the truck and had just come from the liquor store.

He produced identification and registration and admitted to extensive drinking. This conversation occurred at the doorway of the apartment. [ 10 ] Cst. Forrester testified on the voir dire . There was no suggestion of any reluctance on the part of Mr. Renouf, nor is there any suggestion of any coercion or improper conduct on the part of Cst. Forrester in her discussions with Mr. Renouf. She told Mr. Renouf she was investigating an impaired driver. The Crown also filed several cases, and in particular, suggested the Saskatchewan Court of Appeal case of R. v. Grotheim , 2001 SKCA 116 , was right on point. IV.

ISSUES 1. Has the Crown proved beyond a reasonable doubt that Albert Renouf was the driver of the vehicle? 2. Was the incriminating evidence against Albert Renouf obtained in violation of his rights under the Canadian Charter of Rights and Freedoms , specifically sections 8 and 9 ? 3. If Albert Renouf ’s rights were breached under the Charter , what is the appropriate remedy? V. ANALYSIS 1. Has the Crown proved beyond a reasonable doubt that Albert Renouf was the driver of the vehicle? [ 11 ] The defence argues that the Crown has failed to prove Mr. Renouf was the driver of the vehicle.

This of course is a basic and essential element of every criminal offence, the burden is on the Crown to prove identity beyond a reasonable doubt. Mr. Kitchen followed the truck on two occasions within a short period of time. He saw the driver’s face in the truck rear-view mirror. He observed

the driver to have a beard, glasses and to be middle-aged. In cross-examination he acknowledged that he had not mentioned this previously. He said the accused sitting in Court “matched” the person he saw driving that day. [ 12 ] According to Cst. Forrester’s evidence the male person that she spoke to in apartment 4 said he had just come from the liquor store, that he was upset and had broken up with his girlfriend, and he did not want to be taken to jail. He produced the required registration and identification. Cst.

Forrester had announced when the door was opened that she was investigating a possible impaired driver. [ 13 ] The defence argues that responses by the accused to Cst. Forrester’s inquiries should be excluded for two reasons. The first being that there was no separate voir dire held to determine the voluntariness of the statements, and second that there was a breach of the accused’s Charter rights under s. 9 . [ 14 ] At the time Cst.

Forrester gave this evidence, by agreement of counsel, a voir dire had been entered into and all evidence heard to this point was applied to the voir dire . [ 15 ] I am aware of case law which sets out the concerns with respect to eyewitness identification. My colleague, Judge Hinds, discusses this in R. v. Armbruster , 2008 SKPC 75 , and concluded that the eyewitness identification in that case was sufficiently reliable. I am not satisfied beyond a reasonable doubt that I can rely on the evidence of Mr. Kitchen to prove identification. To do so would be to inflate Mr.

Kitchen’s evidence to a standard that he was not prepared to state in his testimony. Mr. Kitchen was very forthright in his evidence, when he said that the person he sees in the courtroom “matches” the person he saw that day. [ 16 ] However, that is not the end of the matter. The next issue is whether Cst. Forrester’s evidence with respect to identification is admissible and sufficient to prove identification. According to the defence, Cst. Forrester had no right to attend at the apartment and knock on the door without a search warrant.

Therefore the observations made by the officer, including the identification and other admissions, and observation of certain signs of impairment, constituted an unreasonable search, and violated Mr. Renouf’s s. 8 rights. The Crown argued that the line of cases following R. v. Vu , 1999 BCCA 182 ; R. v. Petri , 2003 MBCA 1 , and Grotheim, supra , should be followed. The Crown argued that the police officer had the right to attend at the accused’s apartment door to communicate with the occupant. She was investigating a possible impaired driver.

If the police officer’s actions are not allowed, the police officer’s lawful investigations would be hindered and possible criminals go free. This would clearly be against public policy. [ 17 ] A voir dire had been entered into with respect to the evidence of Cst. Forrester. In my view this voir dire was not restricted to any Charter challenges but was what is sometimes referred to as a “global voir dire ”. The purpose of the voir dire is a trial within a trial to determine the admissibility of certain evidence, including voluntariness of statements and Charter issues, which seem to be the most common.

The defence had the opportunity to question the officer with respect to the comments and statements made by Mr. Renouf. Cst. Forrester testified that she told the person who answered the door that she was investigating a possible impaired driving offence. Mr. Renouf volunteered certain comments to her and produced his identification and registration and as a result she concluded he was the driver of the truck. At this point Mr. Renouf was not under arrest or detained in any manner at the doorway of the apartment. There is no evidence of coercion or threats, nor can any be inferred from the evidence. Mr.

Renouf at this point was not required to say anything. I conclude that the defence argument on this ground must fail. There was opportunity on the voir dire to canvass all issues with respect to admissibility of evidence. The defence did not canvass the issue of voluntariness and I must say, likely because there was none to canvass, and now cannot rely on the fact there was not a voir dire within a voir dire . I am satisfied the Crown has proved identity beyond a reasonable doubt. 2.

Was the incriminating evidence against Albert Renouf obtained in violation of his rights under the Canadian Charter of Rights and Freedoms , specifically sections 8 and 9 ? [ 18 ] The second issue can be divided into two parts. First, the presence, or the entry of Cst. Forrester into the apartment building itself, and secondly, the events that occurred after the apartment door was opened and the male individual, being Mr. Renouf, presented himself. [ 19 ] Dealing with the first issue, I find that Cst. Forrester was entitled to be in the hallway of the apartment building, as would any member of the public.

The accused had no realistic expectation of privacy with respect to the hallway area, it matters not in my view

whether the outside door was locked or not. Cst. Forrester was entitled to make her way into the hallway of the apartment building, aswere other tenants of the building, their visitors, repair people, and so on. [20] R. v. Nguyen, 2008 ABQB 721, addresses the right to privacy issue in the context of a condominium property, at paragraph141, the Court states: As his ability to regulate access, Nguyen has no apparent ability to restrict access to the common property. He had a key card or fob thatallowed him, along with some hundreds of other residents, to enter the common areas.

He could not stop anyone with a key fob fromentering; nor could he stop or restrict anyone from using the intercom to allow someone into the common property; nor could he stopanyone from physically opening the exterior access doors to others. In that regard, his expectation of privacy to the common propertywas extremely limited. [21] In my view, Cst. Forrester had the right to enter this property and approach the apartment door, I adopt the reasoning ofProvincial Court Judge Barley in R. v. Hyde, 2010 ABPC 30, approved by Provincial Court Judge Kerby in R. v.

Chomik, 2011 ABPC152, at paragraph 43 “...there is no doubt that the police have the right to enter onto a person’s property for the purpose ofcommunicating with them. They can approach the door of the residence, knock and speak to anyone who chooses to answer the door andspeak and reply...this right extends to a person on a driveway. However, the occupant may tell the police to leave...” [22] I have already discussed and found Cst. Forrester’s presence at the door of apartment 4 was lawful. The significant issue inthis case arises with what occurs when Cst.

Forrester knocks at apartment 4 and the door is opened by a male person who in response toher inquiries, identifies himself as Albert Renouf. Was there a Charter breach as a result of this encounter? [23] In R. v. Evans (1996), (SCC), 45 C.R. (4th) 210, [1996] 1 S.C.R. 8, the Supreme Court of Canada consideredthe scope of activities authorized by the implied invitation to knock. Sopinka J. stated at pages 217 to 218: 15 In determining the scope of activities that are authorized by the implied invitation to knock, it is important to bear in mind thepurpose of the implied invitation.

According to the British Columbia Court of Appeal in R. v. Bushman (1968), (BCCA), 4 C.R.N.S. 13, the purpose of the implied invitation is to facilitate communication between the public and the occupant.

As theCourt in Bushman stated, at p. 19: The purpose of the implied leave and licence to proceed from the street to the door of a house possessed by a police officer who haslawful business with the occupant of the house is to enable the police officer to reach a point in relation to the house where he canconveniently and in a normal manner communicate with the occupant. [24] I agree with this statement of the law. In my view, the implied invitation to knock extends no further than is required to permitconvenient communication with the occupant of the dwelling.

The "waiver" of privacy rights embodied in the implied invitation extendsno further than is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose ofcommunicating with the occupant are authorized by the "implied licence to knock". Where the conduct of the police (or any member ofthe public) goes beyond that which is permitted by the implied licence to knock, the implied "conditions" of that licence have effectivelybeen breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder. [25] In R. v.

LeClaire, 2005 NSCA 165, the Court of Appeal referred to Evans in its analysis. First the Court must decide if thepolice conduct was a search within the meaning of s. 8. Did the individual have a reasonable expectation of privacy. The Court statedthat the purpose of the police approach to the occupant’s door determines whether the police have conducted themselves within theimplied invitation to knock. At paragraph 15 the Nova Scotia Court of Appeal states as follows: The Evans principle has been helpfully summed up by commentators.

For example, Alan Gold, in Search and Seizure Evidence,ADGN/RP 028 (1997) said that Evans holds that police "knock ons" are searches where a residence is approached to see if evidencebecomes apparent when the door is opened... it is permissible for the police to approach a residence with a bona fide investigativeinquiry and that the communicative nature of the activity takes it out of the realm of a search...

[26] In R. v. Fowler, 2006 NBCA 90, the Court of Appeal held that the trial judge’s finding of facts were proper and consequentlythere was no Charter breach. The officer was investigating the commission of an offence, not gathering evidence. [27] Commentators have noted the application of the principles set out in Evans have resulted in different outcomes. The line canbe difficult to draw when pursuing a driver or investigating an impaired driving complaint.

In Evans, supra, the intent was to secureevidence against the occupants by smelling the air inside of the home, and that exceeded the implied invitation. [28] In R. v. Van Wyk, [1999] O.J. No. 3515, the intention was to identify the driver of the truck that caused the accident and thatwas found to be within the invitation to knock. At paragraph 26, Mr. Justice Hill states as follows: A police investigator is at liberty, and indeed is obliged, in the execution of lawful duties, to ask questions to solve a crime.

This entirelyappropriate exercise by the police of their investigatory function, directed to any person whether suspected or not, includes inquiriesdirected to the identity of the party who may have committed an offence. [29] Justice Hill goes on at paragraph 33 and states: Where the sole purpose of the police officer is to ask questions of the homeowner, nothing can be gathered by the government, in thesense of unwitting disclosure by the occupant, until he or she chooses to speak.

The police intent of facilitating communication, eveninvestigative questioning, does not exceed the bounds of the implied right to approach and knock and is, accordingly, not trespassory orin breach of s. 8 of the Charter. [30] In the within case, Cst. Forrester did not snoop around the perimeter of the residence, or try to look in the window, or gainevidence in any other way. [31] Cst. Forrester was involved in a Criminal Code investigation of impaired driving that had occurred very recently.

She hadreason to believe the offence had been committed by someone driving a specific vehicle, with a specific licence plate, which was nowparked in the parking lot at this apartment address on Algoma. She had received information that the owner of this vehicle resided inapartment number 4. This is similar to the situation in a recent case of Kalmakoff J., namely, R. v. Simpart, 2012 SKPC 184, where, atparagraph 20, he says: Police officers have authority to enter onto private property to detain or arrest individuals in situations of hot pursuit (R. v. Macooh, (SCC), [1993] 2 S.C.R. 802).

Hot pursuit requires continuous pursuit conducted with reasonable diligence, so thatcommission of the offence, pursuit and capture may be considered as part of a single transaction. It is not necessary that the officeractually witness the events giving rise to the offence to be in hot pursuit. As long as the pursuit is continuous and conducted withreasonable diligence in a factual chronology that can be regarded as constituting a single transaction, hot pursuit will exist even if therelevant events are observed by another witness and then reported to the police (R. v. Tetard, 2010 QCCA 2235 , 2010 QCCA2235; R. v.

Haglof, 2000 BCCA 604 , (2000), 149 C.C.C. (3d) 248 (B.C.C.A.)). [32] However, the difference in the present case is that here Cst. Forrester found no one in the truck with the licence plate numbershe had been given. However, she was told by a tenant that the owner of the truck lived in apartment 4 and she was let into the building. [33] Cst. Forrester’s purpose at apartment 4 was to communicate with the occupant. She was investigating a criminal offence ofimpaired driving that had occurred very recently. As a result of the conversation with Mr. Renouf, Cst.

Forrester was satisfied he wasthe owner and driver of the truck. In other words, the person who was possibly impaired. [34] As Mr. Renouf was talking to the police officer and providing this information he was backing up into his apartment. Shetestified she entered, at the most, five feet into the apartment. She noticed an unopened beer on the counter and also noted Mr. Renouf

was looking for something in his apartment, which was likely his driver’s licence and registration which she had requested. It was at thistime she observed Mr. Renouf had slurred speech, bloodshot eyes, and was visibly upset. No doubt these observations could have beenmade from the doorway or entrance to the apartment. She testified the apartment was very small. [35] Therefore, at this point, Cst. Forrester testified she had sufficient information to believe that Mr. Renouf was impaired and hadbeen operating a motor vehicle. However, despite the above noted conclusion, Cst.

Forrester was of the opinion that she should make anASD demand on Mr. Renouf. She had the grounds, she had a reasonable suspicion, as is required in s. 254(2) of the Code. Cst. Forrestermade what she termed an “informal request” of Mr. Renouf, to take the ASD test, and then accompany her to the police vehicle for thatpurpose. Mr. Renouf was cooperative and put on his shoes and they went to Cst. Forrester’s police vehicle. At 15:15 she made theformal ASD demand, which she read from a card issued by Moose Jaw Police Service. A total of about five minutes had elapsed fromthe time Cst. Forrester first met Mr.

Renouf at the door of his apartment, to the time of the ASD demand. [36] In cross-examination Cst. Forrester explained that she made the ASD demand to formalize the reasonable and probablegrounds standard for the Intoxilyzer demand. At this point she could not lay an impaired driving charge as she had no personal evidenceof driving, although she knew, due to Mr. Renouf’s admission that he was the driver. She understood this was proper procedure. At notime did Mr.

Renouf give any indication whatsoever that he was reluctant to answer questions or at no time did he ask the officer toleave. [37] The Crown submits that the Court of Appeal decision of R. v. Grotheim, 2001 SKCA 116, is right on point. In that case thepolice officer had received a dispatch about an accident in the town of Outlook. He discovered a tree which had been struck and noticedtracks leading to Grotheim’s driveway where a truck was parked. He noticed bark from the tree stuck in the front of this vehicle. Heknocked on the door of this house where he knew Mr. Grotheim lived.

He was told to “come in” and the police officer entered thehouse. The police officer did not proceed very far from the door when Mr. Grotheim approached him about a work order from an autoshop. When asked by the police officer, Mr. Grotheim admitted he had been driving the truck. The police officer also noted slurredspeech, bloodshot eyes, and from his previous knowledge of this individual, the officer was positive Mr. Grotheim was displaying signsof intoxication. At that point the officer decided that Mr.

Grotheim had committed a criminal offence, an indictable offence of impaireddriving, and that it was his duty to place Mr. Grotheim under arrest to preserve any evidence. The demand for a breath test was madeafter arrest in the police vehicle. The Court of Appeal concluded that the police officer was authorized to arrest Mr. Grotheim in hishome. The Court also notes that initially the police officer believed that Mr. Grotheim had committed the offence of impaired drivingcausing bodily harm, as he had noted a person at the house with a cut on his forehead.

In any event the Court discusses the authority of apolice officer, pursuant to s. 495(1)(

a) of the Criminal Code and referred to the Supreme Court of Canada case of R. v. Storrey, (SCC), [1990] 1 S.C.R. 241. The Saskatchewan Court of Appeal held that a requirement was that the police officerpersonally believe that they have reasonable and probable grounds for the arrest and that reasonable and probable grounds in fact exist.The Court stated that given all the police officer had seen and heard that reasonable and probable grounds existed. Finally the Court ofAppeal held that the arrest was not arbitrary as it had been authorized by law and therefore constituted a lawful arrest. At paragraph 30,the Court has this to say: The general purpose of the

section was said to lie in a balanced safeguard of the interests of the citizenry, one that protects citizensagainst crime, on the one hand, and preserves their liberty, on the other. [38] In R. v. Petri, 2003 MBCA 1, the Court of Appeal allowed the Crown’s appeal from an acquittal and ordered a new trial. This case has many similarities to the within one such as the police were investigating a motor vehicleaccident and were responding to information provided to the police dispatch, to attend at a home and a licence plate number.

The Courtof Appeal confirmed the trial judge’s decision at paragraph 8 “...that until after the knock on the door and its opening by the accused,there was no basis, even technical, for suggesting that the officers had exceeded any implied privacy licence.” [39] The Court of Appeal found what took place inside the dwelling door was part of a continuing investigation without coercion.

At paragraph 21 to paragraph 24 in Petrie, supra: What the trial judge described as taking place inside the door was still nothing more than part of the continuing investigation conductedwithout coercion (for similar situations see R. v. Niles (1987), (NB KB), 85 N.B.R. (2d) 32 (Q.B.); and R. v. VanWyk). Once the police officers spoke to the person that met them at the door, received his confirmation that he had, in fact, been the driver andobserved his physical appearance and unsteady gait, they had sufficient evidence to conclude that he had indeed been the driver of the

truck that had been reported as driving erratically and that he was likely impaired. He was thereupon charged and arrested for impaireddriving. ...respected the accused’s privacy in his dwelling by knocking on the door and waiting for him to answer....implicit consent from theaccused as he backed away from the open door and talked to them. ...there is nothing to nullify consent in the evidence that was before the court in this case.

If the police are present for the lawful purposeof conducting an investigation by communicating with the occupant, they can continue the communication unless and until the occupantmakes it known that his cooperation has been withdrawn. ...never did change his reaction...contrary, he permitted the police officers to enter the landing and responded to their questions withinformative answers. [40] Section 254(2)(

b) of the Criminal Code, at the time, read as follows:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, withinthe preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment orhad the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officermay, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (

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

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [41] Here Cst. Forrester made what she termed an informal request to Mr. Renouf to come down to her police vehicle. This is notthat different from the situation where the officer asks the individual to accompany him or her, the officer, back to a police vehicle andsit in the rear of the police vehicle before the formal ASD demand is made.

I find that the ASD demand in the police vehicle wasprovided forthwith, at most five minutes had elapsed between the officer’s first encounter with Mr. Renouf at the door of apartment 4and the formal ASD demand in the police vehicle. I do not find that there was any undue delay. It is recognized the legislation and thecase law suggest that time is of the essence in terms of the officer forming the reasonable grounds for her suspicion in making thedemand, and administering the ASD test. However, the Saskatchewan Court of Appeal in R. v. Janzen (2006), 2006 SKCA 111, 285 Sask.

R. 296, has interpreted forthwith as meaning without unreasonable or unjustified delay. Whenever there is a delaythe circumstances must be examined, including the length of delay, and the reasons for it. [42] Here Cst. Forrester acted with dispatch, she told and requested Mr. Renouf to come to the police vehicle with her, she told himthe reason, and immediately upon getting in the police vehicle, she made the formal demand. Therefore, there is no delay and thereforeno Charter remedy. [43] Arguably, Cst.

Forrester could have made the Intoxilyzer demand under s. 254(3) of the Code at that point in time, rather thanan ASD demand. The officer’s evidence is somewhat contradictory, as in examination-in-chief she stated that the information providedby dispatch; the observations made of the accused; and admissions made by the accused, all caused her to believe Mr. Renouf wasimpaired and operating a motor vehicle. In cross-examination, she testified that she administered the ASD test as she did not havepersonal knowledge of Mr. Renouf’s driving actions.

While this is not necessary, in the officer’s mind she could not lay an impaireddriving charge because of this, and that she understood this was proper procedure. This is where the case differs from R. v. Grotheim,supra, at no time did she express the opinion that she had grounds to arrest under s. 495(1) of the Criminal Code. I am prepared toconclude from Cst. Forrester’s testimony that in her opinion she did not have the subjective component to make a demand under s.254(3).

She had the objective basis to make the demand, but in her mind because she did not have a personal observation of Mr.Renouf’s driving actions, she had to proceed with the ASD demand. This belief is incorrect and an ASD result does not give her anymore information about her concern. The information obtained from third parties can be used as the basis of the officer’s grounds, formaking a s. 254(3) demand. However, Cst. Forrester, in my view, is to be commended for choosing to use the ASD. The ASD is quick,can be administered on site, and depending on the results, further action can be avoided.

[ 44 ] A fail resulted. [ 45 ] Mr. Renouf was taken directly to the detachment. All was done lawfully at this stage and the Certificate of Analyses was admitted as Exhibit P1 on the voir dire and subsequently to the trial proper. [ 46 ] Therefore, I do not find any Charter breach. The Crown has proved beyond a reasonable doubt that Albert Renouf is guilty of count #1 as charged. [ 47 ] Counsel did not make any submissions with respect to count 2, the count of impaired driving.

I am prepared to allow counsel to do that either today or set a new date. [ 48 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan, this 26 th day of February, A.D. 2013. ___________________________________ M. Gordon, J