Her Majesty the Queen - v. -, 2011 SKPC 194

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 194 Date: December 21, 2011 Information: 44930527 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyson John Becker Appearing: Mr. Kim Jones For the Crown Mr. Foster Weisgerber For the Defence TRIAL DECISION M.J. HINDS , J Introduction 1 . A trial took place before me regarding Tyson John Becker who is charged that on or about the 6 th day of May A.D. 2011 at or near Regina, Saskatchewan, he did: 1. While his ability to operate a motor vehicle was impaired by alcohol or a drug operate a motor vehicle contrary to section 255(1) and section 253(1) (

a) of the Criminal Code . 2 . Having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle, contrary to section 255(1) and section 253(1) (

b) of the Criminal Code.

2. The trial proceeded with a voir dire on the Charter issues. Both counsel agreed that all admissible evidence heard on the voir dire was to be applied to the trial proper. During the voir dire the Crown called the arresting officer, Sergeant (Sgt.) Roger Ferraton and the Defence called the accused. 3 . At the outset of the voir dire , Defence counsel advised the Court that he would arguing that the accused’s

section 8 and 10(

b) Charter rights were breached. Specifically, the Defence took the position that the officer involved in this case did not have reasonable and probable grounds on which to make a breath demand and that as such, the accused’s right to be free from unreasonable search and seizure pursuant to

section 8, was violated. Defence counsel also took the position that the accused’s right to counsel of his choice as guaranteed by

section 10(

b) was violated by the officer involved in this case. 4 . Following the voir dire , Defence counsel also advised the court of a third Charter breach. Defence counsel contends that 23 to 27 minutes of “unaccounted time” between the demand for breath samples and the time the breath samples were taken is unreasonable. Defence counsel is of the view that the Certificate of Analyses should therefore be excluded as the breath tests were not taken “as soon as practicable,” as required by section 254(3) of the Criminal Code and hence the accused’s

section 8 Charter right to be free from unreasonable search and seizure was breached. 5 . The accepted procedure in these cases is that the court will first determine if these Charter breaches, or any of them, have been established. If the court determines that a Charter breach has been proven, Counsel will be given the opportunity to make further argument respecting section 24(2) of the Charter , specifically respecting the section 24(2) analysis set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32 . 6 . In this case I have determined that there has been no breach of Mr.

Becker’s Charter rights therefore there is no need to embark upon the R. v. Grant , supra, analysis. 7 . ISSUES (

a) Did Sgt. Ferraton have reasonable grounds to make the breath demand of Mr. Becker pursuant to s. 254(3) of the Criminal Code? ? If not, were Mr. Becker’s rights under

section 8 of the Charter breached? (

b) Were the breath tests taken “as soon as practicable” after the demand, within the meaning of s. 254(3) of the Criminal Code ? If not, were Mr. Becker’s rights under

section 8 of the Charter breached? (

c) Was Mr. Becker denied his right to retain and instruct counsel, contrary to

section 10(

b) of the Charter ? EVIDENCE Sgt. Roger Ferraton 8 . Sgt. Roger Ferraton is a 32 year member of the Regina Police Service who has spent most of his policing career performing patrol duties. He testified that he has dealt with hundreds of impaired drivers during this time. Sgt. Ferraton was on duty on May 6, 2011. At 11:40 p.m. Sgt. Ferraton was driving a marked police vehicle south bound on Winnipeg Street and was approaching Arcola Avenue when he heard the sound of squealing tires. He looked to his left and saw the accused

leaving the parking lot area of a Domo Gas station driving a half ton truck and proceeding northbound on Winnipeg Street. Sgt Ferraton did a u-turn and observed a crying female in the Domo Gas parking lot, surrounded by the dust created by the departure of the half ton truck. Suspecting that some sort of domestic dispute had occurred between the accused and the female, he decided to pursue and stop the accused. Sgt. Ferraton did not observe any unusual or erratic driving on the part of the accused. Sgt. Ferraton activated his emergency lights and pulled the accused over a few blocks away. 9 . Mr.

Becker stopped his truck in the parking lot of a car wash. Sgt. Ferraton pulled in behind Mr. Becker and got out of his police vehicle. Sgt. Ferraton testified that as he approached the truck he observed the accused to open the driver’s door of the truck and put one leg out of the truck. Sgt. Ferraton demanded that Mr. Becker get back into his truck. He repeated this demand three times. After several seconds, the accused put his leg back in the truck and closed the door. 10 . Sergeant Ferraton testified that he came up to the driver’s side of the truck and knocked his knuckles against the driver’s side window.

While he did this Sgt. Ferraton observed the accused to be looking down towards the steering wheel. After a pause of several seconds Sgt. Ferraton observed the accused look up and roll down the side window of the truck. Sgt. Ferraton testified that he immediately smelled a strong odour of beverage alcohol coming from inside of the truck. 11 . Sgt. Ferraton testified that he then asked Mr. Becker for his driver’s licence and vehicle registration. Sgt. Ferraton testified that Mr. Becker looked around slowly and deliberately for his wallet. He located his wallet in the console. Mr.

Becker opened his wallet and began looking for his driver’s licence. Sgt. Ferraton testified that he observed the accused fumble through his wallet looking for his licence, which was amongst the accused’s other credit cards in a wallet designed to hold credit and other cards. After Mr. Beckerer passed his licence several times, Sgt. Ferraton observed that Mr. Becker was able to locate it. The accused then had some difficulty trying to grasp the licence with his fingers to pull it out, but finally succeeded. His actions were described by Sgt. Ferraton as being “slow and laboured.” 12 . Sgt.

Ferraton then asked the accused for the registration of the vehicle. While the accused was looking for the registration in the console and glove box, Sgt.Ferraton observed the female he had previously observed in the parking lot of Domo Gas station approach and get in the passenger side of the truck. She helped Mr. Becker find the vehicle registration. Sgt. Ferraton testified that he spoke with the accused for about five minutes before the female person got into the truck. 13 . The female passenger told Sgt. Ferraton that she and Mr.

Becker had a verbal argument so she got out of the truck and the accused drove away. Sgt. Ferraton testified that Mr. Becker told the same story and further stated that while the truck was stopped at the gas station, a telephone call was made to “08 Drive" for a ride and while the couple were waiting for the ride an argument broke out. Officer Ferraton understood “.08 Drive" was a driving service for people who did not want to drive because they had been drinking. 14 . Sgt. Ferraton candidly acknowledged on cross examination that he had never heard the accused’s speech prior to that evening.

While talking with the accused, Sgt. Ferraton described his speech as slow, deliberate, drawn out, and laboured. He added that it appeared to him that it was a real effort for the accused to talk to him. Sgt. Ferraton testified that he observed the accused’s eyes were red and glazed over. He also observed that the accused’s hand coordination was poor. The officer further testified that the accused’s breath smelled very strongly of alcohol. When Defence counsel asked him on cross examination why he did not use an Approved Screening Device, Sgt.

Ferraton replied that he did not need to, as it was clear the accused was impaired by alcohol. 15 . A backup police vehicle containing Constables Logan and Weir arrived on scene, and at 11:53 p.m., Sgt. Ferraton had the accused step out of the truck and arrested him for impaired driving. Sgt. Ferraton also demanded that Mr. Becker provide samples of his breath and read him his rights and police warnings. 16 . Sgt. Ferraton had Constables Logan and Weir take custody of Mr. Becker at the scene and transport him to the Regina Police Service detention centre. Sgt.

Ferraton testified that the other officers handcuffed Mr. Becker who resisted the officers passively for a minute or so before calming down. The officers also did a pat down search of Mr. Becker prior to placing him in the back of the police vehicle. 17 . Sgt. Ferraton went to the detention centre shortly thereafter where he observed Mr. Becker

seated on a bench outside the room used for breath testing. Sgt. Ferraton remained with Mr. Becker while waiting for the arrival of the breath technician. After the breath technician arrived and began to prepare the intoxilyzer instrument, Sgt. Ferraton escorted Mr. Becker to a telephone room for the purpose of contacting a lawyer for legal advice. 18 . Sgt. Ferraton testified that Mr. Becker gave him the name of a private lawyer he wished to talk to and the lawyer’s telephone number. In chief, Sgt. Ferraton could not recall the name of this lawyer. However, on cross examination Sgt.

Ferraton thought the lawyer was from Alberta, where Mr. Becker had previously lived. Sgt. Ferraton indicated that several attempts were made to place a telephone call to a private lawyer for Mr. Becker, however, there was no answer at this number. Mr. Becker did not ask to contact any other private lawyers. As a result Sgt. Ferraton told Mr. Becker that one of his options was to contact Legal Aid, which was available at all hours. Mr. Becker asked to be put in touch with Legal Aid. Sgt. Ferraton connected Mr. Becker to a Legal Aid lawyer. 19 . At 00:50 a.m. Mr.

Becker talked to a Legal Aid lawyer by the name of Tim Nolin on the telephone. Mr. Beckerer continued to talk to Mr. Nolin until 1:19 a.m. when he waved at Sgt. Ferraton from the telephone room indicating he wanted to speak to him. Sgt. Ferraton opened the door to the telephone room and asked what Mr. Becker required. Mr. Becker told Sgt. Ferraton he did not have a pen or paper and wanted him to write down the name of the lawyer Mr. Becker was speaking to. Sgt. Ferraton took the phone from Mr. Becker and briefly spoke to Mr. Tim Nolin and noted his name. Sgt. Ferraton asked Mr.

Nolin if half an hour was enough time to advise his client or did he need to speak to Mr. Becker further. Mr. Nolin said he would like to talk to his client for a few more minutes. Sgt. Ferraton gave the phone back to Mr. Becker and closed the door to the phone room. Mr. Becker’s call ended at 1:23 a.m. and Mr. Becker left the phone room. Sgt. Ferraton asked Mr. Becker if he would provide a breath sample. Mr. Becker said he would. 20 . Mr. Becker subsequently provided two samples of his breath in the intoxilyzer instrument at 1:31 a.m. and 1: 58 a.m.

Constable Kauk prepared a certificate of a Qualified Technician which was later served on Mr. Becker (Exhibit P-1). Tyson Becker 21 . Tyson Becker is 37 years of age and has worked as a scaffolder for 15 years. On May 6, 2011 Mr. Becker and his unnamed girlfriend attended a barbeque at Chad Bennet’s house. Mr. Bennet is a friend of Mr. Becker. The couple arrived at the friend’s house around 6:30 p.m. and enjoyed a steak dinner. Mr. Becker testified on cross examination that he did not think that he drank more than 3 or 4 beer at his friend’s house. Mr.

Becker also testified on cross examination that May 6, 2011 was a long time ago. 22 . Mr. Becker and his girlfriend left Mr. Bennet’s house later that evening. Mr. Becker drove his pick up truck. He testified that he was feeling fine and did not feel any effects from the alcohol he drank earlier that evening. 23 . Mr. Becker recalled stopping his truck at a gas station and getting into an argument with his girlfriend. Although Mr. Becker could not remember what the argument was specifically about, Mr.

Becker did admit on cross examination that his girlfriend wanted to and did call “08 Drive”, while he did not want make this telephone call himself. Mr. Becker also stated on cross examination that his girlfriend wasn’t concerned about the amount he had drank. Mr. Becker’s girlfriend eventually got out of his truck and told him to leave. Mr. Becker testified that he was a little angry when he drove away from his girlfriend and there was some dust in the air as he drove away. Mr. Becker did not remember spinning the tires of his truck as he drove away from his girlfriend.

His plan was to drive his truck around the block and return to the gas station. 24 . Mr. Becker recalled being pulled over by a police officer shortly after leaving the gas station. Mr. Becker testified that he did not attempt to get out of his truck after pulling over by Sgt. Ferraton. He further testified that

station. Mr. Becker testified that he did not attempt to get out of his truck after pulling over by Sgt. Ferraton. He further testified that when Sgt. Ferraton came up to the driver’s side of his truck he rolled his window down without any prompting by Sgt. Ferraton. Mr. Becker recalled that Sgt. Ferraton asked him for his driver’s licence and vehicle registration. Mr. Becker then described how he had no difficultly locating his driver’s licence, which was located within his card wallet which had 15 or 20 banking, credit and other cards in it.

He testified that he found his driver’s licence in less than one minute somewhere in the middle of the cards and produced it to Sgt. Ferraton. 25 . Mr. Becker testified that he looked in the console and glove box of the truck for the vehicle registration. He did not locate it. Mr. Becker testified on cross examination that his girlfriend showed up in the truck and located the vehicle registration in the glove box. Mr. Becker was not sure when his girlfriend got back into his truck. 26 . Mr. Becker testified on cross examination that he did not have a conversation with Sgt. Ferraton that evening.

However, at an earlier point during cross examination Mr. Becker admitted to telling Sgt. Ferraton about a call being made to “08 Drive” from the truck. 27 . Mr. Becker testified that after he was arrested and given his rights and warnings he was handcuffed. He recalled other officers were at there at the time he was handcuffed. He did not know who handcuffed him, however, he recalled saying that the handcuffs were too tight. Mr. Becker testified that they led him around by the handcuffs at which time he said there was no need for that and he was not resisting. Mr.

Becker further testified that he was then thrown chest and face first onto the hood of a police car and someone held him and pressed their thumb against his throat, choking him. Thereafter he was placed in the back of a police car and taken to the police station. Mr. Becker was not sure whether one or two officers roughed him up. 28 . Mr. Beck wanted to phone a lawyer named Tim Beler at the police station. He testified he believes that the police gave him a sheet with lawyers’ names on it, however, he did not think he found the telephone number for Tim Beler. Mr.

Becker testified that the police officer then dialled the telephone number for Legal Aid for him. No other telephone numbers were dialled for him. Mr. Becker recalled talking to a lawyer at Legal Aid for awhile. He testified that a police officer then barged into the telephone room, stood in the door way, and told him he was talking too long, took the telephone from him, spoke to the Legal Aid lawyer, wrote down the name and telephone number of the Legal Aid lawyer and returned the telephone to him. At no time did he invite the officer into the room. When the officer left the room, Mr.

Becker spoke briefly with the Legal Aid lawyer. Mr. Becker offered no explanation as to why under such circumstances Sgt. Ferraton would record the name of the Legal Aid lawyer. Controverted Evidence 29 . There are several significant differences between the evidence provided by Sgt. Ferraton and Mr. Becker. The two men certainly had very different recollections respecting Mr. Becker’s experience of contacting a lawyer in the telephone room at the police station. Other examples come to mind. For instance, Sgt.

Ferraton testified that as he approached the truck, the accused opened the driver’s door of the truck and extended one leg out of the truck for several seconds. On the other hand Mr. Becker testified that he did not attempt to get out of his truck after pulling over by Sgt. Ferraton. Sgt. Ferraton also testified that he came up to the driver’s side of the truck and knocked his knuckles against the driver’s side window to get Mr. Becker’s attention. After a pause of several seconds Sgt. Ferraton observed the accused look up and roll down the side window of the truck. On the other hand, Mr.

Becker testified that when Sgt. Ferraton came up to the driver’s side of his truck he rolled his window down without any prompting by Sgt. Ferraton. Sgt. Ferraton also testified that Mr. Becker looked around slowly and deliberately for his wallet. After Mr. Becker located his wallet he fumbled through his wallet looking for his licence and eventually was able to locate it. Mr. Becker then had some difficulty trying to grasp the licence with his fingers to pull it out, but finally succeeded. Mr. Becker’s actions were “slow and laboured.” Mr. Becker recalls this differently. Mr.

Becker testified that he had no difficultly locating his driver’s licence, which was located within his card wallet. He testified that he found his driver’s licence in less than one minute and produced it to Sgt. Ferraton. 30 . Mr. Becker’s testimony in chief was brief. It set out his initial dealings with Sgt. Ferraton on being stopped, his arrest, being handcuffed and roughed up and the events surrounding his telephone call to a lawyer. Few details were provided by Mr. Becker including the name of his girlfriend and the time of any of the events he described occurred.

He also indicated that he normally talks very slowly and deliberately, however, this is not what I observed while he was being cross examined. I

did not observe Mr. Becker’s speech to be slow or deliberate when responding to questions put to him in court. 31. I also found there were problems with the accuracy of Mr. Becker’s recollection of events. For example, Mr. Becker testified that he could not remember what the argument was about with his girlfriend while at the gas station In addition, other than indicating his girlfriend helped him locate his vehicle registration, Mr. Becker was not sure when his girlfriend gotback into his truck. Moreover, Mr.

Becker obviously felt he had been mistreated at the hands of the police after being arrested by Sgt.Ferraton, however, he could not remember who handcuffed him and he did not know if one or two police officers roughed him up. Lastly, Mr. Becker did not remember being searched prior to being placed in the back of a police vehicle. 32. In addition, I found there were inconsistencies in Mr. Becker’s evidence which affected the overall reliability of his testimony. For instance, Mr. Becker testified on cross examination that he did not have a conversation with Sgt.Ferraton that evening.

This is not consistent with Mr. Becker’s own testimony. Words were certainly exchanged between Sgt. Ferratonand Mr. Becker after Mr. Becker was stopped at 11:40 p.m., up to and including 1: 23 a.m. when Mr. Becker ended his call to LegalAid. 33. In this case I found the evidence provided by Sgt. Ferraton to be credible and reliable. He testified in a straightforward manner and described his encounter with Mr. Becker in significant detail. I found the evidence provided byMr. Becker not to be credible or reliable. As a result, where the evidence provided by Sgt. Ferraton and Mr.

Becker differs, I prefer andrely on the evidence of Sgt. Ferraton. (

a) Did Sgt. Ferraton have reasonable grounds to make the breath demand of Mr. Becker pursuant to s. 254(3) of the CriminalCode?? If not, were Mr. Becker’s rights under

section 8 of the Charter breached? 34. In R. v. Breland, 2011 SKPC 54 , 2011 SKPC 054 Judge Gray provided a succinct

summary of the law relating to

section 8 of the Charter and compelling breath samples as follows: [22] Although the onus lies upon an accused to establish a Charter violation on a balance of probabilities, compelling breath samplesamounts to a warrantless search which is prima facie unreasonable. Thus the Crown must establish that the search was authorized bylaw, the law was reasonable and the search was conducted in a reasonable fashion. 35. Section 254(3) of the Criminal Code sets out the test for when a police officer may demand a breath sample: If a peace officer has reasonable grounds to believe that a person is committing or at any time within the preceding three hours hascommitted, an offence under

section 253 [impaired driving] as a result of the consumption of alcohol, the peace officer may, by demandmade as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that in a qualified technician’s opinion, will enable proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood . . . 36. In the present case there is no argument that s. 254(3), which authorizes the search, is unreasonable or the manner in which the search was conducted is unreasonable. The only issue is whether Sgt. Ferraton was entitled tomake the demand; in other words did he have reasonable grounds?

37. In R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, the Supreme Court of Canada explained that the there is a subjective and objective component in determining the issue of reasonable and probable grounds. In R. v. Bernshaw, supra, thecourt stated as follows at paragraph 48: ...the existence of reasonable and probable grounds entails both an objective and subjective component. That is, s. 254(3) of the Coderequires that the police officer subjectively have an honest belief that the suspect has committed the offence and, objectively, there mustexist reasonable grounds for this belief: R. v.

Callaghan, (SK KB), [1974] 3 W.W.R. 70 (Sask. Dist. Ct.); R. v.Belnavis, [1993] O.J. No. 637 (Gen. Div.) (QL)... R. v. Richard (1993), (ON SC), 43 M.V.R. (2d) 144... 38. In R. v. Singer (1999), (SK KB), 25 C.R. (5th) 374 (Sask. Q.B.), the Court stated that a trial judge in deciding whether a police officer had reasonable and probable grounds to make the demand must consider everything that the constablesaw or knew about the matter at the time he made his demand. 39. In R. v.

Breland, supra, Judge Gray elaborated on the test of reasonable and probable grounds as follows: This test does not require proof beyond a reasonable doubt, and it is not a test of the accuracy of the demanding officer’s belief, but ratheran assessment of all of the evidence to determine whether the belief was reasonable, both from the perspective of the officer making thedemand and an objective observer. Such an assessment by necessity requires a review of all the evidence in the possession of the officerat the time the demand was made.

Many cases have dealt with the subject of what constitutes reasonable grounds but there is no formulawhich can be gleaned from them. Rather, a case by case analysis is required in every instance. Or, as stated by Mills J. in R. v. Gunn,2010 SKQB 451, at p. 11: Although it is tempting to list indicia of possible impairment in a particular case and to compare them with similar indicia from othercases to come up with a formula for assessing an officer’s grounds, that is not the appropriate approach to take. 40. I have no difficulty finding that Sgt.

Ferraton subjectively believed that the accused was committing the offence of impaired driving. I accept his evidence that:

A) When Mr. Becker was stopped, he tried to get out of his truck. Sgt. Ferraton told him to get back in. After several demands, he didwhat he was told to do. Such evidence, suggests an impairment of Mr. Becker’s mental acuity.

B) When Mr. Becker was told to roll down the window of his truck, he appeared to have difficulty understanding Sgt. Ferraton’srequest. doing so. He tried several times to open the window before he actually did. Such evidence suggests an impairment of Mr.Becker’s mental acuity and manual dexterity.

C) When Mr. Becker opened his window, the officer noted a strong odour of alcohol emanating from the truck. The accused was theonly person in the truck. After engaging Mr. Becker in conversation for several minutes, Sgt. Ferraton testified that he observed that wasa strong odour of alcohol coming from Mr. Becker’s breath.

D) When Mr. Becker was asked to produce his driver’s licence and registration, he fumbled through his wallet looking for his licence. He passed it several times before he located it. When Mr. Becker found his licence, he had difficulty grasping it with his fingers to get itout of his wallet. Mr. Becker’s actions were described by Sgt. Ferraton as being “slow and deliberate.” Such evidence suggests animpairment of Mr. Becker’s mental acuity and manual dexterity.

E) When the accused was looking the registration for his vehicle, his girlfriend got into the truck. She found the registration. While shewas in the truck, she told Sgt. Ferraton what had happened in the parking lot. The accused repeated the same story. This enabled theofficer to hear Mr. Becker’s speech - which he found to be slow, drawn out and laboured. Such evidence suggests an impairment of Mr.Becker’s mental acuity and/or gross motor function.

F) When speaking with the accused, Sgt. Ferraton noted that his eyes were red and glazed over. These symptoms are commonlyassociated with people who have been drinking alcohol. 41. I accept that Sgt. Ferraton honestly believed that the accused’s ability to operate a motor vehicle was impaired by alcohol based onthe above noted observations. 42. I also find that Sgt. Ferraton’s subject belief that the accused’s ability to operate a motor vehicle was impaired by alcohol is supported on an objective consideration of all the evidence.

I am of the view that it was notunreasonable for the officer to conclude, on the whole of his observations, that Mr. Becker was operating a motor vehicle while impairedby alcohol. With respect, defence counsel’s contention that

section 8 of the Canadian Charter of Rights and Freedoms was breached iswithout merit. (

B) Were the breath tests taken “as soon as practicable” after the demand, within the meaning of s. 254(3) of the Criminal Code? If not, were Mr. Becker’s rights under

section 8 of the Charter breached? 43. The defence next argues that Mr. Becker’s breath samples were not taken "as soon as practicable" as required pursuant to sections 254(3) of the Criminal Code. 44. In R. v. Vanderbruggen, (ON CA), [2006] O.J. No. 1138 (Ont. C.A.) the defence also argued the accused’s breath test was not taken as soon as practicable. Rosenberg J.A., writing for the Court, disagreed. At paras. 12, 13and heobserved: 12 That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable.

Decisions of this and other courtsindicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. SeeR. v. Phillips (1988), (ON CA), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), (ONCA), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286 , 50 C.C.C. (2d) 518 (Alta.C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests weretaken as soon as practicable is whether the police acted reasonably. See R. v.

Payne (1990), (ON CA), 56 C.C.C.(3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), (SK CA), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van DerVeen (1988), 1988 ABCA 277 , 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, (ON CA), [1998] O.J.

No. 4362 (C.A.). 13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing inmind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test.The "as soonas practicable" requirement must be applied with reason.

In particular, while the Crown is obligated to demonstrate that -- in all thecircumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide adetailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), (BC CA), 1 C.C.C.(3d) 59 (B.C.C.A.) at 61-3, and R. v.

Seed at para. . . . 16 To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should notbe interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when thebreathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value andabout the science underlying the presumption of identity.

These provisions must be interpreted reasonably in a manner that is consistentwith Parliament's purpose in facilitating the use of this reliable evidence. [emphasis added]

45 . In the present case, Sgt. Ferraton did not keep detailed notes of every moment in the chronology from the time he arrested Mr. Becker and demanded samples of his breath to the time the first breath test was obtained. Sgt. Ferraton’s notes, which were filed as an exhibit during the proceedings, reveal the following basic timeline. Mr. Becker was given his rights and warnings at 11:53 p.m. The next time noted by the officer was 00:50, or 57 minutes later, when the accused spoke with Legal Aid. At 01:19, the Sgt.

Ferraton wrote in his notebook that the accused asked him to write down the name of his Legal Aid lawyer, which he did - Timothy Nolin, phone number 1-800-Legal Aid. At 01:23 the call to Mr. Nolin ended. 46 . The period of time in dispute in this Charter application is the 57 minutes between the time of the accused’s arrest and the time he began his telephone conversation with Legal Aid, that is, between 11:53 pm and 12:50 am. During his examination in chief on the voir dire , Sgt. Ferraton was asked to try to account for each task he performed during this period and the amount of time required to do each task.

The Sergeant testified at the outset that he was unable to be precise and his answers would only be guesses on his part. 47 . I have determined that the relevant time line is as follows: 11: 40 pm Sgt. Ferraton first observes Mr. Becker driving away from the gas station. At 11:42 he pulls Mr. Becker over. 11: 53 pm Sgt. Ferraton arrests Mr. Becker and demands he provide samples of his breath. Sgt. Ferraton testified it took between 8 to 10 minutes for the arrest of the accused and then to explain rights and warnings to Mr. Becker and get responses from him. 12:01 to 12:03 am Cst.

Logan and Weir take custody of Mr. Becker and handcuff him. The accused “passively resisted” being handcuffed. When the accused calmed down, he was searched and his property was removed from his person. The accused was then placed in the back seat of the police cruiser. Sgt. Ferraton estimated that this took about 5 minutes. 12:06 to 12:08 Sgt. Ferraton saw Cst. Weir using the police computer inside of the other police vehicle. Sgt. Ferraton said that he waited for another patrol car to arrive to drive the accused’s girlfriend home, then he retrieved the accused’s truck keys and disconnected the GPS in the truck.

He then observed Cst. Weir talking on his microphone. Sgt. Ferraton thought all of this took about 10 minutes. 12:16 to 12:18 Sgt. Ferraton testified that he then made his notes at scene, cleared the scene, drove to the police station, parked his vehicle, entered the building and make his way to cells. The officer thought this took another 5 minutes. 12:21 to 12:23 When Sgt. Ferraton arrived in cells, he saw the accused seated on a bench near the intoxilyzer room. He tells officers Weir and Logan they can leave. He testified that “shortly thereafter,” the breath tech arrived.

This appears to have taken approximately two minutes. 12:23 to 12:25 Sgt. Ferraton stated that he then spoke to the breath technician and was then told to arrange for the accused to call his lawyer while the breath technician was getting the machine ready. It takes some time for Mr. Becker to decide which lawyer to call. Efforts to contact Mr. Becker’s personal lawyer took between 5 to10 minutes and were not successful.

12:28 to 12:35 Accused still wants to speak to a lawyer. Sgt. Ferraton speaks to Mr. Becker. He suggests Mr. Becker may wish to contact Legal Aid which is available 24/7. There are 2 minutes (a few minutes) of conversation regarding legal counsel. Mr. Becker says “Ok, put me in touch with Legal Aid.” 12:30 to 12:37 Sgt. Ferraton dials Legal Aid for Mr. Becker. 12:50 Mr. Becker speaks to Legal Aid lawyer until 1:19 am 1:19 Mr. Becker signals Sgt. Ferraton to come in phone room and record the name of the Legal Aid lawyer he is speaking to. Sgt. Ferraton speaks with Legal Aid and records the name. Mr.

Becker resumes telephone call with Legal Aid. 1:23 Mr. Becker ends call with Legal Aid. 0.0625 First unsuccessful breath test. 1:31 First successful breath test. 1:57 Second unsuccessful breath test. 1:58 Second successful breath test. 48 . The defence advised the court it was only taking issue with the 57 minutes of time between the time of arrest and demand for breath samples (11:53 p.m.) and the time when Mr. Becker spoke to Legal Aid 11:53 (12:50 a.m.). 49 . When one adds up all of the time estimates provided by Sgt.

Ferraton there appears to be a gap of time of between 13 and 20 minutes, between 12:30 or 12:37 a.m. and 12:50 a.m. as to the specific activities of police and the accused. 50 . Defence counsel appears to contend that the 13 to 20 minutes of “unaccounted time” as calculated by the court gives rise to the conclusion the breath tests were not taken “as soon as practicable,” as required by section 254(3) of the Criminal Code and this constitutes unreasonable search of the accused by the police in breach of the accused’s rights under

section 8 of the Charter . Hence, the defence takes the position that the Certificate of Analysis should be excluded as evidence under section 24(2) of the Charter. 51 . This case is not akin to the factual situation which the court faced in R. v. Carriere , 2010 SKPC 118 where there was a 39 minute period when the accused was in cells at the police station that was completely unaccounted for. I am of the view that the 13 to 20 minutes between 12:30 or 12:37 a.m. and 12:50 a.m. is not completely unaccounted for. All of the steps that Sgt.

Ferraton took that evening would be part of any impaired driving investigation and arrest process. Sgt. Ferraton was providing his best estimate of the time it took to perform specific tasks that occurred between 11:53 and 12:50. Such estimates are bound to be somewhat imprecise. Some tasks as described by Sgt. Ferraton could have taken longer than he estimated. In addition, when pressed during cross examination as to what occurred in the gap period of time between 12:30 or 12:37 and 12: 50, Sgt. Ferraton testified that he thought this time was used by Mr. Becker to contact a lawyer. I believe him. 52 .

I am of the view that the police acted reasonably when dealing with Mr. Becker. I am satisfied that the Crown has demonstrated that in all the circumstances, Mr. Becker’s breath samples were taken within a reasonably prompt time, there being no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. 53 . I find this ground of the accused’s Charter application is without merit.

(

C) Was Mr. Becker denied his right to retain and instruct counsel, contrary to

section 10(

b) of the Charter? 54. Defence counsel takes the position that Mr. Becker’s

section 10(

b) Charter right to counsel was breached in two ways; first, Mr. Becker was not permitted to contact a lawyer of his choice and was “streamed” into using LegalAid, and secondly, the call to his Legal Aid lawyer was interrupted by Sgt. Ferraton thereby breaching Mr. Becker’s right to privacy. 55. As previously indicated in paragraph 33 of this decision, where the evidence provided by Sgt. Ferraton and Mr. Becker differs, I prefer and rely on the evidence of Sgt. Ferraton. As a result I find that at the telephone room Mr.Becker gave Sgt.

Ferraton the name and telephone number of a private lawyer he wished to speak to. Several attempts were made toplace a telephone call to a private lawyer for Mr. Becker, however, there was no answer. Mr. Becker did not ask to contact any otherprivate lawyers. As a result I am of the view Crown has established that Mr. Becker having invoked the right to counsel was providedwith a reasonable opportunity to exercise that right. 56. In R. v. Brouillette (E.), 2007 SKPC 67 , [2007] S.J. No. 288, Judge Morgan considered the practice of police streamingof a detainee.

Judge Morgan stated as follows at paragraph 37: A number of cases have consistently held that it is an infringement of the detainee's

section 10(

b) Charter right to counsel of choice forthe police to suggest that the detainee contact duty counsel, or for the police to otherwise 'stream' the detainee towards a particular lawyeror the Legal Aid system. (See R. v. Kowalchuk (1999), (SK KB), 179 Sask. R. 31 (Q.B.), R. v. McLaren (2001),2001 SKQB 493 , 212 Sask. R. 204 (Q.B.), R. v. Campbell (2003), 2003 SKPC 82 , 235 Sask. R. 127 (P.C.), R. v.Murphy (2004), 2004 ABPC 33 , 353 A.R. 161 (P.C.), R. v. Demkiw, [2004] S.J. No. 823, 2004 SKPC 128, R. v. Ryland, [2006]S.J. No. 119, 2006 SKPC 22, and R. v. Jacobi, [2006] S.J. No. 773, 2006 SKPC 81. 57.

I am of the view that Sgt. Ferraton did not suggest that Mr. Becker contact duty counsel or otherwise stream Mr. Becker towards the Legal Aid system. Sgt. Ferraton had previously advised Mr. Becker that Legal Aid dutycounsel was available to him without charge. When Mr. Becker was unable to contact the private lawyer he had hoped to speak to anddid not ask to contact any other private lawyers, Sgt. Ferraton again told Mr. Becker that one of his options was to contact Legal Aidwhich was available at all hours. Mr. Becker decided to pursue this option. When Mr. Becker asked Sgt.

Ferraton to put him in touchwith Legal Aid I find that he waived his right to counsel of his choice. 58. I find this ground of the accused’s Charter application is without merit.

Summary 60. Having found that there was no violation of the accused’s Charter rights, either at the roadside or at the police station, there is no need to embark upon an analysis pursuant to s. 24(2).

CONCLUSION 61. I am satisfied that: 1. the officer had reasonable grounds, both subjectively and objectively, to make the demand pursuant to s. 254(3) of the Criminal Code ; 2. the breath samples were taken as soon as practicable as required by section 254(3) of the Criminal Code ; 3. no contravention of s. 8 or s. 10(

b) of the Charter has been established on a balance of probabilities. 62. The evidence of Sgt. Ferraton from the voir dire will be admitted into evidence at the trial. I am satisfied that the evidence before the court establishes that on May 6, 2011 Mr. Becker operated a motor vehicle while his ability was impaired by alcohol, contrary to section 253(1) (

a) of the Criminal Code (Count #1). The Certificate of Analyses is admissible. The Certificate of Analyses reveals that Mr. Becker’s blood alcohol readings at 1:31 a.m. on May 7, 2011 was 210 mg % and at 1:58 a.m. was 190 mg %. I am satisfied that the evidence before the court establishes that on May 6, 2011 Mr. Becker having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, did drive a motor vehicle contrary to section 253(1)(

b) of the Criminal Code (Count #2). 63. I find the accused guilty of both counts set out in the information. In accordance with the usual practice in this jurisdiction, a conditional stay shall be entered on count #1, to be made complete upon the expiration of the appeal period or alternatively until such time as all initiated appeals have been completed, whereby a conviction on count #2 is maintained. ______________________________ M. Hinds, J.