Her Majesty the Queen - v. -, 2015 SKPC 91

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 091 Date: September 22 , 2015 Information: 32303776 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Eric Evan Wakeford Appearing: Brian Hendrickson, Q.C. For the Crown Merv Nidesh, Q.C. For the Accused DECISION ON VOIR DIRE M. GORDON , J [ 1 ] Mr. Wakeford is charged as follows:

(1) On or about the 31 st day of January 2015, 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

(2) On or about the 31 st day of January 2015, 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 .

[ 2 ] The Crown elected to proceed summarily. The matter was heard May 14, 2015. It was agreed by counsel that all the evidence would go in on the Charter voir dire and all admissible evidence from the voir dire would be applied to the trial proper. The matter was adjourned at the conclusion of the voir dire with the arrangement that the defence was to have any additional materials or argument filed by May 19 and the Crown by June 8. The matter was set over to June 9 to be spoken to. At that time, defence counsel advised he was not filing any further material.

The Crown had filed on June 4, a memorandum with their argument. [ 3 ] At the beginning of the voir dire , defence counsel made the following admissions: that the offence occurred in the early morning hours of January 31, 2015, at the time and place stated and that the accused was the driver of the vehicle involved in the stop by the Moose Jaw police officers. [ 4 ] The two Crown witnesses were the two Moose Jaw police officers: Cst. Coglin and Cst. Koch. As well, the in-car video was played and the officers referred to this in their testimony. [ 5 ] Cst. Coglin testified that he was working with Cst.

Koch on January 31, 2015, in a marked police vehicle and they were involved in traffic enforcement. At 12:35 a.m., the officers were parked in the Boston Pizza lot in the north location and observed the accused leaving in his vehicle on the service road and accelerating quickly onto Thatcher Drive. He continued to accelerate quickly which caused his vehicle to swerve. The police officers pulled the vehicle over on 4 th Avenue North West. The vehicle had gone about four blocks. The officers also noted he had not completely stopped at the stop sign before entering Thatcher.

The accused’s vehicle, a Jeep, pulled to the right side of the road and the police vehicle pulled up behind. Cst. Coglin approached the Jeep and Cst. Koch approached the passenger’s side. The driver was the accused. Cst. Coglin explained the reason for the stop was to check for possible traffic safety violations. At this time the officer also noticed a slight odour of alcohol coming from Mr. Wakeford. He observed his speech was slightly slurred and he suspected that Mr. Wakeford had consumed alcohol and was possibly impaired. He asked Mr.

Wakeford to come back to his police vehicle for the purpose of an approved screening device test. [ 6 ] Mr. Wakeford exited his vehicle and walked back to the police vehicle. His walk was fairly steady and there were no gross signs of impairment. At 12:42 a.m., Cst. Coglin read Mr. Wakeford the approved screening device demand. Mr. Wakeford complied and the result was a fail. As a result at 12:46 a.m., Cst. Coglin arrested Mr. Wakeford for impaired driving and gave him the rights to counsel, and at 12:49 a.m., he made the Intoxilyzer demand and read Mr. Wakeford the police caution. Mr.

Wakeford was asked if he wanted to call a lawyer now and he replied “yes sir”. Cst. Koch was also present with Cst. Coglin in the police vehicle. Cst. Koch exited the police vehicle to speak with the female passenger. It was snowing out, a wet snow, minus 10 to minus 15, windy and cool. Cst. Coglin spoke with Mr. Wakeford for about five minutes with respect to securing his vehicle and making arrangements for a tow truck to come. One of the officers contacted dispatch to request a tow truck. Cst. Coglin was not quite sure whether it was him or Cst. Koch that contacted dispatch. [ 7 ] Cst.

Koch returned from the Wakeford vehicle and they talked about what was going to happen to the passenger and the Jeep. There was conversation about trying to get the passenger a taxi, as she was not dressed for outside winter weather. The passenger said she wanted to walk the four blocks to the Silo Bar. [ 8 ] They waited a few minutes for a tow truck and then Cst. Coglin inquired and was advised that the tow truck was on its way. Cst. Coglin said that the reason for calling for a tow truck was the new SGI requirements that had come into effect in late June of 2014.

It was his understanding that vehicles must be seized at the scene. However the officer was aware that time is important in these investigations since he had already made the Intoxilyzer demand. Therefore the officer decided to lock the Jeep, as it was not a safety hazard, and depart to the Moose Jaw Police Station. He is unsure of the time of departure, but arrived at 1:13 a.m. He said at most it is a five to 10 minute trip to the police station. They made this trip directly without any stops. [ 9 ] Mr. Wakeford was booked in at the police station. He asked to call the Chow McLeod Law Office.

At 1:19 a.m., this was done with no answer. The accused stated words to the effect that calling a lawyer was a waste of time and at 1:24 a.m., said “you know what, never mind. Let’s just do what you have to do”. At that time, a Prosper warning was given to Mr. Wakeford who responded saying he just wanted to cooperate and be helpful. He clearly stated that he did not want to call a lawyer.

[ 10 ] Back at the detachment, the video of the Intoxilyzer room showed that Mr. Wakeford appeared to walk and talk satisfactorily and was able to spell his middle name and provide details to the officer. [ 11 ] At 1:40 a.m., Cst. Forbes, the technician, received the first breath sample. There was a 15 minute observation period and the second sample was taken at 2:01 a.m. Mr. Wakeford was lodged in cells and the paperwork was completed for his release. He was served with the certificate and the Notice of Intention to Produce at 10:30 a.m. on January 31 and released. The officer said that Mr.

Wakeford was hesitant to contact family members for release as he had a previous charge. The Certificate of Analyses was marked as Exhibit P-1 on the voir dire . [ 12 ] Cst. Coglin agreed that upon being stopped Mr. Wakeford said he had not consumed alcohol at Boston Pizza but rather, had a couple of beer at the Silo. The officer agreed that Mr. Wakeford gave his cell number clearly. Mr. Wakeford was initially quite adamant asking the officer if there was any other way this matter could be handled “is there anything we can do besides this?” Mr.

Wakeford offered to help out the police with respect to providing information about individuals who are dealing in drugs. Cst. Coglin firmly advised him that they had to continue with the impaired driving investigation and proceeded to explain to Mr. Wakeford the procedure for blowing in the approved screening device. Cst. Coglin explained the meaning of the fail results. Mr. Wakeford does persist in his offer about providing information about drug dealing in the city but admitted he understood the breath demand and concluded by saying he “didn’t mean to be rude”. [ 13 ] On cross-examination, Cst.

Coglin again stated that Mr. Wakeford said he understood his rights to counsel and the ASD and Intoxilyzer demands. The officer was of the opinion that Mr. Wakeford understood. There was nothing to indicate that he did not understand what was going on including the Prosper warning. [ 14 ] Exhibits D-1 and D-2 are the videos of this investigation. Mr. Wakeford continues, while they are waiting for the tow truck, to badger the police in inquiring if there is anything he could do to help the police out. He would sell his soul to avoid this investigation. Mr.

Wakeford acknowledged that he “put myself in an awkward position” and keeps repeating that he would do anything to help out the police. Mr. Wakeford then says he wasn’t being honest with the police and he actually had six beer at the Silo. The police secured the Jeep and decided to leave for the police station before the tow truck arrived. [ 15 ] Cst. Koch testified that at 12:40 a.m. on January 31, 2015, he observed a Jeep at the corner of Thatcher and the service road by Boston Pizza. He said there was heavy snow blowing and the roads were becoming ice covered. It was minus 10 degrees. Cst. Coglin was driving.

The Jeep was pulled over to the right-hand side on 4 th Avenue facing south. The clubhouse for the Lynbrook Golf Course was just to the east of the vehicle. The Jeep was parked off the travelled lane of the road and the police vehicle pulled in behind. The traffic was light. Cst. Koch went to the passenger side where a woman was located. Cst. Koch noticed a case of Pilsner beer in the back seat on the floor that was closed. [ 16 ] Cst. Koch followed Cst. Coglin and Mr. Wakeford back to the police vehicle. Cst. Koch prepared the approved screening device for Cst. Coglin.

At 00:48, by his watch, the police warning was given to Mr. Wakeford and his Charter rights were at 00:46. After Mr. Wakeford produced a fail result on the approved screening device, Cst. Koch returned to the Jeep to talk to the passenger. He told Ms. McGuire, the passenger, that Mr. Wakeford would be coming with them to the station and that she could phone a friend. She picked up her phone and started dialling. [ 17 ] Cst. Koch returned to the police vehicle. There are new SGI forms to get the vehicle towed and he was filling out these forms.

Apparently there are two notices; a seizure form and one to inform the driver about the seizure for being over the legal limit. One of the officers called dispatch. He says he took about five minutes to complete the forms. Ms. McGuire, the passenger, said she was going to walk to the Silo to meet friends. After remaining at the scene waiting for the tow truck, the officers decided to proceed to the Moose Jaw Police Station. Cst. Koch was not sure of the exact time that they left the scene. Mr.

Wakeford was brought back to the police station which was a little more than a five minute trip from the site of the stop. Cst. Koch thinks Cst. Coglin secured the vehicle, leaving it there as it was not impeding traffic. He recalls back after Mr. Wakeford was booked in, that the Chow McLeod office was called at Mr. Wakeford’s request. There was no answer. Cst. Koch then goes off shift. [ 18 ] It was Cst. Coglin, according to Cst. Koch, that placed Mr. Wakeford into the phone booth area and got the number for the Chow McLeod office from the yellow pages of the phone book.

He admitted that no other number was tried. He passed all this information on to Cst. Coglin.

[ 19 ] Mr. Wakeford testified on the voir dire only. He says he was placed in cells by Cst. Coglin after the breath tests and was told by Cst. Coglin he was just finishing up the paperwork and would be released. Mr. Wakeford testified that about every hour someone came in and checked on him and he asked when he was going to be released. He was told about another hour each time. [ 20 ] At 10:30 a.m., on January 31, 2015, he was given an appearance notice and the other documents and was released. He was wearing jeans and a hoodie and just walked out the back door of the police station. It was very cold.

He walked across the street and was able to contact a friend. He states that he was only asked by the officer if there was family he wanted to contact. He said he was embarrassed so did not want to contact family. He says he was never given the opportunity to try and call a sober friend to pick him up earlier. [ 21 ] On cross-examination Mr. Wakeford admitted that he was given his rights to counsel and that he told the officer it was a waste of time. He admitted that he did not want to talk to counsel. He also admitted that Cst. Coglin told him he could contact a family member.

He was told at one point that the reason he was still there was to sober up. ARGUMENT [ 22 ] The Charter notice filed by Mr. Wakeford’s counsel requested the following relief and I quote: The exclusion from evidence of breath samples, exclusion of the Certificate of Qualified Technician, exclusion of service of the Certificate of Qualified Technician of the results of the breath samples including the Certificate of Qualified Technician, stay of proceedings and such other remedy that the Court may see fit. [ 23 ] Counsel asserts that there was a violation of Mr.

Wakeford’s rights under s. 8 and s. 9 of the Charter . This is based on the fact that the police waited a few minutes at the scene after the Intoxilyzer demand was given to the accused before proceeding to the Moose Jaw Police Station. The defence suggests that the Certificate of Analyses should be excluded pursuant to s. 24(2) of the Charter and refers to the case of R v McLeod , 2011 ONCJ 439 [ McLeod ]. In addition, defence counsel submits that Mr. Wakeford was the subject of over holding thereby resulting in a breach under s. 9 of the Charter .

The cases of R v Ternowsky , 2014 ABPC 109 and R v Thomson , 2014 ONCJ 472 are filed in support of his request for a stay of proceedings. [ 24 ] As I have noted, defence counsel did not file any further material or make any other submissions. Crown counsel filed a written argument on June 5, 2015. [ 25 ] Crown counsel, in his written brief, argues that there was no s. 8 Charter violation. The Crown says that the evidence of both police officers indicates that matters moved along in a timely fashion. The police officers needed time to carry out their duties in this as in any investigation.

The Crown says that from the time the Intoxilyzer demand was made at 12:49 a.m., to the time the officers arrived at the police station at 1:13, complies with the requirement that the breath samples be taken “as soon as practicable”. The Crown acknowledges the police officers waited a few minutes for the tow truck but then left mindful of not incurring any unnecessary delay.

The Crown further submits that even if the samples were not taken as soon as practicable that on a Grant analysis, the evidence should not be excluded. [ 26 ] The Crown also questioned the process being followed in terms of a Charter voir dire . On page 2 of the Crown’s memorandum dated June 4, 2015, Mr. Hendrickson stated as follows:

Section 8 - While it is not clear if this issue need be the subject of a Charter argument, the Crown responds to the defence argument under s. 8 and the remedy for the exclusion of the Certificate of Analyses. [ 27 ] With respect to the over holding issue, the Crown says that there was no evidence that Mr. Wakeford wanted to contact a

sober person to pick him up. The Crown acknowledges the officer was not able to say there were safety concerns necessitating the continuing detention of the accused nor did he express any concerns about confirming identity. Again, the Crown states that if the Court finds over holding that the proper remedy is a reduction in sentence. ISSUES 1) Was there a s. 8 Charter breach in that the breath samples were not taken as soon as practicable? If so, what evidence if any should be excluded pursuant to a Grant analysis? 2) Was there a violation of Mr. Wakeford’s rights under s. 9 of the Charter by over holding?

And, if so, what is the appropriate remedy? THE LAW [ 28 ] The relevant portion of s. 258 of the Criminal Code which provides the Crown a shortcut with respect to the presumption of identity if certain requirements are met reads as follows: 258(1)(

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if (i) [Repealed before coming into force, 2008, c. 20, s. 3 ] (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused ’ s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused ’ s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; [ 29 ] The relevant sections of The Traffic Safety Act as amended June 27, 2014, are as follows: 148(2) A peace officer shall do the things set out in subsections (3) and (12) if: (

a) the peace officer has reasonable grounds to believe, based on an analysis of a driver’s breath or blood by means of an approved instrument or an approved screening device, that a driver drove a motor vehicle while the venous blood of the driver exceeded 80 milligrams of alcohol per 100 millilitres of blood; or (

b) the peace officer has reasonable grounds to believe that a driver failed or refused, without reasonable excuse, to comply with a demand made pursuant to

section 254 of the Criminal Code .

(3) In the circumstances mentioned in subsection (2), the peace officer shall immediately: (

a) suspend the driver from driving a motor vehicle; (

b) if the driver holds a valid driver’s licence or any other permit authorizing the driver to drive a motor vehicle, require the driver to immediately surrender his or her driver’s licence or permit; (

c) cause the motor vehicle that the driver is driving to be immobilized or impounded; and

(

d) issue and serve on that driver a notice of suspension and immobilization or impoundment. ANALYSIS [ 30 ] A Charter notice was filed by the defence alleging violations of Mr. Wakeford’s s. 8 and 9 rights. The notice states that “there was a delay in leaving the scene”. In R v Dolezsar , 2010 Sask R 45, upheld on appeal 2012 SKQB 6 , the trial judge concluded that if the accused argues that the Crown cannot rely on the presumption in s. 258(1)(

c) because the breath tests were not taken as soon as practicable, a Charter application is not necessary. Judge Green follows the Dolezsar decision in R v Duchek , 2012 SKPC 7 . At paragraph 28 he states: However, I am satisfied that there is a distinction in law between: (1) the requirement in s. 254(3) of the Code that a demand be made “as soon as practicable” and that a person given a breath demand provide samples “as soon as practicable”; and (2) the presumption in s. 258(1)(

c) of the Code which, amongst other requirements, requires that the samples of breath be taken “as soon as practicable after the time when the offence was alleged to have been committed” (see R. v. Dolezsar , 2010 SKPC 142 ). That difference is that the former issue goes to the lawfulness of the search and seizure, and as a result engages s. 8 of the Charter and requires a Charter application under s. 24(2) to exclude the Certificate of Analyses, while the latter issue, assuming the admissibility of the Certificate of Analyses, relates to whether the Crown can rely on the presumption in s. 258(1)(

c) and does not engage the Charter . [ 31 ] And, at paragraph 30: The presumption in s. 258(1)(

c) provides a shortcut for the Crown once the prerequisites noted in that

section - one of which is that the samples of breath be taken “as soon as practicable after the time when the offence was alleged to have been committed” - have been proved by the Crown. That shortcut, if the Crown seeks to rely on it, forms part of the Crown’s case. I can see no lawful basis upon which the defence must give notice of their position - whenever that arises - that the Crown has not proved the prerequisites to apply the presumption in s. 258(1)(c). [ 32 ] Defence counsel refers to the case of R v McLeod , 2011 OJ No 4118 , which comments on a very different situation.

The main issue in the McLeod case was whether the breath samples had been taken as soon as practicable given the 39 minutes between the two tests. The Ontario Court of Justice said that the breathalyzer technician had explained he had been talking with the accused and completing paperwork and lost track of time. The Court said up to 20 minutes between tests was normal but the extra 19 minutes was time wasted and not time spent advancing the case. That is not the situation here. [ 33 ] At the conclusion of the voir dire , there did not appear to be any dispute with respect to the timeliness of the breath demand.

Therefore I conclude as the Crown did, that the delay being alleged is whether the tests were taken as soon as practicable pursuant to s. 258(1)(

c) and whether the Crown can rely on the presumption of identity. If that is in fact the defence position and I conclude it is, then based on Dolezsar and other subsequent cases from our courts, the defence can make that argument at the conclusion of the trial proper. [ 34 ] The defence did not present any further argument with respect to the issue of as soon as practicable. The defence bears the burden of establishing a Charter violation. I do not find any Charter breach with respect to s. 8 and therefore a Grant analysis is unnecessary. [ 35 ] The second issue is the one of over holding.

The last sample was provided by Mr. Wakeford at 2:01. The time on the release document is 10:30 a.m. that morning. The investigating officer says that he went off shift and had no further contact with Mr. Wakeford. [ 36 ] I do not accept that there was any valid reason for holding Mr. Wakeford in police cells until 10:30 a.m. that morning. It is noted that the readings on the Certificate of Analyses are low; being 140 and 150 milligrams percent. I have observed Mr.

Wakeford on the videos that were filed as exhibits on the Charter voir dire and find that he was, after his initial request for the police to forget about this charge, cooperative with the police. He certainly understood what was going on and gave the police no cause for concern. While I

accept Cst. Coglin asked if he wanted to call family and Mr. Wakeford appears to have declined as he was embarrassed about the situation, he was not given any opportunity to call a friend or a cab and there was no discussion of any other way or manner of a more timely release. There was no explanation as to why he was released at 10:30 and not 9:30 or 7:30 and there was no evidence to suggest the police were concerned that he had to sober up. Cst. Koch went off shift after Mr. Wakeford tried to call the Chow McLeod firm and there was no evidence that he made any arrangements with respect to Mr.

Wakeford’s release or retention in cells. Again, this holding in police cells seems to be a matter of policy at best or just police not caring and lodging people in cells on a routine basis. [ 37 ] In addition, I accept Mr. Wakeford’s evidence that he was released at 10:30 a.m. on an extremely cold morning on January 31, and was only wearing jeans and a hoodie. While I accept it is not up to the police to babysit people, I am of the view that the better practice would have been to inquire how he was going to get home, whether he had a cell phone that was working or money to get transportation.

However, I am not prepared to grant the defence request of a stay of proceedings. This is not the clearest of cases that requires such a remedy. My concern in this case is that the police provided no explanation for their actions. This is the approach I followed in my decision of R v Binetruy , 2013 SKPC 118 , which was upheld on appeal. I also note R v Sherstobitoff (No. 2) , 2013 SKPC 77 , in which Judge Labach, as he then was, concluded at paragraph 67: In this case, the breach of the accused’s

section 9 Charter right occurred after his drinking and driving investigation was complete and charges had been laid. There was no connection between the breach by over holding and the obtaining of evidence. While it was not acceptable that the accused was held this long, it did not impact the fairness of the trial. As such, this is not the clearest of cases in which to order a stay of proceedings. The accused however is entitled to a remedy. In my view, an appropriate remedy in these circumstances is a reduction in sentence.

This reasoning is consistent with the decision of my brother, Judge Hinds in the case of R. v. By , [2013] S.J. No. 347 (Sask. Prov. Ct.) wherein he was faced with a similar situation. [ 38 ] The defence bears the burden of a Charter application on the balance of probabilities. I am satisfied on the evidence that the accused’s s. 9 Charter right was breached by the fact that he was held in custody for approximately 10 hours without any adequate explanation. Pursuant to s. 24 of the Charter , if there is a conviction, a reduction in sentence would adequately reflect the seriousness of the breach.

This is consistent with the approach by this Court and the higher courts in this province. [ 39 ] In conclusion, the Certificate of Analyses will be admitted into evidence on the trial proper. A new date will be set for the trial to continue. M. Gordon, J