Her Majesty the Queen - v. -, 2010 SKPC 169

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 169 Date: December 2, 2010 Information: 24292894 Location: Wadena _____________________________________________________________________________ Between: Her Majesty the Queen - and - Taryn Rathgeber Appearing: Mr. Barrie Stricker For the Crown Mr. Ajit Kapoor For the Accused JUDGMENT BRENT KLAUSE , J [ 1 ] Taryn Rathgeber was charged that he on or about the 19 th of October 2008, at or near Quill Lake, Saskatchewan: Count 1: did operate a motor vehicle while impaired contrary to s. 253(1) (

a) of the Criminal Code . Count 2: on the same date and place did without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer under subsection 254(2) of the Criminal Code to provide a sample of his breath as in the opinion of Cst. Michael Forget was necessary to enable a proper analysis of his breath to be made by means of an approved screening device contrary to s. 254(5) of the Criminal Code .

Count 3: on the same date and place did wilfully obstruct Cst. M. Forget, a peace officer to wit: engaged in the execution of his duty by giving a false surname contrary to s.129(a). Count 4: did operate a motor vehicle while disqualified from doing so by reason of an order pursuant to ss. 253 and 254 of the Criminal Code contrary to s. 259(4) of the Criminal Code . [ 2 ] The Information was sworn November 26, 2008, and the accused first appeared on November 27, 2008, a plea of not guilty was entered and the matter set for trial to April 9, 2009. On April 9, 2009, the trial commenced in Wadena.

The defence brought a preliminary application alleging defects in the wording of the Information in that it referred to a driving while disqualified charge which the defence alleged made it impossible for the trial judge to fairly adjudicate the case on its merits, the reasoning being that the trial judge would know that the accused had been previously before the courts. [ 3 ] At the conclusion of his argument I severed the driving while disqualified charge and directed the Crown to proceed with their evidence which they did.

The matter was subsequently adjourned while the defence lodged an appeal with the Court of Queen’s Bench, the Saskatchewan Court of Appeal and the Supreme Court of Canada, all of which were denied. The matter resumed for trial on October 1, 2010, at which time the accused testified. The Case for the Crown [ 4 ] The Crown called two witnesses. Cst. Forget indicated that he was on duty on the above noted date and place when he saw the vehicle driving north. He noticed that the driver was not wearing a seat belt, that the vehicle had no plates and the suspension appeared very low.

He initiated a traffic stop at 1:12 a.m. and asked the accused, who he identified in Court, for his driver’s licence and registration. At this time, he could smell beverage alcohol coming from the vehicle. [ 5 ] The driver had no identification or driver’s licence with him and after several minutes of playing games about his name etc., he advised that his real name was Taryn Rathgeber. The police officer was finally able to get a description and positively identify the accused as Taryn Rathgeber. [ 6 ] By this time, Cst.

Forget noted an odour of liquor coming from the accused’s breath and noted slurred speech and asked the accused to blow in his face as he wanted to ascertain where the smell of liquor was coming from. On the second attempt, he determined it was in fact coming from the accused’s breath and concluded that the accused had been consuming alcohol. [ 7 ] He had no ASD with him at the time so he called another member, Cst. Eyford, to bring an ASD to the scene. He indicated that the instrument arrived between 10 to 15 minutes later. It arrived and he made a demand for roadside samples. The accused said no and Cst.

Forget read the demand again and this time the accused said “fine” but still would not supply a sample of his breath, rather insisting that he see Cst. Forget’s “certificate”. [ 8 ] Cst. Forget indicated that the accused was given four or five chances to blow, and the consequences of not blowing were explained to him but he still refused to blow.

He was eventually advised that he was being charged with refusal to supply samples and the police called a tow truck as the vehicle had no door handle, no bumper, no plate and no registration. [ 9 ] He was given his rights to counsel and at the detachment was given an opportunity to contact counsel. He contacted Legal Aid and was on the phone for approximately 27 minutes. Cst. Forget did note that his balance was not perfect, he had slurred speech and a smell of liquor on his breath. In the opinion of Cst. Forget his ability to operate a motor vehicle was impaired by alcohol.

He has met him before and his speech was not slurred on that occasion. [ 10 ] The second witness for the Crown was Cst. Eyford who indicated that he received a call at 1:20 a.m. from Cst. Forget requesting an ASD. He arrived at the scene with the ASD at 1:44 a.m. He heard Cst. Forget make the demand to the accused and overheard the conversation between the accused and Cst. Forget in regard to his qualifications and certificate, etc. The accused refused

to supply any samples and insisted on seeing proof of Cst. Forget’s qualifications. He also heard Cst. Forget explain the consequences of not supplying a sample to the accused and again asked for a sample. He indicated that the accused was sweating, had bloodshot eyes, and a slight odour of alcohol was coming from the back seat of the patrol car, he did not recall any hostility and he thought his speech was normal. He further advised that when he got the call to bring the ASD, he was in Wadena, approximately 30 kilometres from where the ASD was required.

The Case for the Defence [ 11 ] The accused did testify and essentially agreed with the Crown as to the relevant facts. His explanation for providing a false name to Cst. Forget was unusual to say the least. He posits that most people have had a difficult time with his name his whole life, including his current employer who always spells his name wrong on his pay cheque. In order to avoid this problem, he regularly and routinely gives the name of Taryn Johnson. There is no legal or family significance to the Johnson name, just a nom de plume that Mr.

Rathgeber has independently adopted in order to alleviate this problem. [ 12 ] He agrees that he was driving his motor vehicle while on a restricted licence and that the vehicle was deficient in many respects. It was left unexplained as to why he felt he had to drive from his parent’s house to the bar, a distance of three blocks, when faced with so many potential difficulties with driving. He felt that he was not being treated fairly by Cst.

Forget and that it should be a matter of course that when asked, a police officer should be able to produce his qualifications to operate a roadside testing device no matter where or when you are found driving. He further complains that his treatment was not up to standard as his cell at the Wadena Detachment was unclean. It was unclear to me if there was a formal Charter application to exclude evidence. Crown Argument [ 13 ] The Crown submits that the accused intentionally lied about his name in an attempt to obstruct the investigation of Cst.

Forget as the defendant was driving on a restricted licence; that the police are under no duty to provide proof of their qualifications to operate an ASD; that the accused’s ability to operate a motor vehicle was impaired by alcohol and finally, that in the circumstances of this case the requirements of the demand were made within the time constraints of the section.

Defence Argument [ 14 ] The defence submits that the time delay between the initial stop and the demand for the samples was not forthwith and secondly, or in the alternative, the time it took for the instrument to arrive at the scene was too lengthy and therefore the test demand was not administered forthwith.

He further submits that there was no attempt to obstruct the police as he gave the officer his legal name within minutes of the first name he gave; that his ability to drive was not impaired by the ingestion of one beer and that his refusal to supply samples without proof of qualification is reasonable given that the police officer was not acting in a cooperative manner. The Issues: 1. Was the demand made forthwith? 2. Does a police officer have to provide proof of his qualifications at the scene of an investigation? 3. Did the accused obstruct Cst. Forget in the lawful execution of his duty? 4.

Should any evidence be excluded as a result of the treatment the defendant received once he was in police custody?

5. Does the evidence support a conviction for impaired driving? 6. In the absence of a formal Charter application, can I consider an application to exclude evidence based on an improper demand? The Law [15] R. v. Grant, (SCC), [1991] 3 S.C.R. 139, held that the term forthwith means that the sample must be takenimmediately. Therefore a demand made by a police officer who is without the device and needs a half hour for the device to arrive doesnot satisfy the conditions of this section.

They held that since the demand was invalid, the accused was under no obligation to complywith it and his failure to comply could not constitute an offence. [16] Does this situation then raise the same situation as the Court encountered in R. v. George? In George, the screening devicetook 16 minutes to arrive and the accused testified that he had a cell phone with him and would have called his lawyer if the officerwould have afforded him that opportunity.

In George, the Court held that where there is a possible delay of 15 to 20 minutes, it isincumbent on the officer to take reasonable steps to facilitate a detainee’s right to counsel including inquiring whether or not he had acell phone. [17] In R. v. Danychuk, (ON CA), [2004] O.J. No. 615, the Ontario Court of Appeal held that to make a validdemand under s. 254(2), the police must be ready to administer a test forthwith.

However where the demand was refused the Crown doesnot have to show that there was a screening device available immediately at the scene ready for a test. [18] However in Grant, the Court further held that a demand made after a 30 minute wait for a device to arrive was not “forthwith”as the term “forthwith” suggests an almost immediate demand. [19] However in R. v. Payne (1994), (NL CA), 91 C.C.C. (3d) 144, 121 Nfld. & P.E.I. R. 137 (Nfld.

C.A.), theNewfoundland Court of Appeal held that the fact that the device was not with the police officer when the demand was made or that hedid not know the time frame for its arrival, did not necessarily take the demand outside of subsection (2). The Court held that thedetermination of whether the test has been administered “forthwith” is not a question of the number of seconds which have elapsed fromthe time the demand was made to the time the test was administered but rather is a question of the circumstances of the case.

They wenton to say that as a general rule, anything past 30 minutes between the demand and the test would render the demand invalid but if therewere no more than 30 minutes, the Court must examine all the circumstances. [20] In R. v. Woods, 2005 SCC 42 , [2005] 2 S.C.R. 205, 197 C.C.C. (3d) 353, the Supreme Court extensively canvassedthe meaning to be given the expression “forthwith”: 14. Section 254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy.

This immediacyrequirement is implicit as regards the police demand for a breath sample, and explicit as to the mandatory response; the driver mustprovide a sample “forthwith.” 15. Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8, 9, and10 of the Canadian Charter of Rights and Freedoms. But for its requirement of immediacy, s. 254(2) would not pass constitutionalmuster. That requirement cannot be expanded to cover the nature and extent of the delay that occurred here. 43.

It is true, as I mentioned earlier, that “forthwith” in the context of s. 254(2) of the Criminal Code, may in unusual circumstances begiven a more flexible

interpretation than its ordinary meaning suggests. For example, a brief and unavoidable delay of 15 minutes canthus be justified when this is in accordance with the exigencies of the use of the equipment: see Bernshaw. 44. The “forthwith” requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and animmediate response by the person to whom that demand is addressed. To accept as compliance “forthwith” the furnishing of a breathsample more than an hour after being arrested for having failed to comply is in my view a semantic stretch beyond literal bounds andconstitutional limits.

Findings of Fact [21] For the record, I find that while the time of the stop was 1:12 a.m., the actual demand for breath samples was not made untilCst. Eyford arrived with the instrument at 1:44 a.m., some 32 minutes after the initial stop. Much of that time was spent with the accusedtrying to ascertain his real name. Cst. Forget indicated in his evidence that it took between 10 and 15 minutes for the instrument to arriveonce he had apparently decided to use the instrument.

In my opinion, the accused was deliberately delaying the RCMP in theirinvestigation as he knew both that he had been consuming alcohol, was a disqualified driver, and was driving in contravention of hisrestricted licence. I do not accept his evidence that he gave an erroneous name because of the difficulties other people, including hisemployer, have with pronouncing his name.

In my opinion, he gave a false name in an effort to either delay or defeat the investigationand as a result he is guilty of obstructing the police officers in the performance of their duty. [22] In the case at bar, clearly there was a significant delay before the instrument arrived. Cst. Forget indicated he was takingnotes during that time, that the accused was under arrest and he was waiting for it to arrive: “It arrived, I made the demand and herefused to supply a sample.” On the evidence, clearly he contemplated making a demand for a roadside test as early as 1:20 a.m. when herequested that Cst.

Eyford bring an instrument to the scene. He had however detected the smell of alcohol from the accused as early as1:12 a.m. when he was initially stopped and had asked the accused to blow on him in order to further ascertain the odour of alcohol justprior to requesting the ASD from Cst. Eyford. [23] I further find as a fact that there was no formal Charter application by the defence at any time nor was written notice everprovided to the Crown in regard to a possible Charter application.

The position of the Crown is that since no Charter notice wasprovided, that the defence is estopped from raising any Charter arguments and that therefore R. v. Rilling, (SCC),[1976] 2 S.C.R. 183, 24 C.C.C. (2d) 81, 31 C.R.N.S. 142, applies, ie. that it does not matter whether the demand was made forthwith asthe defence has not brought a Charter application to exclude the evidence obtained. [24] In my opinion, Rilling is still good law but it does not apply to the facts of this case.

The “forthwith” argument can be madein the absence of any specific Charter application as the Code requires that the demand be made “forthwith” and that

interpretation hasto be determined on a factual basis and not solely on a legal argument based on the Charter. In other words, the absence of a lawfuldemand is either a defence or a reasonable excuse for refusal, neither of which require a Charter application. [25] In this case, the timing is somewhat unusual as the stop occurred at 1:12 a.m., the instrument was not requested until 1:20a.m. and the instrument did not arrive until 1:44 a.m. at which time the demand was first made.

Applying Woods, neither the demand orthe availability of the instrument was “forthwith” and even applying the rather lengthy period of time that the Newfoundland Court ofAppeal offered in Payne would bring the demand or the availability of the instrument within the apparently mandated 30 minute timeframe. If the demand had been made promptly at the time of the initial stop, it would be open for the Crown to argue that the length oftime involved in obtaining the instrument is not unusual given the dearth of ASDs in rural Saskatchewan and the time and travel involvedin bringing an available instrument to the scene.

This stop did not occur in a major metropolitan area where perhaps one could expectthe instrument to be available in a more expeditious fashion. The case at bar is nearly a complete replication of the fact situation as setout in Grant, supra. [26] The matter is further complicated by the fact that the accused did have a cell phone on his person and could have used it tocontact the lawyer of his choice during the 32 minutes he waited to receive both the demand and for the instrument to arrive.

In myopinion, the demand was not made “forthwith” in all the circumstances of this case and therefore there was no valid demand made andthe accused was under no obligation to comply with that demand. The defence also argues that since the police officer could not supplythe accused with proof of his qualifications to operate the ASD, that this provided him with a reasonable excuse for not providing asample.

The case law is well established on this point that the peace officer in a situation like this is under no compunction to supply anyproof of his qualifications and while it is not necessary in view of my previous findings on the demand, I would hold that this would notprovide the accused with any defence. [27] The impaired driving is scant in this case and really consists of a smell of alcohol on the accused’s breath which was notreadily apparent until Cst. Forget asked the accused to blow in his face repeatedly.

The accused is adamant that he had only one beer onthe night in question and was not impaired by alcohol or anything else. The Crown’s evidence is additionally compromised by the factthat while Cst. Forget testified that the accused’s speech was slurred, Cst. Eyford drew no such conclusion. This could perhaps beexplained by the fact that English is not Cst. Forget’s first language and what is “slurred” to him when spoken by a person whose firstlanguage is English is not what another individual whose first language is also English hears. In my opinion, it would be dangerous to

base a conviction for impaired driving on the limited evidence in this case. [ 28 ] The defence lastly argues that given the circumstances of his detention, ie. nearly 13 hours from start to finish, and detention in an unclean detention facility, that this Court should exclude the evidence of the refusal as a remedy. There was no formal Charter application but in the circumstances of this case, because of my previous findings, there is no need to consider a specific Charter remedy of exclusion of evidence or a possible reduced fine to address the issue. I do find it surprising that the RCMP would have kept Mr.

Rathgeber at all given his limited consumption, his apparent lack of symptoms and the apparent availability of friends or relatives in town. To a certain extent, he was the author of his own misfortunes as he deliberately lied about his name and very foolishly, decided to drive after consuming alcohol while on a restricted licence in an unregistered motor vehicle. [ 29 ] In the end result, I acquit him of refusal and impaired driving and convict him of one count of obstruction contrary to s. 118 of the Criminal Code . Brent Klause, J