Her Majesty the Queen - v. -, 2014 SKPC 120

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 120 Date: May 23, 2014 Information: 90000379 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ryley M. Koma Appearing: Chris Davison For the Crown Brian Hurley For the Accused INTERIM DECISION B. TOMKINS, J [ 1 ] Ryley M. Koma is charged with two offences, both alleged to have occurred on March 15, 2013 at Regina.

They are as follows: • That he did operate a motor vehicle while his ability to do so was impaired by alcohol or a drug and did thereby cause bodily harm to Shannon Rodrigue, contrary to section 255(2) of the Criminal Code ; and • That he did operate a motor vehicle having consumed alcohol in such quantity that the concentration thereof in his blood exceeded

80 milligrams of alcohol in 100 millilitres of blood and did thereby cause bodily harm to Shannon Rodrigue, contrary to section 255(2.1) of the Criminal Code . [ 2 ] Trial was held on both charges on March 19, 2014. All witnesses gave their evidence on a voir dire in light of defence challenges under the Charter of Rights and Freedoms . At the conclusion of the voir dire , the defence indicated it was not calling evidence. The Crown then applied to have all evidence called on the voir dire applied to the trial proper. With the consent of the defence, the evidence was applied to the trial of the charges.

The Crown closed its case and Mr. Koma called no evidence. As such, the trial is concluded. [ 3 ] Notwithstanding conclusion of the trial proceedings, counsel agreed that issues respecting alleged Charter breaches and other matters that may affect the admissibility of tendered evidence would be argued and decided prior to counsel undertaking argument as to proof of the charges. [ 4 ] This, then, is my decision on those matters raised by counsel. FACTS [ 5 ] Three civilian witnesses testified as to events at and around the time of a motor vehicle accident that took place in Regina, Saskatchewan on March 15, 2013.

Cst. Zulyniak, of the Regina Police Service, also testified. There is little conflict between the evidence of these witnesses but where there is and where it is relevant to my decision, I will discuss each in the course of these reasons. [ 6 ] The facts as I find them, therefore, are these. [ 7 ] On the evening of March 15, 2013, Mr. and Mrs. Rodrigue were in their Saturn Astra travelling west on Victoria Avenue, approaching Park Street; the light was green. While it was dark outside, the intersection was well-lit and visibility was good. It was cold and the road was very icy. [ 8 ] Both Mr. and Mrs.

Rodrigue noticed an Edge SUV travelling east on Victoria. It had stopped and was signalling a left turn. The Edge inched forward - hesitated as if deciding whether to proceed or not, Mrs. Rodrigue said - and then turned in front of them. The Edge struck the front of the Rodrigue vehicle and pushed it well north in the southbound lane of Park Street. The two vehicles came to a stop together with the Saturn facing west and the Edge against it facing north. [ 9 ] When this happened, Jason Wass was in his vehicle facing south on Park Street and stopped at the red light waiting to turn west.

He saw the Saturn approach the intersection and looked away briefly to change the station on his car radio. When he looked up, he saw the Edge hit the Saturn. Both cars came toward him in his lane and he could see that the air bags in the Saturn had deployed. [ 10 ] Mr. Wass got out of his vehicle and ran to the driver's door of the Saturn to see if the occupants had been injured. The woman in the car, who I believe was Mrs. Rodrigue, said she was in pain. Mr. Wass then quickly ran to the Edge and the man there seemed uninjured. He was sitting in the vehicle with the door open, using his cell phone.

He identified Mr. Koma as the man he saw sitting in the Edge. [ 11 ] Mr. Wass then went back to the Saturn, dialing 9-1-1 as he went. He spoke to the 9-1-1 operator and relayed information about Mrs. Rodrigue’s injuries. [ 12 ] An ambulance arrived shortly after Mr. Wass made the 9-1-1 call; he estimated that it came about five minutes after the crash and that police arrived about two minutes after the ambulance. [ 13 ] Cst. Zulyniak, a Regina Police Services officer, was dispatched to the scene at 9:59 p.m. She said she was provided an inaccurate address and so was briefly delayed in her arrival.

Her sergeant was already at the scene when she and her partner arrived.

[ 14 ] On arrival, she spoke briefly with her sergeant and learned that he had obtained licences and registration from both vehicles involved in the accident. She then spoke briefly to Mr. Wass and then went directly to the Edge. She opened the passenger door and spoke to Mr. Koma. This was at about 10:16 p.m. [ 15 ] Mr. Koma said he was not injured and Cst. Zulyniak did not observe any indication of injuries. She asked Mr. Koma to turn off his iPhone and he shut off the application he was using but did not power the phone off. She shone her flashlight and noted that Mr. Koma's pupils were "quite large".

While Cst. Zulyniak did not smell alcohol, she noticed a strong smell of cologne. [ 16 ] Cst. Zulyniak asked Mr. Koma if he'd consumed alcohol and he admitted that he'd had wine much earlier in the afternoon. [ 17 ] Cst. Zulyniak said that she had "suspicion at that time that he had possibly been impaired by alcohol" based on the following: • admission of drinking alcohol earlier that day; • large pupils; • slow and slurred speech; and • strong smell of cologne that she knew from experience might be used to mask the smell of alcohol. She wanted to investigate further to "see if I could get more grounds".

She also wanted to obtain more information about the cause of the vehicle accident. [ 18 ] Cst. Zulyniak therefore asked Mr. Koma to exit his vehicle and go to her patrol car. He had no difficulty walking to the car, despite the very icy roads. [ 19 ] Once at the patrol car, Mr. Koma was seated in the back passenger seat. Cst. Zulyniak again asked Mr. Koma what he had had to drink. On this occasion, he said that he'd had two gin and tonics at a club downtown, the last of them about an hour before the accident. Once in the car, Cst. Zulyniak smelled alcohol when she spoke to Mr. Koma. [ 20 ] Mr.

Koma also described how the accident happened and in the course of doing so, described himself as the driver of his vehicle. [ 21 ] During their conversation, Cst. Zulyniak said Mr. Koma dragged out certain words and, when asked what street he thought he was on, he answered "Victoria" with a slur and that he "kind of" mispronounced "Saskatchewan". [ 22 ] Given what Mr. Koma had told her and given other physical observations, Cst. Zulyniak said she believed she had grounds to suspect that Mr. Koma's ability to operate a motor vehicle was impaired by alcohol or that he "was impaired by alcohol while driving".

At 10:21 p.m. she made a demand that he provide a sample into an Approved Screening Device. Mr. Koma provided a sample and a fail result was obtained. [ 23 ] Upon obtaining the fail result, at 10:24 p.m., Cst. Zulyniak advised Mr. Koma that he was under arrest for impaired driving. At 10:25 p.m., she made a demand that he accompany her to provide breath samples into an Intoxylyzer. [ 24 ] At 10:26 p.m., she read him his right to counsel. Mr. Koma indicated he understood but that he didn't know a lawyer. He asked if he could phone anyone and was advised that he could only call a lawyer. He then said, "Yeah.

I want to." [ 25 ] Cst. Zulyniak then, at 10:27 p.m., read Mr. Koma what is commonly referred to as the "police warning" or right to silence.

He said he understood. [ 26 ] He was then placed in handcuffs and returned to the rear seat of the police car. [ 27 ] Cst. Zulyniak testified that her grounds to believe Mr. Koma drove while impaired by alcohol were: • the admission of alcohol consumption and the differing admissions of consumption; • the odour of alcohol; • the strong odour of cologne; • enlarged pupils; • the way he pronounced words; • the way he used his cell phone; • his confusion about what street he was on; • the motor vehicle accident; and • the fail result on the ASD. [ 28 ] At 10:36 p.m., Cst. Zulyniak and Mr.

Koma left the scene and arrived at the police station at 10:40 p.m. During the time between 10:27 when she read the police warning and the time they left the accident scene, Cst. Zulyniak was waiting for her partner who was dealing with other aspects of the accident. She could not recall specifically what her partner was doing during this time but said it related to his duties at the accident scene. [ 29 ] Once at the station, Mr. Koma was seated on a bench outside the breath technician's room. Fourteen minutes later, at 10:54 p.m., he was taken to the room where he would call counsel.

He exited the room at 10:59 p.m., advising Cst. Zulyniak that he didn't want to call a lawyer. She then read him what she referred to as the "waiver of rights to counsel" and he confirmed that he didn't wish to call a lawyer. [ 30 ] Mr. Koma provided his first sample at 11:08 p.m. and his second at 11:29 p.m. Both resulted in readings over 80 milligrams per 100 millilitres of blood. [ 31 ] By this time, Cst. Zulyniak had received information about Mrs. Rodrigue's injuries and she arrested Mr.

Koma for the offences of impaired driving causing bodily harm and exceed .08 causing bodily harm. [ 32 ] He was then searched and lodged in cells. There is no evidence as to when he was released. POSITION OF THE PARTIES [ 33 ] On these facts, Mr. Koma advanced the following arguments: 1. Mr. Koma provided information to the officer under compulsion pursuant to

section 253 of The Traffic Safety Act and this information, being compelled, should not be admitted in these criminal proceedings, pursuant to

section 7 of the Charter . 2. Upon being escorted to the police vehicle, Mr. Koma was detained but there were not lawful grounds for the detention pursuant to R. v. Mann [1] and as required to avoid an arbitrary detention contrary to

section 9 of the Charter . Further, Mr. Koma was not advised of

the reason for his detention and thereby his

section 10(

a) Charter right to be advised of the reasons for his detention was breached. 3. The information available does not objectively support Cst. Zulyniak's suspicion in support of the ASD demand. 4. Cst. Zulyniak was not satisfied or ought not to have been satisfied that the ASD was properly calibrated and, therefore, operating properly. As a result, she could not objectively rely on the results of the ASD sample in support of her demand under section 254(3) for the provision of breath samples into the breathalyzer. 5. Cst.

Zulyniak did not have information which would give her reasonable grounds to believe an offence had been committed within three hours of the section 254(3) demand. 6. Cst. Zulyniak failed in her implementation duties respecting Mr. Koma's right to counsel and thereby breached his

section 10(

b) Charter right. 7. The Crown has failed to prove that a true copy of the Certificate of Analyses was properly served on Mr. Koma. 8. If any breach of Charter rights is found, the appropriate remedy is exclusion of the Certificate of Analyses. [ 34 ] The Crown resists all defence arguments save one. The Crown admits that Cst. Zulyniak did not advise Mr. Koma of the reasons for his detention when she required him to attend to the police vehicle and that this contravened

section 10(

a) of the Charter of Rights and Freedoms . However, the Crown takes the position that after Grant analysis, no remedy is required. 1. Information Provided Under Compulsion of The Traffic Safety Act [ 35 ] Under

section 209.1 of The Traffic Safety Act , when a police officer makes a traffic safety stop, the driver is compelled by law to identify himself, provide his licence and registration and answer questions respecting the consumption of alcohol prior to or while driving. Further,

section 253 requires a driver who is involved in an accident where , inter alia , any person is injured or where vehicles involved will be towed - both of which apply in this case - to provide the police officer with any information concerning the accident that the officer may require to complete an accident report. [ 36 ] In this case, Mr. Koma was not stopped by police but was already stopped when police arrived. He had been involved in a significant accident and

section 253 was engaged. There is no doubt that Cst. Zulyniak commenced investigation of the accident upon arrival by obtaining information from her sergeant and from Mr. Wass and then proceeding to speak to Mr. Koma. [ 37 ] In the course of that investigation, she had already obtained Mr. Koma's operator's licence and confirmed his identity against the photograph on his licence. She asked his name and, on noting his pupils were dilated, asked him if he'd consumed any alcohol. She noticed a strong smell of cologne. She confirmed he was not injured. She noticed that his speech pattern was unusual.

She asked him to turn off his cell phone. [ 38 ] At that point, she asked him to come to her vehicle and it was at that time, all parties concede, that he was detained. [ 39 ] Mr. Koma argued and I agree that all of the information he provided prior to the detention related directly to matters about which he was compelled to provide information under The Traffic Safety Act . He said that the admission of this information would be contrary to

section 7 of the Charter insofar as it protects against self-incrimination.

[ 40 ] This issue was considered by the Supreme Court of Canada in R. v. White [2] which held that statements made under compulsion of provincial vehicles legislation are inadmissible against the declarant but only to the extent that the statements are found to be, in fact, compelled. This means that the mere fact that provincial legislation requires the provision of such information will not establish that the statement was compelled; the test is whether the accused made the statements due to an honest and reasonably held belief that he was required by law to provide the information. Mr.

Justice Iacobucci explained: The requirement that the accident report be given on the basis of a subjective belief exists because compulsion, by definition, implies an absence of consent. If a declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required by law to do so, then it cannot be said that the statute is the cause of the declarant’s statements.

The declarant would then be speaking to police on the basis of motivating factors other than s. 61 of The Motor Vehicle Act . [3] [ 41 ] As with any other allegation of Charter breach, the onus of establishing that the accused believed he was compelled to give the information lies on the accused on a balance of probabilities. [ 42 ] There is no direct evidence that Mr. Koma believed he was compelled to answer the officer's questions. Nor is there any evidence from which such belief can be inferred. [ 43 ] In R. v.

Gamble , [4] for example, the accused approached the police and immediately stated that he had been in an accident and that he was impaired. Judge Singer concluded that in the circumstances of that case, there was no other reason that Mr. Gamble would have approached the police. Further, the statement was in itself a reporting of an accident. Such is not the case here. [ 44 ] It has therefore not been shown on a balance of probabilities that Mr. Koma's

section 7 Charter right was abridged and the statements he made to Cst. Zulyniak that were otherwise compelled under The Traffic Safety Act will be admitted. 2. Investigative Detention [ 45 ] After speaking with Mr. Koma at his vehicle, Cst. Zulyniak asked Mr. Koma to accompany her to the police vehicle. She testified and the Crown agreed that he was at that point detained. Cst. Zulyniak admitted that she did not advise Mr. Koma of the reason for the detention and stated with certainty that she was not required to do so. The Crown conceded that Cst. Zulyniak was incorrect in this respect and that this failure was in breach of

section 10(

a) of the Charter . [ 46 ] In R. v. Mann , [5] the Supreme Court of Canada declined to recognize a general power of detention for investigative purposes but nonetheless concluded that police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances.

Those reasonable grounds to suspect involvement in a crime, however, cannot be based on a hunch, even one based on officer experience. [ 47 ] Further, the Court stated that in assessing whether an officer has reasonable grounds for an investigative detention, the officer must consider all of the circumstances, both inculpatory and exculpatory. While the officer is not required to investigate to learn whether exculpatory explanations obtain, he or she cannot base suspicion on only the inculpatory indications that are present. [ 48 ] I now turn to consider whether, in the circumstances of this case, Cst.

Zulyniak had reasonable grounds to suspect that Mr. Koma had operated his vehicle while impaired or while over .08 when she engaged the investigative detention. [ 49 ] Cst. Zulyniak said that during her contact with Mr. Koma at his vehicle, she noticed that his pupils were large, his speech was slow and she smelled cologne. While she did not smell alcohol, she believed from experience that cologne was sometimes used to mask the smell of alcohol. He had also admitted to drinking wine earlier in the day.

Finally, when she asked him to turn off his phone, he turned off the application he had been using rather than turning off all power to the phone.

[ 50 ] She said that as a result of these admissions and observations, she "had suspicion that at that time that he had possibly been impaired by alcohol" and that she "needed to further investigate and see if I could get more grounds." [ 51 ] In this respect, I do not accept that slow speech was among the officer's grounds for her suspicion at that time. Cst. Zulyniak was not a careful witness and there were occasions where what she said was either incomplete or confused.

It is not necessary for me to decide which, because the result will be the same irrespective of that conclusion. [ 52 ] For example, when describing his speech pattern, she mentioned specific words on which she noted mispronunciation and slow cadence - "Victoria" and "Saskatchewan". There was nothing in her evidence which would suggest that either of these words would be used otherwise than in describing the accident. Her evidence, given after refreshing her memory from her notes, was that the conversation about the accident occurred after Mr. Koma was in her vehicle. Therefore, Cst.

Zulyniak did not testify to irregularity in Mr. Koma's speech before he moved to her vehicle. [ 53 ] Thus, Cst. Zulyniak's "suspicion" was based on an admission of alcohol consumption many hours earlier, enlarged pupils, a strong smell of cologne and his failure to "power off" his phone. In my opinion, all of these are equivocal observations. [ 54 ] While alcohol consumption hours previous is equivocal as its import would depend on how much alcohol was consumed, this admission coupled with the fact that the officer did not smell alcohol would militate against it bearing significant weight on an objective basis.

Indeed, the officer admitted on cross-examination that she did not suspect, based on this admission, that alcohol would be in his system at the time she spoke to him. [ 55 ] The smell of cologne, while potentially masking the odour of alcohol, is equally consistent with a man simply wearing too much cologne in the confined space of a vehicle. [ 56 ] Dilated pupils, while suggestive of impairment in some cases, is not necessarily suggestive in this case.

In this regard, I note that the accident happened after dark and, while the intersection where the accident occurred was well-lit, the place where the vehicles ended up was some distance north - estimated at one-half block - and there is no evidence that this location was similarly well-lit. I believe it is common knowledge and I can take judicial notice of the fact that pupils contract in bright light and dilate in the dark. As such, enlarged pupils are not necessarily suggestive of alcohol consumption in these circumstances. [ 57 ] Finally, with regard to his failure to power off his phone, Cst.

Zulyniak said that Mr. Koma was using his phone and she asked him to turn it off. He turned off the application he was using but not the phone itself. This, it seems to me, might equally be a simple misunderstanding; it was clear that Cst. Zulyniak wanted Mr. Koma to stop using his phone and his action was in compliance with that purpose. [ 58 ] As was mentioned above, Cst. Zulyniak was also required to consider the facts that, for example, she did not observe any compromise in Mr. Koma's dexterity or in his ability to understand and participate in coherent conversation. [ 59 ] Cst.

Zulyniak was also influenced by the fact that there had been a serious accident. However, one might wonder at every accident scene whether one or both of the drivers is impaired; this does not meet even the low threshold of suspicion, especially, as here, where the accident occurred on extremely icy roads. [ 60 ] Taken together, I do not believe that these considerations objectively support a suspicion, at the time Mr. Koma was required to move to the police vehicle, that he had committed a criminal offence. [ 61 ] In so concluding, I am mindful that in R. v.

Kang-Brown , [6] the Supreme Court said that "a ‘reasonable’ suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds." Our Court of Appeal, in R. v. Yeh [7] provided further guidance when Chief Justice Richards wrote:

Significantly, the Supreme Court stressed that a hunch based on intuition gained by experience does not constitute a reasonable suspicion. There must be objective grounds which support the opinion of the police officer. [ 62 ] Cst. Zulyniak said: "So at that time I did suspect that it was possible but, given I couldn't smell alcohol at the time, I needed to further investigate and see if I could get more grounds." In my view, these words show that, at best, Cst. Zulyniak acted on "mere suspicion", in Mr. Justice Richards' words, or on a hunch. As such, the detention was not lawful and was arbitrary.

This impropriety is compounded by the fact that Cst. Zulyniak did not advise Mr. Koma of the reason for the detention. Thus, the detention was contrary to both sections 9 and 10(

a) of the Charter . [ 63 ] In reaching this conclusion, I am satisfied that Cst. Zulyniak had reasonable suspicion, objectively supported, that Mr. Koma was the operator of the Edge that was involved in the accident and that the accident had occurred within the preceding three hours. [ 64 ] I will consider whether and what remedy is appropriate later in this decision. 3.

Grounds for ASD Demand [ 65 ] A demand for the provision of a sample into an Approved Screening Device may be made pursuant to section 254(2) when a police officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and has operated a motor vehicle. [ 66 ] After Mr. Koma accompanied Cst. Zulyniak to the police vehicle, their conversation continued. In response to questions from Cst. Zulyniak, Mr. Koma stated that he had consumed two gin and tonics about an hour earlier; this was different from the kind of alcohol and time of consumption Mr. Koma had admitted when at his vehicle.

He also described how the accident happened and it was apparently at this time that Cst. Zulyniak noted an unusual speech pattern. [ 67 ] While she occasionally described Mr. Koma's speech as slurred, I have concluded that this does not accurately describe what she observed. When asked, she stated that ". . . His speech was very slow. It seemed different to me." Later in her evidence she made reference to "the way he pronounced things". In cross-examination, she clarified: "I don't know how to describe it properly, but it's . . . it's clear. There's no doubt about that.

But it's not a very fast pace." These are not descriptions consistent with slurred speech, especially as clear speech is not slurred speech. Instead, they describe an unusual cadence and unusual pronunciation of some words. [ 68 ] "Reasonable suspicion" is not a demanding threshold. It may be grounded on information obtained via admission, hearsay and inference, as well as personal observations. [ 69 ] In this case, Cst. Zulyniak said she relied on the following indicia in support of her suspicion: • A description of the motor vehicle accident from which Cst. Zulyniak could reasonably suspect that Mr.

Koma was the operator of the vehicle; • An admission of alcohol consumption at a downtown club an hour earlier, from which she could infer that the accident must have occurred within an hour of that admission and therefore within three hours; • Significantly different admissions of consumption, both as to kind and time; • Mr. Koma's slow and "different" speech; • An odour of alcohol from the accused noticed once he was inside the police vehicle; and

• Mr. Koma's generally cooperative but sometimes upset or apologetic moods. [ 70 ] Cst. Zulyniak said that on these grounds, she believed she "had grounds to suspect that, obviously, his ability to operate a motor vehicle was impaired by alcohol" and so she read the ASD demand. Her evidence, therefore, is that she believed she had grounds to suspect that Mr. Koma had committed the offence of impaired driving, whereas the required grounds for an ASD demand are only that she suspect he had operated or had care or control of a motor vehicle and had alcohol in his body. [ 71 ] This is another example of Cst.

Zulyniak's lack of precision in her evidence but it is one that I do not believe is of consequence for purposes of an ASD demand. [ 72 ] I need not comment on whether the indicia to which Cst. Zulyniak testified would support what she said her belief and suspicion was because they do, in fact, support a suspicion grounding an ASD demand. It is important that she did not tell Mr. Koma what she believed and suspected but instead, at 10:21 p.m., she read him the "standard" ASD demand and so advised him only that she suspected that he had alcohol in his body. It was to the words of this demand that Mr.

Koma was required to respond. He did respond and he agreed to take the test. At 10:23 p.m., the screening device showed a fail reading. 4. Calibration of the Approved Screening Device [ 73 ] Upon obtaining the "fail" reading on the ASD, Cst. Zulyniak placed Mr. Koma under arrest for impaired driving, read the breath demand and then advised Mr. Koma of his right to counsel and of his right to remain silent. These events occurred at 10:24 p.m., 10:25 p.m., 10:26 p.m. and 10:27 p.m. respectively. [ 74 ] Mr. Koma did not argue that Cst.

Zulyniak did not have grounds for the breath demand except in regard to her reliance, in addition to the indicia referred to above, on the results of the ASD test. [ 75 ] In this respect, Cst. Zulyniak testified that she is qualified to operate the ASD. She said that an ASD requires regular calibrations - one annual and one monthly or bi-weekly, depending on the model. She believed the model she used that evening required calibration annually and bi-weekly. [ 76 ] Cst.

Zulyniak said she checked and there was a sticker on the machine showing that it had been calibrated on August 15, 2012 and would be due for recalibration on August 15, 2013. This related to the annual calibrations. She did not recall or make note of any indication that the ASD she used had received its bi-weekly calibration. [ 77 ] Mr. Koma argued that failing confirmation of the bi-weekly calibration, Cst. Zulyniak could not have believed that the ASD was necessarily properly calibrated and, therefore, that it was operating accurately.

That being the case, he argued, she could not rely on the results of an ASD test that she knew was of uncertain accuracy as grounds for a breath demand under section 254(3) of the Criminal Code . Without such grounds, the demand constituted an unlawful search and, therefore, breached Mr. Koma's protection against unlawful search under

section 8 of the Charter . [ 78 ] In R. v. Beharriell , [8] a recent case of the Ontario Superior Court of Justice, the judge reviewed case law respecting the use of ASD results in formulating reasonable grounds and as to the accuracy of the ASD. Mr. Justice Durno found the following principles apply when a police officer uses an ASD to confirm his or her suspicions: i. the determination is made on a case-specific basis; ii. breath samples taken pursuant to an Intoxilyzer demand, involve a warrantless search and the onus is on the Crown to establish, on a balance of probabilities, that the search was reasonable;

iii. police officers may, but are not required to, rely on ‘fail’ readings obtained on an ASD as the basis or one of the bases upon which they conclude they have reasonable and probable grounds to make an Intoxilyzer breath demand; iv. police officers using an ASD are entitled to rely on its accuracy unless there is credible evidence to the contrary; v. in doing so, the officer must have a reasonable belief the ASD was calibrated properly and in working order before relying on the ‘fail’ reading as a component of their reasonable and probable grounds to make an Intoxilyzer demand; vi. a relevant consideration is whether the record discloses that because of his or her training the officer knows that in the circumstances in which the ASD is being used the results will be unreliable; vii. whether an officer had that reasonable belief can be established by direct or circumstantial evidence; viii. there is no requirement that the Crown prove the instrument’s calibration or that the ASD was working properly; and ix. there is a heavy onus on the accused to establish a high degree of unreliability in the specific facts of the case.

That evidence may arise in the Crown’s case or through defence expert evidence. [9] [ 79 ] In this case, Cst. Zulyniak was not asked and did not say whether she believed the ASD was operating properly. Neither was there any evidence from Cst. Zulyniak or otherwise, suggesting that the ASD was or might not have operated properly. Finally, there was no evidence as to the impact of failure to calibrate or the likelihood of that impact occurring. [ 80 ] In respect of reliance on the ASD, Cst.

Zulyniak said "And then once I got the fail on the ASD, then I knew for sure that his blood alcohol level was over the .08." From this and from the fact that she arrested Mr. Koma for impaired driving and made the breath demand right after obtaining the fail result, I am satisfied that she in fact did rely on the results of the ASD test in forming her grounds for both the arrest of Mr. Koma and the demand under section 254(3) .

From this, I can only infer that she believed the ASD had operated properly and had not observed anything in the course of the test that suggested otherwise. [ 81 ] In the result, there is nothing before me suggesting or raising a doubt as to the honesty of Cst. Zulyniak's subjective belief that the ASD result was reliable. There is no evidence challenging that belief on an objective basis. Therefore, Mr. Koma's "fail" result on the ASD will be accepted as one of Cst. Zulyniak's grounds for making a section 254(3) demand for a breath sample. 5. Driving Within Preceding Three Hours [ 82 ] Mr. Koma argued that Cst.

Zulyniak did not testify to her belief that Mr. Koma had operated a motor vehicle at all or that he had done so within the three hours preceding the ASD demand or the section 254(3) demand. Failing this belief and objective grounds for it, neither demand was lawful and the taking of samples pursuant to either constitutes an unreasonable search contrary to

section 8 of the Charter . [ 83 ] Cst. Zulyniak did not directly testify that she believed Mr. Koma had operated a motor vehicle within three hours before either demand was made and she did not make any inquiries of Mr. Koma or others at the scene as to when the accident occurred. [ 84 ] A similar situation occurred in R. v. Chappell [10] where the officer who made the demand testified that he had not specifically considered time of driving and so had not investigated that matter. In that case, the defence argued that he could not then have held a reasonable belief that the accused had operated a vehicle in the three hours preceding his demand.

[ 85 ] My sister Judge Scott concluded: I find in the circumstances where Constable Brentnell had arrived at the scene of an accident in which Ms. Chappell was the driver, within ten minutes of receiving the dispatch, where he saw her emerge from her vehicle still at rest against the power pole and witnesses were still present and where he had administered an ASD test which yielded a “fail” reading, the officer held an honest belief that Ms.

Chappell had committed an offence under s. 253 within the preceding three hours and that his belief was objectively reasonable in all of the circumstances. [ 86 ] In similar circumstances in R. v. Sherstobitoff , [11] my brother Judge Labach reached a similar conclusion. He wrote: Defence counsel made much of the point that Constable Talic did not know when the accident occurred ergo he had no idea if the driving had taken place in the preceding three hours.

He urged me to conclude that without doing some investigation to determine when the accident occurred or when the accused had been driving, Constable Talic could not have had the reasonable grounds to believe that the impaired driving had occurred within the preceding three hours. I disagree with counsel’s submissions in this regard. At 2:05 a.m. the officers were dispatched to a motor vehicle accident and attended at the accident scene some three minutes later. Constable Talic was aware that the call reporting the accident was a 911 call and had come in at 1:59 a.m., nine minutes before they were on scene.

When they got there, they saw two damaged vehicles, one up against a house, a number of people and the driver of one of the damaged vehicles. While I agree that this evidence does not establish the specific time that the accident occurred nor did Constable Talic do any investigation or ask any questions to determine when the accident occurred before he made the breath demand on the accused, the reasonable inference from this evidence is that the accident had just occurred and certainly within the preceding three hours. There is nothing in the evidence to say otherwise. [ 87 ] In this case, by the time Cst.

Zulyniak made each of the demands, she knew the following: • She was dispatched at 9:59 p.m. • She did not know the exact time she arrived but she was speaking to Mr. Koma by 10:16 p.m. and had, by then, spoken to her sergeant and briefly to Mr. Wass. • Both vehicles remained at the scene and had not been moved from their positions. • Mr. Wass, a witness, was still at the scene. • Mr. Koma had admitted to consuming two alcoholic drinks at a downtown club about one hour prior to speaking to Cst. Zulyniak. • Nothing at the scene suggested that the accident had occurred significantly before Cst.

Zulyniak's arrival. [ 88 ] From this information, a reasonable inference is that Cst. Zulyniak arrived at the scene of the accident shortly after it occurred. Further, one must infer that Mr. Koma had travelled from the club downtown to the scene of the accident during the one-hour time period between his consumption of the beverages and his conversation with Cst. Zulyniak. [ 89 ] While Cst. Zulyniak did not expressly say that she considered time of driving, she did say that she believed she had grounds for the demands she made, both of which require a belief that driving occurred within the previous three hours.

All of her questions and actions show that she believed the accident and, therefore the driving, were of recent occurrence.

[ 90 ] With respect to the officer's belief that Mr. Koma had operated a motor vehicle or had care or control of one, I note the following. Upon her arrival, Cst. Zulyniak's sergeant provided her Mr. Koma's and Mr. Rodrigue’s operator's licences and registration certificates. He advised her that they related to the two vehicles involved. Thereafter, Mr. Wass advised her that the Echo was at fault in the accident. When she attended to the Echo, she found Mr. Koma and only Mr. Koma there.

It was reasonable in these circumstances to believe that he was and had been the operator of the vehicle. [ 91 ] Further, by the time of the section 254(3) demand, Mr. Koma had provided information from which she understood him to have admitted that he was operating a vehicle at the time of the accident. [ 92 ] It is also important to note that, for purposes of reasonable suspicion and reasonable grounds, it is not necessary that the officer's belief be, in fact, correct.

While this evidence may or may not be adequate to establish proof beyond a reasonable doubt of these matters, it is adequate for this purpose if it is a belief subjectively held and objectively reasonable. [ 93 ] In this case, the officer's belief was both. 6. Right to Counsel [ 94 ] Mr. Koma argued that the police failed in their obligation as to implementation of his right to counsel and thereby breached his

section 10(

b) Charter right to counsel. The relevant evidence in this respect follows. [ 95 ] Upon placing Mr. Koma under arrest for impaired driving and making the section 254(3) breath demand, Cst. Zulyniak advised Mr. Koma of his right to counsel. He responded by asking "Can I phone anyone?". The officer told him, "No.

You can call a lawyer." She asked him again whether he understood and he replied, "Yes, I understand why I'm being put here." As to whether he wished to call a lawyer, he said "I don't know a lawyer" and "Yeah, I want to." There was no evidence of discussion about counsel after this and until they arrived at the detachment at 10:40 p.m. [ 96 ] At the detachment, Mr. Koma was seated on a bench outside the breath technician's room. He indicated he was unsure about whether he would call a lawyer. He said he didn't want to call a lawyer he didn't know and that he wasn't sure what to do.

He vacillated about this until 10:54 p.m. when he had decided he would talk to a lawyer. [ 97 ] He was then taken to the "lawyer room" and his handcuffs were removed. His attention was drawn to a list of lawyers in the room and a toll-free number to contact Legal Aid. [ 98 ] The conversation continued, similar to that which had occurred previously, where Mr. Koma repeated that he didn't know who he wanted to call, that he didn't want to call someone he didn't know and asking what calling a lawyer might do to help him and whether it would change anything. During this time, Mr.

Koma was in the room and the officer was outside, with the door open between them as they conversed. [ 99 ] Eventually, at 10:59 p.m., he advised Cst. Zulyniak that he didn't want to call a lawyer. At that point, Cst. Zulyniak read the waiver of rights to counsel. In response, Mr. Koma confirmed that he understood that the police would not take a statement from him or require him to participate in any procedure until he had a reasonable opportunity to consult a lawyer. Mr.

Koma also confirmed that he was certain he did not want to contact a lawyer. [ 100 ] He was then taken back to the bench and seated there until 11:02 p.m. when he was taken to the washroom. He was not gone very long and then returned. Mr. Koma provided breath samples at 11:08 p.m. and 11:29 p.m. [ 101 ] On these facts, Mr. Koma argued that the police failed in the implementational aspect of his

section 10(

b) Charter right to counsel. He said that he ought to have been offered a telephone directory or, perhaps, an opportunity to contact someone else to get advice about a lawyer he might contact.

[ 102 ] I think that in the circumstances of this case, the implementational duty did not arise. Let me explain. [ 103 ] While Mr. Koma initially, in the police car, indicated a desire to consult counsel, he almost immediately began to waver in that respect. He asked Cst. Zulyniak repeatedly whether he should, whether it would help. He repeatedly said he didn't want to call a lawyer he didn't know and that he didn't know any lawyers. [ 104 ] Mr. Koma again confirmed his desire to contact a lawyer while he waited on the bench outside the breathalyzer room and was then taken to the counsel room.

But the conversation and vacillation continued at the counsel room. There is no evidence that Mr. Koma took any interest in the resources that were available or that he took any steps to consult those references. There is no evidence that he had any settled intention to consult those or any resources. [ 105 ] In effect, while Mr. Koma twice indicated that he wished to consult counsel, he almost immediately - in both cases - indicated that he did not or, at least, that he was uncertain whether he wished to or not.

His only firm decision was his decision, in response to the Propser warning, that he did not wish to consult counsel. There is no suggestion that he wavered at all after that. [ 106 ] In effect, Mr. Koma did not indicate any besides momentary desire to consult counsel and that momentary desire was almost immediately retracted and replaced by uncertainty about the matter. That being the case, no duty of implementation arose. 7. Service of True Copy of Certificate of Analyses [ 107 ] The Crown did not call the officer who served the Certificate of Analyses on Mr.

Koma but instead, relied on the completed Affidavit of Service on the back of the certificate. In this regard, the Crown argued that section 4(6) of the Criminal Code authorizes proof of service by means of affidavit without more. [ 108 ] The defence conceded that this is so but argued that without evidence as to the manner of service, the Court cannot be aware how the officer who served the document prepared or obtained the copy, whether he compared it to the original or that the copy actually came into Mr. Koma's possession and was retained by him.

He argued that without such evidence, it has not been proven that a true copy of the certificate was served or that service was proper. [ 109 ] I do not accept the defence argument on this matter. [ 110 ] Section 258(7) of the Criminal Code provides:

(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (

h) or (

i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate. [ 111 ] Thus, a copy of the certificate must be served on the accused, along with notice that the Crown intends to introduce the certificate at trial. Otherwise, the Certificate of Analyses cannot be received in evidence at all. [ 112 ] The relevant portion of section 4(6) of the Code allows proof of service by affidavit as follows:

(6) For purposes of this Act , the service of documents and the giving or sending of any notice may be proved (

a) by oral evidence given under oath by, or by the affidavit or solemn declaration of, the person claiming to have served, given or sent it[.] [ 113 ] On the reverse of the certificate before me, Corporal D. McPherson swore by affidavit that he served a true copy of the

document personally on Ryley Koma on March 16, 2013. This meets the requirements of section 4(6) as proof of service and upon such proof of service, the requirements of section 258(7) have been satisfied. On this basis, I will receive the Certificate of Analyses and Notice of Intention in these proceedings. [ 114 ] There is nothing in the evidence which suggests or from which one might infer that there was or might be a difference of any nature between the document received in evidence and the copy served on Mr. Koma. There is also nothing suggesting that Mr.

Koma was not in fact served or that he did not retain a copy of the document. [ 115 ] In R. v. Longley , [12] the accused was charged with driving while over .08 and the Crown tendered an Affidavit of Service to establish service of a true copy on the accused. While the officer who completed the affidavit also provided viva voce evidence, he was not asked and did not volunteer that he had compared the copies and found them identical.

The trial judge held that he was unable to conclude that the copy served was true to the original without the officer's viva voce evidence that the two had been compared and found to be identical. Judge Kyle found that such evidence was not required. He said: It would not be unreasonable to require that if there is to be a challenge under this subsection of the affidavit or of the copy supplied, it should be based upon a discovered difference as between the copy and the original.

Otherwise, the refusal to admit the certificate becomes merely the prize in a procedural game which can only bring the justice system into disrepute. The object of this

section is to assure that the accused knows the case he has to meet. Unless the copy which he receives is in some way different from the original, that object has been met. There is no reason to elevate the requirement beyond that level of importance. [ 116 ] Thus, Mr.

Justice Kyle held that failing such discovered difference, the bare statement in the affidavit attached to the Certificate of Analyses stating that it is a copy is, on its own, sufficient to establish that a true copy was served. [ 117 ] I can see no difference in principle or application where the affidavit is challenged on the basis that the manner of service has not been affirmatively proven.

It would appear to me that where the affidavit specifies that a true copy was personally served, the Court will accept that the true copy was properly personally served, barring some indication that it was not or might not have been. There is no such indication in this case. [ 118 ] I believe that my conclusion on this matter is supported by section 4(7) of the Criminal Code that allows the accused to request that the Affiant attend Court and face cross-examination on the manner of service.

This provides an accused person an opportunity to raise issues as to the manner of service and thus place the issue before the Court. In this case, no such issues were raised. 8. Analysis and Remedy Respecting Sections 9 and 10(

a) Charter Breaches [ 119 ] Having concluded, in paragraph [62] above, that Mr. Koma's detention for investigative purposes was arbitrary because it was without appropriate grounds and because he was not advised of the reason for his detention, I found that Mr. Koma's rights under sections 9 and 10(

a) respectively of the Charter have been breached. I turn now to consideration of an appropriate remedy. [ 120 ] The defence sought exclusion of any information provided during the tainted detention and any evidence derived therefrom; this includes the results of the ASD demand and, consequently if the ASD result is excluded, of the breathalyzer test results. [ 121 ] The Crown argued that the evidence should be admitted notwithstanding the Charter breaches. [ 122 ] In this respect, I am required to conduct an analysis following the framework set out in R. v.

Grant . [13] This is a three-step analysis in the course of which I must consider: • the seriousness of the Charter -infringing state conduct which led to the discovery of the evidence;

• the impact of the breaches on the Charter -protected interests of Mr. Koma; and • society's interest in an adjudication of the case on its merits. A. The Seriousness of the Breach [ 123 ] I consider the breach of

section 10(

a) in this case to be very serious. I have no doubt that Cst. Zulyniak honestly believed that she did not have to advise Mr. Koma of the reasons for his detention and this kind of honest belief will sometimes lead to a conclusion that the breach was not especially serious. However, Cst. Zulyniak was adamant that the law - Charter or otherwise - did not require her to give that advice. In this, of course, she was simply wrong. [14] [ 124 ] I do not necessarily consider it serious when an officer is occasionally wrong, especially when assessing Charter rights against particular circumstances.

However, it is disturbing when an officer does not know what an accused person's Charter rights are generally. Police officers are the persons with the primary obligation and opportunity to assure the protection and provision of Charter rights and it causes serious concern when a person so charged does not know the Charter rights at all. In this regard, one is reminded of the words of Mr. Justice Iacobucci in Mann when he quoted from R. v.

Buhay [15] as follows: [T]his Court has stated that “good faith cannot be claimed if a Charter violation is committed on the basis of a police officer’s unreasonable error or ignorance as to the scope of his or her authority.” [ 125 ] As a consequence, in this case, Mr. Koma's Charter right to be advised of the reason for his detention was wholly disregarded. This circumstance, I think, aggravates the seriousness of the officer's conduct. [ 126 ] The breach of

section 9, while serious, is less so in the circumstances of this case. While Cst. Zulyniak believed she had a reasonable suspicion sufficient to ground an investigative detention, I have found that objectively, she did not. This does not rise to the level of disregarding someone's rights but simply an honest error as to whether or not those rights have been honoured. [ 127 ] Taken together, and especially given the very serious nature of the

section 10(

b) breach, this factor balances in favour of exclusion of evidence obtained as a result of the breach. B. The Impact of the Breach on Charter -Protected Interests [ 128 ] The arbitrary detention in this case was of very brief duration, no more than two or three minutes. This, in itself, will not be considered to have significantly impacted Mr.

Koma's Charter -protected interest. [ 129 ] Ordinarily, information obtained as a consequence of or in circumstances of arbitrary detention will be considered of significant impact because the impact will be compounded by the fact - if it is so - that an accused person has given conscripted evidence. There is a significant difference in this case, however. [ 130 ] During Mr. Koma's detention prior to the ASD demand, Cst. Zulyniak asked and Mr. Koma answered only questions that, the defence concedes, he was compelled to answer under The Traffic Safety Act .

Therefore, whether those questions were asked at his vehicle without investigative detention and whether or not he had been advised of the reasons for his detention, Mr. Koma was compelled to provide the answers. There is no indication that he provided the officer any information that was not statutorily compelled. [ 131 ] The fact that Mr. Koma was required to answer the questions irrespective of the Charter breach renders their impact to be marginal. [ 132 ] The impact is further lessened by the fact that the use of the answers Mr. Koma provided prior to the provision of rights to

counsel, irrespective of any Charter breach, is limited in light of R. v. Orbanski [16] where the Court concluded: . . . the evidence obtained as a result of the motorist’s participation without the right to counsel can only be used as an investigative tool to confirm or reject the officer’s suspicion that the driver might be impaired. It cannot be used as direct evidence to incriminate the driver. [ 133 ] In these circumstances, Mr. Koma's Charter -protected interests were not significantly compromised. This factor favours inclusion of the evidence. C.

Society's Interest in Adjudication on the Merits of the Case [ 134 ] Mr. Koma seeks to exclude the results of the ASD demand and of the Certificate of Analyses setting out his blood/alcohol readings. [ 135 ] The offences before me are serious and relate to what is one of - if not the - most serious risks faced by innocent users of our roads and highways. There is a real societal interest in an adjudication of such matters on their merits and, when appropriate, the consequent opportunity for denunciation and deterrence of objectionable conduct. This factor favours admission of the evidence. D.

Conclusion Section 24(2) of the Charter sets out the criteria for the Court's consideration and states that evidence will be excluded "if it is established that, having regard to all the circumstances, that the admission of it in the proceedings would bring the administration of justice into disrepute." I am not satisfied that the admission of the results of the ASD test and the Certificate of Analyses in this case would bring the admission of justice into disrepute. They will be admitted in the trial of these charges. Dated at Regina, Saskatchewan, this 23rd day of May, 2014. _________________________________ B.

Tomkins, J