Her Majesty the Queen - v. -, 2012 SKPC 114

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 114 Date: July 12, 2012 Information: 24394236 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jeffrey Burwell Appearing: Lori Chambers For the Crown Michael Owens For the Accused JUDGMENT D.E. LABACH , J INTRODUCTION [ 1 ] The accused, Jeffrey Burwell, pled not guilty to impaired driving and driving while over .08. His trial commenced on November 7, 2011. At the beginning of trial, I entered into a voir dire to deal with some Charter issues raised by Defence counsel.

At the end of the voir dire , the Crown withdrew the impaired driving charge against the accused. In a written decision dated December 7, 2011, I dismissed counsel’s application that his client’s

section 8 and

section 9 Charter rights were violated: See R. v. Jeffrey Burwell 2011 SKPC 188 .

[ 2 ] The evidence from the voir dire was applied to the trial proper at the request of Crown and with the consent of the Defence. The Crown had no further witnesses to call. The Defence called the accused to testify and then closed his case. In closing argument on the trial proper, Defence raised the two issues that he had identified at the outset of trial which, in his view, are somewhat intertwined. He argued that the breath tests in this case were not taken as soon as practicable as required by section 258(1) (

c) of the Criminal Code and as such, the Crown could not rely on the Certificate of Analyses to prove that the accused was over .08 at the time of driving. He also argued that his client’s

section 7 Charter right had been breached by the Crown’s failure to disclose relevant videotape evidence from the Saskatoon RCMP Detachment. The lost video evidence violated the accused’s ability to make full answer and defence as in Defence counsel’s view, it would conclusively identify the reasons for the delay in taking the breath tests in this case. Since an adjournment would not rectify this situation, counsel encouraged me to stay the charge against his client pursuant to section 24(1) of the Charter . [ 3 ] The Crown had a different view of the evidence.

She urged me to find that any delay in taking the breath tests was adequately explained by her police witness and that the lost videotape was not relevant to this issue. Even if it was relevant and I was satisfied that there was a

section 7 Charter breach, she argued that a stay was too drastic a remedy and that I should consider a reduction in sentence. FACTS [ 4 ] On November 25, 2010 at approximately 9:00 p.m. RCMP Constable Martin was driving through the town of Asquith, Saskatchewan, when he noticed a vehicle parked in front of the town bar, running, with a burned out taillight. He did not notice anyone in the vehicle. While the burned out taillight and the fact that the vehicle was running grabbed his attention, he did not stop to investigate the situation.

He had other matters to deal with west of the town and he continued on his way. [ 5 ] A few hours later, he came back through Asquith and noticed the vehicle in the same spot, still running. This time he stopped and looked in the vehicle but again, he could see no one. The officer decided to park a short distance away where he could keep the vehicle in sight and do some paperwork. [ 6 ] Shortly thereafter, Constable Martin observed the vehicle drive away.

He did not see who got into the vehicle or where they came from but as the vehicle drove past his police cruiser he decided that he would stop the driver to speak to him about his burned out taillight, check for driver’s license and vehicle registration and the sobriety of the driver. [ 7 ] Constable Martin pulled in behind the vehicle and activated his overhead lights. The vehicle immediately pulled over on a side street. The accused was the driver of the vehicle. No one else was with him at the time.

When the officer attended to the driver’s side of the vehicle, he observed an empty bottle of Smirnoff vodka on the backseat. The officer asked the accused for his driver’s license and registration. The accused provided a valid vehicle registration but advised that he had left his driver’s license at home. [ 8 ] Constable Martin shone his flashlight around the vehicle and noticed a can of Pepsi and a red plastic cup in a cup holder in the centre console of the vehicle. He asked the accused if there was any liquor in the cup to which the accused replied that it was “old liquor”.

The officer then asked the accused if he had any alcohol to drink that evening. The accused responded “Yes, I won’t lie.” Finally, the officer asked him if his last drink was at least twenty minutes ago and the accused answered “Yes”. [ 9 ] The officer noted an odour of beverage alcohol coming from the vehicle. Initially, he was not sure if it was from the cup or the bottle in the rear seat. However, when the accused spoke to him he would get a waft of liquor coming towards him.

Based on these observations, Constable Martin suspected the accused had alcohol in his body. [ 10 ] At 11:55 p.m. the officer advised the accused that he was being detained for an impaired driving investigation. He had the accused get out of the vehicle and asked him if he had any weapons on his person. The accused pulled a pocket knife out of his pocket and set it on the hood of the police cruiser. At 11:56 p.m. the officer made an Approved Screening Device demand. At 11:59 p.m. the accused blew a “fail” on the Approved Screening Device.

[ 11 ] As a result of this “fail” reading Constable Martin formed the opinion that he had reasonable grounds to believe that the accused’s ability to operate a motor vehicle was impaired and he placed the accused under arrest. At 12:03 a.m., the officer read the accused his right to counsel; at 12:04 a.m. he read him the breath demand and the police warning. The accused advised that he understood all of these rights and that he did not wish to contact a lawyer.

According to the officer, the accused was pleasant, co- operative and very easy to deal with. [ 12 ] At 12:09 a.m., Constable Martin departed Asquith with the accused for the Saskatoon RCMP Detachment even though the Delisle RCMP Detachment was closer. According to the officer he made some inquiries to see if a breath technician was available at the Delisle detachment but was advised that no members were working that night nor was anyone available to meet him at the detachment. Constable Martin was a qualified breath technician but he did not have a key to the Delisle detachment.

He took the accused to Saskatoon because it was the next closest detachment that had breath testing equipment and a qualified technician. He took a direct route from Asquith to Saskatoon detachment and did not make any stops along the way. He arrived at the detachment at 12:43 a.m. Once there, he placed the accused in a holding cell so he could urinate.

It took the accused two to three minutes to relieve himself at which point the officer placed him in the hallway on a chair. [ 13 ] At some point in time Constable Martin found out that there was no breath technician at the Saskatoon detachment that night to perform the tests on the accused. However since he was a qualified breath technician, he decided to do the breath tests himself. He went into the Intoxilyzer room to prepare the machine and noticed that the Intoxilyzer solution was out of date and needed to be changed. He drained the solution out of the machine and put in new solution.

Then he allowed the solution to warm up to the proper operating temperature so the instrument could go through its calibration checks. This took somewhere between ten to twenty minutes. While he was doing this, the Commissionaire on duty that evening came into the breath room and talked to him. Meanwhile, the accused remained seated on a chair adjacent to the Intoxilyzer room so the officer could keep an eye on him. The first test was administered to the accused at 1:06 a.m. and resulted in a reading of .13.

The second sample was obtained at 1:27 a.m. and the accused’s reading was .12. [ 14 ] When questioned about why the Intoxilyzer at the Saskatoon detachment was not ready to use, Constable Martin explained that in November 2010, no one member in the Saskatoon RCMP Detachment was tasked with making sure their breath testing equipment was functioning properly. According to him, it was a “revolving door”. Whatever breath technician noticed that the equipment was not up to standard or not functioning properly would deal with it.

He also testified that as of November 2011 this had changed and he is now the officer responsible for making sure that the breath testing equipment at the Saskatoon RCMP Detachment is functioning properly every day. [ 15 ] The accused gave a similar version of events at the Saskatoon RCMP Detachment except he disagreed with the time frames testified to by the officer. According to him, once they arrived at the detachment in Saskatoon, Constable Martin had him sit on a stool in a hallway right beside the door to the breath room.

While Constable Martin was in the breath room, the Commissionaire went into the room and had a conversation with the officer. He estimates that they spoke for fifteen minutes about what was happening that night. After they were finished their conversation, the Commissionaire left. In his view, he sat on the stool in the hallway for a half hour before he finally provided his first sample. [ 16 ] But in cross-examination he admitted that he never checked his watch to see what time they arrived at the detachment as he wasn’t concerned about the time.

He agreed that the Commissionaire and Constable Martin could have been speaking for less than fifteen minutes and Constable Martin could have been doing something else while they were speaking. Finally, he acknowledged that he may have been sitting in the hallway for less than thirty minutes before he provided his first breath sample. Given these concessions, I am not satisfied that the accused has an accurate recollection of when things occurred at the detachment. Constable Martin made detailed notes including the times when they arrived and when the accused took his breath tests.

As such I prefer Constable Martin’s testimony as to how things happened at the detachment over that of the accused. ISSUES

a) Were the accused ’s breath tests taken “as soon as practicable ” as required by section 258(1) (

c) of the Criminal Code ?

b) Was there a violation of the accused’s

section 7 Charter right?

c) If the accused’s

section 7 Charter right was violated, should the charge against the accused be stayed pursuant to section 24(1) of theCharter? DISCUSSION

a) Were the accused’s breath tests taken “as soon as practicable” as required by section 258(1)(

c) of the Criminal Code? [17] Section 258(1)(

c) of the Criminal Code sets out a number of criteria which the Crown must prove beyond a reasonable doubtif they intend to rely on the Intoxilyzer results as conclusive proof that the accused’s blood alcohol content was greater than .08 at thetime he or she was driving. If the Crown cannot satisfy the criteria, then they cannot rely on the presumption of identity in section258(1)(c). However, it does not mean that they cannot still prove that an accused was over .08 at the time of driving. They simply losethe ability to take advantage of the evidentiary shortcut provided by section 258(1)(c). [18] Compliance with the section 258(1)(

c) criteria has often been argued before the courts. One of these criteria is that eachbreath sample be taken as soon as practicable after the time when the offence was alleged to have been committed. This particularrequirement has received considerable judicial attention. Mr. Justice Gerein was faced with this very issue in R. v. McCoy, (SK KB), [1990] S.J. No. 657 (Sask. Q.B.). In his oft quoted decision he said: Section 258(1)(

c) of the Criminal Code creates a presumption as to the concentration of alcohol in a person’s blood at the time ofdriving. However, if the presumption is to apply certain requirements must be met. One of them is that the samples of breath be taken“as soon as practicable after the time when the offence was alleged to have been committed”. I adopt the view that the phrase “as soon aspracticable” means “as soon as reasonably can be expected”. See R. v. Mudry, (1979) 1979 ABCA 286 , 50 C.C.C. (2d) 518. Thus the time lapse may vary from case to case depending on the circumstances. . . . .

From my reading of various decisions I have come to hold this view. If the Crown is to be permitted to rely on the presumption it mustestablish that the samples were taken within a reasonable time. What is reasonable will depend upon the particular circumstances ofeach case. As well, in each case the trial judge may have reference to his or her own experience. At the same time the Crown cannot beexpected to account for every minute or even several minutes lost over a period of time.

However, when the time lapse is one of considerable or unusual duration, it then is incumbent upon the Crown to provide an explanationfor the delay. If that explanation is accepted as proper then the lapse of time remains reasonable.

If the explanation is rejected then thesample is not obtained within a reasonable time and the presumption can have no application. [19] In determining whether breath samples were taken as soon as practicable, a judge must not become fixated on the length ofthe delay but rather must consider whether the Crown can account for the delay and whether such delay was reasonable in thecircumstances. A judge must apply reason and common sense in reaching their decision. See R. v. Allin, [2003] S.J. No. 289; R. v.Baird, 2005 SKPC 27 , [2005] S.J. No. 225 at paragraph 43; R. v. Carriere, [2010] S.J.

No. 499 at paragraph 58; and R. v. Tetz,[2011] S.J. No. 512 at paragraph 17.

[20] In the present case, the accused’s vehicle was stopped by Constable Martin shortly before 11:55 p.m. however the accused didnot provide his first breath sample until 1:06 a.m. This time frame is of a significant enough length that it requires an explanation. [21] While the evidence provides an explanation as to what occurred, the real question for my consideration is whether thisexplanation is reasonable. I am not persuaded that it is reasonable for two reasons.

Firstly, by Constable Martin’s own admission, theDelisle RCMP Detachment was the closest detachment to Asquith and he wanted to take the accused to this detachment for the breathtests rather than driving all the way to Saskatoon. There was a breath machine at the Delisle detachment as the officer made inquiries asto whether a breath technician was available.

However no Delisle RCMP member was working that night, no Delisle RCMP memberwas available to meet him at the detachment and since they were the only ones with the keys to the detachment, he could not even getinto the detachment to perform the breath tests on the accused himself. I was given no reason why nobody was working at the Delisledetachment that night nor even available to attend the detachment to perform the breath tests or at the very least let Constable Martin intothe detachment and wait while he performed the tests on the accused.

The Crown does not have to disprove the practicability of otheroptions merely on the basis that those other options might have produced results more quickly, but there still must be cogent evidencethat the police conduct was reasonable in the circumstances. For example, had the evidence shown that the members of the Delisledetachment were investigating a vehicle accident and could not attend at the detachment for some time then this would be a reasonableexplanation as to why no one was available.

In this case though, there is no evidence as to why the Delisle detachment could notaccommodate Constable Martin and the accused that evening. Without any evidence on this point, the Crown has not discharged itsonus and I cannot conclude that it was reasonable for Constable Martin to have to go the further distance to Saskatoon to have the breathtests performed. [22] Secondly, he went to Saskatoon detachment because it was the next closest detachment that had a breath machine andqualified breath technician. But even that proved to be false that evening.

When he got to the Saskatoon detachment, there was nobreath technician there and their Intoxilyzer was in need of maintenance. I am surprised that in the 34 minutes it took Constable Martinto drive to the Saskatoon detachment, a breath technician could not have attended there. Had there been a breath technician there thatnight, I am sure that he could have had the machine ready to go, or at least well on its way to being ready to go, by the time ConstableMartin drove in from Asquith. But there was no breath technician there despite Saskatoon detachment being one of the largerdetachments in the province.

As a result, Constable Martin had to take some ten to twenty minutes to replace the solution, warm thesolution up and have the machine do all its calibration checks. [23] In R. v. Letford, (ON CA), [2000] O.J. No. 4841 (Ont. C.A.), Mr.

Justice Goudge said at paragraphs 19and 20: 19 Where, as here, the way in which the police organized their staff and equipment appears relevant to the time taken until the firstbreathalyzer test, it and any reason offered for it are matters for the Court to consider in determining whether the Crown has met itsobligation under section 258(1)(c)(ii). 20 The Crown need not show that the police are organized to take breath samples as soon as possible in each case.

However, section258(1)(c)(ii) does require that in every case the Crown demonstrate that in all the circumstances including, where relevant, the way thepolice are organized and why, the breath samples were taken within a reasonably prompt time. [24] In November 2010, Constable Martin said that maintenance of the Intoxilyzer machine was a “revolving door”. No oneperson at the Saskatoon RCMP Detachment was tasked with ensuring their breath machine was functional and ready to go each andevery day. This, to me, is not an acceptable practice.

The Saskatoon RCMP Detachment is one of the larger detachments in the provincewith a large number of people living in its service area. I would have expected a breath technician to be readily available at theSaskatoon detachment and the breath testing equipment to be maintained daily. Obviously someone else recognized this problem as Constable Martin advised that since the accused was brought in for the breath tests that evening their procedure has changed. He is nowthe officer charged with ensuring that their breath machine is functioning properly.

However, this does not take away from the fact, thaton November 25, 2010, this situation led to an unsatisfactory delay in performing the tests on the accused. [25] In R. v. Van der Veen (1988), 1988 ABCA 277 , 11 M.V.R. (2d) 251 (Alta.C.A.), Mr. Justice Harradence wasspeaking on this issue of “as soon as practicable” and at page 255, he said the following: . . . We are dealing with a situation involving a statutorily authorized infringement on the liberty of the subject.

The requirement that thebreath sample be taken “as soon as practicable” should be strictly interpreted and applied so as to prevent intrusion of a detained person’s

liberty for no longer than is necessary. [26] Mr. Justice Harradence’s comments, while made in dissent, are still apropos. The Crown bears the onus of proving that thedelay in taking breath samples from the accused is reasonable. In this particular case I cannot fault Constable Martin for his attempts tocomply with the requirement of “as soon as practicable”. But a series of events conspired against him that, on the evidence before me, isnot acceptable.

The delay caused as a result of nobody being available at the Delisle RCMP Detachment necessitated Constable Martinhaving to delay the tests and travel the farther distance to Saskatoon detachment. I am prepared to exercise some flexibility in myjudicial scrutiny of the conduct of the police that evening but there is no evidence in the case that would allow me to conclude that theunavailability of Delisle RCMP members to assist Constable Martin was for a valid reason.

When Constable Martin does go all the wayto Saskatoon, the Intoxilyzer at the Saskatoon detachment is in need of maintenance before it can be used thereby necessitating furtherdelay before the breath tests can be done. This delay was the result of the procedure that was in place at the Saskatoon detachment at thetime whereby nobody was responsible to make sure the Intoxilyzer was in proper working order.

My finding that this process was lessthan satisfactory was confirmed by the fact that by the time of the accused’s trial, this procedure had been changed so that a particularmember is now responsible to make sure that the Intoxilyzer is maintained and in proper working order each day. The cumulative effectof these delays is that the accused’s breath samples were not taken as soon as practicable. As a result, the presumption in section 258(1)(

c) is lost and the Certificate of Analyses is not evidence of the accused’s blood alcohol content as at the time of the offence. [27] There is one further argument that I need address. Crown counsel suggested that if the accused wants to take issue withwhether the breath samples were taken “as soon as practicable” pursuant to section 258(1)(c), he must make a Charter application. Shecited the Manitoba Court of Appeal’s decision in R. v. Forsythe (2009), 2009 MBCA 123 , 250 C.C.C. (3d) 90 as support forthis position. I note that Crown counsel made this argument in front of me previously and I did not accept it.

See R. v. Dolezsar 2010SKPC 142. I see nothing in her argument today nor since my decision in Dolezsar, supra, that would change my mind in that regard. [28] As I said in Dolezsar, supra, I agree with the Manitoba Court of Appeal’s comments in Forsythe that a Charter challenge isnecessary when an accused is taking issue with the admissibility of breath samples on the basis of whether the requirements of section254(3) have been met. However I am not prepared to agree that a Charter challenge is necessary to take issue with the applicability ofthe

section 258 presumption of identity. There are a great number of cases in Saskatchewan where an accused has challenged whether abreath sample was taken as soon as practicable under section 258(1)(c). In doing so they are challenging the applicability of thepresumption rather than the admissibility of the breath tests.

If an accused is successful in their challenge, then the Crown cannot relyon the statutory presumption that the blood alcohol concentrations in the Certificate of Analyses were the same as at the time the vehiclewas operated despite the fact that the Certificate of Analyses was admitted as a full exhibit. In such a case, no Charter application isrequired because the admissibility of the certificate evidence is not in question, only the use that may be made of it is. [29] Support for this position can be found in the case of R. v. Carter, (SK CA), [1981] S.J. No. 1337 (Sask.C.A.).

Thus, while I take guidance from appellate courts in other jurisdictions, until the Saskatchewan Court of Appeal has ruledotherwise, I feel bound by the decision in R. v. Carter, supra, as well as the considerable body of case law from Saskatchewan courtsindicating that a Charter application is not required when taking issue with the applicability of the presumption in section 258(1)(c).

b) Was there a violation of the accused’s

section 7 Charter right? [30] Given my decision on the issue of “as soon as practicable”, it is not necessary for me to address the

section 7 Charter breachissue and as such, I decline to do so.

c) If the accused’s

section 7 Charter right was violated, should the charge against the accused be stayed pursuant to section 24(1) ofthe Charter? [31] Given that I have not addressed the

section 7 Charter breach application, there is no need for me to consider whether thecharge against the accused should be stayed pursuant to section 24(1) of the Charter. CONCLUSION

[ 32 ] Constable Martin provided viva voce testimony about the accused’s blood alcohol readings at 1:06 a.m. and 1:27 a.m. however the Crown chose not to call any expert evidence to correlate these readings back to the time of driving. They have chosen instead to rely on the Certificate of Analyses and the presumption of identity in section 258(1)(

c) to prove the accused’s blood alcohol content at the time of driving. The Crown has not satisfied me that the breath samples were taken as soon as practicable after the time when the offence was alleged to have been committed and as such, they are not able to rely on the presumption of identity in section 258(1) (

c) of the Criminal Code . Consequently, there is no evidence proving that the accused was over .08 at the time he was driving his motor vehicle on November 25, 2010 and therefore, I find the accused not guilty of the charge of being over .08 contrary to section 253(1) (

b) of the Criminal Code . _________________________ D.E. Labach, J