) Ms. L. Hodgson, ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. M. Wasyliw, - v. -, 2014 MBPC 34

R. v. Kozakevich , 2014 MBPC 34 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Ms. L. Hodgson, ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. M. Wasyliw, - and - ) for the Accused ) DARREN KOZAKEVICH, ) ) Judgment delivered Accused. ) May 22, 2014 _____ WIEBE, P.J. (Orally) So this is my decision with respect to Mr. Kozakevich, and hopefully I’ll pronounce that properly. I’m going to read my decision, so I’m going to look down and, and it’s of some length because of the issues raised, so I expect it’ll take half an hour or so. All right, Darren Kozakevich is charged with impaired driving and driving over .08.

The trial was held November 7th, 2013. The Crown called one witness, the police officer who investigated, administered the ASD, administered the breathalyzer, and who arrested Mr. Kozakevich. Defence raised a number of Charter issues and accordingly a blended voir dire was held to determine the Charter issues. By consent the evidence on the voir dire is to apply mutatis mutandis to the trial proper. The issues to be determined are as follows. One, did the police administer the ASD forthwith or did they do so contrary to Section 254(2) of the Criminal Code and

Section 8 of the Charter. Number two, whether

section 10(

b) is suspended under

Section 1 of the Charter during a roadside stop when the police have the facilities available which include a phone and access to private consultation with counsel. Number three, whether if there is a Charter breach, the breathalyzer samples and Certificate of Analysis ought to be excluded under

Section 24 of the Charter. The facts are as follows. On December 29th, 2012, Officer Benzick, a 12-year member of the Winnipeg Police Service, was on duty in general patrol. It was the Christmas season and so the WPS were running their check stop program through the festive season. Officer Benzick was assigned to the check stop van and was the breath technician operator. There’s no question as to his qualifications to do so. The following is a chronology of the events that occurred. At approximately 1:40 a.m., Officer Benzick was the passenger in the check stop van. He saw Mr.

Kozakevich and a companion exit the Green Briar Inn on Main Street into the parking lot. The vehicle idled for three to four minutes and then left the parking lot. I’m actually -- excuse me, I’m going to correct that, it was at 1:30 a.m., not 1:40. The vehicle travelled northbound out of the parking lot onto Main Street, cut across all three lanes on Main Street into the median lane, made a quick U-turn to head southbound on Main Street, and went to the far southbound curb lane. The vehicle then made a slight fishtail with the back end of the car sliding into the center of the median lane.

The vehicle accelerated to 65 kilometers per hour in a 60- kilometer per hour zone, and when it came upon a red light, it slid one full car length into the intersection when stopping. When the light turned green, the check stop van activated its light and siren, and Mr. Kozakevich stopped approximately one block later. This journey took approximately two minutes. While following the van, Officer Benzick indicated he had a clear view of the vehicle the entire time. The check stop van followed the vehicle for approximately eight blocks.

Officer Benzick indicated the roads were a bit slippery and it was a cold night. While the check stop van had no difficulty in stopping, he acknowledged that the car driven, a 2001 Ford Mustang, rear wheel drive, could have slid due to slippery conditions.

Officer Benzick approached the driver’s side of the Mustang being driven by Mr. Kozakevich. He noted a strong smell of alcohol coming from the vehicle which he could not identify as coming directly from Mr. Kozakevich. He noted that his eyes were bloodshot and glassy. When he spoke to Mr. Kozakevich, he admitted to having drank one beer just before he left the Green Briar Inn. He was asked to exit the vehicle. He was noted to be a little unsteady on his feet. He was otherwise talkative and cooperative. At this point the officer smelled the faint smell of alcohol.

Officer Benzick testified that it was at this point he formed the suspicion Mr. Kozakevich had consumed alcohol prior to driving his vehicle, so he asked him to accompany him to the check stop van, which Mr. Kozakevich agreed to do. This was an informal demand made at approximately 1:42. In the van Mr. Kozakevich was seated at one of two seats at a table inside the van. Shortly after 1:42, Officer Benzick read the ASD demand to Mr. Kozakevich, and he agreed to supply a sample. The officer testified that as Mr. Kozakevich had admitted to just consuming alcohol, he waited 15 minutes to administer the ASD.

He was concerned he may have mouth alcohol which would contaminate the results. During the 15 minute wait Mr. Kozakevich produced a deck of cards and did magic tricks while Officer Benzick observed him and prepared the ASD. Mr. Kozakevich did not request to speak to counsel, and Officer Benzick did not offer or –- offer that he could speak to counsel. There was no challenge to the proper functioning of the ASD. After the 15 minute observation period, at 1:58 Officer Benzick explained how to properly give an ASD sample, and Mr. Kozakevich appeared to understand.

It took five samples to get an appropriate sample, and at 1:58 the ASD gave a fail reading. At that point Officer Benzick formed the opinion Mr. Kozakevich’s ability to operate a motor vehicle was impaired by alcohol, and so at 2:00 a.m. he gave him his notice of arrest for drive impaired. At 2:01 a.m. he read the breathalyzer demand from his notebook and gave him his 10(

b) rights. At 2:02 a.m. he gave him the police caution. Mr. Kozakevich then called duty counsel from a holding room in the check stop van, which was equipped with a cell phone. The room has a door and window, both of which were closed, although the officer can see in through the window to ensure the person inside is not calling anyone other than counsel. The officers cannot hear what is said in the holding room. Mr. Kozakevich called counsel at 2:09 and he completed his call at 2:18 a.m. The officer then began questioning Mr. Kozakevich based on the driving impaired check sheet. Mr.

Kozakevich only answered the first few questions on the –- and indicated on the advice of his lawyer he was not answering any further. At that point Officer Benzick prepared the breathalyzer. There’s also no issue that Officer Benzick is a trained and qualified technician. Beginning at 2:18 he conducted a further 15 minute observation period. His evidence was he could not tell if Mr. Kozakevich had burped or regurgitated while in the holding room while speaking to legal counsel. He again explained that this could contaminate the breath results.

He conducted the observation by opening the door to the holding room, and as the breathalyzer machine was right next to the door, he was able to observe Mr. Kozakevich while he completed the tests and set up the breathalyzer. At 2:35 he began the tests, and at 2:39 the first reading was 120. After the minimum 15 minute waiting period between tests, at 3:01, the second reading was 110. Officer Benzick noted on both occasions Mr. Kozakevich did not give a full effort to provide a sample, but he was able to obtain the above results. Mr. Kozakevich was then charged with drive impaired and drive over .08.

Those are the facts. So the first issue, did the police administer the ASD forthwith or did they do so contrary to Section 254(2) of the Criminal Code and

Section 8 of the Charter. Section 254(2) of the Criminal Code states as follows: "If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both ... paragraphs (

a) and (b), in the case of alcohol:" Paragraph (

b) states: "to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose." The specific argument in this case is that the ASD test was not administered forthwith because Officer Benzick conducted a 15 minute observation period beginning at 1:42 a.m. when he stopped Mr. Kozakevich and not at 1:30 a.m. when the police saw him enter his car from the Green Briar Inn. Mr. Kozakevich argues that the officer’s testimony was he had a clear view of Mr.

Kozakevich from 1:30 a.m. on, and so he could have seen whether Mr. Kozakevich consumed any beverage from that point forward. He argues that there was no objective evidence to support the officer’s concern that Mr. Kozakevich consumed any alcohol after 1:30 a.m., which would justify delaying the beginning of the observation period to 1:42 a.m.

He also argues that Officer Benzick could have taken Mr. Kozakevich’s word that he had nothing to drink had he asked him. Accordingly, the approximate 12-minute delay in starting the observation period resulted in non-compliance with Section 254(2) and a breach of Mr. Kozakevich’s Charter rights. At -– sorry, counsel, I am just checking that I am actually referring to the correct

section because I may have written it down –- 245(2) –- MS. HODGSON: No. MR. WASYLIW: No. THE COURT: Two fifty -- MS. HODGSON: Two fifty -– MR. WASYLIW: Four. THE COURT: Yeah. MS. HODGSON: Yeah. THE COURT: 254(2) is what I intend to refer to. All right. So in R. v. Woods , a 2005 Supreme Court of Canada decision, the Supreme Court dealt with the contest between the forthright requirement and the individual’s Charter rights.

It said at paragraph 15: "Section 254(2)" "authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8 , 9 and 10 of the Canadian Charter of Rights and Freedoms . But for its requirement of immediacy, s. 254(2) would not pass constitutional muster." At paragraph 29 they said, "The ‘forthwith’ requirement of s. 254(2) ... is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8 , 9 and 10 of the Charter .

In interpreting the ‘forthwith’ requirement, this Court must bear in mind not only Parliament’s choice of language, but also Parliament’s intention to strike a balance in the Code between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights." At paragraph 30 they said, "As ... explained, Parliament enacted a two-step legislative scheme in s. 254(2) and (3) of the Criminal Code to combat the menace of impaired driving.

At the first stage, s. 254(2) authorizes peace officers, on reasonable suspicion of alcohol consumption, to require drivers to provide (their) breath samples for testing on an ASD. These screening tests, at or near the roadside, determine whether more conclusive testing is warranted.

They necessarily interfere with rights and freedoms guaranteed by the Charter , but only in a manner that is reasonably necessary to protect the public’s interest in keeping impaired drivers off the road." The court went on to indicate at paragraph 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 be given a more flexible

interpretation than its ordinary meaning strictly suggests. For example, a brief and unavoidable delay of 15 minutes can thus be justified when this is in accordance with the exigencies of the use of the equipment: see Bernshaw ." That was the end of the quote. In Bernshaw the Supreme Court of Canada directly considered whether forthwith means immediately or whether in certain circumstances it can encompass a 15 minute delay. The majority of the court found that the 15 minute delay was justifiable. Justice Sopinka for the majority reviewed the frailties associated with ASD tests where mouth alcohol contamination is an issue. He stated, in quotes:

"It’s important to understand the frailties associated with the roadside screening tests and the potential unreliability which may result from the presence of mouth alcohol. The manufacturer of the alcohol screening device used in the present case recognizes that when certain circumstances prevail, the results will not be accurate.

The following extract from the manufacturer’s manual concerning the effects of mouth alcohol is pertinent: The concentration of alcohol in a drink is much higher than would ever be present in the blood, so that, if a breath sample were analyzed soon after the subject had consumed his or her last drink, the reading would be very high due to residual alcohol remaining in the mouth . Some of this mouth alcohol would evaporate into the expired air but this breath alcohol reading would not reflect the true blood alcohol concentration.

It is important therefore that a period of at least twenty minutes has elapsed since the, (since the) subject had his or her last drink. This twenty minute period allows for any mouth alcohol to be dispersed, so that a valid breath (sample) ... analysis can be carried out to determine the blood alcohol concentration . Similarly, if the subject has recently regurgitated or vomited, after a recent drink, this too could introduce alcohol into the mouth and so affect the result of a subsequent breath test." That’s the end of that quote.

In consideration of this issue arising, Justice Sopinka went on to say, again in quotes: "I adopt the flexible approach taken by Arbour J.A." In R. v. Pierman , R. v. Dewald , 1994 CanLII, 1139 , a decision of the Ontario Court of Appeal: "In my view, it is in accord with the purpose of the statutory scheme and ensures the police officer has an honest belief based on reasonable and probable grounds prior to making a breathalyzer demand. Waiting 15 minutes is permitted under s. 254(2) of the Code when this is in accordance with the exigencies of the use of the equipment.

This applies when an officer is aware of the potential inaccuracy in (a) ... particular case." Later in the Bernshaw case he said, at paragraph 74: "Although there is no doubt that the screening test should generally be administered as quickly as possible, it would entirely defeat the purpose of Parliament to require the police to administer the screening test immediately in circumstances where the results would be rendered totally unreliable and flawed.

The flexible approach strikes the proper balance between Parliament’s objective in combatting the evils of drinking and driving, on the one hand, and the rights of citizens to be free from unreasonable search and seizure. I do not believe that the matter is advanced by quoting statistics. Although we all agree that Parliament has every reason to vigorously pursue the objective of reducing the carnage on our highways, that objective is not advanced by subjecting innocent persons to invasions of privacy on the basis of faulty tests.

I do not believe that this is what Parliament intended in enacting s. 254 of the Criminal Code ." I mentioned Justice Sopinka had quoted Justice Arbour, this was from the 1994 decision that I refer to of R. v. Pierman and R. v. Dewald . The court in that case had framed the question as follows: "In my opinion, the question of whether or not a police officer can delay the taking of a breath sample for 15 minutes in order to avoid obtaining a falsely high reading on the screening device cannot be answered in the abstract. Unqualified yes or no answers to that question both produce unacceptable results.

If a police officer was never permitted to wait in order to satisfy herself that she is obtaining a technically valid result, it would necessarily follow that, in some cases at least, the officer would be faced with the following choice: The officer would either have to disregard the positive result of the roadside test, because of the suspicion that it may be falsely high, or the officer would have to take the suspect to the police station to undertake the more comprehensive breathalyzer test, presumably then overlooking the concern that the result obtained may be falsely high.

If, on the other hand, we were to hold that a police officer is entitled to wait 15 minutes before taking a breath sample pursuant to s. 254(2) of the Criminal Code , solely on the hypothesis that the suspect may have consumed alcohol within the previous 15 minutes, we would be, in my view, unduly expanding the statutory basis upon which motorists may be detained without access to counsel. It would have been open (to) ... Parliament to provide a time frame within which s. (252 -- sorry), 254(2) should operate, as it did, for instance, in s. 258(1)(c)(ii).

In my opinion, it is not open to this court to expand the scope of a Charter infringement beyond what is necessary to give effect to the section."

R. v. Einarson, (ON CA), 2004, 183 C.C.C., 3d, 19, which is a decision of the Ontario Court of Appeal, alsoendorsed this flexible approach. Given these decisions, it’s clear a flexible approach is appropriate, and in certain circumstances a 15 minute delay to ensureaccurate results is permissible. In applying the flexible approach here, did Officer Benzick have a reasonable belief that the results of theASD could be contaminated, and if so, was he justified in beginning the observation period at 1:42 and not at 1:30? It’s helpful toreview Officer Benzick’s evidence to answer this question.

Officer Benzick indicated he’s a trained technician, and based on his training, he indicated that you want to observe the subject for15 minutes to ensure there is no burping, vomiting or consumption, which could give a false high reading on the ASD. In this caseOfficer Benzick stated that he could see Mr. Kozakevich enter his vehicle at 1:30 and he had the vehicle in his sight from that point on. However, he testified, and I accept, he could not see what Mr. Kozakevich was doing in the vehicle between 1:30 a.m. when he left theGreen Briar and the time of the actual stop at 1:42.

He stated the only time he saw him directly was when he stopped him. He indicated that at the stop Mr. Kozakevich advised him that he had just finished a drink. Officer Benzick never asked if Mr.Kozakevich was drinking in the vehicle. He indicated he did not confirm with Mr. Kozakevich whether he had been drinking in thevehicle because he could not confirm whatever it was he was told. Based on his training, he felt it was appropriate to wait the 15minutes from the time he had him under his direct observation. I find Officer Benzick had an honest and reasonable belief that Mr.

Kozakevich had consumed alcohol in the last 15 minutes. Theobjective evidence comes from Mr. Kozakevich himself, and as Justice Sopinka pointed out in Bernshaw, it is not only consumptionwhich will interfere with the results. Burping and regurgitation are also issues to be concerned with when seeking accurate results. Officer Benzick testified that it’s important to ensure there is no burping or regurgitation, and he felt that he could not be assured that thisdid not happen without direct observation. I accept he did not see into the vehicle and I accept he was not directly observing Mr.

Kozakevich until 1:42 a.m. I find he waslegitimately and reasonably concerned with not obtaining a proper sample as a result of mouth contamination. Accordingly, I find theobservation period properly began at 1:42 a.m. The ASD was administered at 1:58, and therefore, I find it was forthwith and there wasno breach of

Section 8 of the Charter. I find that this short delay is consistent with the type of circumstance described by the SupremeCourt of Canada. It is an approach which benefits the person taking the ASD. Issue number two, whether the 10(b) -– whether 10(

b) is suspended under

Section 1 of the Charter during a roadside stop when thepolice have the facilities available, which include a phone and access to private consultation with counsel. Having already found that the15-minute delay did not constitute a breach of the forthwith requirement, I turn to Mr. Kozakevich’s second argument which is his rightto counsel was breached because in this case given he was in a mobile police station equipped with a private holding room and a phone,during the 15-minute observation period he argues he had a realistic opportunity to contact legal counsel. Not being provided theopportunity to do so breached his

Section 10(

b) Charter rights.

Section 10(

b) of the Charter provides that, "Everyone has the right on arrest or detention (

b) to retain ... (or) instruct counsel." There are many cases which deal with

Section 10(

b) rights in circumstances where drivers are stopped and asked to take an ASD. Several cases were provided to me. I will not review all of them as a few will demonstrate the applicable principles. The starting point in the review is the Thomsen case, and several cases have reviewed the area –- sorry, the law in this area fromThomsen onwards. In R. v. Thomsen, (SCC), 1998, 40 C.C.C. 3d, 411, the Supreme Court of Canada considered theright to counsel when a roadside demand into a screening device was made.

Justice Le Dain stated: "An accused’s right to retain counsel without delay is subject, in the case of ... s. 234.1(1) demand, to a limit prescribed by law within themeaning of s. 1 of the Charter. A limit prescribed by law within the meaning of s. 1 may result by implication from the terms of alegislative provision or its operating requirements. It need not be an explicit limitation of a particular right or freedom.

That there is tobe no opportunity for contact with counsel prior to compliance with ... s. 234.1(1) demand is an implication of the terms of (that section),... when viewed in the context of the breath testing provisions of the Criminal Code as a whole. A

section 234.1(1) roadside screeningdevice test is to be administered at roadside, at such time and place as the motorist is stopped, and as quickly as possible, having regardto the outside operating limit of two hours for the breathalyzer test which it may be found to be necessary to administer pursuant to s.235(1) of the Code. The limit imposed by s. 234.1(1) of the Code on the right to counsel is justifiable under s. 1 of the Charter.

The important role played byroadside breath testing is not only to increase the detection of impaired driving, but also to increase the perceived risk of its detection,which is essential to its effective deterrence. The importance of this role makes the necessary limitation on the right to retain and instructcounsel at the roadside testing stage a reasonable one that is demonstrably justified in a free and democratic society, having regard to thefact that the right to counsel will be available, if necessary, at the more serious breathalyzer stage."

It has been noted in several cases since Thomsen the term "roadside" was removed from the provision referred to above, now section 354(2), and arguments were made that the principle in Thomsen was no longer applicable. For example, Judge Giesbrecht of the Manitoba Provincial Court in R. v. Fehr , a 1999 decision, dealt with a situation where the officers did have a cell phone in the police car, and the accused passenger also had a cell phone, but the opportunity to contact counsel was not permitted.

After canvassing many cases, including Thomsen , Judge Giesbrecht said, at paragraph 39: "Based on these authorities it seems clear that the limitation of the right to counsel set out in Thomsen still applies to s. 254(2) of the Code . Counsel for the accused concedes that the Thomsen limitation of the right to counsel applies in the ‘normal’ case, but submits ... in this case, in light of the ‘particular and unusual set of circumstances’ the limitation ought not to apply." He goes on to submit that the Thomsen case should be interpreted to mean that a police officer need not inform an individual of his or her

Section 10 (

b) rights when an ASD demand is made, but that if an individual requests to contact counsel, as the accused did here, he ought to be given the opportunity to do so. This is particularly the case he submits when an individual is cooperative with police and is not causing any problems. Judge Giesbrecht dismissed the defence argument that Thomsen should be limited to its specific facts and dismissed the argument the technological advances water down the applicability of Thomsen . She disagreed that the availability of cell phones gave a different right to counsel.

She stated: "I do not find any of these submissions to be persuasive. There is, in my view, nothing particularly unusual about the circumstances of the present case. Moreover, the Supreme Court of Canada in Thomsen did not limit the right to counsel in only the ‘normal’ cases. The fact that cellular phones were available in this case both in the police car and in the accused’s own vehicle, does not in my view affect the determination of whether the accused had a right to speak to counsel. Nor can the right to counsel depend on whether such a right is asserted by an individual.

If there is a right to counsel, then everyone in that situation has that right, not only those who assert the right or who happen to have access to a cellular phone." In R. v. Melville , a 2002 decision of the Alberta Provincial Court, 43, Judge Allen canvassed the history of the law as well as numerous cases relating to

Section 10 (

b) rights in the context of impaired driving situations. In particular, he canvassed the meaning of "any realistic opportunity to consult counsel". In the course of doing so, he referred to a decision which is supportive of Mr. Kozakevich’s position here. That case was R. v. Wolowidnyk , W-O-L-O-W-I-D-N-Y-K, which was a 1998 decision of the Alberta Provincial Court. There Judge Ketchum dealt with a situation where a casino employee found the accused in the parking lot of a casino. He awoke the accused, radioed for a police officer who arrived shortly thereafter.

The accused was placed under arrest for impaired driving. The officer then called a patrol car for a screening device. The device arrived 10 minutes later. The officer made a demand, and the accused refused to comply saying he had done nothing wrong. Judge Ketchum found that the police officer had not made a valid demand for a sample into the approved screening device. It was his position that the police could only suspend an accused’s 10(

b) Charter rights prior to obtaining a breath sample for an approved screening device where no opportunity to consult counsel existed. In his view there was a realistic opportunity to contact counsel in the circumstances. He relied on portions of the Ontario Court of Appeal decision in R. v. Cote , super (sic), supra, and R. v. Latour . Specifically he said at paragraph 10: "In

summary, I find that where a peace officer has arrested a citizen for (

a) drinking and driving offence, and the circumstances are such that: 1. the peace officer knows there is no screening device immediately available, and 2. the citizen has a cell phone, or there is a police station or a telephone facility close at hand, and 3. there is no urgent or serious security problems, the police officer cannot ignore or prevent the citizen from exercising his constitutional right to retain and instruct counsel without delay by accessing a telephone facility pending the arrival of the screening device." After thoroughly reviewing the law, Judge Allen rejected this position on the basis that Alberta and Ontario law did not support those principles.

The R. v. Wolowidnyk case was also considered by Judge Devine of the Manitoba Provincial Court in R. v. Ollivier , that’s O-L-L- I-V-I-E-R, 2003 CanLII, 12 ,976. She also rejected this argument and said:

"As I indicated at the conclusion of this voir dire, the fact that Mr. Ollivier happened to have been stopped and asked for an ASD ...sample within a short distance of, and possibly in view of, a police detachment did not give him an enhanced right to consult counsel thatsomeone stopped (at) a greater distance away would not have. If that fact of proximity were determinative of the issue then thequantification difficulties would begin. Is half a mile the limit, or one mile or five miles? Does it make a difference whether thedistance is walking distance or driving distance?

Does the phone booth have to be within view of the accused? Do individuals in urbansettings thus have greater constitutional rights than those who live in remote locations? It is for these reasons that I found that Mr. Ollivier did not have the right to contact counsel in these circumstances and held there hadbeen no breach of his

section 10(

b) Charter rights." A similar conclusion was reached in R. v. Quong, a 2006 decision of the Alberta Provincial Court. In that case a roadside stop wasconducted resulting in Mr. Quong being asked to submit to an ASD. He was taken to a police car 50 feet away, performed the test andfailed. He was then taken to the check stop bus a further 50 feet away where he was given the opportunity to contact counsel which hedid. Mr. Quong argued that his

Section 10(

b) rights were violated because he was entitled to right to counsel before being required tocomply with the roadside demand where there is a police facility nearby permitting the accused ample opportunity to immediatelycontact counsel. Judge Fradsham, after reviewing all of the relevant case law concluded: "In my view the sample was provided ‘forthwith’. As Charron, J.A. (as she then was) said in R. v. Latour ‘the determinative questionthen becomes in any given case, was the police officer in a position to require that a breath sample be provided by the accused beforeany realistic opportunity to consult counsel?

If so, the demand, if otherwise appropriate, falls within the scope of s. 254(2). If not, thedemand is not valid.' In the case of Mr. Quong, the police officer was in a position to, and did, take the breath sample ‘before anyrealistic opportunity’ existed for Mr. Quong to consult with counsel. A ‘realistic opportunity’ involves both a delay in (the) taking of thesample, and the presence of facilities suitable for the exercise of

section 10(

b) Charter rights. Neither the expected delay, nor the actualdelay of six minutes, was sufficient to constitute a realistic opportunity to consult counsel, considering that the accused had to be taken tothe nearby police car, and instructed on the way to provide the sample. In the circumstance of this case, the officer properly expected,and indeed was able, to take the sample ‘immediately’. Accordingly, whether a means of contacting counsel was present is irrelevant. The demand made of the accused was a proper section 254(2) demand, and, consequently, a proper

section 1 Charter suspension of Mr.Quong’s

section 10(

b) Charter rights occurred." In R. v. Bell, a 2008 decision of the Ontario Superior Court of Justice at (ON SC), 170 CRR, 2d, 84, the accusedwas observed drinking in his vehicle. An ASD demand was made, and although the device was not available, it arrived one minutelater. The police then waited a further 14 minutes to ensure a proper sample with no mouth alcohol contamination. After a fail andbeing charged, the accused was transported to the station one and a half blocks away where he called counsel. The judge noted from theaccused’s vehicle they could have walked to the police station in one to two minutes.

It was argued on appeal that the trial judge erred in not considering relevant factors as to whether there was a realistic opportunityto contact counsel in the circumstances. The judge dismissed this argument, and in accordance with Bernshaw found that the Section10(

b) rights were suspended during the ASD process. The decision was affirmed by the Ontario Court of Appeal, 2009, Ontario Court ofAppeal 321, where the appeal court said: "To be clear, when there is a 15 minute delay for the purpose of obtaining (

a) proper breath sample... the demand is valid and the delayis, (is) a justified limitation on the right to counsel under s. 10(b). The fact that the detainee or the officer had cell phones is thereforeirrelevant." Mr. Kozakevich submitted a number of cases where it was determined that the accused’s right to counsel had been breached,however, the cases largely deal with the situation where Section 254(2) was never complied with, that is the forthwith requirement wasbreached because either there was initial refusal and an ASD was taken at the police station more than an hour after the initial stop, thisis R. v.

Woods, Supreme Court of Canada, 2005 Supreme Court Reports at 205, or the officers undertook a warrantless search of thevehicle after forming the suspicion the driver was impaired and without administering the ASD, that’s R. v. Billett, B-I-L-L-E-T-T,Saskatchewan Queen’s Bench 2001, at 20 Saskatchewan Reports, 79, or it took several minutes to get the ASD to the police car, R. v.Cote, 1992, or the police had unexplained delays in performing the ASD even though it was available.

In those cases the courts have been clear that when the forthright requirement is not complied with, the accused is entitled to legalcounsel, and denying legal counsel is a breach of

Section 10(b). In this case before me the forthwith requirement had been met becausethe officer was delaying the 15 minutes for the purpose of an observation period to ensure a good sample. Mr. Kozakevich also relied on R. v. George, an Ontario Court of Appeal decision from 2004, at 187 C.C.C., 3d, at 289. In this Mr.George was detained and the police knew it would take several minutes for the ASD to arrive. The police did not ask if Mr. George hada cell phone, but said if they had known he did, they would have let him use it.

This is similar to the case before me where OfficerBenzick indicated in his evidence he would have let Mr. Kozakevich consult counsel if he had asked, but he did not feel that he had to or

that he had to offer. Officer Benzick’s rationale was in this case there was no delay because of the observation period. The court in George specifically referred to the right to counsel in the context of an observation period, and they endorsed thedecision in Bernshaw. They indicated this does not mean generally a delay of 15 minutes or less is acceptable, however, they clearlystated that the delay of 15 minutes in Bernshaw was –- which was to obtain a proper sample was. Mr. Kozakevich also argued that the case of R. v. Orbanski and Elias, [2005], Supreme –- SCC 37, was not applicable to thesituation before me.

The Crown has relied on this case to argue that it is a rule of general application that the principle in Thomsenapplies, so that when

Section 254 is complied with,

Section 10(

b) rights are suspended. I agree the Orbanski case confirms this rule ofgeneral application. The court stated in that case at paragraph 52: "It is important to keep in mind that compliance with s. 10(

b) requires not only that detainees be informed of their right and of the meansavailable to exercise it, but that they be provided with a reasonable opportunity to exercise the right to retain and instruct counsel. Thequestion is whether there was an implied limit on such right(

s) in these cases. In Thomsen, this Court held that the exercise of the rightto counsel was incompatible with the operational requirements underlying the demand for a sample for analysis in a roadside screeningdevice made pursuant to s. 234.1(1) of the Criminal Code (now s. 254(2)). In determining that there was an implicit limitation on theright to counsel prescribed by s. 234.1(1), the Court adopted the reasoning of Finlayson J.A. in R. v.

Seo, (that's S-E-O), (a) (decision of the Ontario Court of Appeal), and concluded as follows: (and they quoted) "(That) (there is no -- sorry) there is no opportunity for contact with counsel prior to compliance with a s. 234.1(1) demand is, in my(view) ... an implication of the terms of s.234.1(1) when viewed in the context of the breath testing provisions of the Criminal Code as awhole. (As) a s. 234.1(1) roadside screening device test is to be administered at roadside, at such time and place as the motorist isstopped, and as quickly as possible, having regard to the outside operating limit(

s) of two hours for the breathalyzer test which it may befound to be necessary to administer pursuant to s. 235(1) of the Code." They said, "In my view, it logically follows from Thomsen that a limit on the right to counsel is also prescribed during the roadside screeningtechniques utilized in these cases.

If a limit on the right to counsel is prescribed during compliance with a s. 254(2) demand for a samplefor analysis in the roadside screening device, then the limit must necessarily be prescribed during the screening measures preceding thedemand, conducted with the very objective of determining whether there is a reasonable suspicion justifying the demand.

Similarly, thelimit must necessarily be prescribed during the screening measure that is the functional equivalent to the roadside screening device,namely, a technique conducted with the very objective of determining whether there are reasonable and probable grounds (for) justifyinga s. 254(3) demand for a breath or blood sample." Justice Sopinka addressed the potential for this very situation in his remarks in Bernshaw when he said, and I quote: "I note a potential problem which may arise from delaying the screening test, and which was discussed by my colleague ... as well as by...

Arbour ..., is whether the suspect is entitled to access to counsel when detained for a longer period. In the Thomsen case, it was heldthat the roadside screening procedure was a reasonable limit (to) ... one’s right to counsel under s. 10(

b) of the Charter. In my view, adelay in the order of 15 minutes in order to obtain a proper sample ... is not inconsistent with Thomsen. It would indeed be strange for usto hold that the rights of some persons under one provision of the Charter (s. 8), must be sacrificed in order to preserve the limit on theirrights under another provision, (s. 10(b))." Lastly, defence also raised the argument that it is unfair to delay the ASD on the basis that the time waiting could be an opportunityfor police to gather further evidence against the accused, and therefore lead to self-incrimination.

This issue was also dealt with in theOrbanski case at paragraph 48. In quotes, they said: "Before turning to the facts of ... (this) case before us, let me address one additional argument made during this appeal. It was arguedthat asking questions about alcohol consumption falls outside the scope of (

a) reasonable police screening measure... because itintroduces an added element of self-incrimination. For this reason, Elias raised the additional question of whether his rights under s. 7 ofthe Charter had been violated. The same argument was made and rejected (by) ... Smith ... (in) Doherty J.A. I agree with his analysis ofthis issue. As he aptly pointed out, the different methods used to assess impairment at the roadside do not involve different degrees ofself-incrimination because almost all (of) the information relevant to assessing impairment during a regulatory police stop will comefrom the accused.

Physical sobriety tests, roadside questioning regarding alcohol consumption, and roadside questioning in order toassess whether the driver’s speech is slurred are all intended to use evidence emanating from the driver in order to assess the driver’slevel of impairment ... Compliance with the right against self-incrimination protected in s. 7 is essentially achieved by the policeinforming a detainee of his or her rights under s. 10(b) ... In effect, Elias’s assertion that the roadside conduct of the police in this caseviolated his rights under s. 7 is a reassertion of his rights under s. 10(b).

Nothing further would be gained by considering the driver’s s.7(

b) rights.”

Applying that reasoning to the case at bar, Mr. Kozakevich's concern with evidence gained during the observation period is really a concern with his right to counsel. In any event, in this case no incriminating evidence was gathered. In this case it is clear, based on the law set out above, that as the ASD demand was made forthwith and in accordance with Section 254(2), Mr. Kozakevich’s right to counsel was suspended, including while he was under observation.

He is asking for an exception to that rule of general applicability on the basis that the check stop van is a mobile police station, and therefore, the opportunity to consult with counsel in private is available. So even if the forthwith requirement in giving the ASD is complied with, including the observation period, Mr. Kozakevich argues he could have contacted counsel. I cannot agree this is appropriate. First and foremost, as stated, Mr. Kozakevich’s rights to counsel are suspended as supported by the case law set out above.

Secondly, and similar to the rationale in several of the cases dealing with delay and the forthwith requirement, this would result in an unfair application of Charter rights to the population generally. To agree with Mr.

Kozakevich would be to decide that an accused who gets stopped by a check stop van has greater constitutional rights than somebody who gets stopped in a rural area with no access to a cell phone or someone who gets stopped, but has a cell phone in their pocket but are not allowed to use it or a person who is stopped by an officer who has a cell phone and can provide a private place to call counsel, but it’s not a check stop van or someone who is within a minute’s walk of a police station. It has been determined that the right to counsel does not depend on proximity of access and availability of a phone.

While these may be considerations in the context of the whole of the fact scenario, these factors alone are not decisive. In a case such as this where Mr. Kozakevich was detained and he was under the direct observation of an officer to protect against mouth alcohol contamination, there is no realistic opportunity to contact counsel. It does not matter that a phone and private room are available. This is because the officer needs to observe Mr.

Kozakevich, and that means they must see him, they must hear him, and they must watch him to ensure that he doesn’t consume anything, burp or regurgitate and contaminate the results. This cannot be achieved if an accused is in a private holding room speaking to legal counsel. Even the type of room as was available here, where there is a window that the police can see through, the holding room is soundproof, and it has to be so, so that an accused person can speak to counsel in a meaningful way and with privacy. But in this case, if the door is closed, the officer cannot hear Mr.

Kozakevich, and as such they are not directly observing him. Lastly, Mr. Kozakevich’s argument if accepted would diminish Parliament’s intention that the ASD process is meant to be a speedy one where people are not detained for any longer than necessary. If everyone stopped by a check stop van has the right to access legal counsel, it slows down the job of the police in conducting these stops, particularly during busy seasons where many people are checked.

If everyone who is stopped by a check stop has the right -– sorry, check stop van -- has the right to counsel before complying with an ASD, the process will become backlogged, this is not what Parliament intended to happen. For these reasons I find that Mr. Kozakevich’s 10(

b) right to counsel was not breached. Accordingly, I do not have to consider Section 24(1), but I do quote from R. v. Saldin (phonetic), a decision of the Ontario Court of Appeal where it stated, in quotes: A demand by a police officer which complies with the statutory requirements to provide forthwith a sample of breath by means of an approved screening device located in the immediate vicinity is a valid demand under Section 254(2).

The exclusion of the right to retain and instruct counsel and be informed of that right under detention attendant upon such a demand has been held to be a reasonable limit demonstrably justified in a free and democratic society. The existence or non-existence of the constitutional right of a person detained in respect of such a demand validly made cannot appropriately vary on the basis of how far the person detained happens to be from a telephone at the time the demand was made. I find that quote directly applicable here. Accordingly, the Certificate of Analysis and the results are admitted into evidence. MR.

WASYLIW: All right. MS. HODGSON: Was Mr. –- sorry, I don’t know how to pronounce his name. THE COURT: Kozakevich. MS. HODGSON: Yes. I’m not sure if my friend wants to make submissions or if he testified at the trial, like –- MR. WASYLIW: Well, I –- MS. HODGSON: -- who goes first. MR. WASYLIW: -- take it the –- THE COURT: He did. MR. WASYLIW: -- Crown’s closing their case for one. MS. HODGSON: Provided there’s no other, as soon as practicable, any other argument to be made in this particular case. MR. WASYLIW: We’re not there yet, we, we just finished the voir dire. MS.

HODGSON: There’s no further evidence, Your Honour –- THE COURT: All right.

MS. HODGSON: -- that the Crown’s calling. MR. WASYLIW: We’ll make a motion to dismiss the impaired driving charge for no evidence. MS. HODGSON: Your Honour, the Crown wouldn’t make any submissions on the impaired charge. At this point just seeking a conviction on the over 80 charge based on the admission of the certificate -– THE COURT: So are –- MS. HODGSON: -- into evidence. THE COURT: -- you staying the impaired driving charge? MS. HODGSON: I’m not staying it, I’m just not making any comment on it. MR. WASYLIW: They’re not opposing my motion. MS. HODGSON: That’s right.

THE COURT: All right, then I’m going to grant your motion. MR. WASYLIW: Okay. And we’re not calling any evidence on the trial proper, and we can see that given the admission of the Certificate of Analysis the Crown has established their case on the over 80. Mr. Kozakevich, if you can come forward, take a seat in the box, please. MS. HODGSON: Your Honour, just for the record, has a conviction then been entered on the over 80? THE COURT: I am entering a conviction -– MS. HODGSON: Okay. THE COURT: -- with respect to the matter at number 1.2, which is operating a motor vehicle over .08. MS. HODGSON: Okay, thank you.

Then I won’t make any further submissions on that point, and on sentencing, Your Honour, I’ll keep the Crown’s submissions very brief. As I understand it he -- Mr. Kozakevich is 27 years of age. Not only does he not come before the court with any prior related convictions, he actually comes before the court with no prior convictions at all. The Crown is suggesting that an appropriate fine and the minimum one year driving prohibition is appropriate in these circumstances.

The readings are a little bit above the minimum, but they do not approach the statutorily aggravating mark, and other than the, the wide turn that Officer Benzick had observed him to take, there’s really nothing else untoward about the driving here, so subject to any questions, I’d leave the appropriate fine to Your Honour’s determinate -– determination, pardon me, upon hearing what my friend has to say. MS. WASYLIW: Your Honour, Mr. Kozakevich is 27 years old, he’s single without any dependants, has a grade 12 education. He’s a licenced insurance investments broker.

He works at World Financial for the past seven years as actually their marketing director. He needs his licence for work. He attends on client’s homes to conduct his business. He’s self-employed and works on commission. As you heard the evidence from the police, he was cooperative. They used an approved screening device. He wasn’t displaying basically any signs of impairment at all. His readings were at the rock bottom of the spectrum. He’s gone to the Addictions Foundation of Manitoba and completed the impaired driving assessment program, and he’s been legally driving since his arrest.

I’d ask the court to consider, given all the factors, a fine in the amount of $1,100 and a one year driving prohibition. THE COURT: All right, thank you. Mr. Kozakevich, is there anything that you would like to say? Nothing at all? MR. KOZAKEVICH: I learned my lesson, that’s all I can say. THE COURT: Okay. All right. Well, thank you for that. Sir, you’re being convicted, or sentenced today for driving over the legal limit, and I’m not going to go over the facts in detail because I’ve just read through them, but clearly you’re leaving a bar, your manner of driving was, was out of the ordinary.

I appreciate that the weather may have been slippery and you were driving a Mustang, but nonetheless driving in particular, the factor that, that I find disturbing is sliding one lane into an intersection. I’m sure you understand, and I, I believe that you do, impaired driving is a very dangerous endeavour, and Parliament is very serious about sending a message so that people don’t drink and drive. You put yourself in harm’s way, you put other people in harm’s way, and it has severe consequences. You’re a young man, you have no criminal record, and now you will have a record for driving over .08.

You sound like you, you know, you’ve been very successful in other areas of your life, and I’m going to accept that this was a bad judgment call on your part. To your credit you were cooperative with the police and, you know, that’s mitigating, and I do take that into consideration. I am going to agree with your lawyer’s recommendation. The -- there is going to be a fine in the amount of $1,100, and there is a mandatory one year driving prohibition. In addition to that, there are costs and surcharges that apply, and you are gainfully employed,

and there is no basis upon which I could validly waive those costs and surcharges. So, Madam Clerk, what would that amount be? I believe it’s like 52.50 or -– THE CLERK: It would be –- it was in 2012, so it would be $50 for the –- sorry, the surcharge and $2.00 for the costs. THE COURT: So $52.00. THE CLERK: Yeah. THE COURT: All right, so that total then is $1152. And do you require some time to pay that? MR. KOZAKEVICH: No (inaudible) THE COURT: Do you want me to give you 30 days to pay it or –- THE ACCUSED: Sure. MR. WASYLIW: Your Honour, please do just in case there is administrative (inaudible).

THE COURT: No, I’m –- yes. All right, so there’ll be 30 days to pay that. I, I don’t expect we’ll ever see you back here again. I think that you’ve got, you’ve got the point. MR. KOZAKEVICH: I have, for sure. THE COURT: All right. Very good. MR. WASYLIW: Good afternoon. THE COURT: Thank you. MS. HODGSON: Good afternoon. _____