Her Majesty the Queen - v. -, 2017 SKPC 50

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 050 Date: July 28, 2017 Information: 90136541 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Russell Eric Helgesen Appearing: Barrie Stricker For the Crown Richard Leland, Q.C. For the Accused DECISION ON S. 24(2) CHARTER APPLICATION R. GREEN , J I. INTRODUCTION [ 1 ] Mr. Helgesen is charged with operating a motor vehicle while impaired by alcohol and while over .08, on November 4, 2016. On that evening, Cst. Sean Carlson stopped Mr. Helgesen near Stockholm.

The officer charged Mr. Helgesen with speeding and driving an unregistered motor vehicle under The Traffic Safety Act [1] [ TSA ] .

[ 2 ] During his conversation with Mr. Helgesen, Cst. Carlson noted a smell of alcohol coming from the vehicle and Mr. Helgesen admitted consuming two drinks that evening at a rodeo in Yorkton. The officer then detained Mr. Helgesen for the purposes of taking a sample on an approved screening device (ASD). After Mr. Helgesen blew a fail on the ASD, Cst. Carlson arrested him for impaired driving. Later, at the Esterhazy RCMP detachment, Mr. Helgesen provided breath samples of 100 mg% at 12:04 a.m. and 90 mg% at 12:25 a.m. [ 3 ] Mr. Leland alleges that Cst. Carlson did not take the ASD sample from Mr.

Helgesen “forthwith” as required by s. 254(2) of the Criminal Code , and therefore did not act lawfully in taking the sample. As a result, he claims that Mr. Helgesen’s rights under s. 8 and 10 of the Charter of Rights and Freedoms [ Charter ] were infringed, and, pursuant to s. 24(2) of the Charter, seeks to exclude evidence of the results of the ASD test and the test taken on the Intox EC/IR II breath instrument at the detachment. [ 4 ] The issues to be determined on this voir dire are: i. Was the ASD test taken “forthwith” from Mr.

Helgesen and, if not, were his rights under s. 8 and 10 of the Charter violated? ii. If his rights under the Charter were violated as alleged, should evidence of the ASD and the breath test at the detachment be excluded from evidence under section 24(2) of the Charter ? [ 5 ] The only witness to testify on the voir dire was Cst. Carlson. The defence called no evidence on the voir dire . II. WAS THE ASD TEST TAKEN “FORTHWITH ”? [ 6 ] Section 254(2) of the Criminal Code provides that, upon a demand by a police officer, an ASD breath sample must be provided by a detained person “forthwith”.

The Saskatchewan Court of Appeal has defined “forthwith” to mean without an unreasonable or unjustified delay. [2] The prosecutor argued that Mr. Helgesen was allowed to provide an ASD sample to Cst. Carlson “forthwith”. For the reasons that follow I disagree. [ 7 ] Cst. Carlson is a member of RCMP Traffic Services in Yorkton. He was driving towards Yorkton on Highway #22 near Stockholm this evening when he clocked Mr. Helgesen on his radar unit at 127 km/hr in a 100 km zone. The officer stopped him at 10:16 p.m. After checking his police computer for the status of this vehicle, he discovered that Mr.

Helgesen’s vehicle was not registered. Cst. Carlson then walked up to Mr. Helgesen’s vehicle and told him he was being charged with speeding and operating an unregistered motor vehicle under the TSA . Because of the time of day, it was not possible for Mr. Helgesen to register his vehicle over the internet from that location, given that all SGI offices were closed. As a result, Cst. Carlson told Mr. Helgesen that his vehicle would have to be towed - at his expense - to a location of his choosing. [ 8 ] While speaking to Mr.

Helgesen at 10:25 p.m., the officer noted an odour of alcohol coming from the vehicle and asked Mr. Helgesen if he had consumed any alcohol. Mr. Helgesen said he had a couple of drinks that evening at a rodeo in Yorkton. At 10:28 p.m., the officer detained Mr. Helgesen for an impaired driving investigation and asked him to provide a sample of his breath into an ASD. He, as well, gave Mr. Helgesen his rights to counsel and the reason for his detention. Mr. Helgesen did not express an interest in contacting a lawyer at that point, but did ask what would happen if he did not blow into the ASD.

The officer said it was an offence to do so. Cst. Carlson said Mr. Helgesen was speaking clearly and had no overt signs of impairment. [ 9 ] Cst. Carlson searched Mr. Helgesen and placed him into his police vehicle at 10:36 p.m. Once in the front seat of his police vehicle, the officer: (1) updated his notebook with relevant information about the stop at roadside, his ASD demand and the TSA tickets he was giving to Mr. Helgesen;

(2) contacted the Esterhazy RCMP detachment to arrange for an officer to come and assist with: the necessary documentation, the towing of Mr. Helgesen’s vehicle and a ride for Mr. Helgesen’s three passengers; (3) explained to Mr. Helgesen how the ASD test would be conducted; and (4) at 10:45 p.m., read to Mr. Helgesen the ASD demand and his rights to counsel off of his standard card. [ 10 ] At 10:47 p.m. Mr. Helgesen asked to speak to a lawyer. Cst. Carlson did not allow him to do so, as there was no way of ensuring privacy from the side of the road. [ 11 ] Cst. Carlson set up the ASD at 10:50 p.m. and Mr.

Helgesen provided a fail result at 10:52 p.m. The officer then arrested him for impaired operation of a motor vehicle at 10:53 p.m. and orally gave him his rights to counsel. At 10:57 p.m. he read Mr. Helgesen the reason for his arrest, the breath demand and his Charter rights to counsel. When he was read his rights to counsel, Mr. Helgesen said he wanted to speak to a lawyer. The officer, again, said he was not prepared to let Mr. Helgesen speak to a lawyer in the vehicle given his concerns about privacy. [ 12 ] Cst. Carlson appeared to be confused about some of the times he testified to.

For example, he said in direct examination that he stopped Mr. Helgesen at 10:27 p.m., but admitted in cross-examination that it was actually 10:16 p.m., based on his notes. Cst. Carlson as well claimed that it was seven to ten minutes between the time Mr. Helgesen entered the police vehicle and when he blew into the ASD, but I am satisfied it was sixteen minutes, from 10:36 p.m. to 10:52 p.m., based on the officer’s cross-examination. [ 13 ] After the second police vehicle arrived at the scene, and rides for his passengers and the towing of Mr. Helgesen’s vehicle were arranged, Cst.

Carlson departed from the scene of the stop at 11:09 p.m. to take Mr. Helgesen to the Esterhazy RCMP detachment. He arrived at 11:28 p.m. [ 14 ] Regarding the delay before taking an ASD sample from Helgesen, the officer admitted that he could have called the Esterhazy detachment after the ASD sample was taken, but instead called before. He said his practice was to do notes in his notebook as soon as possible as he had done here, as this was “the most applicable time to do this”.

While he usually wrote his notes in full, there were a number of places in his notes where he used abbreviations as a form of shorthand. [ 15 ] In total, 24 minutes had elapsed from when Mr. Helgesen was detained until the time he blew into the ASD. While I am satisfied that the officer acted reasonably in arranging for the towing of the vehicle, a ride for the passengers and writing his notes before he left the scene, I am not satisfied that these tasks needed to be done before the ASD test was conducted.

Taken together, I am satisfied that the delay caused in doing so in this case constituted an unreasonable or unjustified delay and that the ASD sample was not taken “forthwith” from Mr. Helgesen. As a result, I am satisfied that Mr. Helgesen’s rights under sections 8 and 10 of the Charter were violated from the point he was detained by Cst. Carlson. III.

SHOULD THE EVIDENCE OF THE BREATH TESTS BE EXCLUDED? [ 16 ] Given my above finding of a Charter breach, the question becomes whether admission of the results of the ASD test and the breath tests at the detachment would bring the administration of justice into disrepute, based on a balancing of: (1) the seriousness of the breach, (2) the impact of the breach on the Charter -protected rights of Mr. Helgesen, and (3) society’s interest in the adjudication of the case on its merits. [3] [ 17 ] The unlawful detention of anyone is, in a sense, serious. That said, there were factors here which I view as mitigating.

This was a nighttime stop of a vehicle on a rural highway by a single police officer. Mr. Helgesen was driving 27 kms/hr over the speed limit in an unregistered motor vehicle. In my view, the officer could not properly leave this vehicle by the side of the road as it would be a

hazard in the darkness of night. As well, Mr. Helgesen had three passengers with him, whom the officer properly had to arrange a ridefor from the scene. While arranging for the towing of the vehicle and the transport of Mr. Helgesen’s passengers, together with writinghis notes, meant that the ASD breath sample was not taken “forthwith” from Mr. Helgesen, nevertheless, the officer in my view wasacting in good faith and reasonably in dealing with these issues before leaving the scene.

The problem, which resulted in the Charterbreaches, was that he performed these tasks before and not after the ASD test. [18] I find that the impact of the breach on Mr. Helgesen’s Charter protected rights was moderate. While he was required toprovide an ASD breath sample in the police vehicle and a breath sample into the approved breath instrument at the Esterhazy RCMPdetachment, there was no evidence that he was handcuffed or detained for any length of time after the breath tests at the detachment.

And while I have found he was not allowed to provide an ASD sample “forthwith”, part of the reason for the delay in providing thesample was that Cst.

Carlson advised him of his Charter right to consult counsel twice before the ASD test, even though he was not legally required to do so.[4] [19] There is no doubt that society’s interest in the adjudication of the case on its merits favours inclusion of the breath test resultsinto evidence, especially considering clear and pressing public concern over the issue of drinking and driving. [20] The decision of whether to exclude the evidence of his breath tests under s. 24(2) in this case must be taken in the context of the Supreme Court’s guidance in Grant[5]: While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity isdeliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded,notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe interms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, thiswill often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [21] This was a rural traffic stop at night, of a speeding unregistered vehicle with three passengers in it.

While I have found theASD test was not taken “forthwith”, nevertheless, the officer in this case was faced with unique exigencies of the stop which requiredhim to take action before leaving the scene. Taken together, and still keeping in mind that it is the long-term repute of the administrationof justice that is to be considered, when I balance the three factors discussed above from Grant, I find that the admission of the evidenceof Mr.

Helgesen’s breath tests at the roadside and at the detachment would not bring the administration of justice into disrepute. [22] As a result, I dismiss the defence application under s. 24(2) of the Charter. R. Green, J [1] SS 2004, c T-18.1. [2] R. v. Janzen (2006), 2006 SKCA 111 , 285 Sask. R. 296 at para. 4. [3] R v Grant (2009), 2009 SCC 32 , 245 CCC (3d) 1 at para 72. [4] See R v Thomsen, (SCC), [1988] 1 SCR 640. [5] At para 111.