Her Majesty the Queen - v. -, 2015 SKPC 68

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 068 Date: April 30, 2015 Information: 24513916 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - John Leslie Schnurr Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Michael Owens For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, John Leslie Schnurr, is charged with impaired driving and driving while over .08. At the outset, counsel advised there was an agreement that this matter would be heard as a blended voir dire and trial.

Further, all of the evidence would be presented in a voir dire . Following conclusion of that evidence, counsel made their arguments both with respect to Charter issues and with respect to the trial proper.

THE EVIDENCE [ 2 ] The only witness called was Cst. Ian Smith of the RCMP. He testified that he has been with the RCMP for six years and stationed at the Craik Detachment. On the evening of October 19, 2013, at approximately 10:25 p.m., he received either a 911 call or a call from RCMP Dispatch in Regina. He was advised there was a dark blue or black limo northbound on Highway #11 near Aylesbury, Saskatchewan, that was driving very erratically. Cst. Smith left the Craik Detachment to investigate. [ 3 ] It should be noted that Aylesbury and Craik are neighbouring towns both situated on the #11 Highway.

Aylesbury is to the south of Craik. In other words, a northbound vehicle near Aylesbury would be headed straight for Craik, where Cst. Smith was located. [ 4 ] Cst. Smith testified that at approximately 10:30 p.m., he located a dark coloured Lincoln Town Car on Highway #11 near the south end of Craik. Cst. Smith began to follow that vehicle, and did follow it for approximately three to four kilometres. He noted the vehicle was going at about 110 kilometres per hour, being the posted highway speed.

However, the vehicle was swerving all over the road, crossing both the centre line and the solid line on the right of the road. The officer activated his emergency equipment and after about 15 seconds, the driver pulled over and stopped. Cst. Smith noted that the driver pulled his vehicle right off the gravel portion of the road and into the grass on the right side of the road. [ 5 ] Cst. Smith approached the vehicle. The lone occupant and operator was the accused, John Leslie Schnurr. The constable immediately noticed that the accused had bloodshot watery eyes.

The constable detected a slight odour of alcohol coming from the accused. He asked the accused if he had anything to drink and Mr. Schnurr advised he had about four beer. He indicated that he took clients to the football game in Regina and was driving back to Saskatoon by himself. The officer asked the accused to step out of his vehicle and come to the police car for the ASD test. [ 6 ] At the police car, the officer immediately made the ASD demand from the card. However, the officer did not have an ASD machine with him. He called his co-worker on the cell phone. He spoke to Cst. Hay, who had the ASD machine.

Cst. Hay advised that he was near Chamberlain (just south of Aylesbury) and on his way back to Craik. [ 7 ] Cst. Smith and the accused then left in Cst. Smith’s vehicle for the Craik Detachment. Shortly after their arrival at the Craik Detachment, Cst. Hay arrived with the ASD machine. The machine was immediately prepared for use and the accused provided one sample which registered a fail. [ 8 ] Cst.

Smith utilized his notes to provide the following time sequence: 10:30 - 10:31 p.m. - vehicle stop 10:35 p.m. - ASD demand made in police vehicle 10:50 p.m. - ASD fail result at RCMP Detachment in Craik [ 9 ] At 10:51 p.m., Cst. Smith advised the accused of his Charter rights and asked the accused if he wished to call a lawyer. The accused declined to call counsel. He was then given the police warning. [ 10 ] At 10:56 p.m., the formal breath demand was read from the card. Cst. Smith indicated that immediately following the reading of the breath demand, he again advised the accused of his rights. Again, Mr.

Schnurr indicated he did not wish to call counsel. [ 11 ] Cst. Hay then acted as the breath technician and prepared the Intoxilyzer. The accused provided two breath samples in the Intoxilyzer. The first sample, obtained at 11:18 p.m. indicated a blood alcohol content of 100 milligrams of alcohol in 100 millilitres of

blood. The second sample obtained at 11:38 p.m. indicated a blood alcohol content of 90 milligrams of alcohol per 100 millilitres of blood. Cst. Hay then completed the Certificate of Qualified Technician and turned it over to Cst. Smith. Cst. Smith completed the Notice of Intention to Produce Certificate portion. He then served that certificate and notice of intention upon Mr. Schnurr, and later completed an affidavit of service. [ 12 ] Under cross-examination, Cst. Smith admitted that he knew he did not have an ASD machine with him when he made that demand.

He also advised that during the course of his discussions with Mr. Schnurr, the accused advised that he was very tired. [ 13 ] The officer also admitted that when he pulled over Mr. Schnurr’s vehicle, he was intent upon making an ASD demand. He agreed that the accused may have said he drank three beer, and not four beer. He also agreed that the accused advised that his last drink was approximately one and a half hours earlier. [ 14 ] Cst. Smith agreed with defence counsel that the second reading was 90 milligrams of alcohol per 100 millilitres of blood.

He also agreed with defence counsel that there is a tolerance or variation between what the shown reading is and what the actual blood alcohol level may be. He agreed the accused’s second reading could be as low as .08 or 80 milligrams. [ 15 ] Cst. Smith agreed that he had a cell phone on his person. He agreed he did not advise Mr. Schnurr in the police car of Mr. Schnurr’s right to call counsel, and that he did not offer to allow Mr. Schnurr to use his cell phone to call counsel. (Mr. Schnurr did not ask to call counsel in the police car or ask to use the officer’s cell phone.) Defence counsel and Cst.

Smith argued about whether the accused was detained while in the back of the police car. It is very clear to me that Mr. Schnurr was so detained. It is also very clear that the police officer believed that the obligation to advise the accused of his Charter rights or to allow the accused to contact counsel was suspended until the accused provided a sample in the approved screening device. ISSUES TO BE DETERMINED 1) Was the forthwith requirement met?

Was the accused’s Charter right to be secure against unreasonable search and seizure violated because the ASD test was not made forthwith? 2) Were the accused’s rights under s. 10(

a) and 10(

b) violated because the accused was not advised of his rights to counsel until after he failed the ASD test? 3) Can the Crown rely upon the presumption established by s. 258? Were the Intoxilyzer tests administered as soon as practicable? 4) Is there evidence to the contrary that creates a reasonable doubt? 1) Was the forthwith requirement met?

Was the accused’s Charter right to be secure against unreasonable search and seizure violated because the ASD test was not made forthwith? [ 16 ] During the argument, I immediately asked defence counsel about the Saskatchewan Court of Appeal decision in R v Janzen , 2006 SKCA 111 [ Janzen ]. Mr. Owens argued that the Janzen case has been overruled by the Supreme Court of Canada, and the Supreme Court has said “forthwith means forthwith” which means right away. Mr. Owens could not cite any Supreme Court decision that indicated that Janzen was wrong in law.

I note that in paragraph 4 of the Janzen decision, the Court makes reference to several Supreme Court of Canada decisions. It specifically notes the forthwith requirement and says that “the expression without delay is to be taken as meaning without unreasonable or unjustified delay.” I also note that the Janzen decision has been cited many times by courts across Canada. It is cited as recently as April 1 by Justice Goebel of Saskatchewan Queen’s Bench, in R v Dreaver , 2015 SKQB 93 .

In short, the Janzen case remains good law and binding upon me. [ 17 ] In my view, the facts in this case are virtually identical to the Janzen case. The officer almost immediately made the ASD demand. He had abundant grounds to do so. There was a delay of about 15 minutes from the time of the ASD demand until the sample was provided as Cst. Hay had to return to the Craik Detachment. As mentioned above, the Janzen decision is clearly binding upon me. In this case, there was no unreasonable or unjustified delay. The forthwith requirement was met.

There was no breach of the accused’s Charter rights by taking the sample in the ASD machine.

2) Were the accused’s rights under s. 10(

a) and 10(

b) violated because the accused was not advised of his rights to counsel until after hefailed the ASD test? [18] Defence counsel argues that the police officer was required to advise the accused of his s. 10(

b) Charter rights, and providean opportunity to consult counsel when the accused was detained in the back of the police car for the ASD test. The failure to do thisresulted in a breach of his s. 10(

b) right, and the Court should exclude all evidence obtained thereafter. [19] Since the Supreme Court of Canada decision in R v Thomsen, (SCC), [1988] 1 SCR 640, it is clear that anaccused’s s. 10(

b) Charter rights are suspended following the ASD demand, and until that sample is provided or there is a refusal. However, there are a number of cases where the Court concluded that the forthwith requirement for the ASD was not met, and as a resultthe suspension of the s. 10(

b) rights was lifted or removed. With the suspension being lifted, the police were obligated to advise of the s.10(

b) right and provide a reasonable opportunity to consult with counsel. Failure to do so resulted in a breach of the accused’s rightsunder s. 10(

b) of the Charter. See for example R v Birnie, 2013 SKPC 50 at paragraphs 30 and 31. [20] The courts have said that determination as to whether the forthwith requirement was met, is not simply a mathematicalcalculation based upon the time from the demand until the sample is provided. In a series of cases, the courts have said that if there is adelay in taking the sample and if there is “a realistic opportunity” during this interim for the accused to consult with counsel, then thecourts may determine the forthwith requirement is not met.

See R v George, (ON CA), [2004] OJ No 3287; R vQuansah, 2012 ONCA 123; R v Anderson, 2014 SKCA 32; and R v Stafford, 2014 SKPC 209. In the Quansah and Anderson cases, theCourt set out five factors for the Court to examine to determine if the forthwith requirement is met. In the Quansah decision, thosefactors are stated as follows: [45] In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis ofthe forthwith or immediacy requirement must always be done contextually.

Courts must bear in mind Parliament’s intention to strike abalance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights. [46] Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver hasalcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion. [47] Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexibleinterpretation may be given.

In the end, the time from the formation of reasonable suspicion to the making of the demand to thedetainee’s response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officerto discharge his or her duty as contemplated by s. 254(2). [48] Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonably necessary delaywhere breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed toensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns.These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty.

Anydelay not so justified exceeds the immediacy requirement. [49] Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implementthe detainee’s s. 10(

b) rights before requiring the sample. If so, the “forthwith” criterion is not met. [21] In this case, the first four factors all speak in favour of the forthwith requirement being met. Defence counsel did not evenargue to the contrary. His argument, based upon R v George, supra, was that any delay, and the delay in this case, mandated that theofficer advise the accused of his s. 10(

b) rights. With respect, defence counsel has overstated the proposition. “Any delay” is not thetest to determine if the officer was required to advise of the s. 10(

b) rights. The test is whether there was “a realistic opportunity” for theaccused to consult counsel. [22] The officer testified that he had a cell phone but he would not have allowed the accused to use that cell phone “in the car”. Inmy view, there was no measure of privacy in the police car, so no realistic opportunity to consult counsel was present when the officerand the accused were in the police car. [23] The officer testified that Cst. Hay arrived at the Craik Detachment very shortly after he and the accused. Defence counsel didnot have the officer elaborate on what this meant.

[24] No doubt a phone was available at the detachment but I was given no time frame upon which I could determine if there was“a realistic opportunity” for the accused to consult counsel. As far back as R v Kutynec, (ON CA), [1992] OJ No 347(CA), the onus is on the defence to establish a Charter breach. With no evidence being presented on the length of time between thearrival of the various parties at the Craik Detachment, or the events there, I am unable to determine there was any realistic opportunityfor the accused to consult counsel.

The result is that the defence has not established the forthwith requirement was not met or a Charterbreach. [25] If I had determined there was a Charter breach, I would adopt paragraphs 35 to 38 of Judge Kalmakoff’s decision in R vBirnie, supra. In that case, in circumstances similar to this case, Judge Kalmakoff determined there was a Charter breach and did theanalysis set out in R v Grant, 2009 SCC 32. He determined the evidence should be admitted. I would reach the same conclusion here. TRIAL ISSUES 3) Can the Crown rely upon the presumption established by s. 258?

Were the Intoxilyzer tests administered as soon as practicable? [26]

Section 258 of the Criminal Code requires that the tests in the Intoxilyzer be made as soon as practicable, or the Crown willnot be able to rely upon the presumption contained in s. 258. [27] The police officer testified that at 10:50, the ASD fail result was obtained. He then advised the accused he was under arrest,advised of Charter rights and gave the police warning. At 10:56, he made the formal breath demand, and then again advised the accusedof his Charter right to call counsel. The breath technician then prepared the Intoxilyzer machine and Cst. Smith observed the accused.

The observation period is to be for at least 15 minutes. The Certificate of Analyses indicates that the first successful sample wasobtained at 11:18, approximately 22 minutes after the breath demand. The accused was then under observation until the second samplewas taken. According to the Certificate of Analyses, the second sample was taken at 11:38, approximately 20 minutes after the firstsample. [28] It is clear that the police officer is not required to explain and justify every minute between the time of the demand and thesamples being taken.

Given that an individual is supposed to be observed for at least 15 minutes prior to providing the breath sample,there is nothing unreasonable about delays of 22 and 20 minutes, respectively, before the tests. I would conclude that both samples weretaken as soon as practicable, and this argument fails. 4) Is there evidence to the contrary that creates a reasonable doubt? [29] According to the Certificate of Analyses, the first breath sample tested at 100 milligrams of alcohol per 100 millilitres ofblood. The second sample tested at 90 milligrams of alcohol per 100 millilitres of blood.

Defence counsel cross-examined Cst. Smith onthe amount of tolerance in the Intoxilyzer machine. He had the constable agree with him that there could be up to 10 milligrams per 100millilitres of blood variance between the reading and the actual blood alcohol content. On this basis he suggested to the police officerthat the accused’s blood alcohol level, at the time of the second reading, could have been as low as 80 milligrams of alcohol.

As Iunderstand defence counsel’s argument, it is to the effect that this is evidence to the contrary that rebuts the presumption and shouldleave the Court with a reasonable doubt as to the guilt of the accused. Counsel cited no case authority for that argument. [30] Section 258(1)(

c) says “evidence of the results of the analysis so made is conclusive proof ...” of the concentration of alcoholin the accused’s blood. The

section then goes on to set out the requirements of evidence to the contrary, in order that this presumptionmay be rebutted. It states the evidence to the contrary must be such that “the concentration of alcohol in the accused’s blood would notin fact have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time when the offence was alleged to have beencommitted ...” It was not established that Cst. Smith was an expert in the operation of these machines, or that he was qualified to venturean opinion as to the accused’s actual blood alcohol content, in relation to the readings.

Even more importantly however, Cst. Smith didnot give any evidence or offer an opinion as to what the accused’s blood alcohol content was and certainly did not offer an opinion thatthe accused’s blood alcohol content did not in fact exceed 80 milligrams of alcohol at the time the offence was committed. All he didwas agree with counsel that the accused’s actual blood alcohol content might be as low as 80 milligrams, and I doubt that he was evenentitled to venture that opinion. The result is that there is no evidence to the contrary to rebut the presumption, and applying that

presumption I must determine that the accused’s blood alcohol level was greater than 80 milligrams of alcohol per 100 millilitres of blood. Accordingly, I find the accused guilty of the charge of driving while over .08, being count #2 on the information. During argument, Crown counsel conceded that proof of the impaired charge was tenuous. That charge is accordingly dismissed. [ 31 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan, this 30 th day of April 2015. D. Kovatch, J