Her Majesty the Queen - v. -, 2014 SKPC 130

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 130 Date: June 11, 2014 Information: 43842575 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jonathan Boyd Bueckert Appearing: Mr. Robin Ritter For the Crown Ms. Lisa Watson For the Accused JUDGMENT D.A.

LAVOIE , J [ 1 ] The accused stands charged as follows: on or about the 19 th day of October, A.D. 2013, at or near Saskatoon, Saskatchewan, did without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer pursuant to section 254(2) of the Criminal Code , to provide a sample of his breath to enable analysis to be made by means of an approved screening device, contrary to section 254(5) of the Criminal Code . [ 2 ] Defence advised there were no Charter issues.

Defence put forth one straightforward issue that the s. 254(2) ASD demand was not made immediately or forthwith upon the peace officer formulating his belief that the accused had alcohol in his body. Accordingly, it was not a legal demand as contemplated by s. 254(2) and the accused did not have to comply an illegal demand.

[ 3 ] The following is a brief

summary of the evidence forthcoming from the investigating officer. The police cruiser was equipped with a device that provided an audio and/or video record of the entire relevant portions of the investigation which was viewed during the trial. This greatly simplified the evidentiary portion of the trial. [ 4 ] At approximately 3:23 a.m. on the date in question Officer R.K. was driving in a southerly direction on Idylwyld Drive in a marked patrol car.

About one-half a block ahead he noticed the accused’s truck drive southerly through a red light and strike a westbound vehicle in the intersection of Idylwyld Drive and 23 rd Street. He immediately activated the emergency equipment of the police vehicle which in turn activated the vehicle video equipment. [ 5 ] At 3:23:53 hours the accused parked his truck on the west curb. The video disclosed a considerable amount of traffic passing by during the entire investigation. [ 6 ] At 3:24:14 hours the peace officer was at the driver’s door of the accused’s truck.

Officer R.K. indicated he thought this was initially just a motor vehicle accident investigation. However, he immediately noted indicia of impairment and an odour of liquor coming from the vehicle. After asking the accused to step from his vehicle the peace officer could detect an odour of liquor coming from his breath.

He then advised the accused he was now also entering an impaired investigation. [ 7 ] He did a pat down search of the accused for officer safety reasons and at 3:26:22 hours the accused was placed in the back seat of the police car. [ 8 ] The video shows that at 3:26:50 hours the police officer walks from the back passenger side to the back of the police vehicle. He opens the trunk of the police car to retrieve the ASD and at 3:27:00 enters te driver’s seat of the police car.

The officer then explained how he did a number of necessary police functions before he could proceed with the demand: - he confirmed the accused’s full name and identification; - he put the accused’s name and date of birth into the computer and waited for information back; - he powered up the ASD to have it warm up and be ready to receive a breath sample without unnecessary delay; - he wrote a few notes of vital information such as times and left a space of approximately one page in his notebook to make more complete notes after the ASD procedure. [ 9 ] Then at 3:30:22 hours he advised the accused he was commencing a screening device demand and read the s. 254(2) demand from a card in his police notebook.

This was four minutes after the accused was observed taking his seat in the back of the police car. [ 10 ] Then there was considerable verbal exchange between Officer R.K. and the accused during which Officer R.K. explained the demand and the consequences of a refusal to the accused numerous times. The end result is the accused clearly and unequivocally refused to provide a sample of his breath into the screening device until he had a chance to speak to a lawyer. At 3:34 hours the accused was placed under arrest for refusal. [ 11 ] Defence raises no Charter issues whatsoever.

The essence of the defence is that the police officer should have made the s. 254(2) ASD demand as soon as he formed the subjective belief the accused had alcohol in his body. Further, that the four minute delay in the police vehicle was unexplained such that it did not meet the requirement of making the demand, immediately or forthwith as is

required by the decision of the Saskatchewan Court of Appeal in R. v. Dwayne Anderson [2011] SKCA 13. The result is the demand isillegal and therefore the accused need not comply with the demand. The Law [12] Defence raised no Charter issues and put forth one sole issue. The accused maintains that the s. 254(2)(

b) ASD demand wasnot made forthwith after the investigating officer formed the requisite suspicion being a subjective belief based on objective grounds thathe was going to make a Screening Device demand. If the demand was not forthwith then it did not meet the rquirements of s. 254(2)(b). The result would be there was no legal demand and therefore no legal requirement for the accused to comply. [13] This principle was fully canvassed and enunciated in two recent decisions: R. v. Cory Rezansaff [2013] SKQB 384, (SKQB)Danyliuk, J; R.v. Luider-Grebnev [2013] S.J. No. 46 (Sask. Prov.

Ct.) where at para. 13 Labach, J wrote: [13] Unless a demand made by a police officer falls within this section, the person upon whom the demand is made is under noobligation to comply with the demand and does not commit an offence under section 254(5) by refusing to provide the requested sample. To put it another way, where an accused is charged with refusing to provide a sample of his breath for analysis in an approved screeningdevice and the officer making the demand did not comply with the requirements of section 254(2)(b), then that constitutes an absolutedefence to the charge. See R. v.

Grant, (SCC), [1991] 3 S.C.R. 139 (S.C.C.) at paragraphs 17 to 21; R. v. Lytle, [2008]S.J. No. 770 (Sask. Prov. Ct.) at paragraph 18. In such a case, no Charter application is required. [14] The evidence establishes that the accused conveyed a clear refusal to comply with the demand. The determinative issue left tobe decided remains whether the s. 254(2)(

b) ASD demand was made forthwith, thus bringing this matter within the principles set forthin R. v. Luider-Grebnev, supra. [15] Defence cited a number of decisions interpreting the requirements of “forthwith” including: R. v. Dwayne Anderson [2011]SKCA 13; R. v. Jeffrey Anderson [2014] SKCA 32; R. v. Tuansah [2012] ONCA 123; R. v. Bergen [2014] MBQB 84. [16] In R. v. Dwayne Anderson, supra, the accused was stopped at 1:11 a.m. and at 1:14 a.m. in the back of the police vehicle, thepeace officer made a s. 254(2) ASD demand.

It appears the accused was not told the reason for being placed in the back of the policevehicle, and only after the ASD demand, was he asked for his ID. He was not initially asked for his driver’s license and registration atthe driver’s door of his vehicle as is customary and required for a valid s. 209.1 Traffic Safety Act stop. Given those factors the Court ofAppeal held the requirements of “forthwith” were not met due to a three minute delay. The Court held this was an arbitrary detentionand breach of the accused’s Charter rights. However, after a s. 24(2), R. v.

Grant [2009] 2 C.C.R. 353 (S.C.C.) analysis the Courtdeclined to exclude the evidence. [17] In R. v. Jeffrey Anderson, supra, the police stopped the accused’s vehicle at 12:47 a.m. After searching the accused for safetyreasons, the police officer placed him in the back seat of the police car, and made a demand for a breath (ASD) sample. By this time itwas 1:02 a.m. The accused indicated he understood. The officer turned on the ASD and explained the procedure to the appellant whilethe ASD warmed up. The accused provided a sample and registered a fail.

Immediately thereafter, at 1:18 a.m., the officer made abreath test demand pursuant to s. 253(3) of the Code. The trial judge further held that since 31 minutes had elapsed from the time theappellant was stopped at 12:47 a.m. and until the ASD demand was made, the demand to provide breath samples was not made“forthwith” as rquired by s. 254(2) of the Criminal Code. Therefore, the police officer was required to inform the appellant of his rightto counsel pursuant to s. 10(

b) of the Charter and he failed to do so. The appellant’s right to counsel having been violated, the trial judgeexcluded the Certificate of Analyses from evidence and the appellant was found not guilty of driving while over .08 contrary to s. 253(1)(

b) of the Code.

[18] At para. 24 the Court of Appeal stated: [24] It is a fact found by the trial judge that the police officer formed the intention to stop the appellant prior to the appellant turningonto private property. In my view, the police officer must be allowed sufficient flexibility in carrying out his duties to complete thelawful activity.

Interference with the appellant here was minimal and the entry onto private property, to complete the check stop, wasreasonably necessary, having regard to the nature of the liberty interfered with and the public purpose served by the interference.[underlying by the Court] [19] The Court wrote further at paras. 30, 31 and 32: [30] The Supreme Court has held that “forthwith” means “immediately” (see: R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R 205). However, this Court stated the following in R. v. Janzen, 2006 SKCA 111, 284 Sask.

R. 296: 4 Turning to the first, we note that the leading cases on the issues raised by this ground of appeal stand for the proposition that“forthwith” means without delay, or its equivalent, and demonstrate that the expression without delay is to be taken as meaning withoutunreasonable or unjustified delay”: R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640; R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254; R. v. Dewald, (SCC), [1996] 1 S.C.R. 68; and R. v. Woods, 2005 SCC 42 , [2005]2 S.C.R.205. (See, too, R. v. Ritchie, 2004 SKCA 9 , [2005] 11 W.W.R. 593 (Sask. C.A.).

We also note that the cases stand forthe additional proposition that, in determining whether a particular roadside screening test has been administered forthwith, it isnecessary to have regard for the circumstances of the case, including the extent of the lapse of time and the reason for it, and to assessthe matter with the following considerations in mind: (

i) the balance between Parliament’s objective in combating the evils of drinkingand driving, on the one hand, and the person’s constitutional right to be free of unreasonable search or seizure, on the other; and (ii) thefact that a person’s constitutional right to consult counsel is suspended upon demand to provide a sample of breath pursuant to section254(4). [31] The so-called “forthwith window”, being the time within which the police officer must require a driver to provide a breath sample,in my view, does not commence prior to the time when a police officer develops a reasonable suspicion that the accused had alcohol inhis body, as the trial judge effectively held.

Nor does it begin with the ASD demand, as the

summary conviction appeal judge held. Rather, it begins when the police officer develops a reasonable suspicion that the accused has alcohol in their body. See: R. v. Quansah,2012 ONCA 123, 286 C.C.C. (3d) 307: 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 or consideration is whether the police could realistically have fulfilled their obligation to implement

the detainee’s s. 10(

b) rights before requiring the sample. If so, the “forthwith” criterion is not met. [32] In R. v. Pierman; R. v. Dewald (1994), (ON CA), 92 C.C.C. (3d) 160 (C.A.), Arbour, J.A. (as she then was)stated: 5 This

section contemplates an immediate testing, and therefore it cannot accommodate the exercise of the constitutional right tocounsel. As the Supreme Court of Canada held in R. v. Thomsen, [1998] 1 S.C.R. 640, 40 C.C.C. 93d) 411, and in R. v. Grant, (SCC), [1991] 3 S.C.R. 139, 67 C.C.C. (3d) 268, and as this court held in R. v. Côté (1992), (ON CA), 6O.R. (3d) 667, 70 C.C.C. (3d) 280, the breath sample must be taken “forthwith” after the demand is made, and therefore there is noopportunity to contact a lawyer.

This infringement, however, was held to be a reasonable legislative limit on the right to counsel, and thesection was declared valid under s. 1 of the Canadian Charter of Rights and Freedoms. In light of that jurisprudence, it seems clear tome that although the

section merely requires that the sample be provided “forthwith” after the demand is made, and does not require thatdemand itself be made “forthwith” after the person is stopped, it is implicit that the demand must be made by the police officer as soonas he or she forms the reasonable suspicion that the driver has alcohol in his or her body. This is the only

interpretation which isconsistent with the judicial acceptance of an infringement on the right to counsel provided for in s. 10(

b) of the Charter. If the policehad discretion to wait before making the demand, the suspect would be detained and therefore entitled to consult a lawyer. The basisupon which the courts have held that Parliament may infringe on a suspect’s right to counsel is that there is no opportunity for the policeto accommodate that right if the breath sample must be taken “forthwith”. It follows, in my view, that for the

section to maintain itsconstitutional integrity, we must assume it also contemplates that there be no opportunity for the suspect to consult counsel before thedemand is made. [20] The Court went on to determine that all the requirements of “forthwith” and “immediacy” of both the ASD demand andadministering the test were met in this case with a total time elapse of some 31 minutes. [21] Some principles set forth in the two Anderson decisions are that meeting the requirements of forthwith is not a simple stopwatch calculation.

The Court must take all the circumstances into consideration including such reasonable time that is required for theofficer to conduct their investigation in a timely, safe, professional manner, while always being mindful of the provisions of the Codeand the accused’s Charter rights. [22] In R. v. Viernaskie [2014] O.J. No. 2236 (Ont. Ct. Of Justice) at para. 19 the Court gave a

summary of the factors to bebalanced during “forthwith” analysis: 19 The Court of Appeal set out five factors to be considered when assessing the forthwith requirement: 1. The analysis is contextual, and should balance the public interest in eradicating impaired driving and the need to protect Charterrights. 2. The demand should be made promptly once the officer has a reasonable suspicion that the driver has alcohol in his or her body. 3.

There should be a prompt demand and an immediate response, albeit given some flexibility in special circumstances. “In the end, [theelapsed time] must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s.254(2).” 4. The forthwith requirement should consider all the circumstances, including delays that may be necessary to ensure an accurate result,where an ASD is not immediately available, or where there are safety concerns. 5.

If the police could realistically have provided the driver with his or her right to counsel before requiring the sample, the forthwithcriterion is not met.

[23] See also a number of recent decisions being: R. v. Lomenda [2014] SKQB 77 (Barrington-Foote, J); R. v. Thompson [2014]A.J. No. 402 (Alta. P.C.); R. v. Singh 2014 ONCA 293 , [2014] O.J. No. 1858 (Ont. C.A.); R. v. Bergen [2014] M.J. No. 122(Man. Q.B.); R. v. Buckle 2013 SKPC 185 , [2013] S.J. No. 653 (Sask. P.C.); R. v. Travis Vogel [2010] SKPC 036 (Sask.P.C.); R. v. Turanich [2012] ONCA 123 (Ont. C.A.).

Analysis and Conclusion [24] The police car video of this investigation was of considerable assistance to the Court. [25] At 3:24:14 the police officer was at the driver’s window of the accused’s vehicle. [26] At 3:26:24 after a brief investigation, and pat down of the accused for safety reasons, the accused was seated in the back seatof the police vehicle. This was in the middle of the night on a busy street in the city of Saskatoon.

It was not until the accused was in thepolice vehicle that one could say both the accused and the police officer were in a safe, secure, quiet environment where the policeofficer could speak to the accused such that the accused could hear, concentrate on and comprehend what the peace officer was sayingwithout the distractions of traffic and other matters. [27] The peace officer walked around the back of the police vehicle and retrieved the ASD from the trunk while on his way to thedriver’s door.

Once seated in the police vehicle the officer did a few necessary police investigative requirements; - he turned on the ASD to prepare it for tests; - he wrote a few basic, necessary notes; - he confirmed the accused’s identity then made prudent, necessary inquiries to confirm driver’s licence, registration and possibleoutstanding warrants. [28] In R. v. Travis Vogel, supra, Jackson, J noted that checking the accused on computer systems to determine whether there arewarrants or safety concerns was acceptable in the case of four or five minute delay. [29] At 03:30:32 the officer made a formal ASD demand.

This was only 4 minutes and 8 seconds after the accused was seated inthe police vehicle. As found by the Court this was the only safe, reasonable place for the officer to in fact make such a demand. Duringthat time the officer started the ASD instrument, did a computer check and wrote a few necessary notes.

In addition, the Court is mindfulthe police officer would also be conducting a motor vehicle accident investigation at the same time. [30] In this case the police officer proceeded in a safe, professional, efficient, timely, respectful manner in all the circumstances. [31] There were no unreasonable delays and in any event they were minimal and fully explained in the circumstances. Theevidence proves beyond a reasonable doubt that the timing of the police officer’s s. 254(2)(

b) ASD demand met all the requirements ofthe “forthwith” , “immediacy” set forth in s. 254(2) of the Criminal Code. [32] The Court finds that the s. 254(2)(

b) ASD demand at 03:30:32 was legal. [33] Given the above findings the Court finds the accused guilty as charged.

______________________________ D.A. Lavoie, J