Her Majesty the Queen - v. -, 2014 SKPC 123

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 123 Date: May 27, 2014 Information: 24379930 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Trent Emmel Appearing: M. Landry For the Crown B. Pfefferle For the Accused JUDGMENT J. BENISON , J [ 1 ] The accused is charged with impaired driving and driving while over .08 on August 4, 2012 near Torquay, Saskatchewan.

The following three issues arose during the trial: 1) Was the approved screening device sample taken “forthwith” within the meaning of s. 254(2) of the Criminal Code ? 2) Has the defence established that the approved instrument used for the breath test was malfunctioning or was operated improperly within the meaning of s. 258(2) (c)(iv) of the Criminal Code ? 3) Has the Crown proved beyond a reasonable doubt that the officer served a true copy of the Certificate of Qualified Technician on the

accused in compliance with s. 258(7) of the Criminal Code? ANALYSIS 1. “Forthwith” Issue [2] The accused was stopped by the officer at 12:29 a.m. and the ASD sample was taken at 12:40 a.m. The recentSaskatchewan Court of Appeal case of Anderson v. R., 2014 SKCA 32, deals directly with this issue. At paragraph 31, Mr. JusticeWhitmore states: The so-called “forthwith window,” being the time within which the police officer must require a driver to provide a breath sample, in myview, does not commence prior to the time when a police officer develops a reasonable suspicion that the accused had alcohol in hisbody, 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, 2012ONCA 123 , 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 of theforthwith 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. [3] The Court, relying on R. v. Quanash, 2012 ONCA 123, goes on to hold that the demand must be made by the police officerpromptly once he forms the suspicion that the driver has alcohol in his body. [4] In the case before me, the Crown has accounted adequately for all time commencing with the stop up to the ASD demandwith the exception of approximately three minutes. During this three minute period the ASD test was delayed because the auxiliaryconstable conducted a search of the accused.

This was not a required part of the investigation and therefore delayed the approvedscreening device test by three minutes. Despite the short time frame, I have concluded that the ASD sample was not taken forthwithwithin the meaning of s. 254(2) of the Criminal Code, resulting in a breach of the accused’s Charter rights. 2. Was the Intoxilyzer Instrument Malfunctioning or Operated Improperly? [5] Section 258(2)(c)(iv) provides that the defence may adduce evidence that the approved instrument was malfunctioning orwas operated improperly. Cst.

Classen, the investigating officer and a qualified technician, testified as to the taking of breath samplesfrom the accused, although the tests were actually performed by another officer. Cst. Classen testified that when the accused started toblow for the first sample, the instrument did not accept it and did not provide a reading. Instead, the instrument purged itselfautomatically and was ready again within 30 seconds. Cst. Classen admitted that there is a requirement in the Intoxilyzer manual to wait

15 minutes between samples, but this was not done in this case. Cst. Classen was satisfied from his observation of the accused that therewas no possible issue of mouth alcohol and therefore no need to wait 15 minutes.

Two further samples were obtained with readings asset out in the Certificate of Qualified Technician filed as Exhibit P-1. [6] The defence argues that the failure to wait 15 minutes after the first insufficient sample constituted evidence that theinstrument was malfunctioning or was being operated improperly. [7] The law relating to evidence to the contrary was changed by the Supreme Court of Canada decision of R. v. St. OngeLamoureux, 2012 SCC 57 , [2012] 96 C.R. (6th) 221.

There is now one requirement in s. 258(1)(c)(iv) that the accused mustsatisfy to rebut the presumptions of accuracy and identity, namely, there must be evidence that the instrument was malfunctioning or wasoperated improperly. Such evidence must raise a reasonable doubt as to whether the instrument was malfunctioning. [8] The only evidence that might suggest that the instrument was malfunctioning at the relevant time is contained in thetestimony of Cst. Classen. Cst.

Classen testified that, when the technician attempted to obtain the first sample of breath, the instrumentindicated an insufficient sample and automatically purged itself within 30 seconds. After this time period, the instrument was ready toreceive another sample. Cst. Classen also testified that the technician immediately proceeded to obtain a further sample without waitingfor the 15 minute period recommended by the manual for the instrument. [9] In my opinion, there was no evidence before the Court that the instrument was malfunctioning.

On the contrary, Cst.Classen’s testimony confirmed that the instrument did everything that it was supposed to do when it received an insufficient sample bypurging itself and readying itself for the next sample. Neither can it be said that the technician operated the instrument improperly. There is no evidence on which I can conclude that the technician’s failure to wait for 15 minutes after the insufficient sample had anyimpact on the accuracy of the subsequent samples. In this regard, I am guided by the statement of Pigeon J. of the Supreme Court ofCanada in R. v.

Crosthwait, [1981] S.C.R. 1089 at 1101: Mere possibility of some inaccuracy will not assist the accused. What is necessary to furnish evidence to the contrary is some evidencewhich would tend to show an inaccuracy in the breathalyzer or in the manner of its operation on the occasion in question of such a degreeand nature that it could affect the result of the analysis to the extent that it would leave a doubt as to the blood alcohol content of theaccused person being over the allowable maximum. [10] In

summary, there is no evidence that the instrument malfunctioned or was operated improperly. 3. True Copy of Certificate of Qualified Technician [11] The evidence before the Court on this point is that someone else made a photocopy of the certificate and Cst. Classen servedthis copy on the accused. He showed the accused the original and the photocopy. Cst. Classen testified that he did not compare theoriginal and a copy line by line but “just held them up”.

In addition there is an affidavit of service attached to the certificate in which Cst.Classen swears that he served a true copy of the certificate on the accused. This affidavit was sworn eight days after the date of thealleged offences. [12] Defence counsel argues that the Crown must prove that the officer who served the copy compared the copy with the original. He relies on two decisions of this Court, namely R. v. Vogel, 2010 SKPC 185 and R. v. Stewart, 2012 SKPC 39. In my opinion, the lawhas evolved since the date of these decisions. In R. v.

Gulka, 2013 SKQB 363, the Court found that it was not necessary for the officerto make a side-by-side comparison of the original and the copy. In determining this issue, Mr. Justice Ball stated: [22] In reaching his conclusion on this issue, the trial judge stated at para. 18 of his decision: [18] Mr. Justice Kyle in R. v. Longley (1997), (SK KB), S.J. No. 207 [sic] at para. 9, sums up the approach that theCourts should take on this issue: It would not be unreasonable to require that if there is to be a challenge under this subsection of the affidavit or of the copies supplied, it

should be based upon a discovered difference as between the copy and the original. Otherwise the refusal to admit the certificatebecomes merely the prize in a procedural game which can only bring the justice system into disrepute. The object of this

section is toassure that the accused knows the case he has to meet. Unless the copy which he receives is in some way different from the original, thatobject has been met. There is no reason to elevate the requirement beyond that level of importance. [23] Crown counsel also cites R. v. Bergstrom, (1982), (MB CA), 65 C.C.C. (2d) 351, [1982] 2 W.W.R. 95 (Man.C.A.) and R. v.

Pederson, (1973), (BC SC), 15 C.C.C. (2d) 323, [1974] 1 W.W.R. 481 (B.C.S.C.) in support of theproposition that a preassembled form containing carbon paper is prima facie proof that the copy given to the accused was a true copyand that there is no requirement that the original and the copy be specifically compared. [24] I accept the Crown’s submission that those authorities apply in this case.

I also accept the proposition that even if the Crownfailed to prove service of a true copy of the Certificate of Analysis, evidence of the blood alcohol reading established by the two breathsamples was admissible because the evidence of the breathalyzer operator proved all of the required elements of s. 258(1)(

c) beyond areasonable doubt. [13] In effect the Gulka case requires that there be a “discovered difference” between the copy and the original before a challengecan be raised. Based on this decision, which is binding on this Court, I find that the Crown has complied with the requirements of s.258(7) of the Criminal Code. R. v. Grant Analysis [14] In view of my finding that the accused’s Charter rights were breached, I must now consider whether the evidence obtained asa result of this breach should be excluded pursuant to s. 24(2) of the Charter.

The evidence in question is the fail result in the ASD testand the breath samples in excess of the legal limit. [15] The Supreme Court of Canada set out in R. v.

Grant, 2009 SCC 32, the following three factors that a Court must consider inan application for exclusion of evidence: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits. [16] In considering the seriousness of the breach, we are dealing with a delay of approximately three minutes caused by theauxiliary officer conducting a search of the accused. The investigating officer frankly admitted that the search was unnecessary andshould not have occurred.

It appears that the search was allowed to take place as a result of carelessness on the part of the investigating officer by failing to properly supervise the auxiliary constable. The short length of time involved tends to make the breach less serious,but the fact that the accused submitted to a search and was not told that he had the right to refuse adds to the seriousness of the breach. [17] On the second factor, the accused was compelled to provide an ASD sample and further samples of breath during the periodof his detention; these are relatively non-intrusive procedures. In support of this I quote from R. v.

Grant, supra, at paragraph 111: 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. [18] While this statement from R. v. Grant is not to be considered a hard and fast rule, it is a factor to be considered by the Court inthe balancing process.

[ 19 ] As to the third factor, society has a strong interest in having drinking and driving offences adjudicated on their merits.

Furthermore, the evidence of breath test results is generally considered to be reliable and in most cases, crucial to the Crown’s case. [ 20 ] In balancing these three factors, it is my conclusion that the results of the ASD test and the breath tests shall be admitted into evidence; in particular, the Certificate of Qualified Technician, filed as Exhibit P-1 on the voir dire , shall be admitted as a full exhibit. [ 21 ] The Crown and defence agreed at the start of these proceedings that the voir dire evidence would be applied to the trial proper.

The Crown called no additional evidence on the trial and the defence elected to call no evidence. [ 22 ] On the basis of the evidence before me, I find the accused guilty of the charge under s. 253(1) (

b) of the Criminal Code . With reference to the charge under s. 253(1) (a) (impaired driving), although there is some evidence indicating slight impairment, I have to consider that there was no evidence of erratic driving. In addition, the accused was able to communicate clearly with the investigating officers. Accordingly, it is my conclusion that the Crown has not proved beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol. Accordingly, I find the accused not guilty of that charge. J. Benison, J