Her Majesty the Queen - v. -, 2013 SKPC 117

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 117 Date: July 29, 2013 Information: 24467870 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Christina Deren Appearing: Mr. William Collins For the Crown Mr. Brian Pfefferle For the Defendant JUDGMENT B.G.

MORGAN , J Introduction [ 1 ] On the evening of March 23, 2012, just outside Borden, Saskatchewan, Constable Steve Raymond, a member of the Warman Detachment of the RCMP, was in his marked police vehicle assisting in an impaired driving investigation being conducted by another officer. He was parked in the westbound lane on Highway #16, a main highway that runs between Saskatoon and North Battleford. He had his emergency lights on and was waiting for a tow truck to move the suspect’s vehicle from the shoulder.

[ 2 ] As he waited, a vehicle went by with sufficient speed to rock his SUV. His radar showed this vehicle was heading westbound at 105 km/hour (the speed limit on the highway is 110 km/hour) but as the speed limit is to be reduced when passing an emergency vehicle in these situations, Constable Raymond immediately pursued the vehicle, pulling it over approximately three minutes later. Ms. Deren was the driver, and she was accompanied by her two young children, a 14 year old girl and a nine year old boy. [ 3 ] The officer asked Ms.

Deren if she had been drinking, to which she replied she had consumed a glass of wine two hours ago. Forming the opinion, based on that comment, that Ms. Deren had alcohol in her body, Constable Raymond made an approved screening device demand, which resulted in an “F” reading. [ 4 ] Based on that reading, Constable Raymond formed the opinion that Ms. Deren was operating a motor vehicle when her ability to do so was impaired by alcohol, and made a breath demand under s. 254(3) of the Criminal Code . Two samples of Ms.

Deren’s breath were obtained at the Warman Detachment of the RCMP, the lower of the two readings being 170 milligrams of alcohol in 100 millilitres of blood. [ 5 ] As a result of these events, Ms. Deren was charged on Count 1 with operating a motor vehicle while her ability to do so was impaired by alcohol, and on Count 2 with driving a motor vehicle while her blood alcohol level exceeded the permitted amount, as both charges are particularized in the Information. Issues [ 6 ] There are two issues in this trial: 1. Did the officer have grounds to form a reasonable suspicion that Ms.

Deren had alcohol in her body? 2. Were the breath samples taken “as soon as practicable ” such that the Crown can rely on the statutory presumption of identity? [ 7 ] The trial was conducted by way of a blended voir dire, by agreement of counsel. That is, as the Defence had raised Charter issues, the trial immediately commenced on a voir dire , on the understanding that, based on the decision on the voir dire , the evidence could be applied to the trial proper.

Both counsel agreed there was no further evidence to call on the trial proper, and argument proceeded on the basis that, if the decision on the voir dire was such that further argument was necessary, that could occur.

In essence, however, all of the evidence is in, consisting solely of Constable Raymond’s evidence and the Certificate of a Qualified Technician, this latter document which would prove the “over 80” offence, assuming the certificate becomes evidence on the trial proper. [ 8 ] I will deal with the evidence in more detail as I deal with each of the identified issues. [ 9 ] As this is a blended voir dire /trial, I have proceeded on the basis that the Defence bears the onus of establishing any alleged Charter breach on a balance of probabilities, and for the purposes of trial, the Crown bears the burden of proving each and every element of an offence beyond a reasonable doubt. 1.

Did the officer have grounds to form a reasonable suspicion that Ms. Deren had alcohol in her body? Position of the Defence [ 10 ] The Defence argues that, based largely on the fact that Constable Raymond did not detect any odour of alcohol, that the officer lacked the requisite reasonable grounds. Additionally, believing that she consumed one glass of wine two hours earlier, it is

argued that it is not reasonable for the officer to have believed that Ms. Deren would have alcohol in her body at the time of driving. [ 11 ] The Defence continues its argument by noting that it is a statutory precondition that an officer have “reasonable grounds to suspect that a person has alcohol . . . in their body” in order to justify a demand for an Approved Screening Device (ASD) sample pursuant to s. 254(2) of the Criminal Code . Mr.

Pfefferle argues that this is also a constitutional precondition to a lawful arrest and thus s. 8 of the Charter , which protects an individual’s right to be secure against unreasonable search and seizure, is also engaged. Further, he argues, Ms. Deren’s Charter right under s. 9 not to be arbitrarily detained would also be violated. The Defence seeks exclusion of the results shown on the Certificate of a Qualified Technician under s. 24(2) of the Charter , as the “fail” result on the impugned s. 254(2) formed the basis for the subsequent breath demand under s. 254(3) .

Position of the Crown [ 12 ] The Crown argues that the requisite “reasonable suspicion” is not an onerous standard, and is a standard far short of “proof beyond a reasonable doubt”. In all these circumstances, including the observations the police officer made at the time of speaking with Ms. Deren, irrespective of her admission of alcohol consumption earlier, the Crown argues that the officer had reasonable grounds to suspect there was alcohol in Ms. Deren’s body.

The Law [ 13 ] Section 254(2) of the Criminal Code requires that a peace officer must have “reasonable grounds to suspect a person has alcohol or a drug in their body” in order to make an ASD demand. [ 14 ] In R. v. Gunn , 2012 SKCA 80 , our Court of Appeal was dealing with a breath demand under s. 254(3) of the Criminal Code , which requires a peace officer to have “reasonable grounds to believe that a person is committing . . . an offence under s. 253”. [ 15 ] In assessing what that means, our Court of Appeal held that the Crown need not demonstrate a prima facie case for conviction.

Rather, the standard of “reasonable grounds to believe” was held to be one of lesser probability. By extension, “reasonable grounds to suspect” is an even lower standard on the scale. The test is whether or not, on all of the evidence, the officer subjectively held the requisite belief, and whether or not, on all of the evidence, a reasonable person standing in the place of the officer would form the same belief. The Facts [ 16 ] In this case, the evidence of Constable Raymond, which I accept, is that he had seven years experience with the RCMP at the time of his encounter with Ms.

Deren, and that he had extensive experience dealing with individuals who are either under the influence of alcohol, or were being investigated for the offence of impaired operation of a motor vehicle. Although he did not note any signs to support a suggestion that Ms. Deren’s ability to operate a motor vehicle was impaired by alcohol, based on his observations of the vehicle she was driving in the short period of time before he pulled that vehicle over, he did note the following when he spoke to Ms.

Deren: - her eyes were glossy or glassy, which he explained meant moist; - her eyelid lift was slow, that is, I take it to mean that the “blinking” function of her eye was unusually slow; and - she admitted to drinking “a glass of wine two hours ago”. [ 17 ] The officer acknowledged that Ms. Deren’s speech was clear, and that there was no smell of alcohol apparently emanating from Ms. Deren, or from the car.

[18] Of these observations, some of which could support the officer’s belief, and some of which would tend to be innocuous orneutral explanations, it was clear on the evidence that the significant one was the admission of prior consumption of alcohol. There isobviously no issue with whether or not the officer believed Ms. Deren had been driving a motor vehicle recently based on these facts. [19] In R. v. Zapski, 2011 SKQB 67, the

summary conviction appeal court was reviewing a situation in which Mr. Zapski hadstated to the arresting officer that he had “consumed a couple of drinks that night”. The Court held, relying on previous authority, thatthe officer need only have a reasonable suspicion that there be alcohol in the body and held on the facts of that case, the officer’ssubjective belief was objectively reasonable. (See paras. 17 and 18) [20] In R. v. Meyer, 2007 SKQB 428, the officer had evidence from Mr. Meyer that he had had two drinks, his last oneapproximately one hour prior to being stopped. As in this case, Mr.

Meyer did not exhibit any of what have been called the usual signsof impairment, which the Defence argued included a lack of a smell of alcohol or an observation of glassy eyes. On the facts, the Courtheld that on Mr. Meyer’s admission of consuming a couple of drinks, and the timing of the drinking, there were sufficient grounds toallow the officer to have reasonable grounds to suspect the presence of alcohol. [21] In R. v. Duchek, 2012 SKPC 7 , 2012 SKPC 007, the officer had not smelled any alcohol from Ms.

Duchek’s breath,although he did have, among other things, evidence of slurred speech and an admission that she had had two beer approximately fivehours earlier.

Judge Green, noting that each case “revolves around its unique facts” held on the totality of the evidence that the arrestingofficer’s suspicion was reasonable, and dismissed a Charter application. [22] In my view, case authority holds that it is not a necessary precondition to an officer’s reasonable suspicion that the officerdetect the smell of alcohol on a detainee’s breath: the admission of recent consumption of alcohol can be a key factor that the officerconsiders, irrespective of a lack of odour of alcohol.

In looking at all the circumstances in this case, it is clear that there was a lack ofwhat are often called the “usual signs” of impairment, and there is certainly nothing to be gleaned from Ms. Deren’s driving that wouldraise a suspicion that she had alcohol in her body; the fact that she sped by an emergency vehicle in this case does not do so. On thetotality of the facts, an important one being an admission from Ms. Deren that she had “a glass of wine two hours ago”, I find that therewere sufficient indicia to ground the officer’s subjective belief that Ms.

Deren had alcohol in her body, which is all that the statuterequires. Specifically, there is no need for the officer, at the time of making an ASD demand, to believe that the detained person’s bloodalcohol level exceeded the permitted amount. Therefore, I hold that the statutory requirements have been met, and I find there has beenno Charter breach of any nature with respect to the ASD demand. 2. Were the breath samples taken as soon as practicable?

Position of the Defence [23] The Defence is particularly concerned about the amount of time that elapsed prior to leaving the scene of the stop for thedetachment, arguing that in all the circumstances, the overall time frame between the alleged offence and the taking of the first breathsample is excessive. It is argued that this excessive time frame means that the Crown cannot rely on the statutory presumption that theblood alcohol level at the time of the breath tests was identical to the blood alcohol level at the time of driving.

It is also argued thatthere were detachments that were closer to Borden, the scene of the stop, than Warman, detachments which Constable Raymondapparently did not check with, to see if a qualified technician and/or approved device were available. It is argued that these factors ultimately result in a Charter breach which should be remedied by exclusion of the breath test results.

Position of the Crown [24] The Crown argues that the constable offered satisfactory explanations as to what occurred, and notes that the constabletestified that there were no other officers available, from which I can infer that there were no other options other than Warman. In all,the Crown argues that the presumption is applicable, and that even if I were to find a Charter breach, I should decline to grant a remedyin these circumstances.

The Law [25] Section 258(1)(c)(ii) of the Criminal Code provides a presumption that the blood alcohol readings at the time they were takenare the same as the blood alcohol readings at the time the offence occurred (the presumption of identity) if “each sample was taken assoon as practicable after the time when the offence was alleged to have been committed . . .”.

It additionally requires that the first samplebe taken not later than two hours after that time, which has been complied with in this case. [26] In the event the Crown cannot satisfy the Court that the samples were in fact taken as soon as practicable, the Crown cannotrely on that presumption. (See R. v. Carter (1981), (SK CA), 59 C.C.C. (2d) 450 at 452.) [27] The leading case in this area, adopted by the courts of this province, is R. v. Vanderbruggen, (ONCA),which adopted Carter and a number of other cases, and essentially lays out the ground rules as follows: 1.

The phrase as soon as practicable “. . .means nothing more than that the tests were taken within a reasonably prompt time under thecircumstances”. 2. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken assoon as practicable is whether the police acted reasonably. 3.

In deciding whether the tests were taken as soon as practicable, [which is a finding of fact], the trial judge should look at the wholechain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking ofthe first test. The “as soon as practicable” requirement must be applied with reason.

In particular, while the Crown is obligated todemonstrate that - in all the circumstances - the breath samples were taken within a reasonably prompt time, there is no requirement thatthe Crown provide a detailed explanation of what occurred during every minute the accused is in custody (See paras. 12 and 13Vanderbruggen). [28] Returning to the Carter decision, Chief Justice Culliton held at page 453: The requirement that the samples be taken as soon as practicable is one which must be applied with reason.

As I read the section, as longas the delay, if there is one, is explained to the satisfaction of the Judge, there may be reliance on the presumption . . . as long as thesamples are taken within the two hour limit. It would only be when the learned trial Judge concluded there was a delay not satisfactorilyexplained, or such delay prejudiced the accused that the Court would deny the prosecution the right to rely on the presumption . . . . [29] Ultimately, the decision becomes one based on all the circumstances. For example, in R. v.

Berrecloth, 2012 SKQB 175, aforty-six minute delay was held to be “as soon as practicable” in circumstances where there was a significant wait for the arrival of a towtruck. [30] Similarly in R. v. Reid, 2013 SKPC 62, a delay of eighty minutes was satisfactorily explained when the arresting officer wasinvolved with directing traffic at a serious automobile accident and was waiting for back-up to take over his duties while he dealt withMr. Reid. [31] In R. v. Fyfe, 2007 SKPC 56, an unexplained delay of thirty-seven minutes was found not to be “as soon as practicable”. [32] In R. v.

Allin, 2003 SKPC 58, an unexplained delay of twenty-three minutes was found to be unacceptable.

[ 33 ] In R. v. McAllister , 2009 ABPC 320 , delays totalling twenty-five minutes were found not to be acceptable in circumstances where the delay was occasioned by, in one instance, police officers taking notes rather than dealing with the detainee, coupled with a second unexplained twelve minute delay while the detainee could have provided a sample. [ 34 ] The question really comes down to whether or not the delay has been satisfactorily explained, and is very much a fact oriented determination.

The Facts [ 35 ] The evidence was uncontradicted as to what occurred at what time and I will lay out the relevant time lines to put matters in context. All events occurred in the late evening hours of March 23, 2012: ∙ 8:57 - Ms. Deren’s vehicle passes Constable Raymond’s police vehicle ∙ 9:00 - Constable Raymond pulls over the Deren vehicle ∙ 9:02 - Constable Raymond asks Ms. Deren to leave her vehicle, and escorts her and her two children to his police car ∙ 9:08 - provision of the ASD demand ∙ 9:11 - provision of ASD sample with fail reading ∙ 9:14 - Ms.

Deren arrested for impaired operation of a motor vehicle while her ability to do so was impaired by alcohol ∙ 9:14 - rights to counsel ∙ 9:18 - breath demand ∙ 9:19 - police warning ∙ 9:20 - Constable Raymond calls Ms. Deren’s mother, Gwen Ashley, at Ms. Deren’s request, to see if Ms. Ashley could pick up Ms. Deren’s children; as there was no answer, a message was left for Ms. Ashley to call the officer’s cell phone, the number of which was left as part of the message ∙ 9:30 - Ms. Ashley calls back and states that she cannot come to the scene of the stop; she states that she will meet the children and Ms.

Deren at the Warman RCMP Detachment ∙ 9:37 - a tow truck that had been previously called by the officer arrives at the scene, and the group leaves for the Warman Detachment ∙ 10:12 - arrival at Warman Detachment

∙ 10:16 - arrange call to counsel ∙ 10:20 - start of call to counsel ∙ 10:29 - end of call to counsel, start of observation period by Constable Raymond ∙ 10:50 - Ms. Deren turned over to the approved instrument technician ∙ 10:51 - first sample, 190 milligrams of alcohol in 100 millilitres of blood ∙ 11:14 - second sample, 170 milligrams of alcohol in 100 millilitres of blood ∙ 11:53 - Ms. Deren released from police custody, goes with Ms.

Ashley, who had arrived at detachment sometime earlier [ 36 ] There are essentially three separate periods of time that require examination in this case. [ 37 ] The first time period is between the time of the alleged offence (8:57) and the time of leaving the scene of the stop (9:37), a time of forty minutes. The second time period is between the time the parties left the scene of the stop (9:37) until the time the parties arrived at the Warman Detachment (10:12), a time of thirty-five minutes.

The third time period is between the time of arrival at the detachment (10:12 p.m.) to the time of the taking of the first sample (10:51), a time of thirty-nine minutes. Those three time periods total one hundred and fourteen minutes. [ 38 ] I note that, although I have separated the examination into three different time periods, I am looking at the total time frame of one hundred and thirteen minutes between the officer first observing Ms. Deren’s vehicle, and the time of the taking of the first breath sample, as that time frame comprises “all the circumstances”.

It is not a matter of adding up every minute and determining whether that time is or is not “as soon as practicable”; rather, I am analysing matters as three separate time frames as the facts of this case lend themselves comfortably to such an assessment. As always, however, as the case law has demonstrated, the question is whether the tests were taken “as soon as practicable” in all these circumstances, looking at the totality of the evidence. Time between the alleged offence and leaving the scene [ 39 ] When the officer initially pulled Ms.

Deren over, she was with her fourteen year old daughter and nine year old son. No adults other than Ms. Deren were in the vehicle. The vehicle had been stopped on the westbound shoulder of Highway #16 just at the westside of the Town of Borden, in an area at which the speed limit, which was 90 km/hr, was just about to increase to the highway speed limit of 110 km/hr. [ 40 ] A few moments were spent in conversation between the officer and Ms. Deren as he initially encountered her. It was 9:02 p.m. when Ms.

Deren was asked to leave the vehicle, and as the officer did not want to leave the children unattended in a vehicle parked at the side of the road, he escorted all three individuals back to the police vehicle, where the ASD test was actually taken. It took some time to prepare the ASD, explain its operation, and actually obtain the “fail” result at 9:11. [ 41 ] The arrest was made at 9:14 and breath test demand was made at 9:18 p.m. The officer, who was working alone in a rural

area, and had concerns about the children’s welfare, was trying to arrange to have the children picked up by a responsible and sober adult. He asked Ms. Deren if there was anyone who could come and get the children, at that location, to which Ms. Deren replied that her mother might be available. [ 42 ] Accordingly, at 9:20 p.m. the officer called Ms. Ashley and as there was no answer at the phone, left a message with his cell number, asking for a return call.

At about that time, he had also phoned a tow truck, as he had safety concerns for all of the individuals, as well as a safety concern that an unattended vehicle on a shoulder of a busy highway posed a risk to drivers on that highway. The officer was not sure of the time of that call for a tow truck, but I am satisfied that it occurred shortly after or before the call to Ms. Deren’s mother. [ 43 ] It was at 9:30 p.m. when Ms. Ashley called back informing the officer that she could not come to the scene of the stop. Therefore, arrangements were made to have her meet Ms.

Deren and the children at the Warman Detachment. Based on that, and knowing that to be the nearest detachment with an approved instrument, and knowing there was a technician available at that spot, the officer decided to return to his home detachment of Warman. In the meantime, he was waiting for the tow truck to arrive. [ 44 ] The tow truck arrived at 9:37 p.m., at which point the parties departed for Warman.

The officer specifically testified that there were no other officers available to deal with having the car towed and I am fully satisfied that the officer had a legitimate and real safety concern about leaving the vehicle on the highway in the circumstances he was confronted with. [ 45 ] In looking at all the circumstances of this particular time, I find that it has been satisfactorily explained. The parties were waiting at the roadside for a period of time for a tow truck but, as well, were waiting to see if Ms. Ashley would call back.

I am satisfied the officer was not inclined to leave the scene in any event until the tow truck arrived, based on his safety concerns, and that was a reasonable position for the officer to take. With no other officers available, and having a valid safety concern, he had no option but to wait, irrespective of the fact that he was also waiting to see what arrangements, if any, could be made for the immediate safety of the children by having them picked up by a responsible adult.

Time between leaving the scene and driving to Warman [ 46 ] The officer testified that he left to go to the Warman Detachment as soon as the tow truck arrived, and that he proceeded eastbound on Highway #16 and that he either took the Dalmeny grid or another grid to arrive at the Warman Detachment. Although he could not recall which exact route he took, it appeared each of these routes were as direct as could be, although they were alternate routes, and he testified that he did not stop at any point.

He testified his speed would likely have been 110 km/hr on Highway #16, the legal posted limit, and he would likely have been doing 80 km/hr on the grid road, that being the speed limit on a grid road. [ 47 ] With respect to the other detachments, the officer testified that the detachment at Radisson would have been approximately a seven minute drive from where they were stopped on the highway, and that Martensville might have been five or ten minutes closer by road than Warman.

The drive to Warman took thirty-five minutes. [ 48 ] As noted, one Defence argument is that, as the officer took no steps to determine whether or not there was a police officer and/or approved instrument and/or qualified technician at either detachment, the decision to go to Warman had the effect of the samples not being taken “as soon as practicable”. [ 49 ] With respect, I must disagree.

I note the officer’s patrol area from Warman includes an area from Highway #16 that would have gone past the Borden area where he stopped the vehicle which persuades me that, as he was within his patrol area, there is nothing intrinsically wrong with going to Warman; that was his home base. [ 50 ] Further, arrangements had been made with Ms. Deren’s mother to meet at the Warman Detachment.

Although it is theoretically possible that Constable Raymond could have located an officer capable of doing a test at Radisson, assuming there was a machine there, it was not unreasonable for him to return to his home detachment, where he knew there was a technician and a machine available, and where he knew safe transport of Ms. Deren and the children would be waiting.

[ 51 ] The argument of the Defence would satisfy me that the time taken to go to Warman was unreasonable, if the test for the Court was whether or not the samples were taken “as soon as possible”. However, as the cases have made clear, that is not the test. Even had the officer made the effort to locate someone at Radisson, and even had the testing been done at that location, there still would have been the issue of what to do with the children, as arrangements had been made for them to be picked up by Ms. Deren’s mother at Warman.

I should also note, as the Crown argues, that even if I were to accede to that argument, the time to drive to Warman should be reduced by the time it would have taken to drive to Radisson, a seven minute drive away from the scene. But as noted, I do not find the decision to drive to Warman to be unreasonable in these circumstances (for a recent analysis of the distinction between “as soon as practicable” and “as soon as possible” in a somewhat similar situation involving policing in rural Saskatchewan, see R. v. Burwell , 2013 SKQB 20 ).

Time between arriving at the Warman Detachment and the taking of the first sample [ 52 ] In my view, this time frame was well explained by the time used for Ms. Deren to contact counsel, for the observation period of fifteen minutes to occur, and for the technician to ready the machine and start taking the samples. [ 53 ] In the circumstances facing the officer at the time, I am satisfied that he took all reasonable steps to, and did, obtain the breath tests “as soon as practicable”.

Although the overall time frame was bumping up against the two hour limit for the presumption to apply, that limit was not exceeded, and I find that the time taken was adequately explained. I dismiss the defence Charter application with respect to this argument as well. [ 54 ] In the result, the Certificate of a Qualified Technician, Exhibit P-1 on the voir dire , will become an exhibit on the trial proper. By agreement all the evidence on the voir dire will be applied to the trial.

The inevitable result of that is, all other elements of the “over 80” charge having been proven by the Crown beyond a reasonable doubt, I find Ms. Deren guilty on Count #2. [ 55 ] With respect to Count #1, the impaired operation of a motor vehicle charge, the evidence as a whole does not meet the well-known test in R. v. Stellato , and fails to convince me that this charge has been proven beyond a reasonable doubt. I dismiss that count. [ 56 ] In conclusion, Ms. Deren is guilty on Count #2 and not guilty on Count #1. ________________________ B.G. Morgan, J