Her Majesty the Queen - v. -, 2013 SKPC 108

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 108 Date: September 20, 2013 Information: 24477367 Location: Kamsack _____________________________________________________________________________ Between: Her Majesty the Queen - and - Steven Marquart Appearing: Barrie Stricker For the Crown David Kreklewich For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] Mr.

Marquart is charged with operating a motor vehicle with more than 80 mg% of alcohol in his blood, and with operating a vehicle while impaired by alcohol, in the Arran District on May 12, 2012. [ 2 ] The Crown called three witnesses, whose evidence was applied to the Charter voir dire and to the trial. These were Cst.

[ 2 ] The Crown called three witnesses, whose evidence was applied to the Charter voir dire and to the trial. These were Cst. Reece and Cpl. McDonald, the officers who stopped Mr. Marquart, and Cst. Jones, the qualified technician who performed the breath tests at the detachment. The Crown called a further witness on the trial, alcohol expert Sandra Korkosh, in large part because the breath samples were taken more than two hours after Mr. Marquart was stopped, and therefore the presumption under s. 258(1)(

c) does not apply to prove that his blood alcohol level was the same at the time of driving as the time the tests were taken from him. [ 3 ] The defence called two witnesses: Mr. Marquart testified only on the Charter issue regarding his right to counsel and alcohol expert Mary-Ellen Elizabeth Scott testified on the trial. [ 4 ] Mr. Kreklewich raised two Charter issues. He claimed that the Approved Screening Device (ASD) test was not taken from Mr. Marquart “forthwith” and, as a result, that constituted a violation of his rights under ss. 8, 9 and 10(b). He further argued that Mr.

Marquart was not given a reasonable opportunity to contact a lawyer of his choosing at the detachment and that this violated his rights under s. 10(b). As a result of these breaches, he applied under s. 24(2) to exclude the Certificate of Analyses and any other evidence of impairment following the breaches. [ 5 ] The issues to be determined in this case are:

(1) Was the ASD sample taken “forthwith” from Mr. Marquart, and if not, did this constitute a breach of his rights under s. 10(b), 8 and 9 of the Charter ?

(2) Was Mr. Marquart given a reasonable opportunity to contact a lawyer of his choosing at the detachment?

(3) Is there proof beyond a reasonable doubt that Mr. Marquart’s blood alcohol level was over 80 milligrams percent at the time of driving?

(4) Is there proof beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol? II. BACKGROUND [ 6 ] In the early morning hours of this day Cst. Reece and Cpl. McDonald were driving on Highway 49, east of Arran. The officers came up behind two vehicles travelling in the same direction as they were. The front vehicle, in the line of three vehicles, went across the centre line and then pulled back twice. Cst. Reece signalled for that vehicle to stop. At 1:48 a.m., the driver - Mr.

Marquart - pulled over to the shoulder and stopped, without first signalling his intention to do so. [ 7 ] Cst. Reece approached the vehicle, and noticed that there was a case of 12 beer in the back seat, 10 of which had been opened already. Mr. Marquart told the officer he hadn’t had anything to drink in a couple of hours. Cpl. McDonald opened the passenger-side door of the vehicle and a beer bottle fell out of the door and he saw a few more beer bottles on the floor and on the back seat. Cst. Reece could not smell alcohol on Mr. Marquart’s breath, but nevertheless requested that Mr.

Marquart come with him back to the police car for an ASD test. A fail result was obtained at 2:11 a.m. [ 8 ] At 2:13 a.m., based on the ASD fail result, Cst. Reece arrested Mr. Marquart for impaired driving and advised him of his rights to counsel. He explained the Legal Aid program and that there was free legal advice available to him if he wished, and further told him that there was a list at the detachment of other lawyers he could call. Mr. Marquart indicated that he wished to contact a lawyer. The officers and Mr.

Marquart departed the scene at 2:39 a.m. and drove to the Kamsack Detachment. [ 9 ] At the detachment, Mr. Marquart provided two samples of his breath to Cst. Jones, a qualified technician for the Intox- EC/IR 2 approved instrument. On his first attempt Mr. Marquart blew into the breath instrument but did not continue blowing. He then provided proper samples of 150 mg% at 4:10 a.m. and 140 mg% at 4:31 a.m. III. WAS THE ASD SAMPLE TAKEN “FORTHWITH ” AFTER THE DEMAND?

[ 10 ] Section 254(2) of the Code provides, in part, that where a peace officer reasonably suspects that a person who is operating a motor vehicle has alcohol in his body, the officer may by a demand made to that person, require the person to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an ASD. The Saskatchewan Court of Appeal has defined “forthwith” to mean without an unreasonable or unjustified delay. [1] Mr. Kreklewich argues that the ASD sample was not taken from Mr.

Marquart “forthwith” after the demand, and that this constituted a breach of Mr. Marquart’s rights under ss. 8, 9 and 10(b). For the reasons that follow, I disagree. [ 11 ] Cst. Reece waited fifteen minutes after making the ASD demand before taking a sample from Mr. Marquart. When asked why he waited, the officer said he saw open bottles of alcohol in Mr. Marquart’s vehicle and - even though Mr. Marquart initially claimed he hadn’t had a drink in a couple of hours and then specifically denied having a drink in the fifteen minutes before being stopped - he wanted to give Mr.

Marquart the benefit of the doubt so that there was no alcohol in his mouth and the ASD would not give a false reading. It was clear, and I find, that the officer did not believe Mr. Marquart, given the open liquor he found in his vehicle. [ 12 ] In R. v.

Bernshaw [2] , Sopinka J. said the following about the limits of basing reasonable and probable grounds solely on an ASD test: If the scientific evidence establishes a high degree of unreliability with respect to the screening device when certain conditions prevail, and if a police officer knows, for example based on his or her training, that the resultant screening device will provide inaccurate results where a suspect has consumed alcohol within the 15 minutes prior to administering the test, how can the police officer testify that he or she had an honest belief of impairment, absent other indicia?

Surely the knowledge that the screening test is unreliable would vitiate any subjective belief that an officer may have regarding reasonable and probable grounds of the commission of an offence under s. 253 of the Code . ... [3] [ 13 ] In R. v.

Pierman [4] , Arbour J.A. said the following about when a police officer was entitled to delay taking an ASD sample: In my view, a police officer cannot delay the taking of a breath sample, when acting pursuant to s. 254(2) of the Criminal Code , unless he or she is of the opinion that a breath sample provided immediately will not allow for a proper analysis of the breath to be made by an approved screening device. The officer is not required to take a sample that she or he believes is not suitable for a proper analysis. The expression "proper analysis" incorporates an element of accuracy.

A police officer may be of the opinion that a breath sample which has been recently contaminated, by cigarette smoke or by the recent consumption of alcohol, will not provide a basis for a proper analysis. If there are facts which cause the officer to form the opinion that a short delay is required in order to obtain an accurate result, I think that the officer is acting within the scope of the

section in delaying the taking of the breath sample. ... [5] [ 14 ] In this case, I accept that Cst. Reece had an honest belief that a fifteen minute delay was necessary to obtain an accurate result from Mr. Marquart on the ASD. Given the open liquor he found in Mr. Marquart’s vehicle, it was not unreasonable for him to disbelieve Mr. Marquart and to wait as he did. As a result, I am not satisfied the delay violated the “forthwith” requirement in s. 254(2) or Mr. Marquart’s rights under ss. 8, 9 or 10(b). IV. WAS HE GIVEN A REASONABLE OPPORTUNITY TO CONTACT A LAWYER? [ 15 ] The Supreme Court of Canada, in R. v.

Bartle [6] , held that a detained person who says he wishes to call a lawyer must be given a reasonable opportunity to do so. In the subsequent case of R. v. Willier [7] , the Supreme Court held that a detainee must exercise reasonable diligence in attempting to contact a lawyer. Mr. Kreklewich argued that Mr. Marquart was not given a reasonable opportunity to contact a lawyer at the detachment and that, as a result, his rights under s. 10(

b) were violated. For the reasons that follow below, I disagree.

[ 16 ] Mr. Kreklewich, as well, argued that his client did not explicitly waive his right to retain and instruct counsel after speaking to Legal Aid duty counsel. While that may be true, given my conclusion that he was given a reasonable opportunity to contact a lawyer and given that he did not change his mind about whether he wanted to call a lawyer, I am not satisfied that the issue of waiver is relevant in this case (see R. v. Prosper [8] ). [ 17 ] At the detachment, Cst. Reece telephoned the Legal Aid duty counsel number at 3:23 a.m. He tried many times, without success.

He finally reached duty counsel at 3:35 a.m., and Mr. Marquart spoke to a lawyer for eleven minutes. The officer had no recollection of any discussion with Mr. Marquart at the detachment before calling Legal Aid or after the telephone call was finished. [ 18 ] Mr. Marquart testified that, at the detachment, Cst. Reece asked him whether he knew any lawyers. He responded that he didn’t know any lawyers in Saskatchewan. The officer showed him a list of lawyers, but he didn’t look at it because he didn’t know any lawyers. The officer then suggested he telephone Legal Aid and Mr. Marquart said “really”.

The officer tried many times to get a hold of Legal Aid, and eventually Cst. Jones came in and gave another telephone number to Cst. Reece, who then was able to contact a Legal Aid lawyer. [ 19 ] Mr. Marquart spoke to the lawyer for some period of time, and Cst. Reece then asked him if the lawyer told him what he needed to know and Mr. Marquart said he responded that “the lawyer was useless”. Mr. Marquart denied that there was any further discussion about calling a lawyer before he concluded the breath tests.

He claimed that, if he had been given the opportunity, he would have wanted to speak to another lawyer that night. [ 20 ] Mr. Marquart denied that there were any telephone books in the room, although he admitted that at the roadside, the officer advised him that he could use a telephone book to find a lawyer at the detachment, and he did not subsequently ask for one. He, further, admitted that the officer never suggested to him that he only had one telephone call.

Nor did he ask if he could make another telephone call to a lawyer. [ 21 ] As a challenge to his credibility, solely on this Charter application and not forming part of the evidence on the trial, Mr. Marquart was asked how much he had to drink that evening before being stopped by the police. He said he could not remember, nor did he recall how much of the beer in the box of beer in his car he consumed. He admitted that he did consume some beer when he was with his friend pulling him out of the ditch, which was at a time later than the time he told the police he had his last drink at. [ 22 ] Both Cst.

Reece and Cpl. McDonald appeared to have a poor recollection of many of the details of their early morning dealings with Mr. Marquart. That said, after considering his vague responses in much of his cross-examination and in particular his lack of recall of how much he drank before being stopped, I am similarly not satisfied that Mr. Marquart recalled accurately what occurred at the detachment. I am satisfied that Mr. Marquart: (1) told Cst.

Reece he did not know any lawyers in Saskatchewan; (2) was provided with a list of lawyers by the officer and declined to look at the list; (3) spoke to Legal Aid counsel for eleven minutes; and (4) despite saying the Legal Aid duty counsel was “useless”, made no other request to speak to another lawyer. I am as well satisfied that Cst. Reece told Mr. Marquart, at roadside, that he could use a telephone book, at the detachment, to find a lawyer, and that the officer never suggested to Mr. Marquart that he could make only one telephone call to a lawyer. [ 23 ] In total, I am not satisfied that Mr.

Marquart was diligent in attempting to contact a lawyer. I am satisfied that he was given a reasonable opportunity to do so. As a result, this Charter application is dismissed. V. DOES THE EXPERT ’S EVIDENCE RAISE A REASONABLE DOUBT MR. MARQUART WAS OVER .08 WHEN STOPPED? [ 24 ] The Crown must prove that Mr. Marquart’s blood alcohol content (BAC) was above 80 mg% at the time he was stopped (1:48 a.m.). Because the tests were taken over two hours after the time of driving, that proof is tendered through the evidence of Sandra Korkosh.

She was qualified as an expert in forensic toxicology, including the areas of absorption, distribution, metabolism and elimination of alcohol in the body, retrograde estimation of blood alcohol concentration in a body based on blood alcohol analysis, the effects of alcohol on a human body (with respect to the operation of a motor vehicle), the theory in operation of breath testing equipment and breath testing for the purposes of estimating blood alcohol concentration for the Intox-EC/IR 2 approved instrument.

[ 25 ] The defence seeks to raise a reasonable doubt that Mr. Marquart’s BAC was over 80 mg%, through the evidence of Mary- Ellen Scott. She was qualified as an expert in the same areas as Ms. Korkosh, except Ms. Scott was not found to be an expert in the operation and functioning of the Intox-EC/IR 2 approved instrument. For the reasons that follow I am not left with a reasonable doubt that Mr. Marquart’s BAC was over 80 mg% at the time of driving (1:48 a.m.). [ 26 ] Mr. Marquart initially told Cst. Reece, after being stopped, that he had not had a drink in a couple of hours. He then told Cst.

Jones, at the detachment, that he started drinking at 9:00 p.m. and had three beer but could not say when he stopped. During the waiting period for the Intoxilyzer at the detachment, Mr. Marquart told Cst. Reece that: (1) he drank three beer starting at 9:00 a.m.; (2) he was not sure when his last drink was; and (3) his last meal was the day before. I accept that these statements were voluntary. There was no other evidence of Mr. Marquart’s consumption of alcohol at this trial. [ 27 ] Two Crown expert reports were tendered through the evidence of Ms. Korkosh.

The first was done by forensic specialist Tracy Cherlet, a colleague of Ms. Korkosh’s from the Toxicology Services

section of the RCMP (Exhibit P-6). Ms. Korkosh, in her evidence and her report (Exhibit P-7), agreed with, and adopted, the key opinions and statements made by Ms. Cherlet. [ 28 ] In particular, she agreed with Ms. Cherlet’s opinion that Mr. Marquart’s BAC at 1:48 a.m. was between 167 mg% and 194 mg%. That opinion was done by calculating back from the lowest Intoxilyzer test based on assumptions that: (

a) the peak BAC was attained prior to, or at, 1:48 a.m.; (

b) alcohol was eliminated from the blood at the rate of 10 to 20 milligrams percent per hour; and (

c) the BAC at 4:31 a.m. is 140 milligrams percent. [ 29 ] Despite Mr. Marquart’s statement to Cst. Reece that he had not had a drink in two hours of being stopped, Ms. Korkosh accepted - with one caveat - Ms. Cherlet’s opinion about the effect on Mr.

Marquart’s BAC at the time of driving if there was unabsorbed alcohol in his body at that time: In the event there was unabsorbed alcohol in the gastrointestinal tract at the time of driving or that alcohol was consumed between the time of driving and the time of the breath tests, the estimated BAC provided above would be too high by an amount proportional to the amount of alcohol absorbed after the time of driving.

In order to have a BAC of 80 milligrams percent at 1:48 a.m. (time of driving) and a BAC of 140 milligrams percent at 4:31 a.m. (time of the lower breath test result), a male weighing 76 kilograms would have to have a minimum amount of alcohol equivalent to 4.9 ounces of hard liquor (40 percent alcohol by volume), 3.2 bottles of beer (5 percent alcohol by volume, 341 millilitre size) or 3.1 cans of beer (5 percent alcohol by volume, 355 millilitre size) enter the bloodstream after the time of driving, or prior to the time of the breath test.

This estimate is conservative as it considers that the maximum BAC for each drink consumed is attained after the time of driving and prior to the breath test and that the alcohol is eliminated from the blood at a rate of 10 milligrams percent per hour (low end of the range).

To have such a large amount of alcohol (equivalent to a BAC of 87 milligrams percent) enter the bloodstream after the time of driving and prior to the breath test, the alcohol would have to be consumed either after the time of driving or in a bolus fashion (a large amount of alcohol consumed all at once) just minutes prior to the time of driving. [ 30 ] The caveat Ms. Korkosh had to Ms. Cherlet’s opinion was that Ms. Cherlet’s opinion about how much alcohol would have to be consumed just prior to driving - and hence not to have entered Mr.

Marquart’s bloodstream at the time he was stopped - was based on 100 percent bio-availability (meaning all the alcohol consumed entered his bloodstream), when in practice 40 to 70 percent is typically attained. This, therefore, would increase the amount of alcohol that would have to have been consumed within minutes of the traffic stop for Mr. Marquart’s BAC to be 80 milligrams percent at the time of the stop. [ 31 ] The opinion of defence expert Ms. Scott was set out in her report (Exhibit D-2). She disagreed with the opinion of Ms. Cherlet and Ms. Korkosh about Mr. Marquart’s BAC range at the time of driving.

While agreeing that it was clear Mr. Marquart had

drank more than he admitted to the officers, she claimed the Crown experts based their opinion on an assumption of social drinking, when in her view a reading of 140 mg%, more than two hours after the end of drinking, were reflective of heavy and not social drinking. However, as pointed out in evidence by Ms. Korkosh, I do not accept that Ms. Cherlet based her opinion of Mr. Marquart’s BAC at 1:48 a.m., in whole or in part, on whether the nature of drinking was social or heavy. [ 32 ] The key part of Ms. Scott’s report and evidence, through which the defence sought to raise a reasonable doubt that Mr.

Marquart’s BAC was over 80 mg% at 1:48 a.m., was her opinion that it was possible that he drank heavily just before being stopped by the officer, and that this bolus consumption, and the resulting unabsorbed alcohol when stopped, meant it was possible both that his BAC was 80 mg% when stopped and 140 mg% at 4:31 a.m. She said: The presence of beer in the moving vehicle suggests consumption up to the time of the traffic stop - contrary to an assumption of social drinking. In such a scenario, it is quite conceivable that heavy consumption proceeded the traffic stop. As a result, Mr.

Marquart’s BAC would have increased during the time he was transported to the Kamsack Detachment and waited for the breath test to be administered. Such a scenario would support the memory deficit that occurred when an investigator again queried his consumption pattern. Mr. Marquart was unable to recall the time of his last drink and may have confused the total number of drinks, reported as three beer with the most recent consumption. [ 33 ] In total, I am satisfied beyond a reasonable doubt, based on the evidence of Ms. Korkosh, that Mr.

Marquart’s BAC was over 80 mg% at the time he was stopped by the officers (1:48 a.m.). I am satisfied her opinion, confirming that of Ms. Cherlet’s, was supported by proper assumptions, and was not discredited on cross-examination. The evidence of Ms. Scott does not in my view raise a reasonable doubt on this issue. While the evidence of open liquor in the vehicle makes it possible that Mr. Marquart drank shortly before being stopped, despite his statement to the contrary to Cst. Reece, there was in my view no credible evidence of bolus drinking by him shortly before he was stopped.

As a result I do not accept Ms. Scott’s opinion that Mr. Marquart’s BAC could have been 80 mg% at 1:48 a.m. VI. IS THERE PROOF BEYOND A REASONABLE DOUBT OF IMPAIRMENT? [ 34 ] The Crown prosecutor submitted that evidence at the trial, and in particular Mr. Marquart’s BAC when stopped taken together with Ms. Korkosh’s evidence, proved beyond a reasonable doubt that Mr. Marquart’s ability to operate a motor vehicle was impaired by alcohol.

I agree. [ 35 ] The Supreme Court of Canada has approved the following test for impairment: If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment established any degree of impairment ranging from slight to great, the offence has been made out. [9] [ 36 ] In this case, I accept that the Crown proved that Mr. Marquart’s BAC was between 167 and 194 mg% at the time he was stopped. Ms. Korkosh adopted Ms.

Cherlet’s opinion that, at these levels, all individuals would be impaired in their ability to operate a motor vehicle and as well the average drinker would be expected to be intoxicated. [ 37 ] While Cst. Reece noted nothing abnormal about the way Mr. Marquart walked back to the police vehicle after he was stopped, he did note a slur to Mr. Marquart’s speech at the detachment. After the breath tests, when driving Mr. Marquart back to his home in Benito, Manitoba, Mr. Marquart told the officer that the officer should have stopped the other driver as he was drunker than Mr. Marquart was.

I am satisfied this statement was voluntary. [ 38 ] For his part, Cpl. McDonald said Mr. Marquart was cooperative and, other than the manner of driving - crossing the centre line twice and pulling back - did not see any coordination issues with him.

[39] Cst. Jones said that when he first dealt with Mr. Marquart he noted a strong smell of alcohol coming from his breath,bloodshot eyes and that his pupils seemed to be a bit dilated. He said, during his dealings with Mr. Marquart, Mr. Marquart seemed tobe talking normally and the officer did not notice any kind of staggering or wobbling when he was coming into the room. [40] While the observations of the officers, without more, leave a question on whether impairment has been proved, taken togetherwith the BAC readings and the evidence of Ms.

Korkosh, I am satisfied beyond a reasonable doubt, to the standard in Stellato, that Mr.Marquart’s alibility to operate a motor vehicle was impaired by alcohol. VII. CONCLUSION [41] For the reasons stated above:

(1) As I have dismissed the Charter applications, and as I am otherwise satisfied that the Crown has proved the necessary elements of thecharge, I am satisfied beyond a reasonable doubt that Mr. Marquart was operating a motor vehicle with more than 80 mg% of alcohol inhis blood, and he is found guilty on count #2.

(2) As I am satisfied beyond a reasonable doubt that Mr. Marquart’s ability to operate a motor vehicle was impaired by alcohol, but givenmy decision on count #2, I direct a conditional stay on count #1. R. Green, J [1] R. v. Janzen (2006), 2006 SKCA 111 , 285 Sask. R. 296 at para. 4. [2] (1995), (SCC), 95 C.C.C. (3d) 193 (S.C.C.) [3] At page 219. [4] (1994), (ON CA), 19 O.R. (3d) 704 (Ont. C.A.). [5] At para. 21. [6] (SCC), [1994] 3 S.C.R. 173. [7] 2010 SCC 37 , [2010] S.C.J. No. 37 at para. 33. [8] (1994), (SCC), 92 C.C.C. (3d) 353 (S.C.C.). [9] R. v. Stellato, (SCC), [1994] 2 S.C.R. 478.