Her Majesty the Queen - v. -, 2014 SKPC 46

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 046 Date: February 25, 2014 Information: 24439565 Location: Hudson Bay _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Cameron Marshall Appearing: Ms. Tyla Olenchuk For the Crown Mr. Ron Piché For the Accused JUDGMENT I. CARDINAL , J INTRODUCTION [ 1 ] On July 13, 2012, at Melfort, Saskatchewan, an RCMP Officer stopped Mr. Marshall. The officer demanded a breath sample into an approved screening device, which resulted in a reading of a “fail”. Mr.

Marshall was then taken back to the detachment and provided two samples of his breath, both of which exceeded 80 milligrams of alcohol in 100 millilitres of blood. [ 2 ] Mr. Marshall was charged with impaired operation of a motor vehicle and operating a motor vehicle having consumed

alcohol in such a quantity that the concentration of it in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, both contrary to s. 253(1) and 255(1) of the Criminal Code . [ 3 ] During the course of the trial, defence counsel raised Charter issues alleging Mr. Marshall’s s. 8 and s. 9 Charter rights were violated as the initial stop of his vehicle was without articulable cause and on private property. They seek exclusion of the evidence from the point of the breach. [ 4 ] The trial proceeded with all of the evidence being called in a voir dire . The Crown called one witness, Cst.

Kyle Wyonzek to testify. The defence called no evidence. By agreement of both counsel, the evidence from the voir dire will be applied to the trial proper and no further evidence is being called by either party. ISSUES

(1) Was Mr. Marshall arbitrarily detained contrary to s. 9 of the Charter ?

(2) Does the officer’s stop on private property constitute a breach of s. 8 and s. 9 of the Charter ?

(3) If there is a breach of either s. 8 or s. 9 of the Charter , should the resulting evidence be excluded upon a s. 24(2) analysis?

(4) Were the breath tests taken “as soon as practicable” within the meaning of s. 258(1) (c)(ii) of the Criminal Code ?

(5) Was a true copy of the Certificate of a Qualified Technician served in compliance with s. 258(7) of the Criminal Code ? FACTS [ 5 ] Cst. Wyonzek has been with the RCMP for over eight years with the last two being in Melfort, Saskatchewan. He testified he has dealt with impaired drivers quite often and estimated that on average, he would charge 25 people per year with impaired operation or over 80 since he has become a police officer. [ 6 ] On July 13, 2012, he was on duty in a standard RCMP uniform in a marked police vehicle.

At approximately 11:00 p.m., he was sitting in his police vehicle facing south and looking towards Saskatchewan Avenue in Melfort. [ 7 ] He noticed a vehicle eastbound on a dirt road that runs alongside the Melfort Golf Course and is parallel to Saskatchewan Avenue. This “raised his suspicions” as most people do not travel that road at that time of night because there are no services other than the golf course. He testified that most people go along the major thoroughfare which is Saskatchewan Avenue. [ 8 ] Cst. Wyonzek pulled onto Saskatchewan Avenue and drove southbound.

The road the accused was on meets up with Saskatchewan Avenue and the accused then turned northbound onto Saskatchewan Avenue. [ 9 ] The officer observed Mr. Marshall turn right (east) off Saskatchewan Avenue and pull into the parking lot of a local hotel which has a bar attached to it. He testified the lighting was good along Saskatchewan Avenue as there are several lights along that drive. However, he does not recall any lighting on the golf course road that Mr. Marshall was travelling on. [ 10 ] As soon as Mr.

Marshall pulled into the access road to the parking lot, the officer pulled in behind him and activated his emergency lights. Prior to activating the emergency lights, the officer testified that he did not see any swerving or other untoward driving on the part of Mr. Marshall nor did he commit any driving infractions. [ 11 ] The officer testified he stopped Mr. Marshall to check his licence and registration as well as sobriety.

[ 12 ] He testified that Mr. Marshall stopped his vehicle right away and they were both facing eastbound in the parking lot. The time of the stop was approximately 11:20 p.m. [ 13 ] The officer walked up to the driver’s side window and spoke to the accused, who was alone in the vehicle, through the open window. He requested the driver’s licence and registration from Mr. Marshall and, as Mr. Marshall was speaking, he noted an odour of liquor on his breath and that he had glossy eyes. As it was dark, he used his flashlight. [ 14 ] The officer asked Mr.

Marshall to come back to his vehicle as he had a reasonable suspicion the accused had alcohol in his body and wanted him to give a sample of his breath into an approved instrument. [ 15 ] They went back to the police vehicle where the accused was placed in the rear passenger seat and the officer sat in the front. The constable asked Mr. Marshall if he had anything to drink. The response was no but that he had a “hoot”. The officer testified he understood that this was in reference to smoking marihuana.

At 11:20 p.m. the officer read the approved screening device (ASD) demand from a card and the accused indicated he understood and would provide a sample. [ 16 ] The constable had an approved roadside screening device in his vehicle which he described as the Draeger Alcotest 7410 GLC and testified he was a qualified operator of that instrument.

At the start of the trial counsel provided an agreed statement of fact: “That the ASD used was calibrated but did not have the appropriate sticker placed on it at the time of calibration.” [ 17 ] The constable testified he usually checks to ensure the instrument is calibrated but on this date he made a lapse and did not do so. He determined there was no sticker on the instrument indicating that it was calibrated, but later discovered it had been calibrated. He also testified that in his opinion, the ASD was working properly. [ 18 ] The officer explained to Mr. Marshall how to blow into the instrument, and Mr.

Marshall, following those instructions, gave a proper sample. The result was a “fail” which the officer testified meant that Mr. Marshall was over 100 milligrams of alcohol in 100 millilitres of blood. [ 19 ] The officer testified that at that point he had reasonable and probable grounds to believe Mr. Marshall’s ability to operate a motor vehicle was impaired by alcohol and he therefore arrested him for impaired operation of a motor vehicle and driving over 80 milligrams percent. [ 20 ] He testified that the “fail” result was obtained at 11:22 p.m., he arrested Mr.

Marshall at 11:23 p.m. and immediately gave his rights to counsel, the breath test demand and police warning, all of which he read from a card. Mr. Marshall indicated he understood all of these things and that he did wish to speak to a lawyer. [ 21 ] After securing Mr. Marshall’s vehicle at the scene, they left at 11:29 p.m., and drove along the most direct route to the Melfort RCMP Detachment. During this ride of approximately two minutes, the officer made no further observations. [ 22 ] At 11:31 p.m. they arrived at the detachment and Mr.

Marshall was placed in a telephone room to allow him an opportunity to speak to a lawyer. A lawyer was contacted at 11:37 p.m. and Mr. Marshall finished his private conversation at approximately 11:43 p.m. He indicated to the constable that he was satisfied with his discussion with the lawyer and he was taken out of the telephone room. [ 23 ] Cst. Wyonzek testified that as soon as they came out of the telephone room, he presented Mr. Marshall to the breath operator, Cst. Uliski, and told him they were ready to proceed. Mr. Marshall was placed on a chair outside of the breath test room waiting for Cst.

Uliski to advise when he was ready to have Mr. Marshall provide samples. Cst. Wyonzek testified he sat across from Mr. Marshall and observed him and spoke to him while they waited for the instrument to be readied.

[24] As the officer sat across from Mr. Marshall he observed that he had nothing to eat or drink since the initial stop or in thedetachment. [25] Cst. Wyonzek observed the testing procedure. When the accused got up he walked 7 to 9 feet through a doorway to anotherroom where the breath instrument was located. Cst. Uliski was standing in front of the instrument, the accused stood opposite, facingCst. Uliski, with Cst. Wyonzek behind the accused where he observed him blow into the instrument. Once the accused had provided twosamples of his breath, Cst. Uliski gave Cst.

Wyonzek the Certificate of a Qualified Technician. [26] The resulting Certificate of a Qualified Technician (Exhibit P-2) states the first sample was taken at 0005 hours on July 14,2012 resulting in 130 milligrams of alcohol in 100 millilitres of blood; the second test was taken at 0025 hours on July 14, 2012 with theresulting reading of 110 milligrams of alcohol in 100 millilitres of blood. [27] Cst. Wyonzek testified he photocopied the certificate and provided Mr. Marshall with the copy but did not compare it side byside with the original.

He did read to the accused that portion of the certificate where the samples were noted and the times they weretaken. With respect to the “Notice of Intention to Produce” the officer testified he did not read that word for word but said that thecertificate could be used in his trial or for court. He completed the affidavit of service indicating he served a true copy on the accused.

(1) Was Mr. Marshall arbitrarily detained contrary to s. 9 of the Charter? [28] Mr. Marshall bears the onus of establishing any breach of his Charter rights on a balance of probabilities. [29] Counsel for Mr. Marshall argues the officer had no articulable cause for stopping him as there was nothing suspicious in thecircumstances. Further the officer did not mention in his report that the stop was also to check for driver sobriety, just that it was tocheck for licence and registration information. [30] I find that Cst. Wyonzek was a very fair and credible witness.

He did not embellish nor did he appear evasive during histestimony. I accept his evidence that initially he noticed Mr. Marshall’s vehicle as it was driving along the golf course road at a fairlylate time of night, about 11:00 p.m., and that there are no services along that road. Knowing that the road exits onto SaskatchewanAvenue, he decided he would stop the vehicle for his vehicle licence and registration, and I accept, sobriety.

Even if he did not mentionsobriety as a reason for stopping the accused, he still had the lawful authority to randomly stop him to check for licence and registration. [31] The law is settled that police have the authority to randomly stop any vehicle for the purpose of checking for licence,registration and sobriety of drivers. They need not have articulable cause unless they are stopping for other reasons not related tohighway traffic issues. In R. v. Sothman, 2002 SKQB 478 at para. 5, Laing J. stated: 5.

If a uniformed patrol officer whose duties include traffic patrol can randomly stop (meaning for no reason at all) a motor vehicle tocheck its licence, its mechanical condition, or the sobriety of the driver, then it follows that if something about the driving of the vehiclecauses the officer to randomly stop it, that something can be anything, including intuition, as long as the purpose is to check the licence,sobriety of the driver or any other highway traffic reason. It is not necessary that the motorist first commit a driving infraction orirregularity before the stop is lawful.

As the cases referred to above note, the random stopping of vehicles is directed at the preventionand deterrent aspects of highway law enforcement. [32] This has been the state of the law in Saskatchewan for years and has been reinforced by our Court of Appeal in R. v.Ladouceur, 2002 SKCA 73 at para. 22; R. v. Houben, 2006 SKCA 129 at para. 50; and R. v. Doell, 2007 SKCA 61 at para. 19-22. [33] I find Cst. Wyonzek lawfully stopped Mr. Marshall and there was no arbitrary detention and thus no violation of his s. 9

Charter right.

(2) Does the officer’s stop on private property constitute a breach of s. 8 and s. 9 of the Charter? [34] Mr. Marshall was observed by Cst. Wyonzek travelling on a dirt road and then turning onto Saskatchewan Avenue, all withinthe City of Melfort, Saskatchewan. The officer activated his emergency lights as the accused pulled into the parking lot of a localbusiness. [35] The officer clearly observed the accused on the public roadway and formed his intention to stop Mr. Marshall well before Mr.Marshall ever turned into the parking lot. I find the circumstances of the stop are not those as existed in R. v.

Lux, 2012 SKCA 129 where the accused was observed in the parking lot when the intention to stop was formed. Rather, I find that this case issimilar to that of R. v. Anderson, 2013 SKQB 219 which holds that the police are justified in stopping a vehicle incircumstances where the intention to stop the vehicle is formed before the vehicle enters a private parking lot. I am bound by Anderson,supra, and find there is no breach of s. 8 or 9 of the Charter.

(3) If there is a breach of either s. 8 or s. 9 of the Charter, should the resulting evidence be excluded upon a s. 24(2) analysis? [36] As I find there was no breach of either s. 8 or s. 9 of the Charter, there is no need to embark upon a s. 24(2) analysis. Thus,the Certificate of Analyses is admissible into evidence on the trial proper. THE TRIAL PROPER

(4) Were the breath tests taken “as soon as practicable”? [37] The onus rests with the Crown to prove beyond a reasonable doubt that all of the prerequisites to admission of the Certificateof Analyses (Exhibit P-2) are met such that the certificate becomes a full exhibit and can be relied upon as proof of the blood alcoholcontent of the accused at the time of driving. [38] Counsel for Mr. Marshall argues the 22 minutes which elapsed from the time the accused finished his call with counsel(11:43 p.m.), to the first sample being taken (12:05 a.m.) was not taken “as soon as practicable” pursuant to s. 258(1)(c)(ii) which states: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253... (

c) where samples of the breath of the accused have been taken pursuant to a demand under subsection 254(3), if (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case ofthe first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the sampleswere taken... [39] The Crown submits there was no evidence the police acted unreasonably with respect to the 22 minutes between thecompletion of the call to counsel and the first breath test. Counsel for Mr.

Marshall submits no explanation was proffered to explain thisdelay and that absent an explanation, the 22 minute delay was unreasonable.

[40] Each situation turns on its facts and there is no particular time or span of time which is automatically unreasonable. InSaskatchewan, the law continues to be that as outlined in R. v. Carter (1981), (SK CA), 59 C.C.C. (2d) 450 (Sask.C.A.) and reiterated by Koch J. in R. v. Hiebert, 2004 SKQB 387 at paragraph 14: [14] The law is clear that to decide whether breath samples were taken as soon as practicable the court must apply common sense andreason. It is not required that an accounting be given of every minute leading up to the taking of the sample...The Saskatchewan courtshave on the authority of R. v.

Carter (1981), (SK CA), 59 C.C.C. (2d) 450 (Sask. C.A.) consistently held that whethera breath test has been taken as soon as practicable is to be treated as a question of fact. There is a helpful

summary of the law in thejudgment of Grotsky J. of this Court in the case of R. v. Hellement (1988), (SK KB), 70 Sask. R. 201, at 205: . . . the law appears to be that: 1. Whether breath tests are taken as soon as practicable, is in each case a question of fact for the trial judge; 2. The meaning of the words “as soon as practicable” raises a question of law; 3. “As soon as practicable” means within a reasonably prompt time under the circumstances; 4. It is not proper to equate the words “as soon as practicable” with the words “as soon as possible”. [41] The Ontario Court of Appeal in R. v.

Vanderbruggen, (ON CA), 2006 CarswellOnt 1759 endorsed thissame approach: 13. In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing inmind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “assoon as practicable” requirement must be applied with reason.

In particular, while the Crown is obligated to demonstrate that -in all thecircumstances- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailedexplanation of what occurred during every minute that the accused is in custody. [42] In R. v. Yates, 2013 CarswellSask 494 (Sask QB), Laing J. at paragraph 20 found the officer’s explanation that he and theaccused waited for the technician to prepare the instrument was sufficient explanation to find the breath samples were taken as soon aspracticable. In the present case, Cst.

Wyonzek testified that he presented the accused to the breathalyzer technician as soon as he wasfinished his call to counsel. He told the breath technician, Cst. Uliski, that they were ready to proceed. The accused and Cst. Wyonzekthen sat outside the breath room and talked, with the constable observing the accused, waiting for the instrument to be readied. [43] The constable did not indicate what time it was that the operator of the instrument indicated that they could enter for thesamples to be taken.

I infer that as soon as the breathalyzer technician indicated he was ready to proceed, that at that point, Cst.Wyonzek and the accused went into the breath room and stood in front of the operator and the instrument. I find this occurred within ashort period of time immediately before the first sample was taken as it is reasonable to infer the operator would have to provide Mr.Marshall with instructions as to how to blow into the instrument. [44] I agree with this observation by the Ontario Court of Appeal in Vanderbruggen, supra, at paragraph 16: 16.

To conclude, these provisions, which are designed to expedite trials and aid in the proof of the suspect’s blood alcohol level, shouldnot be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days whenthe breathalyzer was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and valueand about the science underlying the presumption of identity.

These provisions must be interpreted reasonably and in a manner that isconsistent with Parliament’s purpose in facilitating the use of this reliable evidence. [45] Considering all the circumstances, I find the Crown has satisfied me beyond a reasonable doubt that the tests were takenwithin a reasonably prompt time and that the 22 minute time frame is adequately explained, such that I have no hesitation in finding thesamples were taken “as soon as practicable” within the meaning of s. 258(1)(c)(ii) of the Code.

(5) Was a true copy of the Certificate of a Qualified Technician served in compliance with s. 258(7) of the Criminal Code ? [ 46 ] Section 258(7) states:

(7) No certificate shall be received in evidence pursuant to paragraph 1 (e), (f), (g), (

h) or (

i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate. [ 47 ] The certificate and the Notice of Intention to Produce are a single document. The certificate is the upper portion of the document with the notice immediately thereunder. A separate page, stapled to the certificate/notice contains the completed affidavit of Cst. Wyonzek wherein he swears that he served a true copy of the certificate and the Notice of Intention to Produce on the accused on July 14, 2012.

The affidavit was sworn on July 15, 2012. [ 48 ] Defence counsel argues the Crown has not proven a true copy was served on the accused as the officer testified he did not make a side by side comparison nor does he have a specific recollection as to himself photocopying the certificate. Thus, no true copy was proven served and the certificate is not admissible. [ 49 ] With respect, this ignores the evidence of the officer.

He said in cross-examination that a photocopy of the certificate was made as these particular certificates are not assembled so as to provide a carbon copy of the certificate as was once the case. He did say he glanced at both copies to ensure the information concerning the time of the readings and the readings themselves were the same and then gave a copy to Mr. Marshall with his other documents. [ 50 ] The officer is not required to lay the copy alongside the original to compare them word for word. Nor is he required to contemplate the copy and original for a certain length of time.

Further, he is not required to photocopy the document himself, as someone else can, leaving it with the officer to serve the copy. [ 51 ] In R. v. Glass , 1973 CarswellSask 86 (Sask. C.A.) , the Court found that a true copy had been served on the accused, even though he could not recall if he signed the copy or if the signature of the qualified operator was on the copy. He testified he did read the copy over and it was a duplicate copy of the Certificate of Analyses. At paragraphs 9 and 11, the Court of Appeal observed, in relation to the wording of the

section at the time which is similar to its current wording: 9. The foregoing subsection does not require that the accused be served with a duplicate original certificate. This is how the

section would have to be interpreted if the contention of the appellant were well-founded. The

section requires that the accused be served "with a copy of the certificate"... 11. Clearly, the copy of the certificate which was served, even if not personally signed by the qualified technician, was true in all essential particulars and conveyed to the appellant all of the information required and could not possibly have misled him in any way. That being so, the copy which was served met the requirements of s. 237(5) and the appeal is therefore dismissed. [ 52 ] In R. v. Longley , 1997 CarswellSask 135 (Sask.

Q.B.) the officer had completed the affidavit of service of the certificate and provided viva voce evidence concerning providing the documents to the accused. At paragraph 4, the Court observed: 4 The law is clear that the affidavit is to be received as evidence unless the officer is challenged in that respect and it emerges that there was some deficiency in the preparation of the copy which would negate the evidence of its being a true copy. [ 53 ] Further, the Court observed at paragraphs 6 through 9:

6 It appears that this rather innocuous subsection which requires that a copy of the certificate be given to the "other party", normally the accused, has received much attention and in the course of that attention it has been judicially amended to mean "true copy" which presumably, though not logically, means something more than "copy".

It has also been allowed to grow to the point where the affidavit may be disregarded if the police officer does not provide supplemental evidence when challenged as to the manner in which he assured the accuracy of the copy. 7 By the judgment in this case the trial judge has further advanced the law to a point where even when not challenged there is an obligation to provide supplemental evidence of comparison, etc. in order to buttress the evidence of the affidavit. 8 I hold this to be an error of law.

Prosecutions of this type are not infrequent and when a police officer completes the affidavit of service his memory is fresh.

As time passes between that moment and the trial of the action it is reasonable to expect his specific recollection of one particular set of copies may dim and so the affidavit must be at least as reliable as his recollection of the events some weeks or months later. 9 It would not be unreasonable to require that if there is to be a challenge under this subsection of the affidavit or of the copy supplied, it should be based upon a discovered difference as between the copy and the original.

Otherwise the refusal to admit the certificate becomes merely the prize in a procedural game which can only bring the justice system into disrepute. The object of this

section is to assure that the accused knows the case he has to meet. Unless the copy which he receives is in some way different from the original, that object has been met. There is no reason to elevate the requirement beyond that level of importance. [ 54 ] Attached to Exhibit P-1, being the certificate and the Notice of Intention to Produce is an affidavit of service. Cst. Wyonzek swore this affidavit, on July 15, 2012, within one day of serving Mr. Marshall, swearing under oath that he had served him with a true copy of the Notice of Intention to Produce and the certificate.

He was cross-examined about this issue approximately 17 months after the fact at the trial held on November 21, 2013. Given the passage of time it is not surprising the officer has no clear recollection of whether he or someone else photocopied the certificate. However, he was not swayed in cross-examination that he did serve the accused with a photocopy of the certificate and that he paid attention to the time of the readings and the readings themselves when he glanced at it. Further, he testified he read this information out to Mr.

Marshall and told him the certificate could be used in court. [ 55 ] I find the case of R. v. Cox, 2013 SKPC 187 , is distinguishable as it involves a carbon copy of the document and not a photocopy as here. The decision in R. v. Vogel, 2010 SKPC 185 , is also distinguishable as the officer testified he did not compare the copy to the original prior to service, which is not the case here. [ 56 ] Counsel for the accused did not put the defence copy of the certificate to the police officer or lead any evidence that the accused was misled or prejudiced by the copy of the certificate served upon him.

I agree with the comment in Longley, supra, at paragraph 9 as outlined above. It is up to the accused to lead evidence that there is a discoverable difference between the original certificate and that which he received. [ 57 ] I find Cst. Wyonzek did serve the accused with a true copy of the Certificate of a Qualified Technician and the Notice of Intention to Produce. Exhibit P-2 is admitted into evidence and becomes a full exhibit on the trial proper. DECISION [ 58 ] Having heard all the evidence, I am satisfied beyond a reasonable doubt that the Crown has proven Mr.

Marshall operated a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood. Using the lower reading in the Certificate of a Qualified Technician (Exhibit P-2) Mr. Marshall’s blood alcohol content was 110 milligrams of alcohol in 100 millilitres of blood at the time of driving and I find him guilty of Count 1. [ 59 ] With respect to Count 2, I find the accused not guilty of impaired operation of a motor vehicle. Cst.

Wyonzek candidly testified he did not observe any other signs of intoxication other than the odour of alcohol and glossy eyes. He agreed in cross- examination he did not observe any untoward driving, lack of fine motor skills such as fumbling, any speech impediment such as slurred speech or bloodshot eyes. He admitted in cross-examination that without the “fail” reading on the ASD he would not have had the grounds to make the breathalyzer demand. I find the Crown has not proven this charge beyond a reasonable doubt and therefore acquit the accused.

I. Cardinal, J