Her Majesty the Queen - v. -, 2014 SKPC 127

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 127 Date: July 18, 2014 Information: 24292183 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Matthew Curtis Hansen Appearing: Barrie Stricker For the Crown Jeremy Jensen For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] Matthew Hansen is charged with refusing to comply with a demand to provide a breath sample into an Approved Screening Device (ASD), contrary to s. 254(5) of the Criminal Code . The only witnesses to testify at the trial were Cst.

Jan Indenbosch and Cst. Kaylee Moar. The evidence of both officers was heard on a voir dire regarding the Charter application, and that evidence - with the exception of a copy of Cst. Moar’s notes - was applied to the trial.

[ 2 ] The issues in this case are:

(1) Were Mr. Hansen’s rights pursuant to s. 8 and 10(

b) of the Charter infringed because Cst. Moar did not read the ASD demand to him forthwith after she had a suspicion that Mr. Hansen had alcohol in his body, and, if so, should evidence of his refusal be excluded under s. 24(2) of the Charter ; and

(2) Has the Crown proved beyond a reasonable doubt that Mr. Hansen refused to comply with a lawful demand for an ASD sample? II. BACKGROUND [ 3 ] On July 18, 2013, not long before 11:00 p.m., Mr. Hansen was driving north on Highway 8, three miles north of Moosomin. Cst. Moar was driving south on this highway, and met Mr. Hansen. She clocked his vehicle at 140 kilometres per hour. As a result, the officer made a U-turn and followed Mr. Hansen for about eight kilometres, before turning on her emergency lights. She then stopped him at 10:50 p.m., about half a kilometre from Rocanville. [ 4 ] After Cst.

Moar stopped behind Mr. Hansen’s vehicle, she ran his licence plate number on her computer system and discovered that the vehicle was registered to Mr. Hansen. She then advised the RCMP telecom operator of what she was doing, and got out of her vehicle. She approached the driver’s side window and spoke to Mr. Hansen, who was the driver, about his speed. She then asked for his driver’s licence and he produced this. [ 5 ] During her initial conversation with Mr. Hansen, Cst. Moar noted a smell of alcohol coming from the vehicle. This raised a concern with her about Mr.

Hansen’s sobriety, and she embarked on an impaired driving investigation. [ 6 ] Because she was not sure if the alcohol was coming from Mr. Hansen, or from one of the two passengers with him, she asked Mr. Hansen to step out of the vehicle. He did so, and when she was standing in front of him outside his vehicle she asked him to blow in her direction. He did not do so, but instead breathed to the side and not towards her. She asked, again, that he blow towards her, and he did so. On the second occasion, she smelled alcohol coming from Mr. Hansen’s breath. When Cst. Moar told Mr.

Hansen she could smell alcohol on his breath, his head sagged and he said he had had a couple of drinks a few hours before. [ 7 ] Cst. Moar then advised Mr. Hansen that he was being detained for an Approved Screening Device demand and asked him to accompany her to the police vehicle. On the way to the vehicle, there was conversation between the officer and Mr. Hansen. The officer indicated that she, in effect, was responding to what Mr. Hansen was raising with her. This conversation lasted for a few minutes, and among other things Mr.

Hansen was questioning the officer about why she could not just let him go for speeding. [ 8 ] When Cst. Moar and Mr. Hansen arrived at, and were standing beside, the police vehicle, Mr. Hansen advised the officer that he would not provide a breath sample. She then searched him and placed him in the back seat of the police vehicle. Once the officer got into the driver’s seat of the police vehicle, she contacted Cst. Indenbosch by the police radio, at 11:02 p.m. She asked Cst.

Indenbosch, who was on patrol at a location not far away from her location, to bring an ASD instrument to her. [ 9 ] Within 30 seconds of speaking to Cst. Indenbosch, Cst. Moar began reading the ASD demand to Mr. Hansen. Mr. Hansen was belligerent and noisy and conducted himself in a way that the officer could not make herself heard. As a result, Cst. Moar read the demand from her card to Mr. Hansen three times, but Mr. Hansen would not acknowledge that he understood what she was saying to him. [ 10 ] At 11:10 p.m., Cst. Indenbosch arrived at the scene, readied the ASD, and brought it to Cst. Moar. Because Mr.

Hansen had still not acknowledged that he understood the demand, Cst. Moar read it one further time to him. He replied “I’m not fucking blowing”. He then repeated the words “I refuse” three times. The officers then explained to Mr. Hansen the legal effects of him refusing to blow, and he repeated that he was not going to blow. Mr. Hansen was belligerent, and told Cst. Moar “Eat my shit” and told Cst. Indenbosch “Suck my dick”.

[ 11 ] Mr. Hansen was then arrested for refusing to provide an ASD sample, and was given his police warning and rights to counsel. Cst. Moar quickly formed the opinion that she would release Mr. Hansen at his residence, which was a work camp nearby. Mr. Hansen, however, said he wanted to be kept in the police cells overnight at the detachment. Cst. Moar, who in my view showed great patience with Mr. Hansen, was not prepared to do that. She, instead, prepared the required documentation, and then took Mr. Hansen home and released him. III. ANALYSIS 1.

Was the demand made forthwith? [ 12 ] While there is a requirement that an ASD test be taken forthwith after the demand, there is, as well, a requirement that the demand be given forthwith after the police officer suspects that a person has alcohol in their body. ( R. v. Husulak, 2006 SKQB 284 at para. 14 - 16 .) [ 13 ] I accept that the legal standard in defining “forthwith” is that set by the Saskatchewan Court of Appeal in R. v. Ritchie [1] and then subsequently in R. v.

Janzen . [2] In Ritchie , the Court said "forthwith" means "as soon as possible and before there is any realistic possibility that the subject could successfully contact counsel and get legal advice". [3] In Janzen , the Court defined the term to mean without an unreasonable or unjustified delay. [4] While the Court of Appeal subsequently, in R. v.

Anderson , [5] held that an ASD demand given three minutes after the officer suspected the subject had alcohol in his body - where no reason was given for the subject’s detention - was not forthwith, I am nevertheless satisfied that issue remains whether any delay in giving the demand is unjustified (see the discussion of this, in the context of the Anderson decision, by Scherman J. in R. v. Mertins ). [6] [ 14 ] Cst. Moar’s evidence, on direct examination was that it was six to seven minutes between when she smelled alcohol on Mr. Hansen’s breath, at 10:53 p.m., and when she began reading the demand to him.

On cross-examination, she was asked about an entry in her notes which appeared to show the breath demand was not given until 11:10 p.m. I accept the officer’s explanation about how she structured her notes and that she intended the time 11:10 p.m. to refer to when the ASD instrument was presented to Mr. Hansen. As a result, given the previous time of 11:02 in her notebook, I accept it may have been as long as nine minutes between when she first smelled alcohol on Mr.

Hansen’s breath and when she started to read the demand to him. [ 15 ] Even given the longer time frame of nine minutes, I am not satisfied that any delay between when Cst. Moar suspected Mr. Hansen had alcohol in his body and when she demanded an ASD sample from him was unjustified. That is because: (1) this was a traffic stop in the dark of night on a highway in rural Saskatchewan, and in my view the officer acted reasonably in having Mr. Hansen come back to the police vehicle before the demand was read to him; (2) upon the officer suspecting that Mr.

Hansen had alcohol in his body, she immediately advised him he was being detained for an ASD demand and asked him to come back to the vehicle; (3) part of the delay before the demand was as a result of the officer responding, politely, to the questions and comments of Mr. Hansen, including him telling her she should let him go and that he would not blow; (4) some time was required to search Mr. Hansen before getting into the police vehicle; and (5) upon entering into the vehicle, the officer in my view acted reasonably in contacting Cst.

Indenbosch to bring to her an ASD instrument, and then immediately beginning to read the ASD demand to Mr. Hansen.

[16] I am, as well, satisfied that the demand was made as soon as possible, and - although the officer had a cell phone but given thebelligerent behaviour of Mr. Hansen and the circumstances of this stop - before there was any realistic possibility that he couldsuccessfully contact counsel and get legal advice. Taken together, I am satisfied that this ASD demand was made forthwith after Cst.Moar suspected Mr. Hansen had alcohol in his body and, as a result, I am not satisfied that Mr. Hansen’s Charter rights were breached. His application under s. 24(2) is dismissed. 2.

Did he refuse to comply with a lawful demand? [17] I am satisfied that, regardless of the Charter issue, the Crown must prove beyond a reasonable doubt that the officer made a lawful demand for an ASD sample pursuant to s. 254(2)(b)[7] and that Mr. Hanson refused. In this case, I am satisfied the Crown hasmet this burden. I find that:

(1) Cst. Moar: (

a) had reasonable grounds to suspect that Mr. Hansen had alcohol in his body and that he had been driving his vehiclewithin the preceding three hours; (

b) made a demand for an ASD sample forthwith after she formed this suspicion; and, taken together, (

c) made a lawful demand to Mr. Hansen under s. 254(2)(b)[8]; and

(2) Mr. Hansen refused that demand. IV. CONCLUSION [18] As a result, Mr. Hansen is found guilty. R. Green, J [1] 2004 SKCA 9. [2] (2006), 2006 SKCA 111 , 285 Sask. R. 296. [3] at para. 17. [4] at paragraph 4. [5] 2011 SKCA 13. [6] 2013 SKQB 252 at para. 44. [7] R. v. Grant, (SCC), [1991] 3 S.C.R. 139 at para. 19. [8] See the discussion of these elements by Judge Kalmakoff in R. v. Birnie, 2013 SKPC 50.