Her Majesty the Queen - v. -, 2012 SKPC 104

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 104 Date: July 30, 2012 Information: # 39984926 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brent Michael Yates Appearing: J. MacLean For the Crown R. Piché For the Accused JUDGMENT S.P. WHELAN , J Introduction [ 1 ] Mr. Yates was charged with impaired driving and driving while over .08. The issues and conclusions are summarized below.

a) Were s. 10(

a) and 10(

b) Charter rights infringed at the roadside?

[ 2 ]

Section 10(

a) and (

b) of the Charter provide for the right to be promptly informed of the reason for arrest or detention and the right to retain and instruct counsel without delay and to be informed of that right. These rights were not infringed at the roadside. The right to counsel was suspended until after the result of the approved screening device test. The officer initially informed Mr. Yates of the purpose of the traffic stop and following the ASD test, told him that he was charged with impaired driving. The officer may use the ASD result to confirm his suspicions and to ascertain the level of impairment before advising of the right to counsel and the charge.

b) Was the s. 10(

b) Charter right infringed at the detachment? [ 3 ] Mr. Yates’ s. 10(

b) Charter right to counsel was not infringed at the detachment. He had access to “duty counsel” in keeping with his initial request. Subsequently he chose to contact a lawyer of choice and encountered difficulty in so doing. He was given the opportunity to make other calls but was not given any advice regarding his options. I was not convinced by the Defence on a balance of probabilities that there was a Charter infringement.

c) Did the arresting officer have grounds to make an ASD demand? [ 4 ] The arresting officer did not have grounds to make the ASD demand, as required by s. 254(2) of the Criminal Code , i.e. reasonable grounds to suspect that Mr. Yates had alcohol in his body. The evidence concerning the smell of alcohol coming from Mr. Yates’ mouth, obtained after the approved screening device demand, may not be used to support the officer’s grounds. A Charter application seeking exclusion was required and such relief should be available having regard to the discussions between counsel and at the outset of the trial.

The ASD sample was obtained in breach of ss. 8 and 9 of the Charter regarding arbitrary detention and search and seizure.

d) Were breath samples taken as soon as practicable, pursuant to ss. 254(3) and 258(1) of the Criminal Code ? [ 5 ] The Intoxilyzer samples were not taken as soon as practicable as required by s. 254(3) and s. 258(1) (c)(ii) of the Criminal Code as there was a 22 minute unexplained delay immediately preceding the first sample. The samples are admissible but may not be relied upon pursuant to s. 258(1)(

c) of the Code . In any event, I am of the view that Charter relief is available having regard to the discussion regarding the notice and arguments of counsel. The samples were obtained in breach of ss. 8 and 9 of the Charter.

e) Was the officer mistaken, in his understanding of the ASD fail reading and did it affect the validity of the demand pursuant to s. 254(3) of the Code? [ 6 ] The officer’s testimony about his understanding of the “fail” result did not detract from his having the necessary grounds to demand breath samples pursuant to s. 254(3) of the Criminal Code .

f) The need for and adequacy of the Charter notice with respect to issues

c) and d)? [ 7 ] A formal Charter application should have been brought to seek exclusion of the ASD result and might have been brought to exclude the Intoxilyzer samples. Given the history of the matter, the lack of apparent prejudice to the Crown, the particulars of the Defence position provided and the uncertainty regarding Charter applications in this jurisdiction, in the interests of trial fairness, I considered these issues in the context of the Charter.

g) Was a true copy of the Certificate of Analyses and Notice of Intention to Produce the Certificate served on the accused? [ 8 ] The evidence regarding service of the Certificate of Analyses and the Notice of Intention to Produce the Certificate was not contradicted by the testimony of the officer who was simply guessing as to what transpired.

h) Has the Crown proven the impaired driving count? [9] The driving behaviour, while sufficient to warrant a traffic stop, was not sufficient, coupled with the physical observations,to permit this Court to find that the Crown had proven the impaired driving count beyond a reasonable doubt.

i) What if any remedy is appropriate? [10] Having reviewed the evidence and arguments presented in light of the onus of proof upon the Crown, generally in criminalproceedings, which is beyond a reasonable doubt and the onus upon the accused in Charter applications which is on a balance ofprobabilities, and having conducted a Grant analysis, I found that the following relief should be granted: i. The ASD result will be excluded as it was obtained in breach of the ss. 8 and 9 Charter rights, to besecure against unreasonable search or seizure and to not be arbitrarily detained. ii.

The Intoxilyzer test results will be excluded as they were obtained in breach of the s. 8 Charter right, to besecure against unreasonable search or seizure. The Intoxilyzer Certificate of Analyses, in any event may not be reliedupon, pursuant to ss. 254(3) and 258(1)(

c) of the Code. iii. Without the ASD result and Intoxilyzer results and having regard to the insufficiency of the evidence the Crownwas unable to prove either the over .08 or impaired driving counts beyond a reasonable doubt. Mr. Yates has been foundnot guilty of both charges. Cases and Statute provisions considered [11] Counsel filed a great number of cases which I considered and I considered additional cases. The alphabetical list belowincludes cases that are specifically referenced in my reasons as well as others that influenced my reasoning to a lesser degree: R. v. Allin, [2003] S.J. No. 289 (SKPC) R. v.

Bartle, (SCC), [1994] S.C.J. No. 74 R. v. Becker, [2011] S.J. No. 789 (SKPC) R. v. Bernshaw, (SCC), [1994] S.C.J. No. 87 R. v. B.G.H., 2009 SKPC 54 R. v. Bitz, 2011 SKQB 438 R. v. Breland, [2011] S.J. No. 405 (SKPC) R. v. Butchko, 2003 SKPC 76 , [2003] 9 W.W.R. 582 (SKPC) R. v. Butchko, 2004 SKCA 159 , [2004] S.J. No. 735 (CA) R. v. Carriere, [2010] S.J. No. 499 (SKPC) R. v. Carter, (SK CA), [1981] S.J. No. 1337 (SKCA) R. v. Charette, 2009 ONCA 310 R. v. Coleman, 2010 SKPC 100 R. v. Demers, 2007 SKQB 348 R. v. Dolezsar, 2012 SKQB 6 (under reserve SKCA)

R. v. Dolezsar, 2010 SKPC 142 R. v. Dombrowski, (SK CA), [1985] S.J. No. 951 (SKCA) R. v. Deruelle, (SCC), [1992] 2 S.C.R. 663 R. v. Edgington, [2010] S.J. No. 599 (SKQB) R. v. Elias, 2005 SCC 37 , [2005] S.C.J. No. 37 R. v. Epp, [2010] S.J. No. 563 (SKPC) R. v. Field, [2001] S.J. No. 155 (SKPC) R. v. Forsythe, 2009 MBCA 123 R. v. Friesen, 2010 SKPC 8 R. v. Grant, 2009 SCC 32 R. v. Gunn, [2010] S.J. No. 761 (SKQB) (under reserve SKCA) R. v. Gillis, 2006 ABPC 323 , [2006] A.J. No. 1445 (ABPC) R. v. Hatzel, 2011 SKPC 59 , [2011] S.J. No. 278, (SKPC) R. v. Henderson, [2003] S.J. No. 144 (SKQB) R. v.

Hey, 2008 ABPC 74 , [2008] A.J. No. 317 (ABPC) R. v. Husulak, [2006] S.J. No. 480 (SKQB) R. v. Jensen, 1982 CarswellNS 16, 124 (NS CA), 2 C.C.C. (3d) 11 (NSCA) R. v. Johnson, 1999 BCCA 622 , [1999] B.C.J. No. 2488 (BCCA) R. v. Johnstone, 2009 SKPC 133 R. v. Klug, [2011] A.J. No. 303 (ABPC) R. v. Lindsay, (ON CA), [1999] O.J. No. 870 (ONCA) R. v. Longley, [1996] S.J. No. 207 (SKQB) R. v. Lott, [1997] S.J. No. 134 (SKPC) R. v. Lozinski, 2010 PCU 035 (SKPC) R. v. MacDonnell, [2004] O.J. No. 927 (ONSCJ) R. v. McClelland, 1995 ABCA 199 , [1995] A.J. No. 539 (ABCA) R. v. McCoy, [1990] S.J. No. 65 (SKQB) R. v.

McLeod, [2011] S.J. No. 747 (SKQB) R. v. McLinden, 2004 ABPC 7 , [2004] A.J. No. 200 (ABPC) R. v. McCrimmon, 2010 SCC 36 , [2010] 2 S.C.R. 402 R. v. Meek, 2010 SKPC 136 R. v. Monteyne, 2008 SKPC 20 R. v. Neuberger, 2007 ABPC 66 , [2007] A.J. No. 282 (ABPC) R. v. Nyman, (ON CA), [1998] O.J. No. 4064 (ONCA) R. v. O’Flanagan, 2009 SKPC 14 R. v. Ough, [2011] S.J. No. 290 (SKQB) R. v. Paton, [2006] S.J. No. 694 (SKPC) R. v. Prosper, (SCC), [1994] 3 S.C.R. 236

R. v. Rice, [2011] S.J. No. 743 (SKQB) R. v. Rilling, (SCC), [1975] S.C.J. No. 72 R. v. Sajec, [2011] S.J. No. 679 (SKPC) R. v. Salisbury, 2012 SKCA 32 , [2012] S.J. No. 159 (SKCA) R. v. Sawatzky, 2010 SKPC 9 , 2010 SKPC 009 R. v. Sandypoint, [2009] S.J. No. 188 (SKPC) R. v. Sauve, [2008] S.J. No. 188 (SKPC) R. v. Searle, 2006 NBCA 118 R. v. Shinkewski, 2012 SKCA 63 R. v. Sood, [2005] A.J. No. 1660 (ABPC) R. v. Spilde, 2011 SKPC 97 R. v. Stewart, 2010 SKPC 36 R. v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460 R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640 R. v. Thompson, 2003 SKPC 56 , [2003] S.J. No. 240 (SKPC) R. v.

Ukrainetz, [2006] S.J. No. 585 (SKPC) R. v. Umpherville, March 20, 2012, Kalenith SKPC, unreported R. v. Vanderburgen, (ON CA), [2006] O.J. No. 1138 (ONCA) R. v. Vermette, [1997] S.J. No. 914 (SKQB) R. v. Vogel, 2010 SKPC 185 R. v. Watt, [2012] S.J. No. 152 (SKPC) R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429 R. v. Woods, 2005 SCC 42 , [2005] 2 S.C.R. 205 R. v. Wong, [2004] O.J. No. 4254 (ONCJ) R. v. Yurechuk, 1982 ABCA 341 , 1982 CarswellAlta 224 (ABCA) [12] These sections of the Charter of Rights and Freedoms and Criminal Code are pertinent: Charter: ss. 8, 9, 10(

a) and (

b) and 24(2) Criminal Code: ss. 254(2) and (3) and 258(1)(a), (

c) and (

g) Facts [13] The trial began with a voir dire, given that there were several Charter issues. [14] The principal witness was the arresting officer; thus his testimony was scrutinized for accuracy and reliability. At variouspoints there was concern about the absence of information or note taking regarding significant matters including the time at which eventstook place, a tendency to testify as to what “would” have happened and to be imprecise with sequence.

This became more evident upon areview of the testimony and will be discussed in context below. [15] The arresting officer was attracted to the Yates’ vehicle at about 1:20 a.m., after hearing a loud muffler and he followed it to investigate. It was not in his sight continuously but was soon located on 33rd Street and Warman Road and from there was followed for

about 5 blocks. The officer noted that at one point the vehicle left its left lane, went into the right lane and then immediately made a jerky correction back to the left lane. After the correction the vehicle stayed in the same lane but quickly accelerated. Using his radar equipment, the officer determined that Mr. Yates traveled at 74 kilometres per hour in a 50 kilometre zone for approximately 1 ½ blocks. The officer activated his emergency lights and siren and the vehicle came to a stop in a parking lot at 1:27 a.m. [ 16 ] The officer approached the driver’s side of the vehicle and spoke with Mr.

Yates, through his window, advising him of his speed. He was investigating a loud muffler and excessive speed at that point. He noticed that Mr. Yates’ eyes were glossy and somewhat bloodshot and he detected the smell of beverage alcohol coming from the vehicle. He found his observations, including the driving behaviour to be consistent with impairment. [ 17 ] The officer was cross-examined about the number of occupants in the vehicle. He had not noted this and had no independent recollection of it. This is the testimony that followed: Q: There were other passengers in that vehicle, correct?

A: I’m not 100% sure because I didn’t mark it down. Q: All right, you don’t recall efforts being made or at least discussions with the passengers in order to see how they would get home from that location? A: I’m sure if there were passengers I would have done that. Q: Yeah. A: Cause that’s a common practice. Q: But I just want to make sure I understand this. You don’t have any recollection as to other occupants of that vehicle besides the accused? A: Ah. . . I don’t; nothing that I noted down. Q: But, forget the notes.

From your perch there, using your memory, which is the preferred approach here, do you have any recollection of whether there were occupants in that vehicle? A: Again, I’m not 100% sure because there could’ve been and if there were, I always do make sure that there’s a way for them to get home. [ 18 ] Later in cross-examination the officer was asked about the odour of alcohol coming from the vehicle and determining its source in relation to occupants in the vehicle: Q: Your evidence is that you noted the smell of alcohol but again this was emitting from the vehicle correct? A: Yes.

Q: As opposed to the person of the accused or the breath of the accused, correct? A: Yes. Q: You had not asked anywhere that odour was coming from, correct? (tape unclear) A: Nope and it was clear once he was outside. Q: But you’ve already made up your mind that you’re going to do the roadside, that was what your evidence was five minutes ago, correct? A: Yes. Q: Would it not be very important in these circumstances to have some recollection of how many occupants or other passengers were in the vehicle? A: I think it would be, especially if they had . . . It would be.

Q: Cause they could’ve been the people who were emitting the odour of alcohol? A: It could be.

[ 19 ] Based on the following observations: - veering once from his lane and a jerky correction, - subsequent acceleration and excessive speed, - glossy and bloodshot eyes, and - smell of beverage alcohol coming from the vehicle, the officer suspected that Mr. Yates was impaired while driving and at 1:27 a.m. he read the ASD demand. A sample was provided and a fail resulted. [ 20 ] It was subsequent to the ASD demand, while speaking with Mr. Yates outside his vehicle, that the officer detected the smell of beverage alcohol coming from his breath.

It was not clear whether he detected this before or after the ASD test was performed, but it was clear that he had decided to make the ASD demand, when he asked Mr. Yates to step outside the vehicle. [ 21 ] The officer testified that without the ASD result; he would have had grounds to arrest the accused for driving while impaired. He did not charge or arrest Mr. Yates before administering the ASD test; indicating that the result would confirm the level of impairment and be pertinent to whether there would be a 24 hour suspension or a charge of over .08.

When it was put to him that he had concluded that he was impaired, the officer responded that he suspected it. Asked about the purpose of the ASD, he replied that it was to “add more grounds, to verify if below” and “to confirm suspicions”. He provided Mr. Yates with his rights to counsel after the fail result. [ 22 ] Mr. Yates was placed under arrest for impaired driving at 1:35 a.m. Upon being read his rights to counsel at the roadside, he said that he wished to speak to a lawyer at the station, stating that he didn’t have the name of a lawyer at that time.

After he was booked in at detention, he confirmed that he wanted to talk to a lawyer. He was taken to an interview room which has a phone without a dialing pad, the dialing being managed by the police from outside the interview room, and the officer asked him for the name of the lawyer with whom he wished to speak. Mr. Yates then advised that he was going to speak to “duty counsel” so that is who the officer dialed. The call began at 2:01 a.m. During the conversation with duty counsel, the call was disconnected, Mr. Yates advised the officer and he was reconnected with counsel at 2:03 a.m. Mr.

Yates knocked on his door at 2:11 a.m., indicating that the call had concluded. [ 23 ] Mr. Yates was asked if he was satisfied with the call and he replied: “yes, but; may I request to talk to Tara Chornoby”? The officer agreed and Mr. Yates found a number from the phonebook provided. The officer dialed the number, an answering machine was reached at an office and at 2:13 a.m. Mr. Yates left a message saying that he wanted representation. The officer did not overhear the message; rather Mr. Yates told him about it. The officer testified that he gave Mr.

Yates a phonebook and asked him to look in the phonebook and that Mr. Yates did not give him any other numbers to call and did not ask to speak to anyone else. It was unclear whether this last response was a justification or in fact whether subsequent to the leaving the message, the officer again asked Mr. Yates to look in the phonebook for more numbers. He could not recall any conversation pertaining to Mr. Yates’ right to counsel after the message was left and had no notes of this interval. He could not say whether Mr. Yates abandoned his attempts to reach Ms. Chornoby.

The calls were all placed by the officer who had control over the ability to dial out, although there was a phonebook in the separate room where Mr. Yates sat. [ 24 ] At 2:17 a.m., Mr. Yates was escorted to the interview room to wait for the Intoxilyzer technician and he waited there a further 18 minutes. The lack of specificity as to any discussions around the right to counsel in the time frame from 2:13 a.m. to 2:17 a.m. was disconcerting. It is unclear what transpired during these 4 minutes. [ 25 ] Twenty-two (22) minutes elapsed between the time that Mr.

Yates left a message with Tara Chornoby at 2:13 a.m. and the first Intoxilyzer sample was taken at 2:35 a.m. In the intervening time, Mr. Yates sat in the interview room with the officer who did some paperwork and at some point the Intoxilyzer technician came in and introduced himself. No other information was provided to explain this 22 minute delay. The officer did not suggest that the paperwork was necessary before the samples could be taken. Consideration of the Issues

a) Were s. 10(

a) and (

b) Charter rights infringed at the roadside?

[26] The Defence sought exclusion of the ASD result on the basis that s. 10(

a) and (

b) rights were infringed at the roadside. It wasargued that because the arresting officer testified that he had the grounds to make the Intoxilyzer demand pursuant to s. 254(3), withoutthe necessity of the ASD results, the accused should have been advised of the reason for his detention and given his rights to counselwhen he reached the point where he felt that he had the grounds. Counsel sought exclusion of the results of the ASD test.

This issuerequired consideration of the context; the officer was still gathering information to confirm his suspicions and he made the ASD demandto confirm his suspicions and help determine the level of intoxication. [27] The Charter is clear about the obligation of the police to inform a person of the reason for detention or arrest and to apprisethem without delay of their right to counsel. This was stated in R. v. Suberu, supra, generally: 2 . . . It is our view that this question must be answered in the affirmative.

The concerns regarding compelled self-incriminationand the interference with liberty that s. 10(

b) seeks to address are present as soon as a detention is effected. Therefore, from themoment an individual is detained, s. 10(

b) is engaged and, as the words of the provision dictate, the police have the obligation toinform the detainee of his or her right to counsel "without delay". The immediacy of this obligation is only subject to concerns forofficer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter. [28] The Suberu decision did not address s. 1 limitations, appropriate to the use of the ASD at the roadside, discussed in R. v. Elias,supra, and R. v. Bernshaw, supra, at paragraph 26: 26 . . . In R. v. Thomsen it was recognized that although the absence of the opportunity to retain counsel violated s.10(

b) of the Charter, it was justified under s. 1 because it was urgent that the breath sample be obtained quickly in order to be effective.The right to retain counsel was incompatible both with the effective use of the ALERT device and with the purpose ofdemonstrating a police presence which would convince drinking drivers that there was a high probability that they would bequickly and readily detected. The section's use of the word "forthwith" in the context of a roadside screening test clearly indicatedthat there was to be no opportunity granted to a driver to call a lawyer.

The test was to be performed immediately and to fail it had nopenal consequences. It is a testing device used to protect the public. [29] The Defence referred to a number of cases. In R. v. Klug, supra, the officer began an investigation for impaired driving whenhe noted erratic driving. The Court found that Mr. Klug should have been informed at the outset that he was detained for an impaireddriving investigation.

He asked the accused to step outside the vehicle and follow him to the police vehicle and carried on a conversation,eliciting information but did not tell him, why he was being detained until he formally placed under arrest. The certificate was excluded.In an earlier case, R. v. Gillis, supra, by the same Alberta Provincial Court Judge, the Court discussed s. 10(

a) Charter rights incircumstances similar to those before this Court, at paragraph 12: 12. . . Forthwith upon the police officer coming to the suspicion that the accused had alcohol in his body she ought to havemade the demand for a roadside sample and that he accompany her for purposes of enabling such a sample of breath to betaken. Had she done so, she would have fulfilled the requirements of s. 10(

a) of the Charter (R. v.Herter [2006] A.J. No.1058, R. v. Jalbert [2006] A.J. No. 1028, 2006 ABPC 218) and the requirement that the demand for the sample be made forthwith(R. v. Wood 2005 SCC 42 , [2005] 2 S.C.R. 205, R. v. Muirhead [2006] A.J. No. 854, 2006 ABPC 183). Having donethat in the timely fashion required would also have served to suspend the accused's s. 10(

b) rights pending giving of the roadsidesample. (R. v. Thomsen (1988), (SCC), 63 C.R. (3d) 1). [30] With respect to the arresting officer’s testimony in this case, the ASD was used to confirm suspicion. I noted this passage in R.v. Bernshaw, supra: 23 . . . The two-stage investigative procedure set out in s. 254(2) and (3) and the ALERT test itself are designed to beboth helpful to the police and convenient to the driving public. The ALERT test is a portable screening device which provides results quickly.

It enables police officers to rapidly confirm or reject their suspicions that a driver is impaired due to alcoholconsumption. As well, it permits drivers who safely blow "pass" levels on the device to proceed on their way with a minimum ofinconvenience. The whole scheme of ALERT testing is based on the concept that drivers will be detained for a very shortperiod. This Court has in fact recognized that the ALERT test must be administered immediately and that the detention under s.254(2) is constitutionally justifiable under s. 1 of the Charter for the very reason that the detention is of such very brief duration.

See also R. v. Elias, supra. [31] Further cases referred to by Defence counsel were reviewed. In R. v. Husulak, supra, Klebuc J., then with our Court ofQueen’s Bench, found that the accused was detained for 18 minutes, from the time that the officer formed his suspicion until the arrivalof an ASD before advising of the right to counsel. He held that the ASD test results conducted were to be excluded. While helpful,Husulak and the remaining cases provided were distinguishable. [32] The officer advised Mr. Yates, upon stopping him that he was speeding. He quite quickly formed the suspicion that Mr.

Yateshad alcohol in his body and made an ASD demand. In doing so he sought to confirm his suspicion as to the presence of alcohol in the

body. The officer acted as Judge LeGrandeur in R. v. Gillis, supra, suggested: in making the demand he was complying with therequirements of s. 10(

a) of the Charter. The officer need not have also advised Mr. Yates of the charges and his rights to counsel at thatpoint. This step of confirming his suspicions was consistent with the policy discussion in R. v. Bernshaw, supra. I also noted R. v.Jensen, supra, which held that an officer is not precluded from administering an approved screening device, simply because he/she hasdecided to charge the accused with impaired driving.

b) Was the s. 10(

b) Charter right infringed at the detachment? [33] Counsel argued that Mr. Yates did not waive his right to counsel of choice at the police station and that it was incumbent uponthe officer to give Mr. Yates a Prosper warning. [34] R. v. Willier, supra, discussed the “distinct facet of the s. 10(

b) guarantee, namely the right to counsel of choice”, stating thatit is not a “an absolute right to retain and instruct a particular counsel at the initial investigative stage regardless of the circumstances”(paragraph 24). The Court discussed the informational and implementational duties imposed upon the police, noted at paragraphs 33 and39: 33 Detainees who choose to exercise their s. 10(

b) right by contacting a lawyer trigger the implementational duties of thepolice. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain fromquestioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon adetainee's reasonable diligence in attempting to contact counsel: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; R.v. Black, (SCC), [1989] 2 S.C.R. 138; R. v. Smith, (SCC), [1989] 2 S.C.R. 368.

What constitutesreasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstancesas a whole. . . . . . . 39 . . . The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting aspecific lawyer and simply opts to speak with another. In no way did Mr. Willier attempt to relinquish his right to counsel and thus any opportunity to mitigate his legal disadvantage. He made no attempt to waive his s. 10(

b) right. Instead, unsuccessful incontacting Mr. Royal, he exercised his right to counsel by opting to speak with Legal Aid. As such, the police were under no obligation to provide him with a Prosper warning, and its absence fails to establish a Charter breach. [35] The Willier, supra, and McCrimmon, supra, cases of the Supreme Court of Canada address the situation when an accused isunable to contact his lawyer of choice and in response to an inquiry from the police opts to speak to duty counsel.

In those cases theaccused spoke with duty counsel and expressed satisfaction with the call, subsequent to failing to reach counsel of choice. In the case athand, Mr. Yates spoke to duty counsel first, and expressed satisfaction with the call but then asked to speak to a specific lawyer. He wasunable to reach her, left a message, and without further discussion was simply taken to the interview room for the Intoxilyzer tests to beadministered. He then waited for the tests to be administered for a further 18 minutes. [36] In R. v.

Prosper, supra, the Supreme Court was primarily concerned with the availability of “duty counsel” and wrote atparagraph 43 and 44: 43 . . . Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who haspreviously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice.

Atthis point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of theobligation on the part of the police during this time not to take any statements or require the detainee to participate in anypotentially incriminating process until he or she has had that reasonable opportunity.

This additional informational requirement onpolice ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actuallygiving up. 44 Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts theright there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown: Ross, at pp. 11-12. Further, the waiver must be free and voluntary and it must not be the product of eitherdirect or indirect compulsion.

This Court has indicated on numerous occasions that the standard required for an effective waiver ofthe right to counsel is very high: Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383, Manninen, and Evans. . . [37] I considered Prosper in R. v. Epp, supra, at paragraphs 64 to 80, and discussed, among other things, the case specificobligations imposed on police who control the informational and implementational aspects of the right to counsel. I relied upon adecision in R. v. Luong (2000), 2000 ABCA 301 , 149 C.C.C. (3d) 571 (ABCA), cited with approval in R. v. Eshappie, 2009SKCA 5.

I noted that at paragraphs 11 and 12, reproducing guidelines offered for the assistance of trial judges in adjudicating such

issues. [38] In R. v. Epp, supra, I addressed the informational component of the right to counsel and noted passages from: R. v. Bartle,supra, and R. v. McLinden, supra, at paragraphs 66 and 74: 66 In R. v. Bartle, supra, the Supreme Court of Canada, discussed the right to counsel, noting thedisadvantageous position of the accused person in custody and the importance of receiving full information in order to makeinformed choices: 16 The purpose of the right to counsel guaranteed by s. 10(

b) of the Charter is to provide detainees with an opportunity tobe informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfill those obligations: R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43. Thisopportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantagerelative to the state.

Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminatinghim or herself... 19 Under these circumstances, it is critical that the information component of the right to counsel be comprehensive inscope and that it be presented by police authorities in a "timely and comprehensible" manner: R. v. Dubois, (QCCA), [1990] R.J.Q. 681 (C.A.), (1990), 54 C.C.C. (3d) 166, at pp. 697 and 196 respectively.

Unless they are clearly and fullyinformed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not tocontact counsel and, in turn, whether to exercise other rights, such as their right to silence:. . . . . . 74 R. v. McLinden, supra, discussed the psychological disadvantage experienced by an accused who is under policeauthority. This is pertinent to the expectation that an accused be diligent about the right to counsel. 21 ...The legal system does not expect or require detained persons to learn their rights by quizzing thearresting police officer.

Neither does the legal system expect or require detained persons to inquire of the police how toexercise those rights; the police have a duty to facilitate the exercise of those rights by, amongst otherthings, telling the detained person how to exercise those rights (e.g., by telling the detained person that he or she maytelephone a lawyer).

Likewise, a detained person is often at a psychological disadvantage vis-à-vis his or her detainors (the police), and consequently may neither identify what would assist him or her in contacting legalcounsel, nor be assertive enough to request what is needed if it were identified. Accordingly, the law does not require a detained person, who has indicated that he or she wishes to exercise his or her

section 10(

b) right to legalcounsel, to identify the resource material required (e.g., telephone directories), or to be assertive enough to demand itfrom the police. The police, being the ones in power and control, are required to provide the necessary resources unprompted. [39] The circumstances are unique from any case provided to the Court. Acknowledging that the onus on a Charter application laywith the accused, I found that: - He initially asserted his right to speak to counsel of choice and was diligent in doing so. - For reasons not explained, Mr.

Yates changed his mind and opted to speak to duty counsel. - While stating he was satisfied with the discussion with duty counsel, he immediately expressed a desire tospeak to counsel of choice, and a message was left, indicating that he sought representation. - Thereafter Mr. Yates was encouraged to look in the phonebook and provide the officer with further phonenumbers but did not provide any. - There was no further discussion between Mr.

Yates and the officer as to whether he was prepared to abandon hisattempts to reach a lawyer of his choice and provide breath samples, rather it seems that it was simply assumed. - There was no evidence that he was advised that the police were required to hold off until he had had areasonable opportunity to exercise his right to counsel nor was there any discussion of the time factors or the waitrequired for the technician. [40] I referred to my analysis in R. v. Epp, supra and this excerpt at paragraph 80: Issue

iii) When attempts to reach counsel of choice are apparently unsuccessful, what then is the obligation of the police in ascertaining the accused's wishes insofar as right to counsel and is a "Prosper warning" required?

Analysis iii) Before proceeding to ask if he wanted to call another lawyer or Legal Aid; he should have been advised as to: - the time limits within which the police were operating, - that he had a right to a reasonable opportunity to contact a lawyer of his choosing, - that in the meantime they must hold off requiring him to take the breath tests, - that he may leave a message, and - what would take place if he waived the right to speak to the lawyer of his choosing. [ 41 ] Having regard to all of the circumstances, noting the reasoning in R. v.

Willier , supra, that a Prosper warning is not required when an accused has difficulty reaching counsel of choice, I am unable to find that there was a breach of Mr. Yates’ right to counsel. The officer should have advised Mr. Yates of his options before his being required to proceed to the Intoxilyzer room; particularly as they then waited for 18 minutes for the Intoxilyzer technician to administer the tests. However, having regard to the burden on the applicant in a Charter application, I was not prepared to find that there was a breach of Mr. Yates’ rights.

c) Did the arresting officer have grounds to make an ASD demand? [ 42 ] The Defence sought exclusion of the ASD test results, referring this Court to several decisions from different jurisdictions, some of which included specific prayers for Charter relief. [ 43 ] The decision of R. v. B.G.H. , supra was of considerable assistance. Judge O’Hanlon referred to two decisions of this Court: R. v. Paton , supra and R. v. O’Flanagan , supra, which discussed the sufficiency of the officer’s grounds when there was no evidence of alcohol emanating from the body or mouth of the accused.

In B.G.H. , like the present, there was an odour of alcohol coming from the vehicle, but in B.G.H . there was evidence of other occupants in the vehicle with the driver and open liquor. The officer did not note alcohol coming from the accused until well after he had made the ASD demand while they were waiting for the instrument to arrive via police cruiser and at that it was not said to come from the accused’s mouth. At paragraph 24 the Court considered whether it should have regard to this evidence obtained after the demand and wrote: [24] . . . The officer did not advise the accused of his

section 10(

b) Charter rights until after he had conducted further investigation, concluded the ASD test and re-arrested the accused for impaired driving. Therefore, for purposes of determining whether both the subjective and objective grounds existed for the ASD demand, I will not consider any evidence obtained after the arrest and ASD demands. The Court excluded the results of the approved screening device. [ 44 ] In Paton , there was open liquor in the box of the truck, not the cab where the driver sat.

In O’Flannagan , the only indicia, was that the accused had glossy eyes and indicated that he’d been drinking the night before. There was no odour or alcohol coming from the accused. [ 45 ] In R. v. Spilde , supra, Jackson J. referred to a number of cases: R. v. Thompson , supra, R. v. Sood, supra , and R. v. Neuberger , supra. Mr. Spilde was the lone occupant of the vehicle, an odour of alcohol was detected to be coming from the vehicle and the officer did not note beverage containers in the vehicle prior to the demand.

There was some evidence of alcohol consumption: when asked how much he had to drink “tonight”, he responded, “a couple”. There were no other indicia of impairment. The Court held that there were reasonable grounds for the demand.

[46] The Court was also referred to R. v. Hey, supra. In that case, there was an open can of beer in the vehicle, which might haveexplained the smell of alcohol in the vehicle. As well, after being removed from the vehicle there was no evidence that the smell ofalcohol could be detected to be coming from Mr. Hey.

The Court held that the requirements of s. 254(2) had not been met. [47] The cases discussed have this in common; while determining if there are sufficient grounds for an ASD demand; there isdiscussion around the elimination of the potential sources for the smell of beverage alcohol, other than from the mouth of the accused.Such an analysis goes to the reasonableness of the officer’s suspicion at the scene.

A Court must be realistic in its expectations ofofficers in the investigative process; however, the officer at the scene has only to ask the operator to step outside of the vehicle, whereafter engaging him/her in routine conversation, he may isolate the source of an odour of alcohol to the accused’s breath. [65] In R. v.

Butchko, supra, a decision in which I was the trial judge, upheld on appeal to the Saskatchewan Court of Appeal, Iwrote at paragraph 28: An objective scrutiny requires that the court determine whether a reasonable person, standing in the officer's shoes, with theofficer's knowledge, would have had reasonable suspicion. [49] At paragraph 17 in R. v. Butchko, supra, I considered R. v. Bernshaw, infra and the purpose of the roadside screening test: 17 In R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, [1994] S.C.J.

No. 87, Sopinka J. discussed the legislative scheme for the screening test: [para49] It is clear that Parliament has set up a statutory scheme whereby a screening test can be administered by the policemerely upon entertaining a reasonable suspicion that alcohol is in a person's body. The purpose behind this screening test is evidently toassist police in furnishing the reasonable grounds necessary to demand a breathalyzer. The roadside screening test is a convenient toolfor confirming or rejecting a suspicion regarding the commission of an alcohol-related driving offence under s. 253 of the Code.

A "fail"result may be considered, along with any other indicia of impairment, in order to provide the police officer with the necessary reasonableand probable grounds to demand a breathalyzer. 18 Certainly the requirement under s. 254(2) for a reasonable suspicion that a person operating a motor vehicle has alcoholin his or her body, is less onerous than under s. 254(3) which requires a belief on reasonable and probable grounds that an offence has been committed. See R. v.

Monteyne, supra, and Judge Kovatch’s discussion of the policy considerations in using the ASD, at paragraph 26. [50] Having regard to the evidence available to the arresting officer when the demand was made; I find that the threshold was notmet. The officer did not address his mind to the significance of determining the source of the smell of alcohol prior to making the ASDdemand. At the outset of cross-examination he was asked about the purpose of his notes and agreed that it was his practice to notematters that were germane and he did not have notes about the occupants, which he agreed would have been germane.

He did not havereasonable grounds to suspect that Mr. Yates had alcohol or a drug in his body at the time of the demand.

d) Were breath samples taken as soon as practicable, pursuant to ss. 254(3) and 258(1) of the Criminal Code? [51] The Defence argued that the 22 minute delay after Mr. Yates left a message seeking representation until the time of the firstsample was such that the samples were not taken as soon as practicable. [52] In R. v. Carter, supra, a pre-Charter decision of the Saskatchewan Court of Appeal, the Court s. 237(1)(c), the forerunner tos. 258(1)(

c) and the effect of a finding that the samples have not been taken as soon as practicable. It held, at paragraph 5 that there couldbe no reliance upon the presumption: 5. . . Clearly the failure to satisfy the court the breath samples were taken as soon as practicable after the offence wasalleged to have been committed, does not go to the admissibility of the certificate, but solely as to whether or not there can be relianceon the presumption provided for in paragraph (iv). [53] In R. v.

Carter, there was an unexplained delay of 21 to 22 minutes and the Court of Appeal appeared to treat the matter aswithin the trial judge’s purview and accepted the reasoning on the matter, noting that he or she may take judicial notice of general facts

and call upon his or her common sense and experience. The trial judge in stating the case was concerned whether he could take into account with respect to the delay: “matters such as the time it would take to set up and warm up the breathalyzer machine”? The Court stated at paragraph 9: 9 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 long as the delay, if there is one, is explained to the satisfaction of the judge, there may be reliance on the presumption in paragraph (iv) as long as the samples are taken within the two hour limit. It would only be when the learned trial judge concluded there was a delay not satisfactorily explained, or such delay prejudiced the accused that the court would deny the prosecution the right to rely on the presumption in paragraph (iv). [54] In R. v.

McCoy, supra, a decision of Gerein J., the accused arrived at the police station at 1:16 a.m. and waited until 2:00 a.m. when the first sample was obtained. There was no explanation for the delay. Justice Gerein assumed that the arresting officer radioed into the station with the expectation that a breathalyzer machine would be readied, his recognizing that it takes some 20 minutes to prepare the machine. After deducting 20 minutes he found that 24 minutes was unaccounted for and an unusual delay. In the case before this Court there was no reason to deduct time for the Intoxilyzer technician to ready the machine.

Officer Linklater testified that he delivered Mr. Yates to detention at 1:52 a.m. and handed Mr. Yates over to the arresting officer at 1:54 a.m. The arresting officer noted that Mr. Yates began his call to duty counsel at 2:01 a.m. A further 12 minutes transpired until after he left a message for counsel. Presumably the Intoxilyzer technician would have been alerted that his services were needed, either at the scene or once the arresting officer arrived at the station. There was no evidence about when this took place. [55] In R. v.

Allin, supra , Judge Kolenick of this Court held that an unexplained 23 minute delay between arrival at the police station and the first sample, was such that the samples were not taken as soon as practicable. In R. v. Sajec, supra , Judge Scott of this Court accepted the explanations given for the total time frame from charge to the first sample of 43 minutes. In R. v. Becker, supra , Judge Hinds of this Court did not find an unaccounted for delay. In R. v. Lott, supra , I held that a 14 minute unexplained delay was such that the Crown could not rely upon the presumption in s. 258(1) (c). Justice Gerein in R. v.

McCoy, supra , provided considerable guidance, evidenced in the following excerpt: . . . If the Crown is to be permitted to rely on the presumption it must establish that the samples were taken within a reasonable time. What is reasonable will depend on the particular circumstances of each case. As well, in each case the trial judge may have reference to his or her own experience. At the same time the Crown cannot be expected to account for every minute or even several minutes lost over a period of time.

However, when the time lapse is one of considerable or unusual duration, it then is incumbent upon the Crown to provide an explanation for the delay. If that explanation is accepted as proper then the lapse of time remains reasonable. If the explanation is rejected then the sample is not obtained within a reasonable time and the presumption can have no application. In each case, the initial question to be addressed is whether there has been unusual delay. If not, that is the end of the matter. This would obviously be the situation where the court is looking at some 5 to 10 minutes.

If the delay is unusual, then the court must consider whether there is an explanation and its validity. . . . In conclusion, in this case there was an inordinate delay of 24 minutes. There being no explanation for such, there was no basis on the facts of this case upon which the trial judge could properly conclude that the samples of the accused were taken as soon as practicable. This being so, recourse could not be had to the statutory presumption. [56] In R. v. Carrier, supra , Judge Kalmakoff discussed whether breath samples were taken as soon as practicable within the meaning of section 258(1) (c).

He wrote at paragraph 58: [58] “As soon as practicable” is a standard which must be applied with reason. It does not mean as soon as possible, but as soon as can reasonably be expected. The Crown is obligated to demonstrate, in all the circumstances that the breath samples were taken within a reasonably prompt time. There is no requirement that the Crown account for what happened every minute that the accused was in custody prior to the tests being taken, but as long as the delay can be explained to the satisfaction of the trial judge, the Crown is entitled to rely on the presumption in section 258(1) (c).

This requires that there be some evidence from which the Court can infer an acceptable reason for the delay. A significant delay which is completely unexplained provides no evidentiary basis upon which to find the delay is reasonable. [57] In R. v. Deruelle , supra , Mr. Justice La Forest of the Supreme Court of Canada discussed the different purposes of s. 254(3) and s. 258(1) (c), at paragraph 15: [15] Looking beyond the text of the provision, the breathalyzer scheme of the Code is designed to ensure that breath or blood samples are obtained as quickly as possible after the alleged impaired driving offence.

This overriding objective is achieved through various mechanisms found in specific Code provisions. While a general objective is the same throughout the scheme, the specific purposes of each mechanism are different. As such, the fact that the provisions constitute a “scheme” does not mandate a unitary

interpretation

contrary to the language of each individual provision. The two hour limit in section 254(3) contributes to the objective of the scheme byforcing prompt police investigation, and by requiring the police to take the sample as soon as practicable. This specific purpose, whichgoes to the admissibility of the sample into evidence, can be distinguished from the purpose of the time limit in the presumption section,section 258(1)(c). The latter provides a procedural shortcut for the police, but only if the breath or blood sample is obtained within twohours of the alleged offence.

As such, it is concerned with the quality of the evidence obtained by the police, rather than itsadmissibility. [58] R. v. Searle, 2006 NBCA 118, 308 N.B.R. (2d) 216, 215 C.C.C. (3d) 374, held that Rilling, post-Charter was still applicablebut ultimately held that where the s. 254(3) demand was unlawful, in the absence of a Charter violation the Crown could not rely uponthe presumption in s. 258(1)(c): 21 In R. v.

Rilling, (SCC), [1976] 2 S.C.R. 183, it was held that the lack of reasonable and probablegrounds for making the demand was irrelevant in those situations where the driver had, in any event, acceded to the request. InBernshaw, (SCC), [1995] 1 S.C.R. 254, Cory, J. clarifies the applicability of Rilling, a pre-Charter case, in paras. 41and 42: . . . [41] In my view, the Court of Appeal erred in taking this position. Certainly the Charter is relevant. An accused may be able toestablish on the balance of probabilities that the taking of breath samples infringed his Charter rights.

For example, it might becontended that the requisite reasonable and probable grounds for making the breathalyzer demand were absent, and that, in thecircumstances, the admission of those breathalyzer results would bring the administration of justice into disrepute. In thosecircumstances, the breathalyzer evidence might well not be accepted. Yet, where an accused complies with the breathalyzer demand, theCrown need not prove as part of its case that it had reasonable and probable grounds to make that demand.

Rather, I think, the onus restsupon the accused to establish on the balance of probabilities that there has been a Charter breach and that, under s. 24(2), the evidenceshould be excluded.

There should not be an automatic exclusion of the breathalyzer test results. [43] Several provincial appellate courts have taken the position that the Rilling case is still applicable in appropriate circumstances.That is to say where breath samples are obtained without reasonable and probable grounds for the demand, the evidence should only beexcluded upon an application by the accused to exclude it pursuant to s. 24(2) of the Charter. See R. v. McNulty (1991), 35 M.V.R. (2d)27 (Ont. C.A.); R. v. Linttell (1991), 1991 ABCA 152 , 64 C.C.C. (3d) 507 (Alta. C.A.); R. v.

Dwernychuk (1992), 1992 ABCA316 , 77 C.C.C. (3d) 385 (Alta. C.A.), leave to appeal refused, [1993] S.C.C.A. No. 30, [1993] 2 S.C.R. vii; R. v. Marshall(1989), (NS CA), 91 N.S.R. (2d) 211 (C.A.); R. v. Langdon (1992), (NL CA), 74 C.C.C. (3d) 570(Nfld. C.A.); R. v. Leneal (1990), (MB CA), 68 Man. R. (2d) 127 (C.A.). This, I think, is the approach that shouldbe adopted. . . . . . 25 Since the demand was not made in strict compliance with s. 254(3) of the Code, it is unlawful. The Crown cannot rely on thepresumption found in s. 258(1)(

c) unless the officer had reasonable and probable grounds to make the breathalyzer demand in the firstplace. Without this presumption, there is no evidence of the concentration of alcohol in the accused's blood at the time the offence wasalleged to have been committed. Thus, the Crown has failed to prove the element of the offence under s. 253(

b) of the Code. Tosummarize: the certificate is still admissible but the prosecutor is not, however, entitled to use the presumption under s. 258(1)(c). Theaccused must, therefore, be acquitted of the charge under s. 253(

b) of the Code. [59] In R. v. Dolezsar, supra, in our Provincial Court, Judge Labach discussed the effect of s. 258(1)(

c) when the samples were nottaken as soon as practicable, at paragraph 51: [51] . . . There are a great number of cases in Saskatchewan where an accused has challenged whether a breath sample was taken assoon as practicable under section 258(1)(c). In doing so they are challenging the applicability of the presumption rather than theadmissibility of the breath tests.

If an accused is successful in their challenge, then the Crown cannot rely on the statutory presumptionthat the blood alcohol concentrations in the Certificate of Analyses were the same as at the time the vehicle was operated despite the factthat the Certificate of Analyses was admitted as a full exhibit. In such a case, no Charter application is required because theadmissibility of the certificate evidence is not in question, only the use that may be made of it is. See R. v. Allin, 2003 SKPC 58 (Sask.Prov. Ct.); R. v. Fyfe, [2007] S.J. No. 305 (Sask. Prov. Ct.); R. v. Gilchrist, [2008] S.J. No. 665 (Sask. Prov.

Ct.); R. v. Ealey, [2010] S.J.No. 357 (Sask. Prov. Ct.); R. v. Carriere, supra. . . . [53] . . . I feel bound by the decision in R. v. Carter, supra, as well as the considerable body of case law from Saskatchewancourts indicating that a Charter application is not required when taking issue with the applicability of the presumptions in section258(1)(c). [60] As there was no explanation for the 22 minute delay it cannot be said that the samples were taken as soon as practicable.

e) Was the officer mistaken, in his understanding of the ASD fail reading and did it affect the validity of the demand pursuant to s. 254(3) of the Code? [61] R. v. Nyman , supra and R. v. Wong, supra, relied upon by the Defence may be distinguished on the facts. The reasoning in R. v. Yurechuk , supra , was of assistance. The real issue is whether the officer had reasonable grounds. He understood that there was a fail result and there was no reason for the Court to find that this was not objectively reliable. See also R. v. Johnson , supra and R. v. MacDonnell, supra.

f) The need for and adequacy of the Charter notice with respect to issues

b) and e)? [62] The Crown maintained that the Defence should have brought a Charter application for exclusion, both with respect to the results of the ASD demand pursuant to s. 254(2) and the argument pursuant to s. 254(3) and s. 258(1)(

c) that the Intoxilyzer tests were not taken as soon as practicable. [63] The Court was referred to a number of decisions, including: R. v. Rilling , supra, R. v. Forsythe, supra , of the Manitoba Court of Appeal and R. v. Charette , supra, of the Ontario Court of Appeal . I reviewed the Provincial Court and Queen’s Bench decisions in R. v. Dolezsar, supra, and note that it is under appeal . R. v. Bernshaw , supra, at paragraphs 39 to 42 discussed the applicability of R. v.

Rilling , supra . [64] The grounds for the results of the ASD demand made pursuant to s. 254(2) should be addressed by way of a Charter application. I am not certain however that a Charter application is required with respect to the requirement that the samples be taken as soon as practicable and reliance upon the presumption pursuant to s. 258(1)(

c) and in this regard take direction from the decisions of Judge Labach of the Provincial Court and Justice Sherman of the Court of Queen’s Bench in R. v. Dolezsar, supra .

In any event, I am not prepared to require that the Defence provide a formal Charter notice with respect to these two issues. [65] Rilling, supra , held that the absence of reasonable and probable grounds for making a breathalyzer demand may be a defence on a charge of refusal, but it was irrelevant in those situations where the accused driver subsequently provided samples. [66] The Crown sought to rely upon the judgment of Moldaver J.A., as he then was in R. v. Charette , supra , a decision of the Ontario Court of Appeal regarding the significance of R. v. Rilling , supra.

That judgment confined the impact of Rilling to cases where it’s a question of reasonable grounds for the Intoxilyzer or Breathalyzer demand and the accused has provided samples and the Crown seeks to rely upon a certificate. It did not address the requirement that the samples be taken as soon as practicable pursuant to s. 254(3) and s. 258(1)(c). [67] R. v. Forsythe, supra, a decision of the Manitoba Court of Appeal was concerned with the tests being administered as soon as practicable. The Court discussed R. v.

Charette , supra, from a policy standpoint and was of the view that the admissibility of any evidence obtained in contravention of the requirements of s. 254(3) should be challenged by way of an application for exclusion under the Charter , stating: 21 There is another reason to reject the accused's position that the evidence in this case should be excluded without a Charter analysis under s. 24(2) .

If that position is accepted, there would be different procedures and different principles governing the exclusion of breathalyzer evidence obtained under s. 254(3) depending on whether the defence motion to exclude related to a lack of reasonable and probable grounds for the demand or the failure to comply with the other requirements of s. 254(3). This would require the defence to make a motion for exclusion under the Charter in the first case, but not in the second, and would result in an analysis under s. 24(2) of the Charter regarding the admissibility of the evidence in the first case, but not in the second.

This would lead to unnecessary confusion and complexity in the law. . . . 25 Finally, the Crown argued, and I agree, that if any of the requirements of s. 254(3) should be a pre-condition to admissibility, one would expect that it would be the requirement that the police have reasonable and probable grounds for making the demand in the first place. That requirement is the basis upon which the police are permitted to detain an accused and to interfere with his right to proceed on his way. The requirement that the police act as soon as practicable arises only after the police have detained an accused.

If a groundless demand for a breath sample does not trigger the automatic exclusion of evidence (as found in the cases referred to above), it is difficult to see why the failure to act "as soon as practicable" does.

Conclusion 26 There is no reason to have different procedures and principles apply to the determination of the admissibility of breathalyzer evidence taken under s. 254(3) depending on which of the requirements in that

section have not been met. [68] In R. v. Dolezar, supra , the trial and appellate levels (Court of Queen’s Bench) were concerned with whether the Crown could rely on the presumption in s. 258(1)(

c) where the Court has found that the demand for the breath samples was not made as soon as practicable and whether a Charter application was necessary in order that there be a ruling excluding the certificate evidence. As R. v. Dolezsar, supra, was concerned with the demand for the samples be made as soon as practicable it is distinguishable. Justice Sherman addressed his comments more broadly than the facts of the case but I did not consider those comments to be binding, especially in light of the body of case law, discussed by Judge Labach regarding reliance upon a certificate pursuant to s. 258(1)(

c) where the samples were found not to have been taken as soon as practicable, I refer specifically to the following wording of s. 258: 258.

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

section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2), . . . (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if (

i) at the time each sample was taken, the person taking the sample offered to provide to the accused a specimen of the breath of the accused in an approved container for his own use, and, at the request of the accused made at that time, such a specimen was thereupon provided to the accused. (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 of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; (underlining added) [69] In R. v.

Hatzel , supra, Judge Beaton dealt with argument that the admissibility of the ASD evidence need not be addressed by way of a Charter application. She considered the meaning of R. v. Woods , supra , a decision of the Supreme Court of Canada which addressed the exclusion of breathalyzer results given the failure of the Crown to comply with the requirements of the Code regarding the ASD.

Judge Beaton did not interpret Woods to be overruling Rilling . [70] In some circumstances the Defence may be entitled to raise a Charter argument at trial, such as when the information to support the application may have first become apparent during the trial; Defence counsel indicated as much in argument. The evidence pertinent to the grounds to make the ASD demand was anticipated, but not evident at the outset of the trial. Counsel alerted the Court to the possibility of this issue, depending upon the evidence. The Crown and the Court were put on notice of the potential for the application.

It would seem from the nature of the questions and answers that the cross-examination regarding the number of occupants and the failure of the officer to note the source of the smell of alcohol until after the demand had been made, was not known until the testimony. The procedure for this trial, the question of a Charter notice and the issues were discussed at the outset by counsel, after which the evidence immediately moved into a voir dire .

Apparently there was written notice for Charter relief which was provided to the Crown in the form of a letter, but not shared with the Court. [71] The discussion at the outset of the trial concerned the procedure and the Charter issues being raised. My notes reveal:

- There was a preliminary motion by the Defence that the Crown not be allowed to rely upon the evidence from the Intoxilyzer due to late disclosure of maintenance records. While considerable attention was devoted to this argument it was not pursued. - There was agreement that the trial would commence with a voir dire, in light of there being Charter issues. - The Court was advised that there would be a s. 10(

b) argument. - The Court was further advised that there may be an issue regarding the grounds relied upon for the ASD demand and that exclusion may be sought. The Crown sought clarification indicating that it regarded this last point to be a Charter issue. While the Defence didn’t necessarily agree the discussion indicated that they knew it was an issue and that exclusion would be sought.

The Defence indicated that it was conceding nothing. [72] This trial was set for case management, but prior to that taking place the Crown and Defence signed a Trial Readiness Statement with the Case Manager, seeking waiver of the case management and indicating among other things, that: 3. All notices required to proceed on the date set have been served. . . . 5.

Where appropriate; reasonable efforts have been made to resolve issues by agreement. [73] Without suggestion of prejudice by the Crown, I am not inclined to insist upon a formal application or notice with respect to these aspects of the Charter application in this instance. A Charter application was made; it did not particularize each and every aspect of the Charter that had been breached but the Defence outlined the arguments which included the challenge to the grounds for the ASD demand.

While this Court recently adopted a practice directive, requiring formal notice with respect to Charter applications, it had not been published at the date of trial. [74] Given the notice that was shared with the Crown but not filed with the Court, the uncertainty around the Court’s procedure, the pending appeal in R. v.

Dolezar, supra , the lack of prejudice to the Crown, and having regard to trial fairness, I am not inclined, at this juncture, to insist upon formal notice with the particulars expressed as the Crown requested. [75] It is this Court’s understanding that the timing and type of notice of a request for Charter relief is a procedural issue and within the discretion of the trial judge. In this regard I noted R. v. Field, supra and R. v. Ukrainetz, supra, and the recent decision of the Saskatchewan Court of Appeal in R. v.

Salisbury , supra, at paragraph 24 : 14 It is necessary for the Court to simply clarify there is no set procedure for the determination of Charter violations and relevant remedies. The appropriate procedure and process will depend on the particular circumstances of the case taking into account all of the relevant factors. There will be situations where a Charter breach needs to be dealt with immediately and in other situations redress can wait until matters are adjudicated at trial. There are no hard and fast rules, nor would it be possible to set such rules.

The determination of the appropriate procedure is within the discretion of the trial judge and, assuming the discretion is properly exercised, deference will be accorded.

g) Was a true copy of the Certificate of Analyses and Notice of Intention to Produce the Certificate served on the accused? [76] The cases of R. v. Vogel, supra and R. v. Stewart , supra , are not applicable as they were concerned with testimony that there had been no comparison of the original to the copy served. I have considered R. v. Demers , supra and R. v. Longley, supra . [77] In this case, the officer testifying had no role in the preparation or service of the Certificate of Analyses and the Notice of Intention. He was guessing as to who had served it.

There is no reason in these circumstances to question service of a true copy of the exhibit. I find that the Crown has met the burden in this regard.

h) Has the Crown proven the impaired driving count? [78] Neither counsel argued this count. In R. v. Epp, supra , I discussed the law regarding impaired driving, beginning at paragraph

81, set out below: 6) Impaired Driving 81 In R. v. Zacharias, 2005 SKPC 23, at paragraphs 21 and 22, I discussed R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), R. v. Hall (1994), (SK CA), 125 Sask. R. 62 (SKCA), R. v. MacDonald (1996), (SK KB), 146 Sask. R. 306 (SKQB), and R. v. Landes, (SK KB), [1997] S.J.No. 785 (SKQB). In R. v.

MacDonald, supra, the Court discussed the Stellato test, which has been adopted by our Court ofAppeal, and I refer to that discussion beginning at paragraph 10: 10 It is now common knowledge that a person's judgment, perception, and reaction time can be detrimentally affected by alevel of alcohol consumption that may not be manifested in observable conduct such as the manner of walking or talking. Such a personmay well be able to walk in a straight line or speak without a slur, but is a danger behind the wheel of an automobile where judgment andreaction time is critical to the safety of others on the road.

By the time a person has had enough to drink that his or her observableconduct exhibits a marked departure from the norm (such as staggering or slurred speech) that person's judgment and reaction time (andthus the ability to drive a motor vehicle) is substantially impaired. As a matter of common sense, if the McKenzie threshold of evidence,[1955] A.J. No. 38, is still the law, then a conviction for impaired driving could never be made unless the degree of impairment wasgreat. This is clearly inconsistent with the decision in Stellato. 82 In R. v.

Hall, supra, at paragraph 5, Jackson J.A. said this of Stellato and the test to be applied by the trial judge indetermining whether an offence of impaired driving has been made out: [5] The Supreme Court of Canada's fiat is brief. Chief Justice Lamer said we are all of the view for the reasons given by Mr.Justice Labrosse for the Court of Appeal that the appeal fails. One turns then to Labrosse J.A.'s judgment. Labrosse J.A. said theCriminal Code does not prescribe any special test for determining impairment. Rather impairment is an issue of fact to be found on allthe evidence beyond a reasonable doubt.

He said (at p. 384): In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before aconviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as toleave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairmentestablishes any degree of impairment ranging from slight to great, the offence has been made out. 83 In R. v. Landes, supra, Justice Klebuc wrote: 16 An opinion as to impairment, be it by the trial judge or a non-expert, must meet an objective standard of "anordinary citizen" or a "reasonable person" in order to avoid the uncertainties associated with subjective standards, particularly whenbased on inferences.

To that end a list of tests and observations has been developed for use by peace officers and courts in determiningwhether an accused's mental faculties and physical motor skills were impaired by alcohol to the degree of impairing theaccused's ability to drive a motor vehicle.

Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot or watery eyes; (3) presence of a flushed face; (4) odour of an alcohol beverage; (5) slurred speech;(6) lack of coordination and inability to perform physical tests; (7) lack of comprehension; and (8) inappropriate behaviour. 17 In my view, a trial judge must carefully review all of the reported tests and observations which inferentiallysupport or negate any impairment of the accused's mental and physical capabilities, and then be satisfied beyond a reasonabledoubt that the reasonable inferences to be drawn therefrom establish that the accused's ability was impaired to the degreeprescribed by ss. 253 and 255 of the Criminal Code.

A piecemeal approach supporting or negating impairment is not permissible. See R. v. Hall at p. 66. . . . [79] The evidence did not support a finding of impaired driving. I noted the officer’s observation of the smell of alcohol comingfrom the accused’s mouth. The outcome of the approved screening device test may not be considered. There was a lack of symptoms ofimpairment, having regard to some of the criteria outlined in Landes, supra.

The driving behaviour, while sufficient to warrant a trafficstop, was not sufficient, coupled with the physical observations, to permit this Court to reach a finding of guilt beyond a reasonabledoubt.

i) What if any remedy is appropriate?

[80] I found the following with respect to the issues, outlined above in the Introduction: a. The accused’s s. 10(

a) and s. 10(

b) Charter rights were not infringed at the roadside. These rights were suspended until after the result of the ASD test. The officer may use the ASD to confirm his suspicions and to ascertain the level of impairment. b. The accused’s s. 10(

b) Charter right was not infringed at the police station. He had access to “duty counsel” in keeping with his initial request. Subsequently he chose to contact a lawyer of choice and encountered difficulty in so doing. He was given an opportunity to make other calls but was not given any advice regarding his options. I was not convinced by the Defence on a balance of probabilities that there was a Charter infringement. c. The arresting officer did not have the grounds to make the ASD demand, as required by s. 254(2) of the Criminal Code .

The evidence concerning the smell of alcohol coming from the accused’s mouth, obtained after the ASD demand, could not be used to support the officer’s grounds. A Charter application seeking exclusion was required, and I am of the view that such relief is available. d. The Intoxilyzer samples were not taken as soon as practicable as required by s. 254(3) and s. 258(1) (c)(ii) of the Criminal Code as there was a 22 minute unexplained delay immediately preceding the first sample. Upon application of the Charter the samples could be excluded.

In the absence of a Charter application, the samples would be admissible but the presumption in s. 258(1)(

c) could not be relied upon. In any event, I am of the view that Charter relief is available. e. The officer’s testimony regarding his understanding of the “fail” did not detract from his having the necessary grounds to demand breath samples pursuant to s. 254(3) of the Criminal Code . f. A Charter application should have been brought to seek exclusion of the ASD result and as a matter of caution might have been brought to exclude the Intoxilyzer samples.

Given the history of the matter, the lack of apparent prejudice to the Crown, the particulars of the Defence position provided and the uncertainty regarding Charter applications in this jurisdiction, in the interests of trial fairness, I considered these issues in the context of Charter relief. g. The evidence regarding service of the Certificate of Analyses and the Notice of Intention to Produce Certificate was not contradicted by the testimony of the officer who was simply guessing as to what transpired. h.

The driving behaviour, while sufficient to warrant a traffic stop, was not sufficient, coupled with the physical observations, to permit this Court to find that the Crown had proven the impaired driving count beyond a reasonable doubt. [81] I will begin by discussing whether there should be Charter relief. I have found a Charter breach with respect to the grounds for the ASD demand and the taking of the breath samples as soon as practicable.

While I’ve found that there should have been a Charter application regarding the s. 254(2) and possibly the s. 254(3) demand, I have not insisted on formal notice as there has been no evidence of prejudice, the Crown being aware of the issues. I also found it appropriate to consider all of my findings outlined above in determining whether relief was warranted.

Section 24(2) of the Charter provides: 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [82] The breach concerning collection of breath samples into both the ASD and the Intoxilyzer concerns ss. 8 and 9 of the Charter which provide: 8.

Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned.

[83] In addressing the appropriateness of exclusion pursuant to s. 24(2) of the Charter, I considered the analysis in R. v. Grant,supra, and the guidance in R. v. Shinkewski, supra, a recent decision of the Saskatchewan Court of Appeal. R. v. Grant, supra, requiresan assessment and balancing of the effect of admitting illegally obtained evidence upon public confidence in the integrity of the justicesystem having regard to: (1) the seriousness of the state action; (2) the impact on the accused's Charter-protected interests; and (3)society's interest in having an adjudication on the merits.

(1) Seriousness of the state action [84] The Supreme Court of Canada in Grant stressed the importance of balancing pertinent factors in this line of inquiry andremarked upon the significance of a deliberate intrusion on bodily integrity and the potential for exclusion notwithstanding relevance andreliability where the intrusion is severe and the violation is considered egregious: [72] The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidencewould bring the administration of justice into disrepute by sending a message to the public that the courts, as institutionsresponsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociatethemselves from the fruits of that unlawful conduct.

The more severe or deliberate the state conduct that led to the Charterviolation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. ... [111] While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodilyintegrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence willbe excluded, notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusionis less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may beadmitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [85] R. v. Shinkewski, supra, referred to the judgment of Doherty J.A. in R. v.

Kitaitchuk (2002), (ON CA),166 C.C.C. (3d) 14 (ONCA) and discussed the “seriousness of the alleged Charter-infringing state conduct at paragraphs 31 to 32,stating at paragraphs 32: [32]. . . it is important that a trial judge take steps to ascertain and

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