Her Majesty the Queen - v. -, 2016 SKPC 92

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 092 Date: July 8, 2016 Information: 90108721 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - Muriel Morin Appearing: Mr. Luke Coupal For the Crown Mr. Ronald P. Piché For the Accused JUDGMENT S.I. ROBINSON , J [ 1 ] Muriel Morin stands charged that on September 12, 2015, at La Ronge District, Saskatchewan: 1. While her ability to operate a motor vehicle was impaired by alcohol, she did operate a motor vehicle contrary to paragraph 253(1) (

a) of the Criminal Code ; and

2. Having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, she did operate a motor vehicle contrary to paragraph 253(1) (

b) of the Criminal Code . [ 2 ] The trial in this matter proceeded before me in La Ronge. Constable Rosalyn de Bruin of the La Ronge RCMP testified as the sole Crown witness. The defence did not call evidence. THE FACTS [ 3 ] Constable de Bruin testified that on September 12, 2015, she was on patrol in La Ronge going southbound on La Ronge Avenue when she saw a white truck leave a bar known as “Eddy’s”. She followed this truck out to Highway 2 and noted that it was speeding. She also noted that the white truck wove between the centre line and the shoulder of the highway three to four times.

She then decided to stop the white truck to check the driver’s licence, vehicle registration and state of sobriety. She activated the police vehicle’s lights to signal the white truck to stop. The white truck stopped in a normal fashion. [ 4 ] Constable de Bruin first spoke to the driver (hereafter referred to as the accused) at 00:50 hours. There were two other passengers in the vehicle. The accused, who had no identification on her, at first denied that she had been drinking. However, Constable de Bruin could smell alcohol on the accused’s breath and noted that she had red, droopy eyes and slurred speech.

Further, the accused eventually admitted that she had had a few drinks. Since Constable de Bruin suspected the accused was impaired, she had the accused accompany her back to the police vehicle for the purpose of having the driver provide a breath sample into an approved screening device (ASD). The demand for this breath sample was made at 00:54 hours. [ 5 ] On the way back to the police vehicle, the accused had said that she had had her last drink within the previous five to 10 minutes. Constable de Bruin therefore decided to wait for some minutes to insure a clean breath sample.

I understood her evidence to be that there should be a 15-minute gap between an accused’s last drink and an ASD test in order to allow for the dissipation of any mouth alcohol that might affect an ASD test result. Constable de Bruin turned the ASD on at 01:05 hours, and the accused provided a breath sample almost immediately. The result was a fail. [ 6 ] Based on the ASD fail reading, Constable de Bruin arrested the accused for impaired operation of a motor vehicle. While making the arrest, Constable de Bruin advised the accused of her rights to counsel.

When asked if she wanted to contact a lawyer, the accused first said, “Yes,” but then changed her answer to, “No.” Constable de Bruin next made a formal demand for further breath samples. She also advised the accused of her right to remain silent. Constable de Bruin and the accused then departed the vehicle stop location at 01:14 hours and arrived at the La Ronge RCMP detachment at 01:21 hours.

At the detachment, the driver provided samples of her breath for analysis to Corporal Marsha Shaw. [ 7 ] In support of Constable de Bruin’s evidence, the Crown filed a DVD which recorded, inter alia , showing the white truck driving down Highway 2 prior to the police stop and also the interaction between Constable de Bruin and the drive.

The time printout on the DVD does not match the real times recorded by Constable de Bruin during her investigation, but it serves as a good confirmation of the times and sequence of relevant events. [ 8 ] Contrary to Constable de Bruin’s trial testimony, the DVD recording showed the accused’s truck driving in a straight and orderly fashion on Highway 2 prior to it being stopped. There was no sign of any weaving. Constable de Bruin was not a reliable witness on this point.

Impaired Driving [ 9 ] The Crown has conceded that the evidence before me is not sufficient to establish that the accused was operating a motor vehicle while her ability to do so was impaired by alcohol. I agree with the Crown’s assessment of the evidence. I therefore find the accused not guilty on her impaired charge. Issues re Over 80 [ 10 ] The Crown does seek a conviction on the accused’s charge of operating a motor vehicle while over 80. Defence counsel argues that the accused should be found not guilty on the over 80 on the following grounds: a.

The Certificate of a Qualified Technician should not be admitted into evidence because the accused was denied her right to counsel under paragraph 10(

b) of the Charter prior to her providing a breath sample into an approved screening device; b. The Crown has not proven the identity of the accused beyond a reasonable doubt; c. The Crown has not shown that there was a proper observation of the accused prior to the taking of breath tests at the RCMP detachment; and d. The Certificate of a Qualified Technician should not be admitted into evidence because the Crown has not proven proper notice of an intention to produce the Certificate as required by subsection 258(7) of the Criminal Code .

Right to Counsel [ 11 ] Defence counsel argues that the extra delay resulting from Constable de Bruin’s decision to delay the taking of an ASD sample to allow the accused’s mouth alcohol to dissipate resulted in a breach of the accused’s right under

section 10(

b) of the Charter to

be informed of her right to retain and instruct counsel without delay. [12] I do not accept the defence argument. There was a delay of approximately 11 minutes from the time of the ASD demand tothe actual ASD test, but I find this delay was not long enough to trigger the application of

section 10(b). In making this finding, I rely onthe Supreme Court of Canada’s decision in R v Bernshaw, (SCC), [1994] SCJ No 87 (QL), [1995] 1 SCR 254[Bernshaw], where, at paragraph 75, Sopinka, J wrote: I note that a potential problem which may arise from delaying the screening test, and which was discussed by my colleague [Cory, J] inhis reasons, as well as by Arbour J.A. [in R v Pierman, (ON CA), [1994] OJ No. 1821, 19 OR (3d) 704 (Ont CA)], iswhether the suspect is entitled to access to counsel when detained for a longer period.

In the Thomsen case [R v Thomsen, (SCC), [1988] SCJ No. 31, [1988] 1 SCR 640], it was held that the roadside screening procedure was a reasonable limit on one’s rightto counsel under s. 10(

b) of the Charter. In my view, a delay in the order of 15 minutes in order to obtain a proper sample of breath isnot inconsistent with Thomsen. It would, indeed, be strange for us to hold that the rights of some persons under one provision of theCharter (s. 8) must be sacrificed in order to preserve the limit on their rights under another provision (s. 10(b)). [13] I would not go so far as to hold that the application of

section 10(

b) of the Charter can never be triggered by a delay leadingup to an ASD test. Since Bernshaw, cell phones have become ubiquitous. There may be situations where it will be sensible to allow anaccused person to contact counsel using a cell phone during a lengthy delay leading up to an ASD test. (Admittedly, though, such adelay might well result in the test failing to meet the “forthwith” requirement set out in paragraph 254(2)(

b) of the Criminal Code.) Ido not think, however, that the 11-minute delay in the present case was long enough to require Constable de Bruin to allow the accusedto make a cell phone call to a lawyer. Identity of the Accused [14] Although defence counsel may not have expressly stated that the accused was present in the court room during the trial, I tookthis to be the case. The accused was easily recognizable since she was the only female person seated in the gallery for much of the trial. [15] During the trial, the Crown did not ask Constable de Bruin to identify the accused in the body of the court.

The defenceargues that without that identification, the Crown has failed to prove an essential element of the accused’s over 80 charge. Crowncounsel argues that in-court identification is not required in the present case. [16] The present case is somewhat unusual in that the accused did not have any identification on her person when she was beingdealt with by Constable de Bruin. She did, however, identify herself by providing a name and date of birth. [17] I am of the view that even without in-court identification, the accused has been properly identified in the case before me.

This is because Constable de Bruin was both a witness to the accused’s driving and the officer responsible for charging and releasing theaccused on a Promise to Appear. That nexus leaves me with no doubt that the person Constable de Bruin stopped on Highway 2 is thesame person who appeared for trial before me. [18] The present case is similar to that of R v Nicholson, 1984 ABCA 88, [1984] AJ No 2522 (QL), where the accused wascharged with driving while over 80 near St. Albert, Alberta, and released on an Appearance Notice.

When the matter came to trial, thearresting officer incorrectly identified a person (the accused’s brother) in the court room as being the accused. Notwithstanding thisincorrect identification at trial, the Alberta Court of Appeal found that the accused was identified as the offender. At paragraph 29,Kerans, JA succinctly and logically stated: Constable Beach was a unique witness. He was not only the arresting officer, he was also an eye witness to the crime. He saw the crimecommitted and then promptly arrested the offender.

Had he kept the offender in custody until trial, there would have been no problem ofidentification. But, although he released him, he gave him an appearance notice. The uncontradicted testimony is to the effect that theinformation, which pursuant to s. 455.1 C.C.C. confirmed the appearance notice given to Beach, is the very information which forms thebasis of this charge. The person, therefore, to whom he gave the appearance notice is the person whom we call the accused. And, onBeach’s eyewitness testimony, the person to whom he gave the appearance notice was the offender!

The circle of identification iscomplete: the accused is the offender. With respect, this is the only inference available in these circumstances. This is so, I might add,whether the accused is or was ever called John Robert Nicholson. [19] In the present case, the Crown neglected to have Constable de Bruin testify that she served the accused with a Promise toAppear. However, this deficiency is made up for by the fact that Constable de Bruin’s signature appears on the Information charging theaccused and her matching signature also appears on a Promise to Appear addressed to the accused and dated September 12, 2015.

Theaccused’s signature also appears on the Promise to Appear. I accept this evidence as proof that Constable de Bruin was responsible forreleasing the accused pursuant to

section 498 of the Criminal Code. [20] I would caution that the documents served on an accused will not always support a finding that an accused is linked to analleged offender. If an accused is released from custody by an officer who had no particular knowledge of an alleged offence, documentsalone would not likely (as Kerans, JA might put it) be sufficient to make the circle of identification complete. Something more would beneeded to tie the accused to the alleged offence. [21] To give one example of how a case of mistaken identity might occur, I can refer back to our criminal docket court held in La

Ronge earlier this week where two prisoners appearing before me had both the same first name and the same last name. Had these prisoners been previously released by an officer pursuant to

section 498 of the Criminal Code , their documents could conceivably have been mixed up by a releasing officer not familiar with their involvement in alleged offences. [ 22 ] The Crown also filed a digital photograph of the accused, which photograph had been taken by Constable de Bruin when she dealt with the accused at the La Ronge RCMP station. The accused’s photograph appeared to resemble the female person whom I understood to be the accused attending for trial.

Accordingly, the photograph affords some evidence of identity. [ 23 ] The Crown also filed a second digital photograph purporting to be a photograph of the accused taken by authorities on an earlier date. Constable de Bruin testified that the photograph had come “from our systems from a previous arrest”. Without more information, I am unable to give this second photograph any weight.

Observation of the Accused During Breath Testing [ 24 ] Defence counsel relies on the decision of Barrington-Foote, J in the case of R v By , 2015 SKQB 86 , [2015] SJ No 148 (QL) [ By ] , to argue that a failure to observe the accused properly prior to the taking of breath samples rebuts the presumption of accuracy in paragraph 258(1) (

c) of the Criminal Code . [ 25 ] The facts before me are not similar to those dealt with by Barrington-Foote, J in the By case. After reviewing the evidence of Constable de Bruin and the video showing part of the observation period, I am unable to find any evidence to indicate that the accused was improperly observed prior to the taking of her breath samples. Constable de Bruin testified that she kept the accused under close observation during the periods leading up to each of the two breath samples taken.

At no time did Constable de Bruin hear or witness the accused burp or belch in a manner that might lead to contamination of a breath sample by stomach alcohol. I am unable to find that the manner in which Constable de Bruin conducted her observations of the accused prior to the two breath tests is evidence that rebuts the presumption of accuracy in paragraph 258(1) (c).

Notice of Intention to Produce Certificate [ 26 ] The defence also argues that the Certificate of a Qualified Technician should not be admitted into evidence because the Crown has not proven proper notice of an intention to produce the Certificate as required by subsection 258(7) of the Criminal Code . [ 27 ] Exhibit P-4 sets out the Certificate of a Qualified Technician dated September 12, 2015, and signed by Corporal Marsha Shaw. In the lower portion of the same page, there is a Notice of Intention to Produce Certificate which is also dated September 12, 2015.

The Notice is signed by both Constable de Bruin and the accused. An Affidavit of Service sworn by Constable de Bruin on September 30, 2015, confirms that a true copy of the Certificate of a Qualified Technician was served on the accused on September 12, 2015. [ 28 ] Subsection 4(6) of the Criminal Code allows for proof of service by sworn affidavit. Here, the affidavit sworn by Constable de Bruin could perhaps have more clearly identified the documentation it referred to.

The affidavit refers to the documentation served on the accused as being “a true copy of the Certificate of Qualified Technician” without specific reference to the Notice of Intention to Produce. Nonetheless, I find that the affidavit is sufficient to prove both of the requirements set out in subsection 258(7) of the Criminal Code , i.e., that the accused did indeed have notice of the Crown’s intention to produce the Certificate of a Qualified Technician in evidence and that she received a true copy of that Certificate.

As noted, both documents are contained on a single page and both bear the same date of September 12, 2015. Moreover, the accused’s own signature appears at the bottom of the page containing the two documents. Conclusion [ 29 ] To conclude, I am of the view that the Certificate of a Qualified Technician in this matter should be entered into evidence. The Certificate, showing readings of 180 and 190, is proof that the accused’s blood alcohol content was over the legal limit at the time she was stopped by Constable de Bruin.

I therefore find her guilty of her charge of driving while over 80. [ 30 ] I wish to thank counsel for their representations in this matter. ___________________________________________ Robinson, J