Her Majesty the Queen - v. -, 2014 SKPC 27

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 027 Date: February 6, 2014 Information: 24408525 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyler Alwyn Sandwith Appearing: A. Davis For the Crown L. Dunford For the Accused JUDGMENT J. BENISON , J INTRODUCTION [ 1 ] The accused, Tyler Alwyn Sandwith, was stopped by an RCMP officer on the 6 th of March 2011, while driving in Lampman, Saskatchewan. He failed an approved screening device test and was taken to Estevan where samples of breath were provided, with readings in excess of the legal limit. The accused was charged under s. 253(1) (

b) of the Criminal Code with driving while his blood alcohol level exceeded the legal limit.

ISSUES

(1) Was the accused arbitrarily detained in contravention of s. 9 of the Charter ?

(2) Did the investigating officer have legal grounds to make an approved screening device demand?

(3) Has the defence raised a doubt as to whether the Intox-EC/IRII instrument was malfunctioning or was operated improperly when breath samples were obtained from the accused? [ 2 ] I gave rulings on issues (1) and (2) in the course of a voir dire , but for convenience I repeat my rulings on these two issues in this judgment.

(1) Was the accused arbitrarily detained in contravention of s. 9 of the Charter ? [ 3 ] On the day in question, Cst. Lamontagne, the investigating officer, detained the accused after he had driven his vehicle into a driveway in Lampman. The defence argued that this constituted an arbitrary detention since the accused was on private property. [ 4 ] In my opinion, the key to this fact situation is to determine where the accused’s vehicle was at the time that the officer decided to initiate the stop and did take some action to initiate it. On my view of the evidence, Cst.

Lamontagne had made the decision to check the vehicle pursuant to his powers under s. 209.1 of The Traffic Safety Act and had activated the police car lights while the vehicle was still on the street and was starting to turn into a driveway. The officer had clearly formulated a decision to stop the vehicle before it entered the driveway. It follows from this that the stop was authorized under s. 209.1 of The Traffic Safety Act and therefore was not arbitrary.

(2) Did the investigating officer have legal grounds to make an approved screening device demand? [ 5 ] When talking to the accused in his vehicle, the officer noted an odour of alcohol but could not say specifically that it came from the accused. He decided to place the accused in the police car to continue his investigation; this was warranted in this situation because the female passenger in the vehicle was interfering with the officer’s investigation. The officer confirmed that the odour of alcohol was coming from the accused and obtained an admission from the accused that he had recently consumed alcohol.

This gave the officer the necessary grounds for an approved screening device demand.

(3) Has the defence raised a doubt as to whether the Intox-EC/IRII instrument was malfunctioning or was operated improperly when breath samples were obtained from the accused? [ 6 ] The defence sought to have Gerard Kampman qualified as an expert witness to give opinion evidence on the possible effects of radio frequency interference (RFI) on breath test results and specifically on the operation of the EC/IRII instrument. I found that Mr. Kampman clearly had a thorough knowledge of breath testing instruments that made him an expert in this area. The Crown raised a concern that Mr.

Kampman’s expertise was gained in relation to earlier breath testing instruments more than 10 years ago and that he did not have the same detailed knowledge of the Intox-EC/IRII as he did of earlier instruments. However, Mr. Kampman testified that certain principles of breathing testing are the same no matter what instrument is used. I accepted this testimony and concluded that Mr. Kampman’s expertise on earlier instruments would carry over to the Intox-EC/IRII and that he was qualified to give opinion evidence on the effects of RFI on tests conducted on the EC/IRII.

The concerns raised by the Crown would be relevant to the weight to be given to Mr. Kampman’s opinion. TESTIMONY OF QUALIFIED TECHNICIAN [ 7 ] The Court ordered that the Crown make the qualified technician who performed the tests available for cross-examination by

[ 7 ] The Court ordered that the Crown make the qualified technician who performed the tests available for cross-examination by the defence. Cst. Ryan Oram, an RCMP officer working with Weyburn Traffic Services conducted the tests on the Intox-EC/IRII instrument at the Estevan Police Service. Cst. Oram described how he conducted the tests on the accused by following the prompts on the instrument.

The officer confirmed that the date to change the solution as indicated on what he called a placard on the instrument was well within the time limit indicated on the placard and on the wall in the testing room. [ 8 ] Cst. Oram acknowledged that he was aware of a recommendation in the manual for the instrument that no transmitting devices be used during tests. The officer read the relevant page from the manual which stated: The Intox-EC/IRII was designed and certified by an independent laboratory to meet various radio frequency interference (RFI) immunity requirements.

Although the instrument is certified as immune to certain RFI, it is recommended that no transmitting devices be used in the testing room during a test sequence. [ 9 ] Cst. Oram testified that a radio was transmitting to the patrol car while he was performing the breath tests. He described it as a small microphone device which he routinely leaves on while performing breath tests to record what the accused says. While following this procedure, the officer has never had an indication that RFI was detected. [ 10 ] Cst.

Oram described his understanding of the RFI issue to be that, if the instrument detects RFI while a test is being conducted, it will abort the test. He had no knowledge of any problems or issues with the instrument in question. He believed that if the instrument had not been working normally, it would have been withdrawn from service. EXPERT TESTIMONY [ 11 ] Gerard Kampman testified as an expert witness for the defence. The Crown acknowledged Mr. Kampman’s expertise in the area of the effects of alcohol on the blood alcohol concentration of individuals. In addition, as indicated earlier, Mr.

Kampman was qualified by the Court to give opinion evidence on the possible effects of RFI on breath testing instruments including the Intox-EC/IRII. [ 12 ] Mr. Kampman acknowledged that his experience with the Intox-EC/IRII was limited compared to earlier breath testing instruments. He had not read the manual, although he had looked at some sections. In Mr. Kampman’s opinion the principles of breath testing are the same no matter what instrument is used. [ 13 ] With reference to RFI, Mr.

Kampman indicated that there are always concerns when radio transmission devices are used in proximity to breath testing instruments. He was aware that the EC/IRII has a shield as a safeguard against RFI. He was aware that exposure to RFI during testing would often lead to the instrument shutting down. In his opinion, one could not be sure that built-in safeguards would work and if the operator fails to follow recommended guidelines there is a potential to affect the results. [ 14 ] In cross-examination Mr. Kampman admitted that he did not recall doing any testing on RFI.

He also admitted that he was not as familiar with the EC/IRII as with earlier instruments. I will deal with Mr. Kampman’s testimony on the possible effects of RFI in the analysis portion of my decision. TESTIMONY OF ACCUSED [ 15 ] The accused testified as to how much alcohol he consumed on the evening in question. Defence counsel then submitted to Mr. Kampman a hypothetical drinking pattern on which Mr. Kampman provided his opinion as to blood alcohol concentration at various times. There was one major problem with this procedure: the hypothetical on which Mr.

Kampman provided his opinion did not correspond to the drinking pattern that the accused testified to. In fact, the hypothetical omitted one beer that the accused said he had at his friend’s home in Lampman at approximately 8:00 p.m. The effect of this omission is that Mr. Kampman’s opinion based on the hypothetical is of no evidentiary value in terms of what the accused’s blood alcohol concentration might have been at the relevant times. ANALYSIS

[16] The law relating to evidence to the contrary was changed by the Supreme Court of Canada decision of R. v. St. Onge Lamoureux, 2012 SCC 57 , [2012] 96 C.R. (6th) 221. There is now one requirement in s. 258(1)(c)(iv) that the accused mustsatisfy to rebut the presumptions of accuracy and identity, namely, there must be evidence that the instrument was malfunctioning or wasoperated improperly. [17] The only evidence that might suggest that the Intox-EC/IRII was malfunctioning at the relevant time is contained in thetestimony of Mr. Kampman. To summarise Mr.

Kampman’s testimony, he suggested that there are always concerns when radiotransmission devices are used in proximity to breath testing instruments, as was the case here. He further testified that breath testinginstruments have detection systems which, if set up properly, will alert the operator and abort the test. He admitted that the instrumentsare not designed to produce erroneous results. In Mr. Kampman’s experience, he has never encountered a situation where RFI producedelevated readings, nor has he read any literature where elevated readings were obtained.

Despite the built-in safety features ofinstruments, and in particular the EC/IRII, Mr. Kampman still believed that there is a potential for RFI to affect the readings. [18] In reviewing Mr. Kampman’s testimony, it is my conclusion that the defence has not raised doubt as to whether the Intox-EC/IRII was malfunctioning. I find Mr. Kampman’s opinion to be speculative and is not sufficient to constitute evidence to thecontrary. In this regard, I am guided by the statement of Pigeon J. of the Supreme Court of Canada in R. v.

Crosthwait, [1981] S.C.R.1089 at 1101: Mere possibility of some inaccuracy will not assist the accused.

What is necessary to furnish evidence to the contrary is some evidencewhich would tend to show an inaccuracy in the breathalyzer or in the manner of its operation on the occasion in question of such a degreeand nature that it could affect the result of the analysis to the extent that it would leave a doubt as to the blood alcohol content of theaccused person being over the allowable maximum. [19] In arriving at my conclusion in this matter, I have also considered the testimony of the qualified technician who obtainedsamples of breath from the accused without any indications that there were issues or problems with the instrument. [20] One final point that I must consider is whether there is evidence that the instrument was operated improperly.

Cst. Oramtestified that he kept his radio on while administering the breath tests. He stated that he does this routinely to record what the accused issaying, even though he is aware of a recommendation in the manual that no transmitting devices be used during tests. Although Cst.Oram appeared to blatantly ignore a recommendation in the manual, I cannot interpret this to mean that he was operating the instrumentimproperly. Further to my earlier assessment of the defence evidence, there is nothing to indicate that Cst. Oram’s radio affected thebreath test results.

Had he failed to follow a procedure that was required rather than one that was recommended, my decision might havebeen different. In

summary, there is no evidence that the instrument malfunctioned or was operated improperly. CONCLUSION [21] As agreed by Crown and defence the voir dire evidence is applied to the trial. The certificate filed as Exhibit P-2 is admittedas a full exhibit. The Crown has proved all elements of the offence beyond a reasonable doubt and I therefore find the accused guilty ofthe charge under s. 253(1)(

b) of the Criminal Code. J. Benison, J