J. INFORMATION 2075759 DATE: 1998 IN THE PROVINCIAL COURT FOR SASKATCHEWAN SASKATOON, SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN and TRENT WAYNE WALKER S. Fillo For the Crown A. Kapoor For the Accused JUDGMENT RENDERED ON S.P. WHELAN, PCJ August 24,2001 CHARGES [1] Trent Wayne Walker was charged with i) impaired driving, contrary to sections 255(1) and 253(a) and ii) having consumed alcohol in a concentration exceeding 80 milligrams in 100 millilitres of blood, operating a motor vehicle, contrary to sections 253(b) and 255(1) of the Criminal Code. Count #1 was dismissed during the trial. ISSUES 1) Should the Court enter a stay of proceedings and award costs given the failure of the Crown to produce the standard alcohol solution as requested by the Defence? 2) Could mouth alcohol have invalidated the roadside screening test? 3) Did the Arresting Officer have reasonable and probable grounds to demand a breath sample? 4) Was the Accused denied his right to Counsel? 5) Was the breathalyzer test administered as soon as practicable? 6) Was there "evidence to the contrary"? [2] The Arresting Officer said that he stopped the Accused at 1:40 a.m. when he observed the Accused driving his vehicle 70 km per hour in 40 km zone in the town of Martensville. Upon coming into contact the Officer noted distinct smell of liquor and little redness in the Accused's eyes. At 1:42 a.m. roadside screening demand was made, based on the observed smell of liquor coming from the Accused. The roadside screening test was performed and the Accused failed it at 1:45 a.m. As result the Officer made demand that the Accused provide breath sample for analysis pursuant to section 254(3) of the Code. The Officer read from his "card" when making the screening demand and again when making the breath analysis demand; he again read those demands from that card when giving his evidence. With respect to the right to counsel he read: "You have the right to retain and instruct counsel without delay. You may call any lawyer you wish. Legal Aid duty counsel is available to provide you with immediate legal advice free of charge and can explain the Legal Aid plan to you. can provide you with number that you can call free of charge. Do you understand?" [3] The Accused stated that he understood after each demand was read. He was asked at the scene if he wished to contact lawyer and he said that he didn't wish to. He was asked again once they arrived at the RCMP detachment on 8th St. in Saskatoon and he once again said no. The Officer did not give the Accused the toll free Legal Aid number at which legal advice might be obtained. [4] The Officer made the demand because the Accused failed the roadside screening. As result he believed that the Accused's ability to drive motor vehicle was legally impaired by alcohol. [5] The Defence questioned why the Accused was transported to Saskatoon RCMP and not to the Martensville or Warman detachments near by, in order to provide the breath samples? The Arresting Officer advised that he preferred that someone else administer the test when he is the arresting officer and he did not go to Martensville or Warman as he has found that there is rarely anyone at either location or in any case anyone who can administer test. [6] They arrived at the Saskatoon RCMP detachment at 2:12 am. No issue was made of the delay between 2:12 and 2:34. The readings at 2:34 and 2:55 a.m. were each 100 milligrams of alcohol in 100 millilitres of blood. The Accused was served with the Certificate of Analyses at 3:12 a.m. and released. [7] This Officer received request from Defence Counsel for disclosure concerning the chemicals used in analysing the Accused's breath. The Court did not receive copy of the requesting letter. The reply, dated May 27, 1999, was filed as an Exhibit. It read in part: "Enclosed is sample test ampoule from the same lot used in the breathalyser analysis of the of the above noted person. The sample allotment number is 10254 which is the sample lot number used in the tests. The Standard Alcohol Solution (SAS) is not available, as the solution with lot number 30130 has been used and longer available. There was only two other bottles available at the time of your clients tests." [8] The Officer was asked to explain the operation of the 900A Borkenstein breathalyzer as it concerned the use of the test ampoule and the SAS. He explained that test ampoule and reference ampoule are used. Once the breath sample is engaged the colour of the light in the photo electric cell changes. This in turn alters the position of the altimeter. When readjustment is made to the light reading results. Following the first breath test the SAS is functional in telling the technician whether the test and the components of the machine are operating properly. The SAS is held in sealed container. It is then poured from bottle into an itemiser in the breathalyzer and again sealed. In time, depending on the practice of the operator the SAS is discarded. The SAS has to be used within an expiry date. [9] On this occasion the technician found that the test results were accurate and the machine was working properly. [10] The Officer advised that there was no process to track cases and when they are concluded. He advised that the remaining bottles of SAS were disposed of before Defence Counsel's request was received. The Officer indicated that he called the RCMP Crime Laboratory to attempt to obtain an SAS ampoules for lot number 30130. No steps were taken to ensure that the SAS sample ampoule used in the tests performed on the Accused was preserved pending the conclusion of the charges against this Accused. The Officer was not aware of such procedure. [11] Defence Counsel questioned the Officer about the delay in responding to his letter of December 8, 1998 until May of 1999. He apologized but did not recollect seeing the December letter until perhaps April 30, 1999. It appeared that the letter was initially directed to the Crown Prosecutor's office. [12] It is the Officer's practice to wait minutes to insure that there is no mouth alcohol before administering the roadside screening test. [13] Mary-Ellen Sharp was qualified to give expert testimony concerning the operation of the breathalyzer machine used, the test ampoules and standard alcohol solution and the elimination of alcohol by the human body. She is forensic toxicology specialist and has been employed at the RCMP Forensic Laboratory in Regina for over 18 years. She has taught the use of the breathalyzer to persons seeking to be qualified technicians for about years. She had not previously testified about the workings of the breathalyzer as she is new to this area of alcohol related work at the Lab. She obtained Pharmacy degree in 1978 and Masters of Science specializing in toxicology in 1980. In 1999, after moving to the Alcohol Unit she spent over year training almost exclusively in alcohol related matters in the Lab including the area about which she was called to testify. She has been deemed by the Lab's chief scientist to be qualified to work and testify in this area. [14] While not qualified to testify concerning the workings of the roadside screening device, she was asked in cross examination as to her qualification and testified that they advise officers to wait at least 15 minutes to allow any mouth alcohol to dissipate before administering roadside screening or breathalyzer. She believed that the policy manual states that they should wait 15 or 20 minutes. When questioned by the Crown it was clarified that this is recommended in the absence of inquiries about recent consumption. [15] Ms. Sharp explained that the SAS can be used to determine that the breathalyzer and attendant parts, ie the ampoules, are in proper working order. When approving lot of SAS the analyst tests statistically suitable sample chosen randomly from purchased lot of SAS. This sample is analysed to ascertain that the lot falls within statistically acceptable limits of reliability. Once this is done the lot can be sent out in to the field for police officers to use in administering breath tests. [16] The records at the Lab show that the Lot of the SAS used in this case, ie Lot 30310, had 2,400 bottles and the analyst selected random sample of 30 bottles for testing. The Lab routinely relies on sample of 30 to obtain verifiable statistics to approve lot. [17] Crown Counsel asked Ms. Sharp how useful it would be to test bottle of SAS taken from given Lot in determining the reliability of tests performed with another bottle of SAS from the same Lot. She explained that it would be meaningless as the reliability of the Lot has been determined by statistical analysis and testing one bottle from the Lot would not allow an analyst to draw any conclusions about the whole Lot and hence the bottle used in given breath test. [18] Ms. Sharp was asked to tell us, based on the reading of 100 mg at 2:34 a.m., what the Accused's reading would have been at 1:40 a.m., which is when he was stopped in his vehicle. She testified that the blood/alcohol concentration would have been in range of 109 to 118 mg in 100 millilitres of blood. When reading back from the reading of 100 mg at 2:55 a.m. the blood/alcohol concentration would have been in range of 112 to 125 mg%. She explained that the practice is to round down to the nearest 10 mgs, to truncate. [19] Trent Walker testified. He said that he felt that the fumes from working under motor vehicles in the shop that day may have caused his eyes to be red. The evidence concerning his eyes was not material for the Crown or Defence. [20] Mr. Walker gave an account of his activities that day. He said he worked until 4:30 or 5:00 p.m., had beer between 5:30 and 6:00 and then did some personal work on his girlfriend's truck in the shop at his place of work, finishing around 11:00 p.m. His girlfriend phoned him at about 10:00 p.m. and she asked him to bring the truck to her at the bowling alley. He arrived at Fairhaven Bowl with men from the shop between 12:30 and 12:45 a.m. As his girlfriend was still bowling, he went into the lounge where he said he drank beer. [21] Mr. Walker said that fellow, named Jim, brought beer to the shop. There were fellows there and Jim drank or beer himself. When asked about drinking only beer in the time he was at the bowling alley, he said he knew he was driving and he said he never drinks more than beer day. He said that he consumed the last of that beer in the seconds before he left the lounge. [22] He said he left for Martensville at 1:15 or 1:20 a.m. and that it took about 10 to 15 minutes to travel to Martensville where he was stopped by the police. He turned off at the merge and headed down Main St. where after about block he was met by the police. He said that the Officer did "u" turn at Central and Main and followed him. As he was about to turn into his driveway, the Officer put his lights on and he stopped. There was passenger in the vehicle, Chad. [23] He said that his girlfriend had been driving car length ahead of them. He felt that he would have been going 40 km per hour as his girlfriend who was in front of him was driving cylinder tractor and he doubted that she would be speeding and so he couldn't have been speeding. He said that the Officer said nothing to him about his speeding. [24] He recalls that the Officer phoned the Martensville Detachment and that there was no one there to administer the test. He said that the Officer's partner suggested that they go to Warman and but he said no that they would go back to the City. He said that it took 20 minutes to reach the detachment in Saskatoon. [25] He recalled being read the demands for the roadside screening and breath samples and he recalled being told of his right to remain silent but he didn't recall being told anything about lawyer until he was at the police station. He acknowledged that he may have forgotten that he was advised of his right to counsel at the scene. He denied being told that he could call legal aid lawyer or indeed being given the phone no. He said that had he been given the Legal Aid number he probably would have phoned there. [26] He acknowledged that at the detachment he was taken to room with phone and given the opportunity to contact lawyer. He said that he didn't know Mr. Kapoor's phone number; it was his Boss that knew Mr. Kapoor. He didn't tell the Officer that he wished to contact Mr. Kapoor nor did he ask for assistance in locating his phone number. He didn't attempt to locate Mr. Kapoor because he didn't know his phone number, didn't know if he lived in Melfort or Saskatoon, though he was pretty sure that it was Melfort. He said that he didn't pursue contacting Mr. Kapoor as it was a.m. [27] Dr. Richardson was qualified to give expert testimony concerning the absorption and elimination of alcohol as well as the calculation of blood/alcohol concentration and the effect of alcohol on human brain function. He heard the testimony of Trent Walker and was asked to give his opinion concerning his blood/alcohol concentration based on his weight and the amount and times at which alcohol was consumed. [28] Dr. Richardson testified that the alcohol reportedly consumed at the bowling alley would not yet be measurable as it had not yet been absorbed into the blood stream. He said that where there is alcohol in the mouth it can give falsely high reading. He said that one beer would metabolize in hour and 12 minutes so that by 2:34 the blood/alcohol concentration would be 0. [29] Dr. Richardson testified that with reading at 2:34 a.m. of 100 mg of alcohol in 100 millilitres of blood that the reading when he was stopped in his vehicle would be between 103 and 129 milligrams %, or on average 116 mg %. The symptoms exhibited with such reading would range from no symptoms to an appearance of being very intoxicated. DISCUSSION OF ISSUES Credibility [30] It is necessary to discuss credibility before address the issues raised in this trial. Before embarking upon this task reviewed the principles in R. v. W. (D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and R. v. McKenzie (1996) 1996 CanLII 4976 (SK CA), 141 Sask. R. 221, 106 C.C.C. (3d)1 (Sask. C.A.). was not impressed with the testimony of the Accused and reject it. There is never any one reason for rejecting the evidence of witness. can explain this conclusion by making some observations about his testimony: [31] He overstated his case in Chief. recall two examples of this. He said that he was not advised of his right to counsel at the scene but on cross examination acknowledged being advised of his right to remain silent and acknowledged that he may have been advised of his right to counsel. accepted the testimony of the Arresting Officer that he was advised of his right to counsel. [32] He testified in Chief that he was driving 40 km per hour in 40 km zone when he was stopped. When asked in Cross Examination how he knew that he was only going 40 km per hour, he responded that his girlfriend was driving cylinder tractor and he was following her so he couldn't have been speeding. [33] He had several reasons for failing to exercise his right to counsel and it would seem that he communicated none of these to the Arresting Officer. He said that Mr. Kapoor was known to his boss and he didn't know his phone number. He then said that he didn't know where he lived but he was pretty sure that Mr. Kapoor lived in Melfort. Finally he said he wasn't inclined to phone him at a.m. had no confidence in this evidence in the face of his clear statements that he did not require lawyer both at the scene and at the detachment. He did not explain why he would make these utterances, (the decline at the detachment was acknowledged), if he was considering whether he should call Mr. Kapoor. [34] He was overly emphatic about his general drinking habits in general. He stated that he never drinks more than beer in day. It is exceedingly rare that anyone can make such statement and be sure of its truth, especially given the effect of alcohol on the memory. [35] He offered no information about the ability of others in his company to observe his drinking and driving behaviour. He was with several others at the shop, others at the bowling alley, he had passenger in his vehicle that night and he met and spoke to his girlfriend. say this, acknowledging that must not shift the onus of proof to the Accused. Supportive evidence can have the effect of bringing some objectivity to the testimony of an accused. His evidence did not have an air of objectivity. [36] There was only vague explanation of the time from 11:00 p.m., when they quit work at the shop, to 12:30 or 12:45 a.m., when he arrived at the bowling alley. Presumably they were socializing and there was some drinking at the shop. [37] reject the evidence of the Accused. found the evidence of the Arresting Officer to be straightforward and reliable. 1) Should the Court enter stay of proceedings and award costs given the failure of the Crown to produce the standard alcohol solution as requested by the Defence? [38] Is it necessary that this be "live issue" or does the Defence have an absolute right to this disclosure and does it follow that failure to produce the standard alcohol solution calls for judicial stay of proceedings and costs? [39] The Defence urged me to decide this issue at the outset. The Crown urged me to hear the evidence and argued that there was no issue to determine until the Certificate of Analyses was filed and heard pertinent evidence. resolved this issue by following my usual approach which is to render decision once all the evidence is before the Court; this avoids unnecessary splitting of case. See R. DeSousa 1992 CanLII 80 (SCC), [1992] S.C.R. 944, 76 C.C.C. (3d) 124 and R. v. Martin (1991), 1991 CanLII 7340 (ON CA), 63 C.C.C. (3d) 71 (Ont. C.A.). [40] This is an application pursuant to sections and 24(1) of the Charter of Rights. The Defence has argued that the Accused's right to make full answer and defence has been infringed. The burden on such an application lays with the applicant. The question remains; once the Defence has established that it sought the SAS and it was not provided for whatever reason, has it discharged its burden or must it prove that the failure to produce the SAS solution could have a meaningful outcome on the trial? [41] have been referred to R. v. Bourget, (1987) 1987 CanLII 208 (SK CA), 35 C.C.C. (3d) 371 (Sask.C.A.), R. v. Kalafut (1988) 1988 CanLII 4920 (SK QB), 70 Sask. R. 94 (Q.B.), an excerpt of an article, "Driving Down Breathalyzer Lane: Recent Developments in Drinking and Driving Cases" by Rick Libman, (1991) 26 M.V.R. (2d) 96 at 99 to 106, R. v. Stinchcombe 1991 CanLII 45 (SCC), [1991] S.C.R. 326, 68 C.C.C. (3d) 1, R. v. Schmidt [1999] S.J. No. 408 (Provincial Court), R. v. Lefebvre [1988] A.J. No. 371, (Q.B.) and R. v. Simpson[(1995) 12 M.V.R. (3d) 104, (Ont. Court of Justice (Gen.Div.)). [42] With respect to R. v. Bourget, also reviewed the decision of the Chief Justice of the Court of Queen's Bench written at the first level of appeal and found at (1986) 1986 CanLII 3207 (SK QB), 49 Sask. R. 143, [1986]S.J. No. 451. [43] R. v. Bourget concerned the requested production of ampoules, representative of those used in analyzing the breath samples of the accused. The request was made so as to ascertain the reliability and accuracy of the machine. The Borkenstein breathalyzer used in that case was accompanied by manufacturer's certification to the effect that it could take no responsibility for the precision and accuracy of the instrument used unless "genuine breathalyzer ampoules are used". The ampoules used were not such ampoules but were produced by another manufacturer. This was not case of inability to comply but rather the refusal by the Crown to produce the requested ampoules. [44] Gerein, C.J.Q.B. stated at1986 CanLII 3207 (SK QB), [1986]S.J. No. 451 at page 5: "Most often the case against an accused person is largely proven by the viva voce evidence of witnesses each of whom the accused has the right to cross-examine to test the veracity and accuracy of their testimony. In most instances where an accused is charged pursuant to s. 236 of the Criminal Code there is minimal viva voce evidence. The essence of the Crown's case is the results of the analyses of the breath samples of the accused, which results are obtained from breathalyzer machine. It is obvious that such machine cannot be subjected to cross-examination and that its veracity will never be in question. However, it does not follow that its accuracy is immune from attack. An integral component of any analysis is the solution contained in the ampoules. If the solution is deficient it will produce an inaccurate reading. The only way in which the defence can satisfy itself as to the suitability of the solution is to obtain comparable ampoules and have them independently analyzed. It may well be that such testing will confirm that the solution was suitable and that will be the end of the matter. However absent an opportunity to conduct such testing the defence cannot be certain of the suitability of the solution and attendant accuracy of the machine. Clearly, if ampoules are not provided the defence is precluded from learning of any deficiency in the solution. Thus, it is only by having access to the ampoules that the accused can be assured an opportunity to make full answer and defence." [45] At page he addressed whether the ampoules should be routinely produced at the request of the defence: "It might be suggested that the ampoules should be produced only upon the accused establishing at trial some basis to question the suitability of the solution. This was the procedure which counsel adopted in Re Potma and The Queen and R. v. Scott. reject such an approach. The suitability of the solution is relevant to the main issue. The reason for seeking the ampoules is to test the contents of same. It is this very testing which may produce the basis for questioning the suitability of the solution and the consequent analysis. To require the accused to demonstrate the unsuitability of the solution or even the possibility of same prior to providing samples of the solution is akin to putting the cart before the horse. Furthermore, as earlier stated, such procedure may result in no ampoules being available. more desirable approach is that an accused must seek production with reasonable dispatch and this makes sense only if production is to be made upon receipt of the request. In the circumstances herein, conclude that the failure of the Crown to provide representative ampoules to the accused constituted violation of s. of The Charter of Rights." [46] The Saskatchewan Court of Appeal in R. v. Bourget, supra, referred to the comments of Gerein, J. at length and stated at page 376: "And finally the sincerity of the defence request is not in issue. The request was made in timely fashion, not for purposes of delay and with genuine desire to have the appropriate tests conducted. The defence had available and called as an expert at trial .Accordingly, the issue of accuracy of machine using "Analex" ampoules was live issue throughout the trial. In light of the manufacturer's certification of the instrument, counsel was not merely "fishing" for information." And on page 377: "I now turn to consideration of the primary issue raised in this appeal. As starting point, refer to R. v. Burr and Burr (1985), 1985 CanLII 2637 (SK CA), 43 Sask. R. 183 at pp. 1990-1, where this court emphasized the Crown's duty to make timely disclosure to the defence of all evidence supporting innocence or mitigating the offence. Although we have elected to employ an adversary system of criminal justice, the Crown plays an essential role in the truth-finding function of our system. The need to develop all the relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments or verdicts were to be fashioned on partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence it must depend upon full disclosure of all the facts, within the framework of the rules of evidence. Accordingly, our approach with respect to the production and discovery of objects or material for independent testing must comport with that fundamental notion. ." At page 380 Tallis stated the general principles: "In my opinion, s. of the Charter gives the court broad power to promote the proper administration of criminal justice by ordering disclosure of material and objects for the purpose of independent testing. Section is no longer limited to the notion of procedural fairness in court and encompasses the whole process including discovery and disclosure. If our system of criminal justice is to be marked by search for truth, then disclosure and discovery of relevant materials, rather than suppression, should be the starting point." [47] Crown counsel has argued that the law in Saskatchewan is that in order that the court require production, that it be concerned with "live issue". Having read the Bourget decisions at both levels of court, it is clear to me that Gerein, J. placed no such restriction on his decision, albeit the facts concerned what the Court of Appeal described as "live issue". Further it is not clear from the decision of Tallis, J. whether he was endorsing the "live issue" approach or the more general approach of disclosure. Certainly he referred to production of relevant materials. will leave aside for the moment whether find that was concerned with "live issue" in the case before me. [48] R. v. Kalafut (1988) 1988 CanLII 4920 (SK QB), 70 Sask. R. 94 (Q.B.) followed very soon after the Bourget decision. In that case the accused requested test ampoule of the standard alcohol solution used to test the breathalyzer machine and test ampoule used in the machine to test the alcohol content of the breath sample. The standard alcohol solution for the lot number involved in the testing of the accused's breath was not available. MacIntyre J. commented at paragraph [10]: "I was advised that the Crown now retains sample ampoules after plea of not guilty until after the trial has been concluded so that the present situation should not occur again." He concurred with the trial judge, Fenwick, J. that the respondent's Charter rights had been breached and that the only appropriate remedy was stay of proceedings. [49] R. v. Schmidt [1999] S.J. No. 408 (Provincial Court) is decision of one of my Saskatoon colleagues, Goldstein, J. He was concerned with an application for the production of maintenance records for the roadside and breathalyzer machines utilized in conducting tests on an accused. He considered R. v. Bourget among other decisions and held: "Applying these principles to the case at hand, can it be reasonably concluded that tests or calibrations, which would show whether the breathalyzer was properly in repair, are clearly irrelevant as to accuracy of its readings,. ." [50] As read the facts in R. v. Kalafut, was unable to find anything which would distinguish that decision from the case before me. Having regard to the Saskatchewan decisions in Bourget and Kalafut would, ordinarily, based on the principle of stare decisis, not pursue this issue further. In recent decision of one of my colleagues, R. v. Shuparski [2001] S.J. No. 220 (Provincial Court) my colleague, Snell, J. discussed stare decisis and found it helpful to read and provide an excerpt from her judgment, beginning at paragraph 23: "(ii) Stare Decisis [para23] The purpose of stare decisis is to promote certainty in the law. It appears that am not bound to follow the obiter rulings of the Court of Queen's Bench. Only the obiter pronounced by the Supreme Court of Canada is binding on lower court (see Sellars v. The Queen (1980) 52 C.C.C. (2d) 345 (S.C.C.)). However, one should apply the rules of stare decisis in such way as to promote the purpose for the rule. note that Wimmer J. held in R. v. Wolverine, [1987] S.J. No. 113 (Q.B.) that although decision of his brother judge was not binding on him, he would follow it because it contributed to the principle of certainty in the He stated: It is true that the doctrine of stare decisis does not absolutely bind judge of first instance to follow prior decision of another judge of the same court, but failure to do so is disservice to litigants, lawyers and inferior courts who are entitled to see the law as reasonably settled and certain. It is for courts of appeal, not individual judges of equal jurisdiction, to correct judicial errors. [para24] The following description of the meaning and purpose of stare decisis appears in R.v. Koziolek, [1999] O.J. No. 657 (Ont.Gen.Div.) at page 12: The phrase stare decisis is an abbreviation from the Latin phrase stare decisis et non quieta movere which may be translated as "to stand by decisions and not to disturb settled matters". The "rule" as it is often described, has been commonly understood in modern terms to mean that every court is bound to follow any case decided by court above it in the hierarchy. However, as the entire phrase itself suggests, the "doctrine of stare decisis also requires that cases be decided the same way when their material facts are the same": see Glanville Williams, Learning the Law (9th ed.), 1973." [51] However experienced some difficulty leaving the matter with my review of the Saskatchewan decisions alone, given the nature of the expert evidence presented to me. was really puzzled by the evidence of the forensic expert which was that it would be meaningless to test one ampoule of SAS taken from the same Lot as the SAS used to test the accuracy of the machine in this case. She spoke of the statistical analysis employed to ensure that Lot meets acceptable limits of reliability and accuracy. In her view testing one ampoule would tell you nothing about the Lot from statistical point of view and the question remains; would it tell the court anything about the SAS used in the test upon particular accused. [52] It would also seem that if an accused wants to test the SAS used in an actual case, that it is only reliable for limited duration of up to days and therefore, counsel should act very promptly to obtain this ampoule after test. Indeed it would seem ideal to obtain both the test and reference ampoules should the Defence wish to challenge the accuracy of the test. [53] was provided with no evidence from the Defence to explain how the SAS might be used on practical level to question the accuracy of the test performed on this accused. could not help but wonder; had the SAS been produced, what would the Defence have done with it? Let me say that appreciate the argument that it is necessary to have the right to the ampoules without the necessity of court application if the ampoules are to obtained before destruction. My concern is with the science involved in ascertaining the accuracy of breathalyzer tests and how it assists the finding of truth and the conduct of fair trial while guaranteeing the accused's rights. read the Saskatchewan decisions and those in other jurisdictions for scientific evidence of the kind that received. Indeed would have preferred more thorough canvassing of these issues in the trial before me. [54] As result of this evidence, am, like my colleague, Snell, J. in Shuparski, supra, faced with the possibility that my decision, no matter how decide may be wrong. Like her, will follow those decisions which regard as binding on me in Queen's Bench and the Court of Appeal in Bourget and Kalafut and will accept the decision of my colleague Fenwick, J. in Kalafut. remain uncertain how broadly the Court of Appeal decision in Bourget was intended to be read. have reviewed the facts and canvassed all of the issues raised before me so that should be found to be in error concerning the production of the SAS, an appeal court will have the benefit of my findings on all issues presented. [55] Before concluding on this point will canvass some of the decisions available in other jurisdictions. There has not been lot of activity recently in this area of the law. expect that it is because it had heretofore been settled in some jurisdictions and that it has been resolved on practical level either by the routine storage of the solutions used, as suggested in R. v. Kalafut or by limitations on the ability to test the solutions once they are produced. The evidence of the Arresting Officer in this case was that he did not routinely store the solutions. He was not aware of any system to store solutions until after charge had been concluded. Certainly the RCMP forensic lab that certifies the SAS did not retain sample ampoule from the same lot in this case. [56] In R. v. Dunn (1990), 26 M.V.R. (2d) 34 (Ont. Gen.Div.) the Court held at paragraph 38: "[para38] In my opinion, the absence of the "live issue" is sufficient to dispose of this appeal. There is an absence of any evidence to show the relevance of, or the significance of, the requested items. It is not unfair to require an accused to give some minimal indication as to how or why the requested material may be relevant, having regard to the standards set out in the Criminal Code for the testing of breath samples and for the admission into evidence of test results. The respondent has not made any threshold case or adduced any evidence indicating his Charter rights have been denied. The fact that the request was timely, and made with reference to number of items, does not alter this conclusion." [57] In R. v. Balogh (1990), 22 M.V.R. (2d) 28 (Ont. Dist. Ct.) the request was for the actual ampoules used in the test. Uncontradicted evidence led at trial indicated that there was no way to test the accuracy of an ampoule after its use. [58] In R. v. Mayer (1989), 16 M.V.R. (2d) 174 (B.C. Co. Ct.) the Court held that before an accused can claim that the non-production of evidence violates his Charter rights, he must show that the independent testing of it may advance his defence. [59] In Regina v. Eagles, (1989) 1989 CanLII 205 (NS CA), 47 C.C.C. (3d) 129 (N.S.C.A.) the Court considered R. v. Bourget (Sask.C.A.) and distinguished it on the basis that it concerned "live issue". The Court queried whether in the absence of live issue our Court of Appeal would have decided the case in the same way. The Court stated at page 3: "In this case, there was no factual foundation or other basis shown indicating that the production and examination of the ampoule would have any meaningful capacity to advance the defence. While defence counsel is not required to establish that an examination of the ampoule would show that it was defective, there must be some basis for the request for the production of the ampoule that lends an air of reality to the request. Otherwise the request is nothing more than fishing expedition. Without something more than mere speculation, production of the ampoule should not be made or ordered. In this case the accused's right to make full answer and defence as guaranteed by s. of the Charter had not been infringed by the non-production of the representative ampoule. The accused had the burden of showing on balance of probabilities that such right had been violated and this burden of proof was not discharged simply by the accused showing that the Crown had refused to produce the ampoule. Accordingly the trial judge erred in excluding evidence of the certificate of the technician as to the results of the analysis of the accused's breath sample. At page 22: If request for production does not have to pass reasonableness test then in every breathalyzer case, the Crown would automatically, if asked, have to provide for inspection any and all [page137] parts of the breathalyzer machine that had been used and indeed perhaps the complete machine itself. All devices for measuring or ascertaining facts or data would be available upon request such as radars, computers, thermometers, speedometers, etc. There also arises the problem of testing the testing equipment. [60] R. v. Hodgson (1990) 1990 CanLII 10967 (BC CA), 57 C.C.C. (3d) 278, [1990] B.C.J. No. 1471 (B.C.C.A.) distinguished R. v. Bourget on its facts, finding that it was concerned with "live issue". At page the Court stated: "No evidence was given at the trial by the technician, the analyst, or by the appellant, but the defence had available an expert witness who was qualified to testify if sample of the alcohol standard was produced. The Crown made the following admissions: that if the defense had been provided representative sample of the standard alcohol solution lot No. 110 then the defense expert witness would be able to determine whether it was suitable solution for use with the breathalyzer and further whether or not the breathalyzer would have been properly used and operating properly on the date in question." The Court concluded that there was no "live issue" and no breach of s. of the Charter. [61] In R. v. Oakman, [1993] M.J. No. 236 (Man. Q.B.) after careful review of the authorities the Court stated at page 28: "If the Crown is to be allowed to rely upon the results of breathalyzer test to convince court to convict person accused of driving motor vehicle while the volume of alcohol in that person's blood exceeded 80 milligrams percent, the accused must certainly be able to fully question and challenge the results of the test. If the questioning by the accused of the test results requires independent scientific testing of sample of the test ampoule or of the standard alcohol solution, the Crown must provide such sample(s) upon request. In order to be able to provide such sample(s), the same must be kept available until disposition of the charge has occurred. think the appellant's request here was both timely and reasonable. The evidence makes it clear the appellant here was not "engaged in discovery based on pure speculation" as in Hodgson, supra. Nor can it be said, in my view, that the appellant here was involved in "fishing expedition" as was found to be the case in Eagles, supra, and Hodgson, supra. In the appeal before me, the appellant's purpose in wanting to have independent tests conducted was to determine the suitability of the Analex ampoule used in the breathalyzer. The concerns expressed in Bourget, supra, respecting the manufacturer's certificate accompanying the breathalyzer as it relates to Analex ampoules, do not exist here. Be that as it may, there is still live issue as to the suitability of the ampoules in my opinion. That issue stems from the fact that in order to certify the ampoule lots received in Manitoba, three separate individuals at the R.C.M.P. Forensic Laboratory at Winnipeg conduct random sample analyses of ampoules in the lots before the same are distributed to various detachments for use. If that kind of testing must be conducted by employees or members of the R.C.M.P. before ampoules from any given lot are utilized, then surely it is reasonable for an accused person to request, and be given, the opportunity to have independent testing conducted. It is just not good enough to say that the accused can cross-examine experts in the employ of law enforcement agencies. As the learned trial judge said at p. of her reasons for decision, cross-examination of experts called by the Crown "results in more limited and restricted form of questioning the accuracy of the Crown's evidence." To enable an accused person to make full answer and defence, full disclosure of all relevant evidence must be made by the Crown. might add, parenthetically, that in my view, the disclosure ought to be unsolicited. Failure by the Crown to disclose, whether advertent or inadvertent, will, in my view, result in an infringement upon the rights of the accused as guaranteed under s. of the Charter." [62] I hold that the Accused\'s right to make full answer and defence has been infringed by the failure of the Crown to produce a sample of the SAS solution used in this case. In light of the Bourget and Kalafut decisions, the Crown has had ample opportunity to establish system for routinely saving the solution until after case has been concluded. S. of the Charter of Rights has been infringed. Given the decisions referred to I find that it would bring the administration of justice into disrepute were the Certificate of Analyses admitted in evidence given that the Defence has not had the opportunity for full answer and defence. The Defence sought a stay of proceedings pursuant to s. 24(1) of the Charter. I believe it more appropriate to exclude the Certificate of Analyses. In Bourget Gerein, J. found that to be the appropriate route. In Kalafut stay was granted. No argument was presented on this point. The Certificate of Analysis was made full exhibit without qualification. However the nature of the application was clear from the outset. exercise my discretion to grant the remedy pursuant to s. 24(2) of the Charter. The Certificate of Analyses will be excluded. [63] Despite the arguments of Defence Counsel, did not regard the request for production of the SAS solution to be "live issue". No evidence was presented which would indicate that production and testing of the SAS would affect the outcome of the trial on the merits. In argument, Defence Counsel argued that as the readings were 100 mg% this in and of itself made it "live issue". There was no evidence to support this argument and it does not necessarily follow. [64] With respect to the issue of costs, Defence Counsel provided me with the decision of R. v. Boychuk, Feb 21, 1995, Provincial Court of Saskatchewan, Wakaw, Saskatchewan, Diehl, PCJ. Defence has argued that the Crown should not have proceeded given that the state of the law was clear concerning disclosure of the SAS and that there was clearly no evidence to support an impaired driving conviction. do not regard the Boychuk decision to be relevant. The only thing that this decision has in common with this case is the names of Counsel. am not interested in any history between them and would have preferred that Defence Counsel had not filed this decision. have no evidence concerning the costs incurred by the Accused. [65] The onus of proof in this Charter application lay with the applicant. Ordinarily, as part of that onus the applicant would have been required to provide some evidence before the Crown would be called upon to respond to the application. The Defence would no doubt say that it has met that burden by making the request for the SAS and establishing that it has not been provided. This is consistent with the Bourget and Kalafut decisions, as discussed. [66] The SAS was requested within reasonable period of time. In any event, having regard to the comment of McIntrye J. in Kalafut, one would have thought that the Crown was routinely storing the SAS until after charge had been disposed of bay way of conviction or otherwise. The evidence of the Arresting Officer in this trial was that there is no routine method of storing ampoules after they are used for testing. Certainly from all of the evidence before me it would appear that if there was at one time storage system it has been abandoned. It is now not clear to me that practically speaking there is any merit to storing the SAS after it has been opened or indeed storing sample SAS ampoule from each lot used in the province. Regrettably the expert evidence presented by the Crown did not fully canvass this area. There was no evidence from the Defence as to the use that may be made of the SAS. [67] Costs are rarely awarded in criminal proceedings. Given the evidence presented concerning the usefulness of testing representative SAS ampoule had it been produced am not persuaded that costs should be awarded. 2) Could mouth alcohol have invalidated the validity of the roadside screening test? [68] As understand the Defence argument; the roadside screening device was administered within 15 minutes of the last drink of the Accused and therefore there is the risk that the presence of alcohol in the mouth may have invalidated the test. [69] The applicable sections of the Criminal Code are 254(2) (3). [70] The Accused said that he consumed the last of the one beer that he drank in seconds before he left the bowling alley. He stated that he left the bowling alley at 1:25 or 1:20. He also said that it took him 10 to 15 minutes to drive from Fairhaven Bowl in Saskatoon to Martensville. He was stopped at 1:40 and the roadside screening was administered between 1:42 and 1:45 a.m. There is no evidence that the Arresting Officer was advised that the Accused had been drinking within 15 minutes before administering the roadside screening. [71] If he left the bowling alley at 1:25 a.m. and the test was administered at 1:42 a.m., the test was administered at about 17 minutes after his last drink. He has said that it took 10 to 15 minutes to make the drive. Allowing some time for his departure from the bowling alley, and allowing as well for the to minutes that elapsed after he was stopped and before the test was administered it is more than likely, on his account that at least 15 minutes elapsed between his last drink and the roadside screening. [72] have already stated that reject the Accused's testimony, having found that it was not credible. There is nothing in the evidence available on this issue which causes me to reconsider this assessment or to have a reasonable doubt as to the time that elapsed or that there may have been alcohol in his mouth which may have invalidated the roadside screening. [73] have been referred to R. v. Bernshaw 1995 CanLII 150 (SCC), [1995] S.C.R. 254. Based on the evidence and my understanding of this decision, both the subjective and objective tests were met. In other words the evidence does nothing to detract from the appropriateness of the demand for roadside screening. In this case the Officer had no evidence that the Accused had recently consumed alcohol such that it may affect the validity of the test and hence there was nothing to affect his belief. This is the subjective test. As have rejected the evidence of the Accused there is no evidence to affect the objective test so as to vitiate the validity of the roadside screening. [74] In Bernshaw, as here, the arresting officer had no other basis, beyond the roadside screening result, upon which to support the demand for breath sample. In Bernshaw, unlike this decision, there was no evidence as to the timing of the last drink. Like Bernshaw, in this case the arresting officer made no inquiry about the timing of the last drink. Sopinka, J. wrote for the majority: "[para48] The existence of reasonable and probable grounds entails both an objective and subjective component. That is, s. 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief: [para51] Where there is evidence that the police officer knew that the suspect had recently consumed alcohol and expert evidence shows that the subsequent screening test would be unreliable due to the presence of alcohol in the mouth, it cannot be decreed, as matter of law, that both the subjective and objective tests have been satisfied. To so hold would fly in the face of the evidence. [para70] In the situation where the officer knows that suspect has just recently consumed alcohol, proper sample can only be attained by waiting at least 15 minutes. Thus, the wording of the provision adds support to the argument that "forthwith" must be given flexible interpretation. [para71] This conclusion is also supported by two recent cases from the Ontario Court of Appeal. In R. v. Pierman; R. v. Dewald (1994), 1994 CanLII 1139 (ON CA), 19 O.R. (3d) 704, the court considered whether police officers are entitled to wait 15 minutes prior to taking breath sample under s. 254(2) of the Code in order to ensure proper functioning of the machine. After reviewing the jurisprudence, Arbour J.A. stated that whether or not one can delay 15 minutes cannot be determined in the abstract. If the police could never wait 15 minutes, then the officer would be faced with the choice of disregarding the "fail" result due to the suspicion of its unreliability, or taking the suspect for breathalyzer test and overlooking the concern that the screening result may have been falsely high. On the other hand, Arbour J.A. noted that if the officer is entitled to wait 15 minutes before administering the test, this unduly expands the detention without access to counsel. Arbour J.A. concluded as follows at p. 711: In my view, police officer cannot delay the taking of breath sample, when acting pursuant to s. 254(2) of the Criminal Code, unless he or she is of the opinion that breath sample provided immediately will not allow for proper analysis of the breath to be made by an approved screening device. The officer is not required to take sample that she or he believes is not suitable for proper analysis. The expression "proper analysis" incorporates an element of accuracy.... If there are facts which cause the officer to form the opinion that short delay is required in order to obtain an accurate result, think that the officer is acting within the scope of the section in delaying the taking of the breath sample. [para72] Arbour J.A. held that the police can only detain suspect for an extra 15 minutes where there is some factual basis upon which to suspect that the screening device would yield an inaccurate result. [para73] adopt the flexible approach taken by Arbour J.A. [para81] It was suggested by the respondent that prior to demanding that suspect submit breath sample for the screening test, the police officer ought to inquire when the suspect last consumed alcohol in order to ensure an accurate test. However, in my view, there is no duty on the police to make any such inquiry. suspect is under no obligation to answer such question and thus it would be improper to impose such duty on the police. That is not to say that the suspect may not volunteer such information, either spontaneously or in response to query of the police. In such case, where the officer is told that the detainee has consumed liquor within the last 15 minutes, or where other reasons exist for the officer to believe that alcohol was recently present in the mouth of the suspect due to regurgitation, the officer may wait an appropriate period of time prior to administering the screening device. However, the police are not required to ascertain such information by posing the question to the suspect prior to administering the screening device test." [75] The arresting officer who has no reason to believe that an Accused has consumed alcohol in the last 15 minutes may administer the roadside screening test without delay but to do so carries with it certain risk that there may subsequently be evidence of consumption which will invalidate the results. This would affect the objective element of the test. Further the officer has no duty to routinely wait 15 minutes before administering the roadside screening nor to ask the accused whether or not alcohol has been consumed in the preceding 15 minutes. However if there are circumstances which suggest that the officer should have waited or inquired about alcohol consumption this may affect the reasonableness of the officer's belief; this is the subjective test. [76] This argument by Defence fails. 3) Did the Arresting Officer have reasonable and probable grounds to demand breath sample? [77] As understand it the Defence argued that the Officer did not have reasonable and probable grounds because the roadside screening could not be relied upon and there was nothing in the Accused's driving which would otherwise support belief that the Accused's driving was impaired by alcohol. It matters not that there was no other indicia of impairment as have found that the Officer was entitled to rely on the roadside screening and there is no evidence on an objective basis which would invalidate the test; in that event no other indicia of impairment is required. [78] The Defence, it would seem has also argued that the Accused was not speeding and therefore the Officer had no reason to stop his vehicle. With this disagree; have rejected the evidence of the Accused and accept the evidence of the Crown. find that the Accused was, as the Officer stated, driving in excess of the posted speed limit of 40 km per hour, in the range of 70 km per hour. It is not necessary that the Crown prove that the Accused was speeding. It is sufficient if the Officer believed the Accused to be speeding and that belief was reasonable. There was nothing about the Accused's evidence, even if accepted which would support the Defence submission that the speedometer of the Accused's or the Officer's vehicles need to be checked to support the Officer's evidence. He was acting in the lawful execution of his duty when he stopped the Accused's vehicle. While executing his duty he detected an odour of alcohol on his breath and that reasonably gave rise to the demand for roadside screening. 4) Was the Accused denied his right to Counsel? [79] The Defence has advanced two arguments: i) the Accused should have been given the number for legal aid and that the failure to do so constitutes violation of his Charter Right to Counsel. ii) there was not an unequivocal waiver of the right to counsel, either private or legal aid. [80] was referred to R. v. Bartle (1994) 1994 CanLII 64 (SCC), 33 C.R. (4th)1, (S.C.C.), R. v. Pozniak, (1994) 1994 CanLII 66 (SCC), 92 C.C.C. (3d) 472 (S.C.C.), R. v. Wingerter (1998) 1998 CanLII 13902 (SK QB), 174 Sask. R. 48, (Sask. Q.B.) and R. v. Dubois, (1990) 1990 CanLII 3298 (QC CA), 54 C.C.C. (3d) 166 (Que. C.A.). [81] The Dubois decision has no bearing on the case before me. There was no evidence of haste in administering the test nor was there evidence that the Accused did not understand his rights. This Accused was advised of his right to counsel without delay. [82] R. v. Bartle held that the detainee must be told right away that he or she will be provided with toll-free phone number should he or she wish to contact legal aid lawyer. In my respectful view it is not necessary nor particularly helpful to rattle off the 1-800 number in the recitation of the right to counsel. At paragraph 37 Lamer C.J.C. stated: "The 1-800number, or at least the existence of toll-free telephone number, should have been conveyed to the appellant upon his arrest at the roadside even thought there were no telephones available. [83] Mr. Justice Allbright discussed Bartle and Pozniak in Wingerter and he concluded at paragraph 23: "[23] However, if the accused is arrested outside of normal business hours, then the informational component of s. 10(b) is accurately set out in R. v. Bartle, supra, and R. v. Pozniak, supra, and the accused must be informed of the existence of toll-free number and of the availability of duty counsel." [84] have reviewed the right to counsel provided to this Accused and find that it complied with Bartle. The informational component of the right to counsel was satisfied. [85] There is no evidence that the Accused misunderstood his right to counsel. There is no evidence that he was not given sufficient opportunity to contact counsel. He was twice asked if he wished to contact lawyer. Twice he declined. This was clear and unequivocal waiver. He at no time advised the Officer that he was considering calling Mr. Kapoor or any lawyer. He gave no indication that he was concerned about calling lawyer at that time of night. The Accused must take some action to trigger response by the police. Absent special circumstances, the police cannot be expected to draw information out of the Accused. [86] am not persuaded that the Accused's right to counsel was in any way infringed. 5) Was the breathalyzer test administered as soon as practicable? [87] Essentially the argument presented by Defence counsel was that the Officer should have proceeded to the Martensville or Warman detachments and that he unnecessarily wasted 20 minutes by transporting the Accused to the RCMP detachment in Saskatoon. No issue was taken with other portions of time that elapsed from the failure of the roadside screening to the time of the breathalyzer tests. In any examination of this issue, however, the entire time frame which elapsed from the demand to the time the test is administered must be considered. [88] have considered the requirement that tests be taken as soon as practicable, most recently in my decision of R. v. Besplug [2000] S.J. No. 153. Once again have reviewed the decisions of R. v. McCoy (1990) 1990 CanLII 7484 (SK QB), 86 Sask. R. 204 (Q.B.), decision of Mr. Justice Gerein, and R. v. Carter (1981) 1981 CanLII 2063 (SK CA), 59 C.C.C. (2d) 450, (Sask.C.A.) and R. v. Tarr [1998] S.J. No. 433, (Sask. C.A.). In particular note the comments in R. v. Carter about the role of the trial judge when assessing the reasonableness of the delay, at page 453: To do so he need not take judicial notice of particular matters, he need only apply reason and common sense derived from his experience. There is no need to explain every incident which occurred from the time the offence is alleged to have been committed until the samples were taken unless the trial Judge on the evidence before him, is not satisfied the samples were taken as soon as practicable." [89] The evidence of the Accused was that there was no one available at the Martensville detachment. The Officer was hoping to find breathalyzer operator who could administer the test as he preferred not to administer it himself as he was the arresting officer. The Accused failed the roadside screening at 1:45 a.m. They arrived at the Saskatoon RCMP detachment at 2:12 a.m. The Arresting Officer ultimately administered the breathalyzer himself. There was no evidence in Chief that the Officer made any inquiries at the Martensville, Warman or Saskatoon detachment. There was no evidence about the proximity of the Warman detachment. It seems reasonable to assume that unless someone was at the detachment, the officers would be unable to access breathalyzer machine at that detachment. The Accused said that the Officer phoned the Martensville detachment to be advised that there was no one there. According to the Accused, the Officer's partner reportedly suggested that they go to Warman but that he decided that they would go to Saskatoon. [90] On the basis of the foregoing, am asked to conclude that it was not reasonable to drive into Saskatoon without at least phoning the Warman detachment to see if there was anyone available. As well must decide in this context whether the time delay from 1:45 to 2:12 was reasonable on the face of it and if not reasonable, was accounted for or adequately explained. [91] The Accused said that the drive from the Fairhaven Bowl to Martensville was 10 to 15 minutes. Presumably the drive from to Martensville to the RCMP detachment took about the same length of time. [92] There is too much speculation called for in order for me to conclude that the Officer should have pursued the possibility of going to Warman. don't know the distance to get there. don't know precisely how long the drive to the Saskatoon detachment took. The Arresting Officer said that he typically finds that there is no one available at those detachments and accept that as reason enough not to consider attending there given the proximity to Saskatoon. There may have been other difficulties associated with going to the Warman detachment which were known only to the Officer. In any event I'm told they tried the closest detachment and found no one there. It is not unreasonable to think that there may not be anyone available at the Warman detachment or that they might encounter other difficulties at that time of night. Had the delay been more significant it might be more important to question the judgment of the Officer to return to the Saskatoon detachment. [93] Applying common sense to the situation, find that there would have been some delay at the scene after the road side screening device was administered before they left for the detachment. The Arresting Officer had yet to make formal demand for breath tests and advise the Accused of his right to counsel. There was likely some discussion surrounding the Accused's vehicle, the convenience of the Accused's passenger and the decision to call Warman detachment and proceed to Saskatoon. to 10 minute delay at the scene would not be unreasonable. This together with 15 minutes to drive into Saskatoon and 25 minutes is accounted for.On the face of it the delay of 27 minutes does not seem unreasonable. Accordingly, am not satisfied that the samples were not taken as soon as practicable. 6) Was there "evidence to the contrary"? [94] have directed my mind to s. 258.(1)(c) (d.1) of the Criminal Code. Were to accept the evidence of the Accused, the expert testimony of Dr. Richardson provided the technical evidence which would establish evidence to the contrary that at the time the offence was alleged to have been committed, the concentration did not exceed 80 milligrams of alcohol in one hundred millilitres of blood. This expert evidence however rests upon the testimony of the Accused which have rejected. [95] have reviewed R. v. Gibson (1992) 1992 CanLII 2750 (SK CA), 72 C.C.C. (3d) 28, decision of the Saskatchewan Court of Appeal, particularly in light of its caution with respect to borderline cases. As have rejected the testimony of the Accused, have no evidence which would tend to show that he was within the permitted limit and thus rebut the presumption. [96] Accordingly find that there was no "evidence to the contrary". The statutory presumption continues to apply. [97] When arriving at my findings of fact and throughout the discussion of the issues, have been cognizant of the burden of proof and have reviewed the decision of R. v. Lifchus 1997 CanLII 319 (SCC), [1997] S.C.R. 320 concerning reasonable doubt. [98] In light of my decision concerning issue a., I find the Accused not guilty of Count #2. Count #1 was previously dismissed. [99] Had not felt compelled to rule in favour of the Accused on issue a., would have found that the Crown had otherwise proven all of the essential elements of count beyond reasonable doubt and found him guilty of count #2. Dated at Saskatoon, Saskatchewan this 24th day of August, 2001. S. P. Whelan, PCJ
The accused was charged with impaired driving (Criminal Code ss.255(1) and 253(a)) and with operating a motor vehicle while having a blood alcohol concentration exceeding .08 (Criminal Code ss.253(b) and 255(1)). Issues included whether the Court should enter a stay of proceedings and award costs, given the failure of the Crown to produce a standard alcohol solution (SAS); could mouth alcohol have invalidated the roadside screening test; did the arresting officer have reasonable and probable grounds to demand a breath sample; was the accused denied his right to counsel; was the breathalyzer test administered as soon as practicable; was there evidence to the contrary? HELD: The accused was found not guilty on count #2 (exceeding .08). Count #1 (impaired driving) was dismissed during the trial.  1)The court was cognizant of the burden of proof and had reviewed the decision of R. v. Lifchus concerning reasonable doubt. 2)The accused's testimony was rejected as not being credible. 3)The burden lies with the applicant on an application pursuant to ss.7 and 24(1) of the Charter in which the defence alleges the accused's right to make full answer and defence has been infringed. The question remained whether once the defence established it sought the SAS but it was not provided for whatever reason, had it discharged its burden or must it prove the failure to produce the SAS solution could have a meaningful outcome on the trial. 4)The accused's s.7 Charter right to make full answer and defence was infringed by the failure of the Crown to produce a sample of the SAS solution in this case. In light of the Bourget and Kalafut decisions, the Crown has had ample opportunity to establish a system for routinely saving the solution until after a case has been concluded. It would bring the administration of justice into disrepute were the Certificate of Analysis admitted into evidence. It was more appropriate to exclude the Certificate of Analysis than to grant a stay of proceedings.  5)Costs are rarely awarded in criminal proceedings. Given the evidence presented concerning the usefulness of testing a representative SAS ampule had it been produced, the court was not persuaded costs should be awarded. 6)There was no evidence that created a reasonable doubt as to the time that elapsed or that there may have been mouth alcohol which may have invalidated the roadside screening test. Both the subjective and objective tests were met. The arresting officer, who has no reason to believe an accused has consumed alcohol in the last 15 minutes, may administer the roadside screening test without delay, but to do so carries with it a certain risk that there may be subsequently evidence which will invalidate the results (affecting the objective element of the test). Further, the officer has no duty to routinely wait 15 minutes before administering the test nor to ask the accused whether or not alcohol has been consumed in the preceding 15 minutes. However, if there are circumstances which suggest the officer should have waited or inquired about alcohol consumption, this may affect the reasonableness of the officer's belief (the subjective test). 7)There was nothing in the evidence to support the submission that the speedometers need to be checked to support the officer's evidence. The officer was acting in the lawful execution of his duty in stopping the accused's vehicle. While doing so he detected an odour of alcohol on the accused's breath which gave rise to the demand for a roadside screening. 8)The informational component of the right to counsel was satisfied. There was no evidence the accused misunderstood his right nor that he was not given sufficient opportunity to contact counsel. He declined twice, giving a clear and unequivocal waiver. Absent special circumstance, the police cannot be expected to draw information out of the accused. 9)The samples were taken as soon as practicable. It was accepted that there was typically no one available at the detachment in the small community and was sufficient reason to not consider attending there given the proximity of the city. The officer tried the closest detachment but found no one there. It may have been more important to question the judgment of the officer to return to the Saskatoon detachment if the delay had been more significant. On the face of it, the delay of 27 minutes did not seem unreasonable. 10)The statutory presumption applied. There was no evidence to the contrary as the accused's evidence was rejected. The court reviewed R. v. Gibson and considered s.258(1)(c) and (d.1) of the Criminal Code.