G.M. Kraus QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 388 Date: 2007 10 26 Docket: QB 452 of 2006 Judicial Centre: Yorkton BETWEEN: HER MAJESTY THE QUEEN and DAVID JOHN LUNDRIGAN Counsel: Andrew J. Wyatt for the appellant David John Lundrigan on his own behalf JUDGMENT PRITCHARD J. October 26, 2007 [1] On August 9, 2006 Mr. Lundrigan was found not guilty of having care or control of a motor vehicle while his blood alcohol content was over .08. This was the inevitable result of the trial judge’s decision that the certificate of analysis could not be tendered as evidence at trial. The evidence was excluded because the trial judge concluded that contrary to s. 8 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”) the officer did not have reasonable and probable grounds to make the breathalyzer demand and further, that pursuant to s. 24(2) of the Charter, the admission of the certificate of analysis into evidence would bring the administration of justice in disrepute. The Crown appeals both conclusions and asks this court to set aside the acquittal and order new trial. [2] On April 16, 2005 two officers in separate patrol cars were travelling on Highway 47 northbound towards the Trans-Canada Highway. They noticed another vehicle with Manitoba license plates travelling in the opposite direction. It was later determined that this vehicle was being driven by the respondent, Mr. Lundrigan. Approximately one mile south of the Trans-Canada Highway the first patrol car dropped off passenger and both police vehicles then turned around and headed back southbound on Highway 47. Shortly after proceeding southbound, the officer in the first patrol car noticed vehicle of similar colour to the one she had earlier seen travelling southbound. It was now on grid road just off Highway 47. She saw the vehicle out of the corner of her eye as she was passing the grid road turnoff. She radioed her partner to check it while she turned around to join him. Highway 47 is not well travelled highway and the officers wanted to check the parked vehicle to see if any assistance was required. At the same time as the second officer was receiving the radio transmission he also noticed the vehicle as its brake lights had come on. As requested by his partner, he turned onto the grid road and pulled up behind the stopped vehicle. He walked to the car and as he was approaching the driver’s window he noticed can of beer laying on the floor in the rear passenger area of the vehicle. He asked the driver if everything was alright. The driver, Mr. Lundrigan, replied that he had pulled over to urinate. The officer asked for and received Mr. Lundrigan’s Manitoba driver’s license. He then asked the driver about the can of beer on the floor and was told “Oh, that must be old; it must of been there couple of weeks.” [3] It was at this time that the officer in the first patrol car arrived. She was the more senior of the two partners. As she approached Mr. Lundrigan’s vehicle on the driver’s side she noticed two cans of beer on the passenger floor in the back. She asked Mr. Lundrigan about them and he stated that those were beer that “he had drank [sic] earlier in the car.” While speaking with the driver, the officer smelled alcohol “emanating from Mr. Lundrigan” (p. 15; l. 24) and in code words advised her partner that they were possibly dealing with an impaired driver. [4] As the more senior officer was speaking to Mr. Lundrigan, the other officer began walking around the car towards the passenger side. The car was still running and he asked Mr. Lundrigan to turn off the engine and unlock the doors so he could retrieve the beer can on the back floor. Mr. Lundrigan cooperated. The officer opened the rear passenger door at which time he found four unopened cool cans of beer. Upon further investigation, he noticed “drops and some spill” (p. 29; l. 17) on the floor of the front passenger seating area that to him smelled like beer. While the vehicle was being checked by this officer, his partner asked the driver to come to her police vehicle at which time she asked him to provide breath sample for testing in roadside screening device (the “ASD”). This occurred at 20:28. After four unsuccessful attempts, Mr. Lundrigan blew properly into the ASD and at 20:32 fail result was recorded. [5] While the officer was dealing with Mr. Lundrigan in her patrol car, the other searched the area around the car and found an empty beer can with fresh suds in it. He emptied out the contents of the four full cans that he had located in the back seat of Mr. Lundrigan’s vehicle and placed all five empty cans in the back of his patrol car. He then went to assist his partner. By this time, Mr. Lundrigan had already registered fail on the ASD and was being read his rights to counsel. The officer who had searched the vehicle and surrounding area did not advise his partner of the additional full cans of beer or of the fresh empty beer can that he had found. [6] The officer who administered the ASD test to Mr. Lundrigan and made the breathalyzer demand of him acknowledged that she would not have had reasonable and probable grounds to make the breathalyzer demand if Mr. Lundrigan had not registered fail on the ASD. It is therefore unnecessary to review any subsequent facts as the primary issue on appeal is the correctness of the trial judge’s finding that the ASD results did not give the officer reasonable and probable grounds to make the breathalyzer demand. [7] The law on approved roadside screening devices has been summarized by Durno R.S.J. in R. v. Mastromartino, 2004 CanLII 28770 (ON SC), [2004] O.J. No. 1435. This decision deals with two Crown appeals and two defence appeals relating to four separate individuals each of whom registered fail result from an ASD test performed within 15 minutes of each having left tavern. Common to each of the appeals was the issue of whether the officer was required to delay obtaining an ASD sample due to concerns about residual mouth alcohol. At paragraph 23 the court states: [23] In summary, take Bernshaw and Einarson to establish the following: 1. Officers making ASD demands must address their minds to whether or not they would be obtaining reliable reading by administering the test without brief delay. 2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest. 3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed. 4. Officers are not required to wait before administering the test in every case where driver may have been in bar shortly before being stopped. The mere possibility that driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device. 5. Whether or not officers are required to wait before administering the screening test is determined on case-by-case analysis, focusing on the officer’s belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief. 6. That fact the driver is observed leaving bar is relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol. 7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain reliable reading. 8. If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay. [Emphasis added] [8] There is no fixed rule or formula that an officer must follow when determining whether or not to wait 15 minutes prior to administering road side test. Each decision is to be made on case by case basis. At paragraph 35 of R. v. Einarson, 2004 CanLII 19570 (ON CA), [2004] O.J. No. 852, the Ontario Court of Appeal restates this principle (which was previously enunciated by the Supreme Court of Canada in R. v. Bernshaw (1995) 1995 CanLII 150 (SCC), 95 C.C.C. (3d) 193 (SCC)) as follows: 35 Bernshaw makes it clear that the mere possibility that driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the statutorily approved screening device. Where an officer honestly and reasonably concludes on the basis of available information that he can form no opinion as to whether the driver consumed alcohol within the prior 15 to 20 minutes, the officer is entitled to rely on the accuracy of the statutorily approved screening device and administer the test without delay. That is not to say that another officer might not assess the same situation differently and have legitimate concerns about the reliability of test administered without brief delay and act accordingly. In each case, the officer’s task is to form an honest belief based on reasonable grounds about whether short delay is necessary to obtain reliable reading and to act on that belief. [Emphasis added] [9] Here, the evidence of the officer who performed the ASD is unequivocal. At page 19 of the transcript of evidence, the following questions and answers were put to the officer on cross-examination: And what exactly do you have noted there? What have noted on here is, it was lone male, two cans of O.V. on the back passenger floor, said he had been drinking earlier in his car. Had been drinking earlier in the car? In his car, yes. Okay. Did you ask him any questions at that point of how earlier? No, don’t believe did. Why not? Because didn’t. It didn’t occur to you to find out whether or not he’d just put down beer once your officer arrived on the scene? No. Is that just negligent on your part? No. No. Are you not interested in finding out that information? Constable Guider was doing his share and was doing mine. ... And further, at pages 20 to 22, the following questions and answers on cross-examination were given and recorded: Given that this person had made comments to you that they had been drinking in the vehicle, why wouldn’t you at that point find out when their last drink was? He said he had been drinking earlier in the vehicle, and to me earlier meant more than would say in my estimate an hour. Where are you getting that from? My estimate. Okay. My view of it is that. So there’s no information from him? That’s correct. You just said it must have been an hour? That’s correct. Because Or to me earlier meant more than an hour. So it’s fair to say you didn’t even have concerns at that point that this guy could have just finished beer and had mouth alcohol in his mouth? That’s correct. And that’s why you conducted the tests as quickly as you did and that’s why you didn’t wait? That’s correct. And of course you would agree with me that if he did have alcohol in his mouth, that would skew the test. You’d get false positive. You’d get spiked reading? It’s possible. Yes. Well that’s the reason why you do this protocol that you wait? Yes. So if you had it over again, would you have waited? No. No. Why is that? Because he did say he had consumed earlier in his vehicle, and to me again said that it was over an hour. Therefore, it was way past the 15 minutes. [10] Subjectively, the officer in this case was clearly satisfied that she did not have to delay administering the test to obtain reliable result. However, in his reasons for judgment, the trial judge states: In this case, having regard to the circumstances, the accused was detained and as result of the circumstances which are spilt [sic] beer in the vehicle, an empty beer can with fresh suds of the same type and temperature close to the vehicle, and the accused’s statement, as well as the fact that he is turned off on gravel road to relieve himself, do not find it reasonable in the circumstances for the police officers to not have waited the 15 minutes. (page 158 of the transcript of evidence) [11] The trial judge was particularly concerned that not all relevant evidence was assessed by the officer who administered the ASD. At page 159, he states: And in this case particularly what I’m concerned about is the pass off between Constable Guider and Constable Roussel in that the evidence was there for Constable Guider, which Constable Roussel either did not get or did rely upon. [12] It appears that the trial judge concluded that the officer who administered the ASD would not have relied upon the results, or should not have so relied, if her partner had informed her of the empty beer can with fresh suds in it that he found at the scene. Implicit in this finding is the conclusion that the existence of this beer can would make difference to the officer’s assessment of whether she should wait 15 minutes for any mouth alcohol to dissipate before she could rely on ASD test results. [13] With respect, it appears that the trial judge made the same error that was dealt with by the Ontario Court of Appeal in Einarson, supra. In Einarson, the accused was stopped after making u-turn out of bar parking lot close to where officers were conducting RIDE spot check program. The driver failed the road side screening test and at trial she argued that the test could not be relied on since the officer could not be sure that she had not consumed alcohol with 15 minutes of the test. The driver was convicted at trial. On appeal, new trial was ordered on the grounds that the officer should have waited 15 minutes before administering the test in order to ensure its accuracy. On further appeal, the Ontario Court of Appeal held that the officer was not obliged to wait 15 minutes on the grounds that the driver had just left bar. At paragraph 15 the Ontario Court of Appeal states: 15 In this case, Constable Williams was aware that if the respondent had been drinking within the 15 minutes preceding the making of the demand, the results of the test could be inaccurate. Officer Williams did not know when the respondent had taken her last drink. He knew it was possible that she had consumed alcohol within the 15 minutes preceding the demand. The question for the courts below and this court is whether Constable Williams was entitled to rely on the results of the screening device test in deciding whether he had reasonable and probable grounds to arrest the respondent when he knew there was possibility that the respondent had consumed alcohol within the 15 minutes prior to the administration of the test and that if she had, the result of the test could be inaccurate. [Emphasis added] [14] The Ontario Court of Appeal compared the facts in Einarson, supra, to those dealt with by the Supreme Court of Canada in Bernshaw, supra, and at paragraph 22 concluded: 22 There are several factual similarities between Bernshaw and this case. In both cases, the officers had proper grounds to make s. 254(2) demand. In both cases, the officers did not know when the driver had taken his or her last drink. In both cases, it was possible that the driver had consumed alcohol in the 15 minutes before the demand was made. In both cases, the officers did not specifically inquire of the driver when he or she had last consumed alcohol, although in this case the question would seem to have been pointless since the respondent had twice denied consuming any alcohol. [15] In this case, Mr. Lundrigan told the officer that he had been drinking in the car “earlier”. Even if the officer had been told of her partner’s discovery of an empty beer can at the scene it would not constitute “credible evidence” that Mr. Lundrigan had consumed alcohol within 15 minutes prior to the roadside test. It is possible that Mr. Lundrigan consumed alcohol within that 15 minute time frame, but that is not what he told to the officer. Having seen the two patrol cars pass him on the highway some five minutes earlier, it is also possible that Mr. Lundrigan drove onto the grid road to dispose of an open can. Whether or not Mr. Lundrigan had consumed beer within 15 minutes of taking the test on the ASD is pure speculation. Likewise, whether the wet ground near the driver’s side of the vehicle was just urine is also speculation. [16] I find that the trial judge erred in determining that in the totality of the circumstances it was not objectively reasonable for the officer to have relied on the accuracy of the ASD test. In so concluding have also considered and relied upon R. v. Novakoski, 2004 SKPC 121 (CanLII) and R. v. Claypool, 2003 SKPC 116 (CanLII). [17] Given my finding on the primary issue it is unnecessary to deal with the trial judge’s conclusion that under s. 24(2) of the Charter the certificate of analysis should be excluded from evidence. simply note that in arriving at this conclusion, the trial judge failed to articulate the analysis required for such finding. (See: R. v. Janzen, 2006 SKCA 111 (CanLII) at paragraph 7) [18] Based on the foregoing, the appeal is allowed and the acquittal set aside. The trial judge did not make his decision on the voir dire until the conclusion of the trial in which Mr. Lundrigan led evidence for the purpose of rebutting the accuracy of the certificate of analysis. Given his conclusion on the voir dire, the trial judge did not assess that evidence. A new trial must therefore be held and is so ordered. J. J.L.G. Pritchard
The accused was found not guilty of having care or control of a motor vehicle while his blood alcohol content was over .08. The certificate of analysis was excluded as a result of the trial judge's decision that the accused's s. 8 Charter Rights had been violated. The trial judge found that the officer did not have reasonable and probable grounds to make the breathalyzer demand. HELD: The trial judge erred in determining that in the totality of the circumstances it was not objectively reasonable for the officer to have relied on the accuracy of the ASD test. A new trial is ordered.  1) There is no fixed rule or formula that an officer must follow when determining whether or not to wait 15 minutes prior to administering a road side test. In this case, the trial judge appears to have concluded that the officer who administered the ASD would not have relied on the results, or should not have so relied, if her partner had informed her of the empty beer can with fresh suds in it that he found at the scene. Implicit in this finding is the conclusion that the existence of the beer can would make a difference to the officer's assessment of whether she should wait 15 minutes for any mouth alcohol to dissipate before she could rely on ASD test results. 2) The trial judge made the same error that was dealt with by the Ontario Court of Appeal in R. v. Einarson. 3) The accused told the officer that he had been drinking in the car 'earlier'. Even if the officer had been told of her partner's discovery of an empty beer can at the scene, it would not constitute 'credible evidence' that the accused consumed alcohol within that 15 minute time frame. Whether or not the accused had consumed beer within 15 minutes of taking the test on the ASD is pure speculation.