R. v. Koma (R.M.), (2014) 445 Sask.R. 281 (PC)

• Judge: Tomkins, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: May 23, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 445 Sask.R. 281 (PC);2014 SKPC 120

R. v. Koma (R.M.) (2014), 445 Sask.R. 281 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. MY.074

Her Majesty the Queen v. Ryley M. Koma

(Information No. 90000379; 2014 SKPC 120)

Indexed As: R. v. Koma (R.M.)

Saskatchewan Provincial Court

Tomkins, P.C.J.

May 23, 2014.

Summary:

The accused was charged with impaired driving causing bodily harm and causing bodily harm while driving with a blood-alcohol level over the legal limit. He argued that (1) he provided information to the arresting officer under compulsion pursuant to the Traffic Safety Act and that information should not be admissible pursuant to his s. 7 Charter right against self-incrimination; (2) he was arbitrarily detained, contrary to s. 9 of the Charter; (3) he was not advised of the reasons for his detention, contrary to s. 10(a) of the Charter; (4) the arresting officer did not have objectively reasonable grounds to make an approved screening device (ASD) demand; (5) the arresting officer could not rely on the results on the ASD test in support of her demand for breathalyzer samples because she could not have been satisfied that the ASD was properly calibrated; (6) the arresting officer did not have reasonable grounds to believe that an offence had been committed within three hours of the breathalyzer demand; (7) his s. 10(b) Charter right to counsel was violated; (7) the Crown failed to prove that a true copy of the Certificate of Analyses was served on him; and (8) if any Charter breach was found, the appropriate remedy was exclusion of the Certificate of Analyses.

The Saskatchewan Provincial Court found that the accused's ss. 9 and 10(a) Charter rights were violated, but otherwise rejected the accused's arguments. The court declined to exclude the evidence under s. 24(2).

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A police officer responded to a motor vehicle accident involving Koma - The officer began an investigative detention because she suspected that Koma might have been driving while impaired based on the following: (1) Koma admitted that he had consumed alcohol many hours earlier; (2) Koma had enlarged pupils; (3) Koma smelled strongly of cologne which the officer believed might be used to mask the smell of alcohol; (4) when the officer asked Koma to turn off his cell phone, Koma shut off the application he was using but did not "power off" the phone; and (5) there had been a serious accident - Koma was charged with, inter alia, impaired driving causing bodily harm - He argued that he was arbitrarily detained and not advised of the reason for his detention, contrary to ss. 9 and 10(a) of the Charter - The Saskatchewan Provincial Court agreed - The observations that formed the basis for the officer's suspicion were all equivocal - Taken together with the fact that the officer did not observe any problems with Koma's dexterity or ability to converse, the observations did not objectively support the officer's suspicion - The officer acted on a hunch - Thus, the detention was not lawful - The impropriety was compounded by the fact that Koma was not advised of the reason for the detention - See paragraphs 45 to 64.

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 4328

Protection against self-incrimination - Self-incriminating statements - Statements made under statutory compulsion - A police officer responded to a motor vehicle accident involving Koma - Upon being asked if he had consumed any alcohol, Koma admitted that he had consumed wine several hours earlier - Subsequently, when he was detained in the police car, Koma stated that he had consumed two gin and tonics about an hour before the accident - Koma was charged with, inter alia, impaired driving causing bodily harm - He argued that the information he had provided prior to the detention was inadmissible because he was compelled to provide it under the Traffic Safety Act and its admission would be contrary to his s. 7 Charter right against self-incrimination - The Saskatchewan Provincial Court held that the statutorily compelled statements were admissible - The mere fact that legislation required the provision of information did not establish that the statement was compelled - The test was whether the accused made the statements due to an honest and reasonably held belief that he was required by law to provide the information - There was no evidence that Koma believed he was compelled to answer the officer's questions - See paragraphs 35 to 44.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Koma was arrested for impaired driving and advised of his right to counsel - At the police station, Koma indicated that he was unsure about whether he would call a lawyer - He told the officer that he did not want to call a lawyer he did not know and was not sure what to do - He vacillated about this from about 10:40 p.m. to 10:54 p.m., when he decided he would talk to a lawyer - He was taken to a phone room - His conversation with the officer continued, where Koma asked what calling a lawyer might do to help him and whether it would change anything - At 10:59 p.m., Koma advised the officer that he did not want to call a lawyer - The officer read Koma the waiver of rights to counsel - Koma confirmed that he understood and stated he was certain he did not want to contact a lawyer - Koma was charged with, inter alia, causing bodily harm while driving with a blood-alcohol level over the legal limit - He argued that the officer failed in the implementation aspect of his s. 10(b) Charter right to counsel - The Saskatchewan Provincial Court found that Koma had indicated only a momentary desire to consult counsel and that momentary desire was almost immediately retracted and replaced by uncertainty about the matter - That being the case, no duty of implementation arose - See paragraphs 94 to 106.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A police officer responded to a motor vehicle accident involving Koma - The officer began an investigative detention because she suspected that Koma might have been driving while impaired based on the following: (1) Koma admitted that he had consumed alcohol many hours earlier; (2) Koma had enlarged pupils; (3) Koma smelled strongly of cologne which the officer believed might be used to mask the smell of alcohol; (4) when the officer asked Koma to turn off his cell phone, Koma shut off the application he was using but did not "power off" the phone; and (5) there had been a serious accident - Koma was charged with, inter alia, impaired driving causing bodily harm - He argued that his Charter rights were violated and applied for exclusion of the results of approved screening device (ASD) and breathalyzer tests - The Saskatchewan Provincial Court found that Koma was arbitrarily detained (Charter, s. 9) and not advised of the reason for his detention (s. 10(a)) - The s. 10(a) breach was very serious as Koma's rights were wholly disregarded - The s. 9 breach was an honest error as the officer believed that she had a reasonable suspicion sufficient to ground an investigative detention but objectively she did not - The arbitrary detention was very brief (two or three minutes), and Koma only provided information that he was compelled to answer under the Traffic Safety Act - Koma's Charter-protected interests were not significantly compromised - On balance, the results of the ASD and breathalyzer tests were admissible, as their admission would not bring the administration of justice into disrepute - See paragraphs 119 to 136.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - Koma was charged with, inter alia, causing bodily harm while driving with a blood-alcohol level over the legal limit - He argued that the approved screening device and breathalyzer demands were unlawful because the police officer did not have objectively reasonable grounds to believe that Koma had operated a motor vehicle or that he had done so within the previous three hours - The Saskatchewan Provincial Court disagreed - The officer arrived at the scene of the accident shortly after being dispatched - Neither vehicle had been moved from its position - A reasonable inference was that the officer arrived at the scene shortly after the accident occurred - While the officer did not expressly say that she considered time of driving, she did say that she believed she had grounds for the breath demands, which required a belief that driving occurred within the previous three hours - When the officer attended to Koma's vehicle, which a witness had advised her was at fault in the accident, she found only Koma in the vehicle - It was reasonable to believe that he was and had been the operator of the vehicle - Further, by the time the breathalyzer demand was made, Koma had provided information from which the officer understood Koma to have admitted that he was operating a motor vehicle at the time of the accident - See paragraphs 82 to 93.

Criminal Law - Topic 1382.1

Motor vehicles - Impaired driving - Breathalyzer - Service of certificate and copy - Koma was charged with, inter alia, causing bodily harm while driving with a blood-alcohol level over the legal limit - The Crown did not call the officer who served the Certificate of Analyses on Koma but instead relied on the completed Affidavit of Service on the back of the Certificate - Koma argued that without evidence as to the manner of service, the court could not know how the officer prepared or obtained the copy, whether he compared it to the original or that the copy actually came into Koma's possession and was retained by him - He argued that without such evidence, it had not been proven that a true copy of the Certificate was served or that service was proper - The Saskatchewan Provincial Court rejected this argument - The officer swore by affidavit that he served a true copy of the document personally on Koma on March 16, 2013 - This met the requirements of s. 4(6) of the Criminal Code as proof of service and upon such proof of service, the requirements of s. 258(7) were satisfied - There was no indication that the copy was not properly served - This conclusion was supported by s. 4(7) which allowed an accused to request that the affiant attend court and face cross-examination on the manner of service - No such request was made in this case - See paragraphs 107 to 118.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - A police officer asked Koma to provide samples into an approved screening device (ASD) based on the following: (1) the officer reasonably suspected that Koma was the operator of a vehicle that had just been involved in an accident; (2) Koma initially stated that he had consumed wine several hours earlier, but subsequently stated that he had consumed two gin and tonics at a club about an hour before the accident; (3) Koma's speech was slow and "different"; (4) an odour of alcohol coming from Koma once he was inside the police car; and (5) Koma's generally cooperative but sometimes upset or apologetic moods - Koma complied with the ASD demand and registered a fail - He was charged with, inter alia, impaired driving causing bodily harm - He argued that the officer did not have objectively reasonable grounds to make the ASD demand - The Saskatchewan Provincial Court held that the officer's observations supported a suspicion grounding the ASD demand - See paragraphs 65 to 72.

Criminal Law - Topic 1386.4

Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - Koma was charged with, inter alia, causing bodily harm while driving with a blood-alcohol level over the legal limit - He argued that the police officer could not rely on the results of an approved screening device (ASD) test to make a breathalyzer demand because she did not confirm that the ASD had received its biweekly calibration - The Saskatchewan Provincial Court held that there was nothing to suggest or raise a reasonable doubt as to the honesty of the officer's subjective belief that the ASD result was reliable - There was no evidence challenging that belief on an objective basis - Therefore, the fail result on the ASD would be accepted as one of the officer's grounds to making a breathalyzer demand - See paragraphs 73 to 81.

Cases Noticed:

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 33, footnote 1].

R. v. White (J.K.) (1999), 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161; 1999 CanLII 689 (S.C.C.), refd to. [para. 40, footnote 2].

R. v. Gamble (B.E.), [2007] Sask.R. Uned. 53; 2007 SKPC 74, refd to. [para. 43, footnote 4].

R. v. Kang-Brown (G.) (2008), 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 61, footnote 6].

R. v. Yeh (K.-P.T.) (2009), 337 Sask.R. 1; 464 W.A.C. 1; 2009 SKCA 112, refd to. [para. 61, footnote 7].

R. v. Beharriell, 2014 ONSC 1100, refd to. [para. 78, footnote 8].

R. v. Chappell (K.) (2013), 430 Sask.R. 14; 2013 SKPC 144, refd to. [para. 84, footnote 10].

R. v. Sherstobitoff (J.) (2013), 416 Sask.R. 30; 2013 SKPC 16, refd to. [para. 86, footnote 11].

R. v. Longley (K.R.) (1997), 154 Sask.R. 220; 1997 CanLII 11319 (Q.B.), refd to. [para. 115, footnote 12].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 122, footnote 13].

R. v. Buhay (M.A.) (2003), 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 124, footnote 15].

R. v. Orbanski (C.); R. v. Elias (D.J.) (2005), 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 132, footnote 16].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 4(6) [para. 112]; sect. 4(7) [para. 118]; sect. 258(7) [para. 110].

Counsel:

Chris Davison, for the Crown;

Brian Hurley, for the accused.

This matter was heard at Regina, Saskatchewan, before Tomkins, P.C.J., of the Saskatchewan Provincial Court, who delivered the following interim decision on May 23, 2014.