R. v. Baltzer, 2011 ABQB 84

Court of Queen ’ s Bench of Alberta Citation: R. v. Baltzer, 2011 ABQB 84 Date: 20110214 Docket: 091228239S1 Registry: Wetaskiwin Between: Her Majesty the Queen Respondent (Crown) - and - David John Baltzer Appellant (Accused) _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ Nature of Matter [ 1 ] This is an appeal from Mr. Baltzer’s

summary conviction for operating a motor vehicle while having a blood alcohol level that exceeded .08, contrary to s. 253(1) (

b) of the Criminal Code . Mr. Baltzer argues that the learned trial judge erred by finding that there were reasonable and probable grounds for the officer to have made the breath demand. Facts

[ 2 ] On September 23, 2009, Mr. Baltzer was operating a motor vehicle in Beaumont, AB. RCMP Constable Aldred observed that Mr. Baltzer’s tail-lights were not working, and pulled over his vehicle. While Constable Aldred had Mr. Baltzer under observation, he noted the following signs of impairment: confusion, a heavy odor of liquor, glassy blood-shot eyes, slurred speech, and two instances of Mr. Baltzer fumbling with documents. [ 3 ] There was no admission of consumption of alcohol, no administration of an Approved Screening Device (ASD), nor was there any evidence of erratic driving.

Constable Aldred formed the belief that there were reasonable and probable grounds to make a s.254(3) evidentiary breath demand. Mr. Baltzer complied with the demand. [ 4 ] Mr. Baltzer was subsequently convicted of operating a motor vehicle with a blood alcohol level of greater than 80 mg/100mL of blood, contrary to s.253(1) (b). Standard of Review [ 5 ] The standard of review for applying a legal test to a set of facts is correctness, following Housen v. Nikolaisen , 2002 SCC 33 at para. 8 .

The question of whether the officer had reasonable and probable grounds for arrest is therefore reviewable on a correctness standard, as was held in R. v. Shepherd , 2009 SCC 35 , at para. 20 . The evidence that was available before the officer must be examined in its totality. Evidence Before the Officer [ 6 ] The learned trial judge found multiple indicia of Mr.

Baltzer’s impairment: (Transcript, 49/36 to 50/11): · Some confusion and uncertainty about why he had been stopped (although the officer did not list this as a reason for his belief, the trial judge found that it formed part of the fabric and circumstances of the case); · Heavy odour of alcohol coming from his breath; · Droopy and bloodshot eyes; · Slurred speech; and · Fumbling with his documents, both getting his driver’s license out of his wallet and retrieving other documents from his glove box. Issues [ 7 ] No objection is taken with Constable Aldred’s subjective belief as to his grounds to make the demand.

The main issue on this appeal is whether the learned trial judge was correct in holding that the above indicia of impairment objectively gave Constable Aldred reasonable and probable grounds to make the breath demand. If there were not objective reasonable and probable grounds, the secondary issue arises of whether the breath sample analysis should be excluded from evidence because of the s. 8 Charter breach.

Case Law [ 8 ] A review of some of the relevant case law is instructive: R. v. Cuthbertson , 2003 ABPC 83 [ 9 ] The accused alleged that the breath samples were obtained in violation of s.8 of the Charter , and sought to have them excluded. The accused was seen sleeping in his vehicle while the motor was running. The officer approached the accused, and formed the belief that the accused was impaired. The accused submitted to a breath demand and was ultimately charged with being in care and control of a vehicle with a blood alcohol content of over 80mg/100mL, contrary to s.253(b). Allen P.C.J. summarized the evidence against the accused at para. 48:

(1) A smell of alcohol emanated from the accused’s breath;

(2) The accused had difficulty attempting to open his window at the officer’s request. He tried on four occasions within fifteen seconds. Fifteen seconds was adequate time for him to do so; nonetheless, it must be remembered that he was awakened from a sleep;

(3) His eyes were glassy;

(4) The accused answered her questions in a slow and deliberate fashion. However, he did appear to understand the warnings given to him and respond somewhat slowly and appropriately;

(5) His movements were sluggish, but he had no difficulty with balance;

(6) While he may had difficulty with production of his documents he was able to produce the appropriate documents for the officer; and

(7) The officer did not see the accused operating the motor vehicle. [ 10 ] Judge Allen concluded at para. 50 that the “facts were certainly sufficient to form the basis of a demand for an approved screening device”, but fell short of what was required to make a breath demand. The result was that the breath samples were excluded from evidence, and the accused was acquitted. R. v. Rohrich , 2006 ONCJ 150 , [2006] O.J. No. 1697 [ 11 ] The accused was approaching a police check point when he turned off his lights and made a U-turn.

An officer followed him for between one and one-and-a-half kilometers with the police cruiser’s lights and siren on. Once the accused pulled over, he admitted to having consumed two beers. The officer observed that the accused had bloodshot eyes and smelt of alcohol. The officer also testified that the accused used his vehicle and the police cruiser to steady himself, but the trial judge did not accept that those observations constituted an indication of impairment.

The trial judge noted that there was no evidence of bad or erratic driving, no evidence of slurred speech or ability to talk, and no evidence that there was any impairment of the accused’s motor skills. In the result, the Court found at para. 13 that reasonable and probable grounds had not been established, and the accused was therefore acquitted. R. v. Shepherd, 2009 SCC 35 [ 12 ] In this case, the arresting officer saw the accused go through a stop sign without stopping, and then travel between 20 and 25 km/h above the posted speed limit.

The officer activated his lights and siren to get the accused to pull over. The accused did not stop and the officer pursued the accused for approximately three kilometers. After the accused finally pulled over, the officer informed the accused that he was under arrest for failure to stop. The accused responded that he did not stop because he thought that the police car was an ambulance. The officer observed that the accused had red eyes and “looked lethargic and fatigued”. The officer could smell alcohol on the breath of the accused. He also noted that the accused was moving slowly and deliberately.

On the basis of those observations, the officer made a breath demand, and the accused was subsequently charged with failure to stop, impaired driving, and driving “over 80”.

[13] The trial judge accepted that the officer had formed the subjective belief that the accused was impaired, but found that thebelief was not objectively reasonable. The trial judge therefore excluded the breathalyser evidence and acquitted the accused. Thesummary conviction appeal judge upheld the acquittal, but the majority of the Saskatchewan Court of Appeal allowed the Crown’sappeal and ordered a new trial (2007 SKCA 29). [14] The accused appealed to the Supreme Court, where the Court unanimously held that “the officer’s subjective belief ofimpairment was objectively supported on the facts”.

In making this determination, the Court held at para. 20 that “the application of alegal standard to the facts of the case is a question of law”. Therefore, whether reasonable and probable grounds existed is reviewable ona standard of correctness. The Court followed its previous decision in R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, andaffirmed that there is both a subjective and an objective component to establishing reasonable and probable grounds. The officer musthave “an honest belief that the suspect committed an offence” and there must also be “reasonable grounds for this belief”.

Ultimately, theCourt found that the officer had reasonable and probable grounds to make the breath demand. The decision of the Court of Appeal wasupheld. The acquittal was overturned and a new trial was ordered. R. v. Meija, 2009 ABPC 310 [15] The accused was charged under both s.253(1)(

a) and s.253(1)(

b) of the Criminal Code. At trial, a voir dire was conducted todetermine if the arresting officer had reasonable and probable grounds to make a breath demand. [16] The trial judge summarized the evidence against the accused at para. 22:

a) Driving Pattern -

i) Signalled a right turn into an alleyway but did not make the turn. ii) Signalled a left turn onto 36th Street but did not make the turn. iii) Left wheels drifted over the centre line by about 1 foot for approximately 2 to 3 seconds.

b) Smell of alcohol coming from vehicle.

c) Admission by the Accused of consumption of 2 beers, although Cst. Howe had no information as to when or where.

d) Fumbling with papers in his wallet while searching for his driver’s licence.

e) Taking an unusual length of time to locate his drivers licence.

f) Smell of alcohol coming from the Accused’s breath. [17] On the other hand, there were other observations that had to be considered in light of these indicia. The officer noted that theaccused had “no balance issues”, understood questions, “stopped promptly when directed”, and his “speech appeared normal and withoutslurring”. The trial judge concluded at para. 35 that the officer did not have reasonable and probable grounds to issue the breath demand. R. v. Haut, 2009 ABPC 337 [18] The accused was detained when the officer stopped his vehicle on the suspicion that it may have been stolen.

The officer,before activating his sirens, had followed the accused for approximately two minutes over eight blocks, and observed the accusedmaking an abrupt turn and parking the wrong way. [19] Allen P.C.J. found at para. 28 that the accused “acted in a suspicious manner” and “drove in contravention of the trafficlaws”. The officer testified that the accused had bloodshot eyes and spoke in a slow, deliberate manner. However, the Court found thatthe officer’s basis for the breath demand were “subject to difficulties when considered on an objective basis”.

Regarding the officer’sallegations that the accused had impaired motor control, all that could be proved on a balance of probabilities is that the accused“stumbled somewhat while walking”. In the result, the Court concluded that the officer did not have reasonable grounds to make thebreath demand, thereby violating the accused’s s. 8 rights.

R. v. Bellamy , 2009 ABQB 759 [ 20 ] The accused was convicted at trial for having care and control of a vehicle while his blood alcohol was above 0.80, contrary to s.253(1)(b). The accused was arrested while the vehicle was started but not while it was in motion, and therefore no driving pattern was established. The arresting officer testified that the accused had “very red, watery eyes” and a “very semi-sedated look to his face”. The officer also noted a “very strong, strong smell of guttural alcohol” emanating from the breath of the accused.

When asked how much he had to consume, the accused replied, “Lots.” The officer also testified that the accused was also slurring his speech. The accused initiated a

summary conviction appeal on three grounds, one of which was that the trial judge had erred in concluding that there were reasonable and probable grounds to request a breath sample. [ 21 ] At para. 35, Shelley J. held that the trial judge had not erred in finding that there were objective reasonable and probable grounds for the officer to make the breath demand. The accused argued that the officer had not made a written notation of the slurred speech, and that the term “lots” was ambiguous.

However, Shelley J. rejected those arguments, finding that the officer “testified that he had some independent recollection of his interactions with the accused” and that the trial judge appropriately inferred that the accused himself “was of the view that he had had lots to drink”. In the result, the conviction was upheld. R. v. Waters , 2010 ABQB 607 [ 22 ] The accused was convicted of having his blood alcohol level exceed 80 mg of alcohol per 100 mL of blood, contrary to s.253(1)(b). At trial, the accused argued that the arresting officer did not have reasonable and probable grounds to make a breath demand.

The trial judge found that the following grounds were available to the arresting officer: (QB, para. 8):

a) the Appellant was driving at night with no headlights or daytime running lights;

b) the Appellant was driving with his licence and registration expired;

c) the Appellant fumbled initially with his documents;

d) the Appellant was surprised when told his documents were expired;

e) the Appellant had glossy eyes;

f) the Constable smelled alcohol on the Appellant’s breath upon leaning in closer to show him the expiry date on the licence; and

g) the Appellant admitted he had drunk 2 or 3 beers that evening. (From para. 8 of the QB appeal decision) [ 23 ] The trial judge stated that even if there was a violation of s.8 , the evidence ought not to have been excluded under s.24(2).

The accused appealed his conviction on the basis that the trial judge erred by finding reasonable and probable grounds, and also on the grounds that the trial judge erred by stating the evidence should have been admitted under s.24(2). [ 24 ] Kenny J. found at para. 28 that the indicia of impairment found by the trial judge “simply did not give the Constable reasonable grounds to believe the Appellant’s ability to drive was impaired.” The Court found that the fumbling of the documents could be consistent with either nervousness or impairment.

Additionally, the Court noted that the odour of alcohol was only detectable once the officer was “really close” to the driver. The weak odour, glossy eyes, and admission of consumption were not enough to “have led to a reasonable belief that the ability to drive was impaired.” R. v. Appleby , 2010 ABQB 674 , reversing 2009 ABPC 301 [ 25 ] At trial, the accused was acquitted on the basis that the arresting officer did not have reasonable and probable grounds to issue a breath demand. The Crown appealed, arguing that the officer’s belief that the accused was impaired was objectively supported by the evidence.

A private citizen called the police to report an impaired driver and described the accused’s vehicle. The arresting officer was dispatched to the area through the police radio, and spotted the accused’s vehicle a few minutes later. The officer followed the accused for a short without activating his lights and sirens, and observed nothing unusual about the accused’s driving. The officer then activated the overhead lights and siren, and the accused’s vehicle slowed and proceeded another block before pulling into an angled parking stall.

The officer testified that “he expected the Appellant’s vehicle to pull over right away”.

The officer’s observations were as follows: · Monotone speech, noticeably slow with a dry mouth as the sides of the mouth were kind of sticking together, · The Appellant was of light complexion with a red nose and red cheeks, · Speech was slightly slurred as the officer noted that the words rather than being distinct ran into each other at certain points, · The Appellant appeared to understand everything that Constable Johnson asked, · Very slow movements of the upper body as the Appellant proceeded to retrieve documents from a full centre console, · The officer observed no fumbling or lack of dexterity in the Appellant’s retrieval and production of documents, · The Appellant made a succession of slow movements in opening his door and exiting his vehicle but did so without any fumbling, · Once outside the vehicle the Appellant was observed to have a slight side to side sway, maybe an inch to either side along the access of his shoulders, · The Appellant was wearing sandals, · Heavy smell of alcoholic beverage emanating from the Appellant’s motor vehicle, and · A moderate odour of alcoholic beverage coming from the Appellant’s breath once he exited the vehicle. [From para. 6 of the PC trial decision, 2009 ABPC 301 ] [ 26 ] The trial judge found that the Crown had not discharged its burden of proving that there were reasonable and probable grounds upon for the officer to make the breath demand.

The trial judge noted at para. 17 (ABPC) that the officer had formed his belief in a very short period of time, when “he had spent less than three minutes with [the accused].” The trial judge also noted that no driving pattern had been established, and that the Crown could not rely on the observations of the citizen because they were not available to the officer at the time of the arrest. As a result, the trial judge found that the accused’s Charter rights under s. 8 had been violated, and excluded the certificate of analysis pursuant to a s. 24(2) analysis.

The accused was therefore acquitted at trial. [ 27 ] On appeal, Belzil J. held at para. 21 that the officer was justified in believing that he had reasonable and probable grounds to arrest the accused. He based this conclusion on the officer’s physical observations of the accused, combined with the information provided over the police radio and the accused’s delay in pulling over.

Analysis [ 28 ] The issue before me is whether the facts as found by the trial judge are in law sufficient to support a finding that the officer had reasonable and probable grounds to make a demand for a breath sample for breathalyser analysis (reasonable and probable grounds) as opposed to a demand for a breath sample for an ASD (reasonable suspicion). [ 29 ] I must make this legal conclusion apparently giving no deference to the learned trial judge who has vastly more experience in this area of the law than I. [ 30 ] I must also make this legal conclusion in the face of a myriad of cases discussing whether a reasonable belief of impairment is supported by glassy and bloodshot eyes (how glassy and bloodshot are they?), a smell of alcohol emanating from the accused and/or his vehicle (how strong?), fumbling with documents (how much fumbling?), slurred speech (how slurred), lack of coordination (how uncoordinated?), driving pattern (how bad?), comprehension and cooperation (how much?), admissions of drinking (how much?), and other less common “indicia of impairment”.

[ 31 ] The starting point for any such analysis must surely be Shepherd .

There, the Supreme Court held that the objective standard was met where the accused: ∙ demonstrated a pattern of unlawful driving (running a stop sign, speeding and evading the police); ∙ failed to stop because he incorrectly believed the police car to be an ambulance; ∙ had red eyes; ∙ appeared lethargic and fatigued; ∙ had the smell of alcohol on his breath; and ∙ moved slowly and deliberately. [ 32 ] The Supreme Court did not say that all of these indicia had to be present, or how many of them were required, or what other factors might be considered. [ 33 ] If one analyzes each of the indicia in that case, found by a unanimous Supreme Court to satisfy the objective standard, all but the smell of alcohol could be explained by things other than alcohol consumption.

Red eyes are commonly cited as evidence of impairment by alcohol, but of course there are many innocent related explanations for red eyes that are unrelated to alcohol. There are lots of drivers that go through stop signs who are not impaired, although that is certainly an indicia of an inability to drive in a safe manner. Running a stop sign would be evidence of poor judgment but not necessarily related to alcohol. Speeding is no evidence of impairment or alcohol consumption, especially when not accompanied by other indicia such as weaving or erratic driving.

Not stopping for the police is not evidence of impairment (indeed, in both Haut and Rohrich , the accused either evaded police or ignored police for some time with no evidence that their driving quality itself was impaired). Mistaking a police car, siren and lights for an ambulance is ambiguous - it is possibly an innocent mistake, although one would have to wonder why someone might speed to stay ahead of the ambulance rather than pull over and let it by. This would clearly demonstrate poor judgment, but not necessarily related to alcohol. Lethargy and fatigue are not clear evidence of alcohol consumption.

Neither are slow and deliberate movements. Most people would want to move carefully and deliberately after being stopped by the police. [ 34 ] It appears from my reading of Shepherd that the Supreme Court has set the bar quite low for objective standards.

There, it was subjectively and objectively reasonable for the police officer to make a breath demand of a tired, lethargic, slow and deliberate moving red-eyed man whose breath smelled of alcohol, after he had been stopped for going through a red light, was speeding and did not stop for a police car with its sirens activated. [ 35 ] The accused in Shepherd did not smell “strongly” of alcohol, nor was the smell of alcohol “gutteral”. He did not fumble with documents. His speech was not slurred. His eyes were red, but not bloodshot or glassy or glossy. He did not seem confused.

He did not fail any sobriety tests by stumbling or weaving. His driving pattern was unlawful, but not marked by a lack of coordination. He did not admit to drinking any particular quantity, or at all. [ 36 ] An analysis of the other cases is not particularly helpful.

Judges have agonized over whether there needs to be a “strong” smell of alcohol, or a “very strong” smell, or whether the car has to smell too, and whether the observations of impairment could be explained other than by alcohol consumption. [ 37 ] The reality is that most things can be explained by things other than alcohol consumption, except for the smell of alcohol on the breath and admissions made by the driver. I am not sure why it is relevant that someone has admitted to “two drinks”. That is no evidence at all of impairment. Admitting to drinking “lots” is.

Driving with a broken tail light is no evidence of alcohol impairment, any more than is speeding or running a stop sign. [ 38 ] Impairment is objectively found in matters such as coordination, comprehension and a poor (but not simply illegal) driving pattern. When there are objective findings of a lack of coordination, a lack of comprehension or a poor driving pattern coupled with evidence of alcohol consumption, the dots are connected and there is an objective basis to conclude that the driver’s ability to drive is

impaired by alcohol. This does not mean that once there is some minimal evidence of impairment and some minimal evidence of alcohol consumption the “reasonable” standard is met. That still requires consideration and analysis of the totality of the circumstances. It flows that two “minimals” do not likely amount to reasonable and probable grounds; two “strongs” do.

There is an area of judgment call within those clear extremes, which must also be exercised in conjunction with the police officer’s honest, subjective belief that he or she had reasonable and probable grounds to make the arrest or make a breath sample demand. [ 39 ] Here, I need not determine how many factors need to be present. There can be no absolute checklist in matters like this, and there is no specific number of indicia that must be found. [ 40 ] There must at a minimum be some evidence of an impaired ability to drive coupled with some evidence of consumption of alcohol.

A bloodshot, glassy-eyed, deliberate and slow moving man smelling strongly of alcohol with slurred speech whose coordination and driving are just fine may not meet the objective test for reasonable probable grounds of impaired driving. There would be clear evidence of alcohol consumption but no evidence of impaired driving skills. On the other hand, an erratically-driving, clear-eyed man who has no slurring of speech but who smells of alcohol might meet the test.

There would be clear evidence of an impairment of driving skills and some evidence of alcohol consumption. [ 41 ] Once there is some evidence of alcohol consumption and some evidence of impaired driving skills, the analysis becomes a matter of looking at the degree of each and assessing the totality of the circumstances. It does seem to me that the trial judge will in such circumstances be in a far better position than an appellate court to assess the degrees and totality, having regard to his or her ability to see and hear the witnesses.

In that regard, it seems appropriate to give some deference rather than have the appellate court substitute its conclusion. However, the correctness standard does not appear to take this into consideration. Analysis of Evidence Here [ 42 ] The learned trial judge’s factual findings were that Mr. Baltzer was confused and fumbled twice with his documents. That is some evidence of impairment of driving skills (comprehension and coordination). The trial judge also accepted the officer’s observations that Mr. Baltzer’s breath smelled strongly of alcohol. Mr.

Baltzer’s slurred speech and droopy and bloodshot eyes are also consistent with alcohol consumption. He thus found that there was evidence of both impairment and alcohol consumption. I find no error of law in the trial judge’s conclusion. The evidence as found by the trial judge supports his conclusion that the officer had reasonable and probable grounds to believe that Mr. Baltzer’s ability to drive was impaired by alcohol. On that evidence, I come to the same conclusion. There was moderate evidence of impairment of driving skills. There was moderate evidence of alcohol consumption.

Those combined, in my view, to form objectively reasonable grounds to make the deman. The demand was thus lawful, and not in breach of Mr. Baltzer’s Charter rights. [ 43 ] I recognize that the trial judge’s fact findings are likely weaker evidence of alcohol impairment than the evidence as found by Allen P.C.J. in Cuthbertson . But Cuthbertson was decided some years before Shepherd and while it is a useful and interesting decision, it is not binding on this Court. [ 44 ] My conclusions here are consistent with the other post- Shepherd decisions in this Court.

In Bellamy , Shelley J. found that reasonable and probable grounds existed where there was very strong evidence of excessive alcohol consumption (including the accused’s admission that he’d had “lots” to drink), although there was limited (but some) evidence of impairment of motor skills. In Appleby , Belzil J. found that reasonable and probable grounds existed where there was some evidence of impairment of motor skills, some evidence of alcohol consumption, and a police radio advisory to be on the lookout for an impaired driver.

In Waters , Kenny J. found there were no reasonable and probable grounds where there was very little evidence of impairment of coordination (minor fumbling on one occasion), some evidence of alcohol consumption but with an admission from the accused that he had consumed 2 or 3 beers over the evening. [ 45 ] It is obvious in this analysis that judges may take different views of the strengths of various indicia. That is a judge’s job, and that is a judge’s right.

Kenny J. disagreed in Waters with the trial judge’s finding in that case that the circumstances did amount to reasonable and probable grounds, just as Belzil J. disagreed in Bellamy with the trial judge’s finding in that case that the circumstances did not amount to reasonable and probable grounds. There remains an area of honest judicial differences within the “correctness” standard.

[ 46 ] Here, as noted above, I am satisfied that the trial judge’s decision was not incorrect and should thus not be interfered with. I come to the same conclusion that he did on the evidence as found by him. [ 47 ] As a result, Mr. Baltzer’s appeal is dismissed. Because of these findings it is unnecessary for me to deal with R. v. Grant , 2009 SCC 32 or s. 24(2), but had I found that no reasonable and probable grounds existed for the demand, I would have excluded the evidence, as was done by Kenny J. in Waters . Heard on the 17 th day of December, 2010.

Dated at the City of Edmonton, Alberta this 11 th day of February, 2011. R.A. Graesser J.C.Q.B.A. Appearances: David Beaton Alberta Justice for the Respondent Lisa M. Trach Moreau & Company for the Appellant