R. v. Kortzman, 2012 ABQB 123

Court of Queen ’ s Bench of Alberta Citation: R. v. Kortzman, 2012 ABQB 123 Date: 20120227 Docket: 110029147S1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Kelly Michael Kortzman Defendant _______________________________________________________ Memorandum of Decision of the

Summary Conviction Appeal of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ Nature of the Matter [ 1 ] This is a

summary conviction appeal from Mr. Kortzman’s conviction for blowing over .08. Mr. Kortzman was convicted following a trial before Mackie P.C.J. [ 2 ] At the trial, Mr. Kortzman argued that the police officer who demanded that Mr. Kortzman provide a breath sample did not have reasonable and probable grounds to do so. The police officer’s testimony demonstrated a lack of understanding of the underlying offence for which the breath sample was demanded; the police officer did not have a proper understanding of the impact recently

consumed alcohol may have on the validity of a roadside alert test; and the police officer did not properly satisfy himself as to the timing of Mr. Kortzman’s last drink. [ 3 ] Constable Rice was a relatively new police officer, with limited experience with impaired driving investigations. At the time of the investigation, he had not received any specific training in impaired driving investigations.

His training took place after the events in this trial. [ 4 ] He appears to have had an imperfect knowledge about the underlying offence of impaired driving, having testified that the offence was one of having more than .08 mg of alcohol in a person’s system (rather than having a concentration of more than .08 mg of alcohol per 100 ml of blood). Constable Rice also appeared to believe that consumption of alcohol within 30 minutes of a breath test might affect the results, instead of what is more commonly described in the case law as 15 minutes. [ 5 ] While on duty in St. Albert, he observed Mr.

Kortzman driving a truck. He noticed that a traffic cone was wedged under the truck. Constable Rice followed Mr. Kortzman, and when Mr. Kortzman drove the truck into a residential area and stopped in front of a house, Constable Rice activated his emergency lights and pulled in behind Mr. Kortzman. Mr. Kortzman got out of his truck and walked around it, apparently looking at the traffic cone. [ 6 ] Constable Rice testified that Mr. Kortzman then bent over to try to remove the cone, at which time Constable Rice approached him. According to Constable Rice, Mr.

Kortzman’s eyes were glassy, and his balance was unsure. [ 7 ] When Constable Rice asked Mr. Kortzman if he had consumed any alcohol, Mr. Kortzman told him that he had consumed two beers at a company function in “the city” about an hour earlier. Constable Rice then read him the Approved Screening Device (ASD) demand. [ 8 ] Mr. Kortzman complied. The ASD registered a “fail”. Constable Rice then concluded that he had reasonable and probable grounds to believe that Mr. Kortzman’s ability to operate a motor vehicle was impaired by alcohol, and he arrested him. [ 9 ] As to the issue of the timing of Mr.

Kortzman’s last drink, Constable Rice was asked in direct examination: “Did he offer any information as to when he may have had those beers?”. [ 10 ] Constable Rice replied “He said they were within an approximate hour time frame”. [ 11 ] On questioning from the Court, Constable Rice said “I had asked him, I guess, how long ago he had had those beers, and he said they were about an hour prior to our discussion.” [ 12 ] That answer was repeated by Crown counsel, and confirmed by Constable Rice. [ 13 ] On cross-examination, defence counsel put to Constable Rice: “And then you asked him when.

And he said it was within – within the last hour or within the hour?”. Constable Rice responded “yeah.”. [ 14 ] The question was repeated: “You asked him when, and he said it was within the last year (presumably hour)?”. Constable Rice responded “Within a timeframe of an hour or his last drink was an hour ago. How long between drinks, I do not know.”. [ 15 ] Counsel continued: “Well, which was it? Was it within the hour or was it an hour ago?”.

[16] Constable Rice stated: “I can refer to my notes and refresh my memory. The accused stated that he had two beers about anhour ago, and those were the words that the accused stated.”. [17] Constable Rice confirmed that his general occurrence report, prepared after the events and from his notes, stated “Afterfurther conversation, the accused admitted to consuming two beers in the past hour at a company function.”. [18] Defence counsel then asked: “You never did ask the accused when he had finished his last drink; am I right?”. Constable Riceresponded “I would – it’s my

interpretation that within the last hour and an hour are one and the same.” [19] Constable Rice also confirmed his belief at the time that 30 minutes must pass from the last drink before a screening test canbe done. Basis for Appeal [20] Mr. Kortzman’s argument is that the trial judge erred by finding that Constable Rice had reasonable and probable grounds todemand a breath sample following the fail on the ASD test. This is because, under R. v.

Bernshaw, (SCC), [1995] 1S.C.R. 254, an ASD test fail does not automatically constitute reasonable and probable grounds to demand a breath sample for thebreathalyzer. [21] Because of the confusion in Constable Rice’s evidence as to when Mr. Kortzman had consumed his last drink, the subjectiveand objective components in Constable Rice’s beliefs are not met. With the confusion in Constable Rice’s evidence, it cannot be saidthat he did not know that Mr. Kortzman’s last drink had not been consumed within the previous half hour.

Because of Constable Rice’sunderstanding that the ASD results might be adversely affected if the last drink was within the previous 30 minutes, he cannot be foundto have had reasonable and probable grounds to make the breathalyzer demand. [22] Because there were no reasonable and probable grounds to demand a breath sample for the breathalyzer, the sample wasunlawfully taken under s. 8 of the Charter, and the results of the breathalyzer should be excluded under s. 24(2) of the Charter. Issues [23] This appeal raises a number of issues.

Firstly, as with all appeals, the standard of review is an important consideration andfocuses the analysis of the grounds of appeal. Secondly, was the trial judge incorrect, or were his findings affected by palpable andoverriding error, in relation to the objective and subjective aspects of Constable Rice’s “reasonable and probable grounds”? Thirdly, ifConstable Rice cannot be said to have had reasonable and probable grounds to demand a breath sample, should the test results beexcluded under s. 24(2) of the Charter? Finally, do the trial judge’s reasons comply with the requirements of R. v.

Sheppard, 2002 SCC26 , [2002] 1 S.C.R. 869? Standard of Review [24] The parties are agreed that the standard of review for a case like this is palpable and overriding error with respect to factfindings (for which the trial judge is entitled to deference), and correctness with respect to the application of those facts to the legal testfor reasonable and probable grounds. Whether the police officer had reasonable and probable grounds for arrest is a question of fact, butwhen those grounds are tested objectively to determine if those grounds amount in law to reasonable and probable grounds, that is a

question of law. [ 25 ] These standards are taken from R. v. Shepherd , 2009 SCC 35 , as applied in R. v. Appleby , 2011 ABCA 118 . Slatter J.A. notes in Appleby that no deference is owed to the trial judge with respect to the correctness standard. Reasonable and Probable Grounds Subjective Standard [ 26 ] Mackie P.C.J.’s decision is at para. 63 of the transcript. He stated starting at line 26: The only reasonable and probable grounds would have arisen from the use of the roadside screening device.

And the first reaction that I would have, well, if the fellow would have had a drink in the last 30 minutes, shouldn’t the officer have asked about that? But there is case law aplenty where sometimes, the one I remember, where an officer was sitting outside a bar, I can’t remember if it was in Westlock or where, it wasn’t my case, I read it, and the issue came up that it’s a possibility. But the officer was found not to have to have asked that question.

If he went on to do it knowing that there had been drinking within the time, you know, that they say you are not supposed to, they being the makers of the roadside teseter, well, that could amount to a defence in that he didn’t have reasonable and probable grounds despite the outcome of the screening demand or the screening test. The bottom line is that, in the whole scheme of things, is that the officer has to build up the case in his mind based on reasonable probability.

And I’m satisfied that in this officer’s mind that he did operate on that basis and he stated that he got the fail sample and I, therefore, felt I had reasonable and probable grounds. So in the final analysis, I think that is answer to all of the areas of your arguments, Mr. Prithipaul. I find that the – there has been no Charter breach. I find that I don’t have to go further in doing a Grant analysis; and that the certificate is admissible. [ 27 ] It is noteworthy that in argument at trial, only Bernshaw and R. v.

Grant , 2009 SCC 32 , were referred to by counsel. [ 28 ] On the main point argued on this appeal, defence counsel had argued at p. 57 of the transcript: On the basis of the officer’s own subjective knowledge, and what I mean is based on his own knowledge that the test subject has to be alcohol-free for 30 minutes before doing the screening test, it is my submission that he cannot honestly assert a belief in grounds in this case when – on the basis of that evidence. What I mean is on the basis of the accused’s admission that he had two beers within the hour.

The screening test has to be uncontaminated by the presence of mouth alcohol. The officer knows that the relevant time period is 30 minutes.. He knows that the accused has admitted to consuming alcohol within an hour and makes no further inquiry. And I submit that does not enable the Crown to establish that reasonable and probable grounds existed here. This is an area where, again, where the Crown has an onus; and I would submit that the officer cannot reliably – he cannot articulate a basis for reasonable and probable grounds. The screening test was not reliably obtained.

Law [ 29 ] Not surprisingly, both the Defence and the Crown referred to many of the same cases.

[ 30 ] The starting point for this area - the impact of mouth alcohol on the reliability of ASD tests and on the issue of reasonable and probable grounds for a subsequent breathalyzer demand - is R. v. Bernshaw .

In that case, the Court considered whether a “fail” on the screening test constituted reasonable and probable grounds to make a breathalyzer demand. [ 31 ] In his analysis, he stated at para. 51: “I am not prepared to hold that, as a matter of law, a “fail” result is sufficient to constitute reasonable and probable grounds, per se, where a police officer is aware of circumstances that make the results of the test unreliable.” [ 32 ] Sopinka J. noted at para. 46 that there was no evidence that any circumstances making the test results unreliable existed in that case.

He found that: There was no evidence concerning the time when the respondent consumed his last drink of alcohol nor was there any evidence of other circumstances which would render the results of the test unreliable.” [ 33 ] Sopinka J. concluded at para. 60: This, of course, is assuming that the results of the screening test are the sole basis for raising a police officer’s mere suspicion to full reasonable grounds to demand a breathalyzer under s. 253(3) of the Code.

If other symptoms or indicia are present which are sufficient to provide reasonable and probable grounds, then the officer need not rely solely on a faulty screening device test and the above problem would not necessarily arise. As I indicated earlier, each case must be assessed on its facts. However, a “fail” result per se is insufficient to furnish reasonable and probable grounds where circumstances exist as discussed above, such that the police know that the test would yield faulty results. [ 34 ] In R. v.

Szybunka , 2005 ABCA 422 , the Court of Appeal held at para. 8: The central inquiry is whether there is any evidence which might have caused the investigating constable to question when the Applicant had his last drink. Absent such evidence, there is no requirement that the investigating constable either determine when the last drink was consumed or defer administration of a screening test for 15 minutes. [ 35 ] R. v. Mrdjenovich , 2008 ABQB 420 , analyzed Bernshaw and Szybunka in the context of an ASD test administered within 15 minutes from the time the accused was seen leaving a bar.

Ross J. noted at para. 17 that a police officer cannot rely on the ASD test result when he “knew that the suspect had recently consumed alcohol” because he “would not have the required subjective belief in the reliability of the test, or any such belief would be objectively unreasonable.” [ 36 ] In such circumstances, the police officer must wait until the appropriate period has elapsed. (At para. 18). [ 37 ] Ross J. deals with the difficult conundrum faced by police officers in administering ASD tests.

If they know that the suspect has recently consumed alcohol (or more accurately that the suspect has consumed alcohol within the time frame which makes the ASD test result unreliable), they cannot rely on the ASD test. They must wait until they are satisfied the necessary time has passed before they can administer the test. [ 38 ] But if they wait too long, and do not administer the test “forthwith”, they may have unlawfully detained the suspect and the

test results cannot be used. [39] R. v. Einarson, (2004), (ON CA), 183 C.C.C. (3d) 19 (Ont. C.A.), deals with that problem in the contextof whether it is reasonable for a police officer to delay the ASD test if the suspect has been seen leaving a bar moments earlier. Einarsonused a “flexible approach” to brief delays. [40] R. v. Mastromartino, (ON SC), [2004] O.J. No. 1435 (S.C.J.), sets out a number of principles relating todelays in administering an ASD test.

As noted by Ross J., neither Mastromartino nor Einarson deals with wilful blindness, described atpara. 29 as “facts leading to actual suspicion, combined with a conscious decision not to make inquiries”. [41] Ross J. noted as well that cases since Bernshaw have held that “there is no duty on officers to ask drivers when they lastconsumed alcohol.

The concept of wilful blindness does not create such a duty” (at para. 32), subject to situations where a failure toinquire amounts to wilful blindness and “actual awareness of a “mere possibility” that a driver has consumed alcohol within 15 minutesbefore taking the test does not preclude an officer from relying on an immediate ASD test.” (At para. 31) [42] Ross J. held at para. 38 that there are a number of circumstances where a trial judge might commit errors of law indetermining whether a police officer’s honest and reasonable belief amounted to reasonable and probable grounds at law: Whether the investigating officer had the requisite honest and reasonable belief is a question of fact or mixed fact and law, in regards towhich the trial judge is entitled to deference.

However, the trial judge is not entitled to deference regarding legal errors.

The followingare examples of errors of law: — concluding that awareness or wilful blindness regarding a mere possibility of recent consumption invalidates an immediate ASD test; — concluding that, faced with a mere possibility of recent consumption, an officer must ask a driver when he or she last consumedalcohol; — finding that an officer’s failure to follow his or her training means that he or she lacked the required honest and reasonable belief; — concluding that an officer must act like other police officers in similar circumstances, without regard to the individual officer’s belief. [43] R. v.

McLelland, (1995), 1995 ABCA 199 , 98 C.C.C. (3d) 509 (Alta. C.A.) makes it clear that the fact finding as tothe honesty and reasonableness of the police officer’s beliefs must be assessed based on the police officer’s knowledge at the time of theevents, and not a later date (such as the time of the trial) when the officer may have gained more experience and knowledge. ThusConstable Rice’s post-incident training and experiences are not relevant to this investigation. [44] Mr. Kortzman also relies on R. v.

White, 2002 ABQB 932, where Wilson J. found that the police officer did not havereasonable and probable grounds to make a breathalzyer demand following a fail on the ASD. In that case, the officer had no apparentknowledge of what the “legal amount” was or how the ASD was calibrated. His testimony was described as “imperfect” and Wilson J.held that “reasonable and probable grounds did not exist, and that the demand was improper.” (At para. 4). [45] Mr. Kortzman cites R. v.

Burns, 2002 ABQB 135 as support for his position that Constable Rice could not rely on the ASDfail because he had no reasonable and probable grounds because of the potential consumption of the last drink within 30 minutes fromthe test being administered. In Burns, the accused had advised the police officer that he had consumed alcohol within the previous 15minutes. The case turned on whether the police officer was reasonable in proceeding with the test despite the accused’s statement as torecent consumption.

[46] The Crown cited R. v. Beaudoin, 2008 ABQB 656, and R. v. Halabi, 2011 ABPC 99, along with several authorities commonto both parties. [47] In Beaudoin, Yamauchi J. dealt with the police officer’s “misstatement” or failure to properly explain what “100 milligramspercent” meant. He ruled at paras.49 and 50 that as the Crown was not required to prove the officer had been trained in the instrument, orexactly what a “fail” result meant (following R. v.

Yurechuk, 1982 ABCA 341 , 1982 CarswellAlta 224 (C.A.)), that the policeofficer’s error did not affect the honesty or reasonableness of the his grounds. [48] In Halabi, Creagh P.C.J. held that the inaccurate description of the ASD and misstatement as to a fail meaning “that it is overeight - .8, .08 milligrams of blood in his system” did not demonstrate a failure of the Constable’s subjective belief in his grounds” (atpara. 59). [49] She applied a common sense approach (at para. 66) to the officer’s evidence and that his testimony was a “slip of the tongue”.(at para. 64).

She noted at para. 64 that: From the outset, he was focused on the question of impairment of the driver’s ability to operate the motor vehicle by reason ofconsumption of alcohol. He asked about alcohol consumption, he looked for symptoms of alcohol consumption, and he did a screeningtest to identify the level of alcohol in the applicant’s blood.

Analysis [50] The issues to be determined are firstly whether Constable Rice subjectively had reasonable and probable grounds to make thebreathalyzer demand (namely whether he had an honest and reasonable belief) and secondly whether his belief objectively amounts toreasonable and probable grounds at law. [51] As to the honesty of Constable Rice’s belief, that is to be reviewed on the basis of whether the trial judge made some palpableand overriding error in accepting Constable Rice’s evidence in that regard.

Subjective test [52] The bases for attack on Constable Rice are his inexperience, his misstatement regarding the concentration of alcohol in thebody rather than in the blood, and confusion over when Mr. Kortzman had consumed his last drink. [53] There is nothing in the Criminal Code mandating that 15 minutes must elapse from the last drink before a valid screening testcan be administered. 15 minutes comes out of cases such as Bernshaw and Szybunka, but that time frame relates to the investigatingofficer’s training on the ASD and not statutory requirements.

The importance of the time frame is the impact the police officer’s trainingand knowledge have on the formation of his or her grounds for a demand. In this case, Constable Rice testified that his understandingwas that 30 minutes needed to elapse for the ASD test to be valid. [54] In my view, Constable Rice’s inexperience and his misstatement about alcohol concentration are answered by Beaudoin andHalabi. Creagh P.C.J.’s analysis, and her adoption of a common sense approach to the police officer’s evidence as a whole, are sound. [55] Mr. Prithipaul’s main focus was on the confusion surrounding when Mr.

Kortzman had his last drink.

[ 56 ] It is clear from Bernshaw and subsequent cases that there is no duty on an investigating police officer to inquire as to when a suspect’s last drink was consumed. However, the officer cannot be wilfully blind to the issue in the context of the officer’s training on the reliability of the ASD. If the officer has reason to suspect the presence of mouth alcohol or recent ingestion (recent ingestion being drinking alcohol within the period of unreliability the officer has been trained to recognize), the officer has several choices: 1.

Proceed, running the risk that a fail result may be insufficient to found reasonable and probable grounds for a breathalyzer demand unless there are other grounds to believe the suspect is impaired; 2. Wait until the unreliability period has clearly passed, running the risk that the suspect may in those circumstances claim to have been unlawfully detained; or 3.

Make further inquiries or conduct further investigation into the timing of the last drink, recognizing the reality that the suspect need not answer any questions as to drinking or timing, and the s. 8 clock starts ticking as soon as the suspect is stopped. [ 57 ] The officer’s decision should be informed by the circumstances and the degree of suspicion as to the timing of the last drink.

The mere possibility of the last drink being within the unreliability period is not enough to cast doubt on the honesty or reasonableness of the officer’s belief, following Szybunka and Mrdjenovich. [ 58 ] Seeing someone come out of a bar may lead to a greater suspicion than seeing and following an erratic or unusual driver. A strong or fresh smell of liquor may lead to a greater suspicion than fainter or weaker smells. And of course what the suspect says about his or her last drink if asked must be considered. [ 59 ] Here, Constable Rice testified in chief that Mr.

Kortzman told him his last drink was “about an hour ago”. On cross- examination, Mr. Prithipaul used the phrase “within the last hour”. Constable Rice agreed. The evidence indicates that “about an hour ago” came out of Constable Rice’s notes; the phrase “within the last hour” came out of his general occurrence report, prepared from his notes.

When challenged on the discrepancy, Constable Rice did not accept that there was a discrepancy, saying that the two phrases meant the same thing. [ 60 ] Constable Rice understood that he was supposed to wait for 30 minutes between the suspect’s last drink and getting a breath sample for the ASD. Is there anything in the circumstances here to place the timing of the last drink within 30 minutes from the test? [ 61 ] Apart from the argument that “within the last hour” means anything from 1 minute or 59 minutes ago, the answer is no. Constable Rice recorded Mr. Kortzman’s response as “about an hour ago”.

That answer, at the time it was given, gave no suggestion of recent consumption or consumption within what Constable Rice understood to be the ASD unreliability period.

There was nothing to indicate that Constable Rice should wait, or ask further questions, or further investigate the issue before administering the ASD test. [ 62 ] His general occurrence report, and his evidence on cross-examination at trial, lead to the possibility of recent consumption, but that is as a result of the words he chose to use in his report and skillful cross-examination showing an obvious inconsistency between “about an hour ago” and “within the last hour”.

The latter phrase opens up the possibility of recent consumption, but in my view of the evidence, it is only a theoretical possibility. [ 63 ] Applying a common sense approach to Constable Rice’s evidence, it is clear that he may not be an accomplished wordsmith. His explanation that both phrases mean the same thing may raise eyebrows among professional wordsmiths like lawyers and judges. But the substance of what Constable Rice testified to is that he understood Mr. Kortzman to be telling him that his last drink had been consumed about an hour earlier, at a company function, in the city.

He was never shaken in that belief. [ 64 ] There was nothing else in the course of dealings between Constable Rice and Mr. Kortzman to suggest that there had been any consumption of alcohol within the previous 30 minutes.

The possibility was there, but the degree of suspicion was, in my view, low (and far lower than situations where someone is seen leaving a bar). [ 65 ] This is not like the situation in Burns where the suspect had told the police officer that he had consumed alcohol in the past 15 minutes, and the officer proceeded with an immediate test despite that information and in the face of knowledge that recent

consumption might affect the reliability of the test. [ 66 ] As a result, there is no basis here on appellate review to interfere with the trial judge’s finding that Constable Rice’s belief was reasonable and honest. There is nothing that would suggest that the trial judge made a palpable and overriding error in that regard. Objective test [ 67 ] As to the second part of the test: did Constable Rice’s honest and reasonable belief amount to reasonable and probable grounds at law; I find no error on the part of the trial judge.

His ruling was in my finding correct. [ 68 ] There was no good reason why Constable Rice should not have administered the ASD test when he did. There was nothing in the evidence to suggest that Constable Rice should not have relied on the fail test result. There were no other circumstances, as required by Bernshaw and later cases, preventing reliance on the test results. [ 69 ] When Constable Rice administered the ASD to Mr. Kortzman, he had reasonable suspicion that Mr. Kortzman’s ability to drive was impaired by alcohol. Mr.

Kortzman was driving in an unusual fashion - with a traffic cone wedged under his truck. He appeared unsteady when he bent down to try to remove the cone. His eyes were glassy and he smelled of liquor. He admitted to having had two beers. [ 70 ] Once the test was administered and Mr.Kortzman failed, and in the absence of any other circumstances, Constable Rice was entitled to rely on the fail as completing his reasonable and probable grounds to demand a breathalyzer test. I find that the trial judge was correct in concluding that Constable Rice had the necessary reasonable and probable grounds to arrest Mr.

Kortzman and make the demand. Charter Breaches [ 71 ] I have concluded that the trial judge made no reviewable error with respect to his conclusion that Constable Rice subjectively had an honest and reasonable belief that Mr. Kortzman had driven while his ability to do so was impaired by alcohol. I have also concluded that the trial judge was correct in his conclusion that Constable Rice’s belief objectively constituted reasonable and probable grounds in law to make a breathalyzer demand. [ 72 ] As a result, there has been no violation of Mr. Kortzman’s Charter rights.

There is accordingly no need to consider s. 24(2) remedies, and the cases cited by Mr. Kortzman . R. v. Cote , 2011 SCC 46 , R. v. Waters , 2010 ABQB 607 and R. v. Balzer , 2011 ABQB 84 , need not be discussed here. Failure to Give Reasons [ 73 ] As an alternative remedy, Mr. Kortzman argues that the trial judge’s reasons fail to meet the requirements of Sheppard , relating to Mr. Kortzman’s arguments concerning reasonable and probable grounds. [ 74 ] While the trial judge’s reasons were brief, it is clear that he was alive to Mr. Prithipaul’s arguments.

He did not refer to cases by name, but it is obvious that he was aware of the line of cases to the effect that mere possibilities of recent consumption of alcohol do not erode the reasonableness of an investigating officer’s beliefs that an ASD fail constitutes reasonable and probable grounds to demand

a breath sample for the breathalyzer. The trial judge may, in his oral reasons, have been referring to Szubunka , or to Mrdjenovich ; but whether he had those specific cases in mind or not, he correctly articulated the principles that there was no duty on the investigating police officer to inquire when the last drink was, and that “possibilities” were not the test for determining whether the ASD results may be unreliable. [ 75 ] Sheppard does not require a detailed legal analysis complete with case names and citations. The trial judge accepted Constable Rice’s evidence that he had an honest belief that Mr.

Kortzman was impaired by alcohol, and ruled that the constable’s belief constituted reasonable and probable grounds for making the demand. He dealt with the argument presented by counsel for the defence. [ 76 ] The trial judge’s reasons justify and explain the result of the trial. They are intelligible and provide a basis for meaningful appellate review as to the correctness of the decision. [ 77 ] This ground of appeal fails. Conclusion [ 78 ] Mr.

Kortzman has failed to satisfy me that the trial judge’s fact finding of the subjective honesty and reasonableness of Constable Rice’s belief was influenced by any palpable and overriding error. He has not satisfied me that the trial judge erred in law with respect to his conclusion that Constable Rice’s belief constituted reasonable and probable grounds at law to make a breathalyzer demand. [ 79 ] Mr. Kortzman has also failed to satisfy me that the trial judge’s reasons are flawed or deficient under the principles in Sheppard . [ 80 ] As a result, the appeal is dismissed. Heard on the 2 nd day of February, 2012.

Dated at the City of Edmonton, Alberta this 24 th day of February, 2012. R.A. Graesser J.C.Q.B.A. Appearances:

Scott C. Pittman Alberta Justice for the Crown R.S. (Ravi) Prithipaul Gunn Law Group for the Defendant