R. v. Schneidmiller, 2012 ABQB 642

Court of Queen ’ s Bench of Alberta Citation: R. v. Schneidmiller, 2012 ABQB 642 Date: 20121018 Docket: 110720612S1 Registry: St. Paul Between: Her Majesty the Queen Crown - and - Blair Richard Schneidmiller Appellant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Schneidmiller was convicted in Provincial Court of one count of driving with a blood alcohol level in excess of 80 milligrams of alcohol per 100 millilitres of blood, contrary to s. 253(1) (

b) of the Criminal Code .

From the defence perspective, the main issue at trial was whether the Crown had proved that the investigating police officer had reasonable and probable grounds to arrest the accused: the defence contention was that since the arresting police officer didn ’ t believe what the accused told him about when he had last consumed alcohol and knew that mouth alcohol could invalidate a screening sample, the police officer subjectively knew that a screening device test would be unreliable or objectively should have known that the test would be unreliable and therefore the police officer could not have had sufficient grounds for arrest.

The trial judge concluded that: there was no evidence of recent consumption such as to raise any concern about the reliability of the screening device sample; the certificate of analyses was admissible; and, the certificate proved the accused ’ s guilt.

[2] Mr. Schneidmiller now appeals his conviction. He argues that the trial judge committed a first error when his assessmentof the evidence failed to lead to a conclusion that either the arresting police officer did not have the required subjective belief in thereliability of the screening test or that, if the officer did have such belief, that the belief would have been objectively unreasonable.

Headds that the trial judge committed a second error when he failed to demonstrate in his reasons an understanding of the defence positionrelative to the police officer’s belief in reasonable grounds. [3] The appeal is denied. [4] As to the first ground, the trial judge committed no error of law: a discussion with defence counsel during the course of thetrial illustrated that the trial judge was well aware of the different legal standards that apply to the demand for a screening test and thedemand for a breath test.

Nor did the judge commit any error of mixed fact and law in concluding that the arresting police officer hadthe requisite subjective and objective grounds for arresting the accused: the trial evidence provided a sufficient foundation for the trialjudge’s conclusion that there was no evidence of recent consumption known, or that should have been known, to the police officer andwhich did negate, or should have negated, the police officer’s reliance on the reliability of the screening device test. [5] As to the second ground, the trial judge committed no error of law in failing to fulsomely address all of the issuessurrounding a police officer’s reasonable and probable grounds for arrest: the defence was clearly focussing on one issue, the allegedneed to delay the administration of the screening test, and the trial judge was only required to give reasons for concluding that such adelay was not necessary in the circumstances of this case.

Cases and authority cited [6] By Mr. Schneidmiller: R. v. Loewen, 2010 ABCA 255; R. v Sheppard, [2002] l S.C.R. 869; R. v Burns, [2002] A,J. No.219 (Q.B) (Q.L.); R. v Szybunka, 2005 ABCA 422; R. v Waters, 2010 ABQB 60; R. v Nanooch, 2010 APBC 231; R. v McKinnon,2007 ABCA 382. [7] By the Crown: R. v Bernshaw (SCC), [1994] S.C.J. No. 87; R. v Lintell 1991 ABCA 152 ,1991 CarswellAlta 273, 30 M.V.R. (2d) 46; R. v Szybunka 2005 ABCA 422. [8] By the Court: R. v Mrdjenovich 2008 ABQB 420; R. v Lalonde [2005] O.J. No. 2783 (Ont. C.Just.); R. v O’Brien 2011SCC 29.

Appendix A: Trial judge’s reasons for admitting the certificate of analyses into evidence 1. Background [9] The evidence at trial consisted of the testimony of a police officer who stated that, on May 19, 2011, he saw a vehicle beingdriven by the accused at approximately 1:15 a.m. approximately one block away from an establishment that sells alcoholic beverages inBonnyville, Alberta.

The police officer testified that he followed the accused’s vehicle for another two or three blocks, or approximatelyless than 1 km, while the vehicle made a loop - without stopping - through an industrial area of Bonnyville in the general proximity ofthe Wetlander Bar. The officer then activated the lights on his police vehicle and stopped the accused’s vehicle. When the police officerapproached the driver of the vehicle, he noticed that Mr. Schneidmiller had glossy eyes and a slight slur to his speech. The police officerquestioned the accused about alcoholic beverages he had consumed and Mr.

Schneidmiller responded that he had had two beer and thathis last beer was four hours ago. The police officer then asked the accused where he had consumed the beer and the accused replied atthe Wetlander. The police officer then asked him when he had arrived at the Wetlander and the accused told him at 10:30 p.m., “and had

just left there before I pulled him over ” . [ 10 ] The officer ’ s testimony continued: I was concerned that [the accused] had consumed alcohol prior to driving. When he told me that he had consumed alcohol, in addition to what I saw with his glossy eyes and the slight slurred speech, I formed the suspicion that he had consumed alcohol prior to driving. [ 11 ] The police officer then asked the accused to accompany him to the police vehicle and demanded that the accused provide an approved screening device sample. The accused provided a suitable sample at 1:25 a.m. At 1:26 a.m. the sample result tested “ fail ” .

The officer gave the following evidence concerning the officer ’ s use of the “ fail ” : What I did after I obtained the fail reading, I formed the opinion that he had been driving while impaired, and I read him the breath demand. [ 12 ] As to the actual sequence he followed, the officer testified that he arrested the accused on an impaired driving charge, read him his Charter 10(

a) and (

b) rights at 1:28 a.m. and the police caution at 1:29, and made a breath demand at 1:30. [ 13 ] In cross-examination, the police officer acknowledged that the accused produced his driving documents without any difficulty, that there was nothing unusual about the accused ’ s balance or coordination, and that there were no other vehicles on the road in that area.

He also agreed that he had come to the conclusion that the accused must have been lying to him when he had told him that his last beer was about 4 hours earlier; he explained that he came to that conclusion because the accused ’ s estimate of the time of the last beer consumption did not agree with the time the accused reported arriving at the Wetlander Bar. Nevertheless, the substance of the police officer ’ s suspicion about the recency of the accused ’ s consumption of alcohol is contained in this exchange: Q. Sure. And while you suspected . . . was that his drinking was more recent than he was letting on. A.

It had to have been. It had to have been - if he ’ s being truthful about being there at 10:30, it had to have been since 10:30, not four hours ago. [ 14 ] The police officer acknowledged that he knew from his training on the approved screen device that recent consumption of alcohol can skew the result of the test: the police officer testified that “ we ’ re told is wait 20 minutes prior to obtaining a sample, if we believe that [the driver] had consumed an alcoholic beverage within 20 minutes of obtaining that sample ” .

The police officer did not ask the accused if he had consumed an alcoholic beverage within the last 20 minutes and the accused did not volunteer any information on that subject. [ 15 ] The police officer asked the accused if he had smoked and was told by the accused that he didn ’ t smoke. While the police officer and the accused were walking to the police vehicle the police officer had the accused spit out the gum which the accused had in his mouth. [ 16 ] The cross-examination of the police officer elicited the following testimony: Q.

At the time of these events, did you consider the possibility at all that [the accused] might have just finished drinking before leaving the Wetlander? A. At that time, I didn ’ t consider that. Q. Because if you had, you would have delayed the administration of the test? A. My consideration at that time was I did not want to delay him.

Q. I know, but if you had considered that he might have recently consumed alcohol before leaving the Wetlander, would you have delayed the screening test? A. If I was able to confirm that he had consumed a beer 20 minutes prior, I would have delayed it. [ 17 ] The officer indicated that he did not tell the accused that he disbelieved the accused ’ s statement that he had had his last alcoholic drink at 10:30 p.m. [ 18 ] The cross-examination of the police officer continued: Q.

Would you acknowledge that in this case where you expressly disbelieved the accused when he adamantly told you when he had his last drink, that the possibility exists that he may have finished his last drink just before he left the bar? A. I would acknowledge that, but I think it ’ s unlikely. [ 19 ] In making submissions on the argument that the arresting police officer should have delayed the administration of the screening test, the following exchange occurred between defence counsel and the trial judge: Mr.

Prithipaul: The operative principle here is that the police officer has to form reasonable and probable grounds. There is an onus on the Crown to demonstrate the existence of reasonable and probable grounds. In this particular case . . . The Court: Not for a screening demand. Mr. Prithipaul: Oh, no, no, no. Reasonable and probable grounds based on the screening test result. So, well, yes.Yes. No, exactly. I agree. No.

But my point is that there is some obligation on the Crown, in my respectful submission, to establish that the officer ’ s grounds to demand evidential sample were both subjectively held, and objectively verifiable. [ 20 ] Prior to trial, the defence had filed a timely written notice alleging violations of the defendant ’ s

section 8 and 9 Charter rights. In particular, the notice indicated that the police should have, in accordance with police training, delayed the administration of a screening test in order to ensure an accurate reading. The failure of the police to do so, and the subsequent arrest based on the screening test result, allegedly violated the accused ’ s Charter rights. [ 21 ] At the conclusion of the trial voir dire on the issue of whether the certificate of analyses was admissible, the trial judge made the decision set out in Appendix A. 2.

Standard of review [ 22 ] The parties agree, and I agree with them, that errors of law are reviewable on a standard of correctness, while errors of fact are reviewable on a standard of palpable and overriding error. The standard of review on questions of mixed fact and law is correctness where a legal error can be extricated, and palpable and overriding error elsewhere. [ 23 ] However, as I may have a different view from that of counsel with respect to which standard applies to which grounds of appeal, I will deal with the standard of review separately with each of the appellant ’ s two grounds. 3 .

Did the arresting officer have the requisite subjective belief to arrest the accused and, if so, was that belief objectively reasonable?

[ 24 ] The issue of whether the arresting officer had the requisite subjective reliance on the results of the screening test as part of his reasonable and probable grounds for arrest of the accused and whether his subjective reliance, or belief, was objectively reasonable is a question of mixed fact and law.

The trial judge ’ s decision on that issue is therefore reviewable on a standard of palpable and overriding error. [ 25 ] In coming to the conclusion that there is no extricable issue of law which requires review on the basis of correctness, I have taken into account the exchange between defence counsel and the trial judge, cited above, on the issue of the nature of the officer ’ s belief. This exchange took place during the course of the trial; therefore, one should not expect an elaborate analysis by the trial judge of his approach to a legal issue.

Nonetheless, the exchange is sufficiently elaborated to allow a reviewing court to discern both that the trial judge was aware that a higher standard of belief applied to arrest than to a demand for a screening test and that there was no conflict between defence counsel and the trial judge on the nature of the legal test which applied at each of those two separate stages of the proceedings. [ 26 ] The only issue that arises on this appeal is the same factual issue that arose at trial - on the basis of the evidence, did the police officer have a subjective belief that the screening test was reliable, and, if he did, was that subjective belief objectively reasonable.

The trial judge resolved that question by finding that there was no evidence of recent consumption, that such evidence was “ non- existent. ” In the context, what the trial judge clearly meant was that there was no actual evidence of consumption within 20 minutes of the administration of the test.

In using the expression “ non-existent ” , the trial judge obviously meant to convey the idea that not only was there no evidence of invalidating recent consumption of alcohol, but that there was no basis for any determination that the police officer was wilfully blind to the possibility of invalidating recent consumption. [ 27 ] The police officer ’ s evidence that it was possible, although unlikely, that the accused had consumed alcohol immediately prior to leaving the bar is not equivalent to the police officer knowing that the accused had consumed alcohol within 20 minutes of the administration of the test.

Indeed, this is the very essence of the Bernshaw decision; see also , for example, Szybunka , and Mrdjenovich at para. 31 . [ 28 ] Nor does the trial evidence lead to any concern that the police officer was wilfully blind to the accused ’ s invalidating recent consumption. [ 29 ] In this case, the evidence is that the police officer did not witness the accused leaving the Wetlander.

Therefore, this is not one of the situations where an arresting police officer should, at least, know the exact time and circumstances under which an accused left a bar and where those circumstances might raise an issue about the officer ’ s wilful blindness to the potential of invalidating recent consumption. [ 30 ] The evidence of the police officer included his testimony that, at the time in question, he did not consider the possibility that the accused might have just finished drinking before leaving the Wetlander.

In my view, the evidence of the arresting police officer in this case that he would have delayed the administration of the screening device test if he had had any confirmation that the accused had consumed a beer within 20 minutes prior to the administration of the test is sufficient compliance with the test set by an Ontario court in Mastromartino , and adopted by this court in Mrdjenovich , to the effect that there was an obligation on a police officer making a screening demand to “ address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay ” .

Alternatively, if I were wrong in concluding that the evidence here adequately deals with the first point in the Mastromartino

summary, then I would, with great respect for what I agree is a useful

summary by Durno J., join the concern expressed in para. 11 of Lalonde to the effect that any obligation of an arresting officer to do more than what was done by the police officer here arises only where the issue arises, or should arise, for consideration. [ 31 ] Here, the trial judge obviously accepted the police officer ’ s evidence. That evidence included reference to a 20 minute consumption screening test lag even though we know from the legal literature that other police officers are of the view that a 15 minute lag is sufficient to overcome the potential skewing effects of mouth alcohol.

In any event, the trial judge clearly accepted the police officer ’ s testimony that it was unlikely that the accused had consumed alcohol within what the police officer considered to be the required time limit; that evidence provides a subjective basis for the police officer ’ s conclusion that the administration of the screening device test at 1:25 a.m. would provide a reliable result.

There was no basis here for the trial judge to conclude that the police officer acted inconsistently with his belief about the reliability of the test; rather, in administering the test at 1:25 a.m., the police officer acted consistently with his belief that it was unlikely that the accused had drunk any alcohol within the previous 20 minutes.

[ 32 ] Since there was no evidence of consumption of alcohol in the 20 minutes immediately prior to the administration of the screening device test, the police officer ’ s subjective belief and reliance on the screening device test is also objectively valid. [ 33 ] The conclusion that there was therefore both the subjective and the objective basis for reliance on the results of the screening device test was implicit from the trial judge ’ s conclusion about the main issue in contention. [ 34 ] In

summary in relation to this ground of appeal, the trial judge committed no error of law in identifying the legal test with respect to the arresting officer ’ s subjective and objective belief in reasonable and probable grounds and the trial judge made no palpable and overriding error in applying the evidence at trial to the issue of whether the police officer had the requisite grounds.. 4. Did the trial judge provide adequate reasons for his trial determinations? [ 35 ] The obligation on a trial judge to provide adequate reasons is a question of law.

Whether specific reasons constitute adequate reasons is, equally, a question of law, and thus to be reviewed on a standard of correctness. [ 36 ] Since Sheppard , for example in R.E.M. , the Supreme Court of Canada has reminded us that failure to provide reasons is not a stand-alone basis for appeal: 25 The functional approach advocated in Sheppard suggests that what is required are reasons sufficient to perform the functions reasons serve - to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal.

The functional approach does not require more than will accomplish these objectives. Rather, reasons will be inadequate only where their objectives are not attained; otherwise, an appeal does not lie on the ground of insufficiency of reasons. This principle from Sheppard was reiterated thus in R. v. Braich, [2002] 1 S.C.R. 903 , 2002 SCC 27 , at para. 31 : The general principle affirmed in Sheppard is that "the effort to establish the absence or inadequacy of reasons as a freestanding ground of appeal should be rejected. A more contextual approach is required.

The appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case" (para. 33).

The test, in other words, is whether the reasons adequately perform the function for which they are required, namely to allow the appeal court to review the correctness of the trial decision. [Emphasis in original.] [ 37 ] In O ’ Brien , the Supreme Court has also reminded us that reasons do not have to outline a judge ’ s full thought process: 17 A trial judge has an obligation to demonstrate through his or her reasons how the result was arrived at. This does not create a requirement to itemize every conceivable issue, argument or thought process.

Trial judges are entitled to have their reasons reviewed based on what they say, not on the speculative imagination of reviewing courts. As Binnie J. noted in R. v. Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869 , at para. 55 , trial judges should not be held to some "abstract standard of perfection". [ 38 ] In the circumstances here, the defence had made it clear, both in its Charter notice prior to trial and in its argument at trial, that its concern was: The police should have, in accordance with their own training, delayed the administration of a screening test in order to ensure an accurate reading.

The failure of the police to do so, and to subsequently arrest the accused on the basis of the screening test result, resulted in violations of the defendant ’ s

section 8 and 9 Charter rights. Indeed, during the trial, defence counsel framed the issue in this way: I would respectfully submit, Sir, that in this case, the officer ’ s grounds are not objectively verifiable. In fact, I frankly question how

Constable Jurgen - and I say this with great respect - but, I question how he can say honestly that he subjectively believed the screening test result. On his own evidence, given that he knew of the potential for a false fail, I respectfully ask whether the Crown has established that he had a valid subjective belief in the accuracy of the screening test result.

This result was the sole basis for the accused ’ s arrest, his subsequent detention. [ 39 ] What the trial judge was required to do, therefore, was to give reasons for his decision that it was not necessary, based on the evidence here, for this specific arresting officer to have delayed the screening test. In his reasons, the trial judge did just that. He said that there was absolutely no evidence that left, or should have left, this arresting officer with any doubt or suspicion about the reliability of the screening test.

That conclusion is, in fact, well grounded in the law: merely knowing that there can, in some circumstances, be a false fail is not equivalent to knowing, in a particular case, that those circumstances have arisen.

Having come to the conclusion that there was no evidence whatever of any invalidating consumption, which conclusion effectively accepted the subjective and objective aspects of the obligation on the arresting officer, the remainder of the legal analysis was well understood by all; it was not necessary for the trial judge to make his reasoning under both the Criminal Code and the Charter more explicit. [ 40 ] In

summary on this ground of appeal, the trial judge did not fail to provide adequate reasons for his conclusion that the accused had not proved any breach of his Charter rights. Heard on the 1 st day of October, 2012. Dated at the City of St. Paul, Alberta this 18 th day of October, 2012. J.B. Veit J.C.Q.B.A. Appearances: R.S. Prithipaul, Q.C., Gunn Law Group for Mr. Schneidmiller Jeffrey F. Rudlak, Crown Prosecutors ’ Office, St. Paul for the Respondent Appendix A 27 THE COURT:

29 The accused was stopped at the - - as a driver of a motor vehicle at approximately 1:15 30 AM on the morning of May 19th, 2011, the accused driving a motor vehicle at the time. 31 What is objectively before me, and was obviously initially subjectively given by the 32 Constable is the following: Objectively, the accused displayed glassy eyes, had a slight 33 slurred speech, was driving in an area frequented by drinkers, i.e. the Wetlander Bar, and 34 for no apparent reason was driving in a industrial area unnecessarily.

Those are the 35 objective observations made by Constable Jurgens, and they stand objectively, in my 36 belief and opinion, as a proper basis for forming a suspicion that he indicated - - he 37 indicated to us that the accused had alcohol in his body. The Constable knew from an 38 admission that there was at least the con - - the admission by the accused of consumption 39 of alcohol.

And that admission, in and of itself, would give the Constable objectively the 40 right to demand the screen test, to make it -- to -- to -- sorry, to comply with the 41 screening demand. 1 2 Any evidence of recent consumption firstly is non-existent in this trial, and with the 3 greatest of respect to you, Mr. Prithipaul, I believe it is just complete and utter 4 speculation, and not based on any fact. The accused bears the -- the burden of proof on a 5 balance of probabilities of establishing a Charter breach. And in this particular case 6 before me, the accused's efforts have fallen very short.

Therefore, I conclude there is no 7 Charter breach, and invite counsel's submissions from here.