R v Movchan, 2016 ABQB 317

Court of Queen ’ s Bench of Alberta Citation: R v Movchan, 2016 ABQB 317 Date: 20160606 Docket: 150047942S1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Mykola Movchan Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A. Yungwirth _______________________________________________________ Introduction [ 1 ] Mr. Movchan appeals his

summary conviction for unlawfully operating a motor vehicle while impaired by alcohol or a drug, contrary to section 253(1) (

a) of the Criminal Code , RSC 1985, c C-46, arguing that the reasons for judgment are deficient, the trial judge made erroneous rulings on admissibility, and the conviction is unreasonable and unsupported by the evidence. At the heart of this case is

whether the police officer’s observations of the accused after he decided to make the arrest were admissible on the substantive question of whether the accused was guilty of impaired driving. Facts [ 2 ] On the early morning of January 1, 2015, at about 2:48 am, the accused’s Dodge Charger, in the far right lane, passed Const. Johnson’s unmarked patrol car in the center lane, as both vehicles were travelling eastbound on the Whitemud Freeway. The police car had, only a minute or so before, turned off its lights and siren after an emergency call was cancelled. [ 3 ] Const.

Johnson, an EPS member with three years’ experience, testified he was going about 95 km per hour and he estimated that the accused passed him at over 100 km per hour, then slowed down after passing the police car. The posted speed limit was 80 km per hour. [ 4 ] The accused’s vehicle swerved twice between lanes two and three, without any signal light, before straddling the centre dashed line between lanes two and three. Const. Johnson followed the vehicle for one to two minutes before pulling it over.

Once the officer activated his lights to initiate a traffic stop, the accused pulled the vehicle over in a timely fashion and parked appropriately on the side of the road. [ 5 ] Const. Johnson approached the driver’s side of the vehicle and observed the accused fumbling throughout his coat in a heavy, clumsy fashion, looking for his vehicle documents, without prompting. The accused was the lone occupant of the vehicle. Const. Johnson asked him how much he had to drink and he replied: two beers. Const.

Johnson testified that he was unsure whether the accused had slurred speech because he had a strong accent (Transcript reference: 21/22). [ 6 ] The officer observed that the accused had red, glassy eyes, a very strong smell of alcohol on his breath when he spoke, and cigarette ash sprinkled across his clothing. The accused continued to fumble, looking through his jacket pockets and the vehicle, even looking in the sunglass holder built into the headliner of the car, looking for his documents. The accused provided Const. Johnson with two sets of documents, one for his vehicle and one for another vehicle.

This led to some confusion about whether or not the accused had insurance on his vehicle, but that was later straightened out. [ 7 ] At 2:51 am, based on his observations of the accused and the accused’s driving pattern, Const. Johnson formed the opinion that the accused’s ability to operate a motor vehicle was impaired by alcohol. He told the accused he was arresting him for impaired driving and directed him to step out of the vehicle. The total time from observation to arrest was about three minutes (19/18). [ 8 ] Const. Johnson did not have an approved screening device with him on the night in question.

He testified that “I felt I had reasonable and probable grounds and well past reasonable suspicion and thus even if I had an ASD I would not have utilized it.”(24/11- 23) [ 9 ] Const. Johnson testified that he asked the accused to exit his vehicle in order to arrest him, take him into police custody, and place him in handcuffs. During cross examination (15/36-38), he agreed that when he asked the accused to exit the vehicle, he was still gathering information and evaluating the accused’s actions for signs of impairment.

But he also said that he informed the accused he was under arrest while he was still seated in the vehicle (16/1-2). [ 10 ] The accused, on exiting the vehicle at the officer’s request, failed to put his vehicle into park, causing it to roll forward one to two feet. Const. Johnson then told the accused to stop the vehicle and the accused then placed the transmission into park. As the accused exited the vehicle, the officer directed him to turn towards his vehicle so he could apply handcuffs.

As the accused turned, he leaned forward, lost his balance, and had to steady himself on his vehicle with his hands to prevent himself from falling over (22/18-20). The accused was placed in handcuffs, escorted to the patrol vehicle, where a frisk search was conducted, and he was placed in the vehicle. [ 11 ] At 2:53 am, the accused was Chartered and cautioned. After being informed of his right to counsel, the accused indicated that he understood his rights and wanted to speak to a lawyer. [ 12 ] The officer then gave the accused a first demand for samples of breath and received an unequivocal no.

The officer told the accused that he would be charged with impaired operation and refusal, and the required documents were then completed. The accused was driven to a friend’s residence where he was released at 3:58 am. The accused was not at any point afforded an opportunity to contact counsel (25/4-5). [ 13 ] The accused was charged with impaired operation of a motor vehicle and refusal to comply with a demand for a breath sample.

Though a Charter notice had been filed by the accused, when the trial proceeded on July 2, 2015 the accused and the Crown agreed that the accused would forego the Charter voir dire and the Crown would proceed only on count 1 (impaired driving). [ 14 ] At trial, the Crown argued that asking a driver to exit the vehicle for a purpose unrelated to collecting evidence of impairment does not limit the use of those observations.

In this case, the officer asked the accused to exit the vehicle to arrest him and therefore, there was no intention to use any observations to further his impairment investigation; he had already concluded that the accused was impaired. The Crown argued that because there was no conscriptive motive, the impaired driving portion of the investigation concluded before the accused was asked to step out of the vehicle. [ 15 ] The accused argued that the driving pattern was within the range of a sober driver, and that speeding is ambiguous and was not excessive.

Further, the accused stated that the Court should not give any weight to the fact that the accused was clumsily looking for his documents, and that the strength of alcohol odour on a person’s breath has no direct relationship to the amount of alcohol consumed. Importantly, the admission that the accused drank two beer is not admissible on the impaired driving charge because questions concerning consumption can only be used for purposes of forming reasonable and probable grounds and not for incriminating the accused.

Further, the accused argued there was conflicting testimony in cross examination: though the officer was confident that he had

reasonable and probable grounds while the accused was still seated in the vehicle, he testified that he continued to gather information and evaluate the accused for signs of impairment while he was exiting the vehicle. The Trial Judge’s Decision [ 16 ] The trial judge found that, overall, the evidence of Const. Johnson was consistent where most relevant and he did not seem less than forthright.

She went on to confirm that the burden is on the Crown throughout and that reasonable doubt means a doubt based on reason and common sense. [ 17 ] She noted that there was evidence of both an improper and abnormal driving pattern (speeding, un-signalled lane changes, and swerving of the vehicle), red glassy eyes, a strong odour of alcohol, lack of coordination when searching for documents, leaving his vehicle in gear when exiting, and an inability to comprehend the paperwork presented when he was being driven to his friend’s residence: (at 42/7-11).

The trial judge then stated: “There is no evidence before the Court upon which to rely other than speculative suggestions addressing these indicia. As repeatedly stated in the case law of Alberta and other jurisdictions, although each individual aspect considered would not meet the onus of proof when the cumulative effect of all indicia is considered proof of impairment will be the result. So too is the finding in this case that the totality of the evidence leads to only one reasonable conclusion.

The Crown has met the onus and proven its case today beyond a reasonable doubt.” Standard of Review [ 18 ] The Appellant relies on three grounds of appeal: • the reasons for judgment are deficient, • the trial judge made erroneous rulings on admissibility, and • the conviction is unreasonable and unsupported by the evidence. [ 19 ] A

summary conviction appeal court may set aside a conviction where the verdict was unreasonable, unsupported by the evidence, or wrong on a question of law: Criminal Code, ss. 686(1)(a)(

i) and (ii). [ 20 ] The standard of review on findings of fact is palpable and overriding error. The trial judge is entitled to deference on findings of fact and factual inferences. The appeal court is not to interfere unless the trial judge was clearly wrong, unreasonable, or the fact findings were unsupported by the evidence: R v Clark , 2005 SCC 2 at para 9 . The Court further noted: The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result . [ 21 ] The standard of review on questions of law is correctness.

Housen v Nikolaisen , 2002 SCC 33 (at para 8 ). [ 22 ] Failing to consider the totality of the evidence is an error of law. R v Lohrer , 2004 SCC 80 . The error must play an essential part, not just in the narrative of the judgment, but in the reasoning process resulting in the conviction: Lohrer , at para 2 [ 23 ] The standard of review for whether a verdict is unreasonable or unsupported by the evidence, is whether a properly instructed jury, acting judiciously, could reasonably have rendered the verdict .

R v Biniaris , 2000 SCC 15 (at para 36 ); relied on in R v Lee , 2010 ABCA 1 , at para 7 ; aff’d 2010 SCC 52 , at para 4 . In Lee, the Supreme Court of Canada described the Biniaris test as the test for an unreasonable verdict, while it described the Lohrer test as the test for the misapprehension of the evidence. [ 24 ] In Lee , (at para 9), the Alberta Court of Appeal set out the essential distinction between the Biniaris and the Lohrer tests:

a) the Lohrer test applies when the attack is on a discrete finding of fact and it appears the conclusion of the trial judge on that fact is unsupported by any evidence, or perhaps that it is against the overwhelming weight of the evidence on that point,

b) the Biniaris test (unreasonable verdict) applies when the attack is on the overall strength of the case, and not any discrete finding of fact that is said to be plainly inconsistent with the uncontradicted evidence. [ 25 ] In Phipps , 2010 ABQB 661 (at paras 8 and 9 ) Moreau, J says that the issue of whether the learned trial judge properly admitted into evidence the officer’s observations after the accused was stopped involved a question of mixed fact and law – namely application of a legal standard to a set of facts.

Moreau J went on to find that the standard of review of the trial judge’s conclusion that the accused ability to drive a motor vehicle was impaired by alcohol is whether a properly instructed jury acting judicially could reasonably have rendered the verdict ( Biniaris ). Parties’ Positions Accused’s Position [ 26 ] The Crown’s burden was to establish impairment beyond a reasonable doubt.

In argument, Counsel for the accused indicated no issue is taken with the admissibility of the evidence of driving pattern, fumbling to get documents, odour of alcohol, and red eyes as signs of impairment, but says the trial judge relied on more than just these things.

[27] The contentious issue at trial was what evidence was admissible to prove impairment, specifically, whether failing to placethe transmission in park when exiting the vehicle and being unsteady after exiting the vehicle and turning around to be handcuffed couldproperly be used as evidence of the accused’s impairment. [28] The accused says that the judge should have identified and made findings on two main points, the purpose of the traffic stop,and at what point the officer ceased fulfilling his duties under the Traffic Safety Act, RSA 2000 c T-6 and began an impaired drivinginvestigation, because the answers to these questions would determine whether the accused’s unsteadiness and failure to place thetransmission in park were substantively admissible as proof of impairment.

If, the accused argues, the officer was carrying out hisauthorized duties under the Traffic Safety Act, his roadside observations might be admissible as proof of impairment, but if the officerwas engaged in the investigation of impaired driving, his observations would be substantially inadmissible. [29] The accused further notes that the trial judge listed the fact that the vehicle lurched forward when he exited the vehicle and headmitted drinking two beers as part of the “global” facts, without any differentiation as to whether the facts were admissible.

As well, hecomplains that the trial judge did not analyze and apply the relevant jurisprudence, nor did she indicate which indicia of impairment wereadmissible. [30] The accused further alleges that the trial judge also erred by inferring that the accused was inattentive since he sped past apolice vehicle which, though unmarked, had recently had its emergency lights flashing and would therefore have been readily visible,since the Crown had acknowledged that this was only a possibility. Additionally, the accused argues the officer’s evidence wasconclusory in nature and lacked precision.

Details were not given of where the documents were found or when they were turned over tothe officer. The accused argues that it was also an error to rely on evidence elicited after the Accused requested counsel, in particular theaccused’s inability to understand documents issued to him shortly before his release. [31] Finally, the accused argues that the trial judge’s errors were material to the verdict and played an essential

part in the trialjudge’s reasoning, therefore appellate intervention is required. Crown’s Position [32] The Crown noted that Const. Johnson’s evidence, reiterated three times, was that he conducted a traffic stop after observingthe accused’s driving pattern. Once the traffic stop was made, any questions or attempts by the officer to elicit evidence for an impaireddriving investigation may only go to the officer’s reasonable and probable grounds.

But unconscripted observations made both beforeand after the elicited information can properly form the basis for a finding of impaired driving. [33] Further the Crown argues that “screening tests” such as questions about alcohol consumption, ASD or physical sobriety testsare inadmissible to prove impairment, while a police officer’s observations made while carrying out authorized duties or that are not aresult of compelled direct participation in screening test are admissible to prove impairment, relying on R v Milne (1996), (ON CA), 28 OR (3d) 577 (Ont.

CA) (leave to appeal refused, [1996] SCCA No 353); R v Orbanski, 2005 SCC 37; R v Townsend,2008 ABCA 44. [34] Here, the officer formulated his reasonable and probable grounds and decided to arrest while the accused was still sitting inhis vehicle. When he asked the accused to step out of the vehicle, he was carrying out his authorized duties of an arrest, not implementinga sobriety test.

Therefore, allowing the car to roll forward and stumbling when asked to turn around, are indicia that were not elicited orconscripted and can therefore be properly relied on as signs of impairment. [35] Crown counsel drew a distinction between asking an accused to get out of the vehicle as part of a sobriety test and making thesame request in order to make an arrest. Observations in the first case cannot be used as proof of impairment, but can only be relied on toestablish reasonable and probable grounds.

However, the officer’s observations of an accused made after he has concluded he hasreasonable and probable grounds to make an arrest are admissible, as long as the officer has not made requests that compel the driver toparticipate in roadside tests or the actions in response to the request were intended to be used as a sobriety test itself. [36] Here, there was no conscriptive motive for asking the driver to get out of the vehicle because the officer had already formedhis reasonable and probable grounds and had not asked the Accused to exit the vehicle as a means to test sobriety any further. [37] The Crown argues that the evidence of driving pattern is sufficient to conclude that the officer stopped the vehicle to addressthe driving pattern, and it was not necessary for the trial judge to make an express finding to that effect.

Section 166 of Traffic Safety Actallows police to stop any vehicle at any time and any place to obtain information about the driver of the vehicle. There is no need for anarticulable cause for the stop. Legislation that authorizes random stops for checking documentation, vehicle safety and driver sobrietyconstitutes a reasonable limit on the right not to be arbitrarily detained (R v Ladouceur, (SCC), [1990] 1 SCR 1257).Once stopped, the only questions that may justifiably be asked are those related to driving offences.

Any further more intrusiveprocedures can only be undertaken based on reasonable and probable grounds (Ladoucer, para 60). [38] The Crown further argues that the trial judge’s decision is not deficient. She listed six indicia of impairment; driving pattern,red glassy eyes, strong odour of alcohol, lack of coordination when fumbling for documents, leaving the car in gear when exiting, andinability to comprehend documents.

A trial judge need show only a logical connection between the verdict and the basis for the verdict.(R v REM, 2008 SCC 51 at para 35), and is not required to detail his or her findings on each piece of evidence or controverted fact, solong as the findings linking the evidence to the verdict can be logically discerned (REM at para 35). [39] The Crown further points out that the trial judge does not set out her findings of fact until page 41 line 39 of the decision, andthere she leaves out the reference to the two beers, but includes leaving the vehicle in gear and being unable to comprehend thedocuments.

The Crown says all this evidence is admissible under Orbanski, Townsend, and Milne, because, with the exception of beingunable to understand the documents, the observations were neither elicited nor conscripted evidence. Although not determinative, theCrown also says the inference that the Accused would have seen the sirens/lights was not erroneous.

[ 40 ] Moreover, the Crown argues, even without the reference to the inability to comprehend documents, the conclusion would be the same. Analysis 1. Sufficiency of Reasons [ 41 ] The functional test for sufficiency of reasons is set out in R v Sheppard, 2002 SCC 26 and reviewed again by the Supreme Court of Canada in REM at para 35: In

summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard , at paras. 46 and 50 ; Morrissey , at para. 28).

(2) The basis for the trial judge's verdict must be "intelligible", or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge's process in arriving at the verdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the "live" issues as they emerged during the trial. This

summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensive list of the key principles. [ 42 ] If reasons prevent meaningful appellate review of the correctness of the decision, an error of law has been committed.

Relevant factors for determining whether meaningful review is possible include significant inconsistencies in the evidence and contradictory evidence relating to key issues on appeal that the reasons did not address. [ 43 ] The Supreme Court of Canada in REM rejected the proposition that a trial judge must describe every finding in the process of reaching the verdict in order to explain the link between the what and the why. An appellate court cannot intervene simply because it thinks the trial court did a poor job of expressing itself: Sheppard at para 26 .

The reasons, read in the context of the evidentiary record and the live issues on which the trial focused, must fail to disclose an intelligible basis for the verdict, capable of permitting meaningful appellate review. [ 44 ] The Supreme Court of Canada summarized ten propositions on a trial judge’s duty to give reasons in Sheppard at para 55 , and the tenth proposition is the most applicable here: Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient.

There is no need in such a case for a new trial. The error of law, if it is so found, would be cured under the s. 686(1) (b)(iii) proviso. [ 45 ] Gates J in R v MacKenzie , 2014 ABQB 44 discussed the applicability of this principle within the context of when an appeal court can invoke s. 686(1) (b)(iii) to analyze when a detention for an impaired investigation began: In the present case, I am able to provide an explanation for the result to the parties, and therefore invoke s 686(1)(b)(iii) of the CC. No substantial wrong or miscarriage of justice has occurred.

The absence of a specific finding as to when the Appellant's detention for an impaired driving investigation began does not preclude appellate review because it is a legal finding that I can make. Although the learned trial judge ought to have articulated this finding, meaningful appellate review is still possible. 2. Was it necessary for the trial judge to make findings on:

a) the purpose for the traffic stop; and

b) the point at which the officer embarked on an impaired driving investigation? [ 46 ] I conclude that the traffic stop was as a result of the driving pattern of the accused. The accused’s driving pattern included speeding, swerving and straddling driving lanes. The Traffic Safety Act permits an officer to stop a vehicle for the purposes of administering and enforcing that Act (s. 166).

There was no need for an express finding of that fact, given the evidentiary record and the live issues at stake in the trial. [ 47 ] While carrying out the duties under the Traffic Safety Act , investigating one offence may lead to the investigation of another. It is reasonable to conclude that a police officer who stops a vehicle for traffic offences is also alert to the possibility that the driver may be involved in other offences: Townsend , at para 19 .

In this case, it appears clear that at the point where the officer asked the accused if he had been drinking, he had embarked on an impaired driving investigation. 3. Can the reader determine the route followed by the trial judge to reach her conclusion? [ 48 ] As the Crown proceeded only on Count 1, the substantive issue for the trial judge was whether the accused’s ability to

operate a motor vehicle was impaired. [ 49 ] The trial judge did not analyze what evidence was admissible on the substantive issue.

However, it is clear from the decision that she took into account six indicia of impairment as follows: • An improper and abnormal driving pattern, including speeding, the un-signaled lane changes, and the vehicle swerving; • Red glassy eyes; • Strong odour of alcohol; • Lack of coordination while fumbling for documents; • Leaving the vehicle in gear while exiting; • Inability to comprehend the part of the process regarding the paperwork presented when the accused was being driven to his friend’s residence [ 50 ] The accused takes issue with the trial judge’s reliance on the last two indicia. [ 51 ] The accused also takes issue with comments made by the trial judge earlier in the decision which implied that the accused should have observed the emergency lights of the police vehicle.

The trial judge does not appear to have relied on this in her decision, because she does not mention it when she lists the evidence of impairment. [ 52 ] I also note that the accused’s statement that he had consumed two beer, was properly excluded by the trial judge in her consideration of the indicia of impairment.

The need to exclude this evidence as part of the indicia of impairment was addressed and agreed to by both Counsel in argument. [ 53 ] I conclude that it is possible to follow the reasoning of the trial judge based on her list of indicia which led her to the conclusion that the Crown had proved impairment beyond a reasonable doubt. 4. Should the trial judge have relied on the evidence that the accused left his vehicle in gear and that he was unable to understand documents as evidence of impairment? [ 54 ] The Alberta Court of Appeal, in Townsend , summarized the principles from Milne and Orbanski .

Both cases dealt with the admissibility of conscriptive evidence obtained through roadside screening as proof of guilt on an impaired driving charge. [ 55 ] The accused submits that Townsend is distinguishable because here Const. Johnson’s first question was how much the accused had to drink. The accused argues that this means the officer had a suspicion or belief that impairment was the cause of the aberrant driving, relying on Justice Pentelechuk’s decision in R v Bourgeault , 2014 ABQB 654 .

The accused says that Pentelechuk J found the same problem as exists here because in that case the trial judge cited a number of indicia without distinguishing between admissible and inadmissible evidence, and the Accused says it then becomes impossible to determine whether exclusion of inadmissible roadside evidence would have altered the trial judge’s conclusion (from para 78 of Bourgeault ). I disagree. [ 56 ] In Townsend , the officer observed two driving infractions and stopped the accused’s vehicle.

After stopping the vehicle, the officer noted that the accused appeared dazed, his eyes were blood-shot, there was a strong smell of alcohol on his breath and his speech was slurred. He also had difficulty finding and producing his documents, and his dexterity was very poor and slow. The officer concluded that the accused’s ability to drive was impaired by alcohol, and he asked the accused to step out of his vehicle and accompany the officer to the police car.

The officer observed that the accused had difficulty with balance, his upper body swayed and he had difficulty standing up straight. [ 57 ] The accused took the position that the court could not rely on the manner of his speech or on evidence that he was having difficulty producing his documents as evidence of his impairment as this was conscriptive evidence elicited from him before he was advised of his right to counsel. [ 58 ] The Court concluded that (at paragraph 20): The limitation on the use of roadside screening evidence in Milne and Orbanski was intended to proportionally limit a driver’s right to counsel by providing police only with an investigative tool to confirm or reject an officer’s suspicion as to impairment.

However, that restriction was not intended to apply to an officer’s observations made in the course of carrying out otherwise authorized duties . Moreover, unlike the evidence obtained from sobriety or other roadside screening tests in those cases, the evidence here concerns the respondent’s appearances while being dealt with for traffic offences. Such observations are admissible to prove impairment in the same way as is evidence of drunkenness observed before a suspect entered a vehicle and began driving.

The evidence of appearance (such as slurred speech) existed independently of anything the officer did or said and would not change, whether or not the respondent was advised of his right to counsel, or even immediately after he had contacted counsel . (Emphasis added) [ 59 ] In Milne , the trial court relied on failed sobriety tests to convict the accused of impaired driving. The Ontario Court of Appeal held that admitting evidence obtained from the Accused’s compelled participation in a sobriety test before giving him an opportunity to exercise his right to counsel would lead to an unfair trial.

Moldaver JA went on to indicate that the test results should not be admitted to

prove impairment, but should be limited to justifying the officer’s demand for a breath sample under s. 254 of the Criminal Code . He continued (at para 40): I wish to make it clear that this conclusion applies only to evidence obtained from compelled direct participation by the motorist in roadside tests authorized by s. 48(1) of the HTA, specifically designed to determine impairment or a blood-alcohol level exceeding 80 mg. I am not referring to observations the officer might make of the driver while carrying out other authorized duties.

Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle , or other similar signs.

These observations would be admissible at trial to prove impairment. (Emphasis added) [ 60 ] The Supreme Court of Canada in Orbanski , accepted the reasoning in Milne and expanded the limitation of the use of conscriptive evidence to include police questioning about alcohol consumption. [ 61 ] Since Townsend , there have been two competing lines of authority related to the type of evidence that could be considered conscriptive as falling under the rule in Milne and Orbanski . [ 62 ] In one line of authority, any evidence obtained as a result of a request by the officer made between the time an accused is detained and the point at which the accused is afforded the opportunity to speak with counsel, has been found to fall within the limitations intended by Milne and Orbanski .

In R v Brookwell , 2008 ABCA 545 , this included what the accused said to police when he was stopped, the smell of alcohol on his breath while conversing with the police in his car, his slurred speech and his staggered gait when walking to the police vehicle after his arrest, but prior to being Chartered and cautioned . Romaine J concluded that this evidence was properly excluded from the evidence by the trial judge on the issue of impairment.

She noted:(at para 29): From the point of detention until the driver is informed of his Charter rights, evidence of impairment gathered through the use of acceptable investigative techniques that by their nature compel the driver to participate directly in the creation of what might be self- incriminating evidence can only be used as an investigative tool to confirm or reject the officer’s suspicion that a driver may be impaired, and cannot be used as direct evidence to incriminate the driver: Orbanski , para 58 .

These investigative techniques include questions about alcohol consumption, requests to move to another vehicle for the purpose of providing a road-side breath sample, physical co- ordination tests and the administration and results of road-side screening devices. [ 63 ] A similar approach was taken in the subsequent cases of Phipps , per Moreau J and Bourgeault , per Pentelechuk J. [ 64 ] In the other line of authority, courts have given a narrow

interpretation to the rule, focussing on excluding sobriety tests and questions about alcohol consumption. In R v Quenneville , 2009 ONCA 325 , the Ontario Court of Appeal found that the observations made as the driver exited the vehicle, even in response to a direction from an officer, was not compelled direct participation in road side tests such that the use of that evidence is limited.

Similarly, in R v Brode , 2012 ONCA 140 the court confirmed that because the officer’s request for the accused to get out of the vehicle was not intended as a sobriety test, the evidence of the officer’s observations were admissible on the substantive impairment issue. The Court distinguished the case of R v Iannotta , [2009] O.J. No. 5181 (SCJ) , where the officer asked the accused to get out of his vehicle as a disguised sobriety test, and was therefore conscriptive evidence. [ 65 ] In Alberta, Greckol J adopted this more narrow approach in R v Kangas , 2013 ABQB 383 .

At issue was whether the police observations of the accused as, and after, he exited his vehicle were observations of compelled, self-incriminating behavior and inadmissible as evidence of impairment at trial. After considering the case law, she found that there was no evidence of conscriptive motive because the accused was not asked to exit the vehicle as a sobriety test. Greckol, J made the following determination (at para 52): The evidence of Constable Nguyen’s observations of Mr.

Kangas while in his vehicle (slurred speech, flushed face, slow retrieval of driver’s licence), and on and after exiting the vehicle (unsteady, unbalanced, smell of liquor, glossy eyes), would not have changed whether or not Mr. Kangas had been advised of his right to counsel. In contrast, action, within the Milne / Orbanski limitation – speech about alcohol consumption, participation in sobriety tests or roadside screening – are compelled participation that might not occur if the driver is given his s.10(

b) Charter opportunity to speak with Counsel. In my view, that is the rationale for the Milne / Orbanski limiting rule of admissibility, alluded to at para 38 of Townsend . I conclude the rule does not extend to observations of bodily condition during the investigation, short of those investigatory initiatives specifically recognized in the decisions referred to above. [ 66 ] Of the two lines of authority, I prefer the latter approach when considering the evidence in this case, as I find it to be more reasonable in all of the circumstances.

There are certain duties that the police officer in this case had to perform in the course of getting the accused out of his vehicle to make an arrest. This required bodily movement by the accused.

I follow the approach of Greckol, J in concluding that these are the types of movements that would not have changed whether or not the accused had been advised of his right to counsel. [ 67 ] In this case, the police officer asked the accused to exit his vehicle after he had already formed the opinion, based on the driving pattern and his observations of the accused in the vehicle, that the accused’s ability to operate a motor vehicle was impaired by alcohol. He informed the accused that he’d be under arrest for impaired driving.

He then directed the accused to step out of the vehicle in order to complete the arrest. There is no evidence of any conscriptive motive. There is no evidence that the officer intended the accused stepping out of the vehicle to be a sobriety test. [ 68 ] The officer’s affirmative answer to the question “At the point that you asked him to exit the vehicle, you were still gathering information and evaluating the accused’s actions for signs of impairment” does not lead to the conclusion that there was a conscriptive motive on the officer’s

part in asking the accused to step out of his vehicle. Rather, the officer was carrying out his duties in arresting the accused and was making note of other observations during that process. It was appropriate for the officer to continue his observations to note any further signs of impairment. [ 69 ] With respect to the evidence of the accused’s inability to comprehend the documents, this evidence was based on the officer’s

interaction with the accused after the accused indicated that he wanted to speak with a lawyer, and before the accused was given that opportunity. The officer’s evidence in this regard should therefore not have been considered by the trial judge on the issue of impairment. [ 70 ] However, even if the evidence of the accused’s inability to understand the documents was excluded from consideration, the trial judge’s conclusion that Mr. Movchan was operating a motor vehicle while his ability to do so was impaired by alcohol was well supported by the remaining evidence.

This included an improper and abnormal driving pattern, the un-signaled lane changes, swerving of the vehicle, the presence of red glassy eyes, a strong odour of alcohol, and lack of coordination observed while fumbling for his documents. It also included the accused failing to put the vehicle into park and allowing it to roll forward while getting out of the vehicle. Conclusion [ 71 ] I find that the reasons of the trial judge were sufficient to disclose an intelligible basis for the decision and to permit meaningful appellate review. The evidence upon which she based her conclusion is set out in the decision.

Though she could have, given the arguments of counsel, provided further analysis for the basis upon which she chose to include certain evidence on the issue of impairment, this appeal court considers itself able to do so and there is therefore no need for a new trial. [ 72 ] I further conclude that the trial judge should not have considered the accused’s inability to understand the documents, but that even in the absence of that evidence, the result would have been the same. [ 73 ] The appeal is dismissed. Heard on the 25th day of February, 2016. Dated at the City of Edmonton, Alberta this 6th day of June, 2016.

D.A. Yungwirth J.C.Q.B.A. Appearances: Domina Hussain Crown Prosecutor for the Crown Ravi Prithipaul, Q.C. Barrister - Criminal Law for the Accused