Her Majesty the Queen - v. -, 2011 SKPC 188

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 188 Date: December 7, 2011 Information: 24394236 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jeffrey Burwell Appearing: Lori Chambers For the Crown Michael Owens For the Accused DECISION ON VOIR DIRE D.E. LABACH , J INTRODUCTION [ 1 ] The accused, Jeffrey Burwell, is facing charges that on November 25, 2010 at the town of Asquith, Saskatchewan he was operating a motor vehicle while impaired contrary to section 253(1) (

a) of the Criminal Code and driving while his blood alcohol was over .08, contrary to section 253(1)(

b) of the Criminal Code .

[2] At the outset of trial, Defence counsel advised the Court that he would arguing that the accused’s

section 7, 8 and 9 Charterrights were breached. Specifically, it was the his position that the accused’s right to make full answer and defence as guaranteed bysection 7 was violated by the Crown’s failure to disclose relevant videotape evidence from the Saskatoon RCMP detachment. If thatCharter breach was proven, Defence was asking the Court to stay the proceedings pursuant to section 24(1) of the Charter.

Alternatively, Defence counsel was of the view that the officer involved in this case did not have the proper grounds on which to makean approved screening device demand and that as such, the accused’s right to be free from unreasonable search and seizure (section 8)and his right not to be arbitrarily detained (section 9) were violated. If these Charter breaches, or either of them, were proven, Defencewas asking for exclusion of relevant evidence flowing from the breaches pursuant to section 24(2).

Finally, Defence advised thatirrespective of these Charter issues, it was their view that the breath samples in this case were not taken as soon as practicable asrequired by s. 258(1)(

c) of the Criminal Code and as such, the Crown could not rely on the Certificate of Analysis to prove the accused’sblood alcohol content as at the time of driving. [3] The Crown, in response, withdrew the impaired driving charge and advised the Court that they only wished to proceed totrial on the charge of driving while over .08. [4] The trial proceeded with a voir dire on the Charter issues. The Crown called the arresting officer and the Defence called noevidence.

Both counsel made argument on the Charter issues and asked me to make my decision on these issues before either of themcalled any further evidence on the trial proper. The “as soon as practicable” issue was not argued at this stage of the proceedings, itbeing an issue not on the voir dire but possibly on the trial proper. [5] Having considered counsels’ arguments, I am prepared to render my decision on the

section 8,

section 9 and section 24(2)Charter issues raised by Defence. However I have determined that it is premature for me to rule on the Defence allegation that hisclient’s

section 7 Charter right was violated as a result of non-disclosure of evidence and that I should stay the proceedings pursuant tosection 24(1). In order for me to determine if the non-disclosure in this case meets the relevancy test and to assess the degree ofprejudice to the accused, if any, that has resulted from the non-disclosure, I need to hear the rest of the evidence in this case. Only thencan I determine if the accused’s right to make full answer and defence has been violated and if so, whether a stay of proceedings is theappropriate remedy. [6] This approach was suggested in R. v.

F.C.B. 2000 NSCA 35 (N.S.C.A.) and accepted by my brother Judge Toth in R. v.Banford 2010 SKPC 110 (Sask. Prov. Ct.) at paragraph 10 (overturned at 2011 SKQB 418 (Sask. Q.B.) on other grounds). Morerecently, this approach was accepted by Gerein J. in R. v. Salisbury, 2011 SKQB 153 , [2011] S.J. No. 259 (Sask.Q.B.) where hesaid: [6] The learned trial judge, by way of a voir dire within the trial proper, heard the testimony about the detention of the accused. Adetermination of whether the accused was guilty of the offence as charged was put aside. Rather, it was decided that

section 9 of theCharter was breached and a stay of proceedings was entered. It presumably was thought that this approach was more efficient as it mayeliminate the need to decide the merits of the offences, which is what actually happened. [7] It may be appropriate to proceed in this manner in a few instances, but it was not so in this case. This is for at least two reasons. Firstly, it ignores society’s interest in whether the accused was guilty of the offence as charged. Secondly, it ignores the efficacy of thepurported remedy.

If the accused was not guilty of the offences, then the remedy becomes empty and meaningless. Ultimately, theadopted approach impedes the balance of the interest of the respective parties. Accordingly, an error was committed when the trialjudge proceeded in the described manner. [7] Thus, I will review the pertinent evidence for the

section 8 and 9 Charter issues and rule on those issues in this decision. The

section 7 Charter issue will be left for the close of trial. FACTS: [8] On November 25, 2010 at approximately 9:00 p.m. RCMP Constable Martin was driving through the town of Asquith,

[ 8 ] On November 25, 2010 at approximately 9:00 p.m. RCMP Constable Martin was driving through the town of Asquith, Saskatchewan, when he noticed a vehicle parked in front of the town bar, running, with a burned out taillight. He did not notice anyone in the vehicle. While the burned out taillight and the fact that the vehicle was running grabbed his attention, he did not stop to investigate the situation. He had other matters to deal with west of the town and he continued on his way. [ 9 ] A few hours later, he came back through Asquith and noticed the vehicle in the same spot, still running.

This time he stopped and looked in the vehicle but again, he could see no one. The officer decided to park a short distance away where he could keep the vehicle in sight and do some paperwork. [ 10 ] Shortly thereafter, Constable Martin observed the vehicle drive away.

He did not see who got into the vehicle or where they came from but as the vehicle drove past his police cruiser he decided that he would stop the driver to speak to him about his burned out taillight, check for driver’s license and vehicle registration and the sobriety of the driver. [ 11 ] Constable Martin pulled in behind the vehicle and activated his overhead lights. The vehicle immediately pulled over on a side street. The accused was the driver of the vehicle. No one else was with him at the time.

When the officer attended to the driver’s side of the vehicle, he observed an empty bottle of Smirnoff vodka on the backseat. [ 12 ] The officer asked the accused for his driver’s license and registration. The accused provided a valid vehicle registration but advised that he had left his driver’s license at home. [ 13 ] Constable Martin shone his flashlight around the vehicle and noticed a can of Pepsi and a red plastic cup in a cup holder in the centre console of the vehicle. He asked the accused if there was any liquor in the cup to which the accused replied that it was “old liquor”.

The officer then asked the accused if he had any alcohol to drink that evening. The accused responded “Yes, I won’t lie.” Finally, the officer asked him if his last drink was at least twenty minutes ago and the accused answered “Yes”. [ 14 ] The officer noted an odour of beverage alcohol coming from the vehicle. Initially, he was not sure if it was from the cup or the bottle in the rear seat. However, when the accused spoke to him he would get a waft of liquor coming towards him.

Based on these observations, Constable Martin suspected the accused had alcohol in his body. [ 15 ] At 11:55 p.m. the officer advised the accused that he was being detained for an impaired driving investigation. He had the accused get out of the vehicle and asked him if he had any weapons on his person. The accused pulled a pocket knife out of his pocket and set it on the hood of the police cruiser. At 11:56 p.m. the officer made an Approved Screening Device demand.

At 11:59 p.m. the accused blew a “fail” on the Approved Screening Device. [ 16 ] As a result of this “fail” reading Constable Martin formed the opinion that he had reasonable grounds to believe that the accused’s ability to operate a motor vehicle was impaired and he placed the accused under arrest. At 12:03 a.m., the officer read the accused his right to counsel; at 12:04 a.m. he read him the breath demand and the police warning. The accused advised that he understood all of these rights and that he did not wish to contact a lawyer.

According to the officer, the accused was pleasant, co- operative and very easy to deal with. [ 17 ] At 12:09 a.m., Constable Martin departed Asquith with the accused for the Saskatoon RCMP Detachment. He arrived at the detachment at 12:43 a.m. There was no breath technician available at the detachment when he arrived. Constable Martin was a qualified breath technician and took it upon himself to conduct the tests. The first test was administered to the accused at 1:06 a.m. and resulted in a reading of .13.

The second sample was obtained at 1:27 a.m. and the accused’s reading was .12. [ 18 ] Constable Martin prepared the Certificate of Analysis and other paperwork and served these documents on the accused at 1:44 a.m. Shortly thereafter, he released the accused to the custody of a family member.

ISSUES: (

a) Were the accused’s

section 8 and/or

section 9 Charter rights breached by Constable Martin not having the requisite reasonablesuspicion that the accused had alcohol in his body necessary to make an Approved Screening Device demand? (

b) If the accused’s

section 8 and/or

section 9 Charter rights were violated, should the evidence flowing from the breach(

s) beexcluded pursuant to section 24(2) of the Charter? ANALYSIS: (

a) Were the accused’s

section 8 and/or

section 9 Charter rights breached by Constable Martin not having the requisite reasonablesuspicion that the accused had alcohol in his body necessary to make and Approved Screening Device demand? [19] Section 254(2) of the Criminal Code states as follows: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol . . . in their body and that person has, within thepreceding three hours, operated a motor vehicle . . . , the peace officer may, by demand, require the person to . . . provide forthwith asample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening deviceand, if necessary, to accompany the peace officer for that purpose. [20] This

section provides a threshold for an officer of “reasonable suspicion of alcohol in a person’s body” before they can make ademand that that person provide a sample of their breath for analysis in an Approved Screening Device. [21] The case law on this point is considerable and makes it clear that if an officer makes an Approved Screening Device demandbut does not have the requisite reasonable suspicion to do so, it is a violation of the accused’s

section 8 Charter right to be free fromunreasonable search and seizure and/or his

section 9 Charter right to be free from arbitrary detention. See R. v. Zoravkovic, [1997] O.J.No. 1010 (Ont. C.J.); R. v. Hendel, [1997] O.J. No. 2849 (Ont. C.J.); R. v. Smith, [1997] O.J. No. 3677 (Ont. C.J.); R. v. O’Flanagan,[2009] S.J. No. 55 (Sask. Prov. Ct.); R. v. Thompson, 2003 SKPC 56 , [2003] S.J. No. 240 (Sask. Prov. Ct.). [22] The case law also makes it clear as to what is meant by “reasonable suspicion”. In R. v. Beechinor, [2004] S.J. No. 187 (Sask.Prov. Ct.), my brother Judge Jackson was faced with a set of circumstances strikingly similar to the facts in the present case.

In that case,RCMP officers noted a vehicle on the highway with inoperable taillights. They pulled the vehicle over and Mr. Beechinor was identifiedas the sole occupant and driver. Upon request, he was only able to produce his vehicle registration and not his driver’s license. Theofficers noted three unopened bottles of beer in his vehicle and a smell of alcohol coming from the vehicle. The officer dealing with Mr.Beechinor could not tell if the smell was coming from the vehicle or from the accused so he had Mr. Beechinor attend to his policevehicle and have a seat in the back.

After conversing with him in the back of the police cruiser, he could smell alcohol coming from Mr.Beechinor’s person. On that basis he made an Approved Screening Device demand.

He noted no other signs of impairment. [23] Prior to reaching the conclusion that “the evidence clearly and objectively supported the officer’s reasonable suspicion that theaccused had alcohol in his body”, Judge Jackson had this to say about “reasonable suspicion”: [23] Although the threshold is low, there nonetheless must be evidence capable of demonstrating that the officer have reasonablesuspicion that the driver has alcohol in his or her body in order to make the ASD demand.

This does not mean simply that alcohol hasbeen consumed at some point that day or the officer could detect alcohol in the vehicle or even on the person. The suspicion must bethat the accused had alcohol in the body at that time and there must be objective evidence to support this conclusion.

[24] This point that the officer’s suspicion must be objectively reasonable was accepted by Bobowski, J. in R. v. Smith, [2011] S.J.No. 650 (Sask. Prov. Ct.) at paragraph 44 when, in quoting the words of Zisman, J. in R. v. Ajula 2011 ONCJ 10 (Ont. C.J.) he said: . . . . The test is whether or not a reasonable person placed in the shoes of a police officer would agree that he had reasonable grounds tosuspect that the defendant had consumed any alcohol.

It is necessary for the trier of fact to review all of the relevant circumstances cumulatively to determine if they provide an objective basisfor the police officer’s subjective belief. [25] In R. v. Donald, 2010 SKPC 123 , [2010] S.J. No. 564 (Sask. Prov. Ct.) Kalmakoff, J. had this to say about whatconstitutes reasonable suspicion: [18] . . . While a reasonable suspicion is something more than mere suspicion, it is also less than a belief based on reasonable andprobable grounds. It is a question of whether a reasonable person, observing the same set of circumstances, could hold the samesuspicion.

Reasonable suspicion of the presence of alcohol in the body is a lower standard than reasonable grounds to believe the personis impaired by alcohol. Suspicion implies a belief or opinion based upon facts or circumstances which do not amount to proof. It doesnot need to be the only possible conclusion one could draw from the observed factors in order to be reasonable. The smell of alcohol ona driver’s breath alone, or evidence of consumption in any quantity is enough to base a reasonable suspicion.

The officer is not requiredto smell alcohol on the driver’s breath or obtain evidence of consumption of alcohol in order to have a reasonable suspicion, but theabsence of such evidence may negate the existence of reasonable suspicion. [26] Finally, in R. v. Nahorniak, 2010 SKCA 68 , [2010] S.J.

No. 300, the Saskatchewan Court of Appeal commenting onwhat a judge is supposed to consider when addressing this issue, said: [23] In deciding whether an officer had grounds to make the demand and administer the test, a court must consider all the circumstancesand evidence with respect thereto known to him when he made the demand. (See: R. v.

Shepherd, 2009 SCC 35 , 2009 S.C.C. 35, 309 D.L.R. (4th) 139, appealed from 2007 SKCA 29). [27] In the present case, Constable Martin said that his grounds for making the Approved Screening Device demand were asfollows: ∙ He noticed the accused’s vehicle running, parked outside the bar in Asquith at 9:00 p.m.; ∙ He noticed the accused’s vehicle parked in the same spot, still running, a few hours later; ∙ He noticed an empty bottle of Smirnoff vodka on the backseat of the accused’s vehicle; ∙ He noticed a can of Pepsi and a red plastic cup in the cup holder in the centre console.

When asked if there was liquor in the cup,the accused responded “old liquor”; ∙ When asked if he had any alcohol to drink that evening, the accused responded, “Yes, I won’t lie”; ∙ He never asked the accused when his last drink was but when asked if his last drink was at least twenty minutes ago, the accusedreplied “Yes”;

∙ There was an odour of alcohol coming from the accused’s vehicle. When the accused spoke to him, he would get a waft of liquor coming toward him. [ 28 ] Constable Martin testified that based on this information, he formed a subjective belief that the accused had alcohol in his body at the time of the stop. I am satisfied that this belief is objectively reasonable. Constable Martin noticed the accused’s vehicle parked outside the town bar at two different times in the evening.

And while he did not see if the accused was in the bar, this was not his sole basis for concluding that the accused had alcohol in his body. He saw an empty bottle of alcohol in the accused’s vehicle as well as a cup containing liquor in the console beside the driver’s seat. He smelled alcohol in the accused’s vehicle and determined it was coming from the accused when he asked the accused some questions. The accused admitted to drinking alcohol that evening. And while the officer never asked him what time his last drink was, he confirmed that it was at least 20 minutes before the stop.

The fact that an odour of liquor was wafting from the accused would lead a reasonable person, placed in the shoes of Constable Martin, to conclude on these facts that the accused had alcohol in his body at that time. [ 29 ] Since I am satisfied that Constable Martin had the requisite reasonable suspicion to make an approved screening device demand on the accused, there is no breach of the accused’s

section 8 and/or

section 9 Charter rights. (

b) If the accused ’s

section 8 and/or

section 9 Charter rights were violated, should the evidence flowing from the breach(

s) be excluded pursuant to section 24(2) of the Charter? [ 30 ] Given that I have not found a breach of the accused’s

section 8 and/or

section 9 Charter rights, there is no need for me to address the issue of section 24(2) exclusion of evidence. CONCLUSION: [ 31 ] The Defence application alleging that the accused’s

section 8 and/or

section 9 Charter rights were violated and asking for a section 24(2) Charter remedy is dismissed. The Certificate of Analyses entered as exhibit P-1on this voir dire will be admissible on the trial proper subject to any further applications the Defence may wish to make. [ 32 ] The Defence application alleging that the accused’s

section 7 Charter rights were violated and asking for a section 24(1) Charter remedy will be dealt with at the close of the trial. ____________________________ D.E. Labach, J