Her Majesty the Queen - v. -, 2014 SKPC 216

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 216 Date: December 19, 2014 Information: 90005201 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Amelia Arleen Wicijowski Appearing: Mr. J. Fitzgerald For the Crown Mr. D. Kraushaar For the Accused DECISION ON CHARTER VOIR DIRE & TRIAL M. HINDS , J

INTRODUCTION [ 1 ] Amelia Wicijowski is charged with impaired driving and driving while her blood alcohol concentration exceeded the legal limit, contrary to section 253(1) (

b) of the Criminal Code . The charge arises out of Ms. Wicijowski ’ s attendance at Casino Regina and a subsequent vehicle stop conducted by Constables Nicholson and Slater of the Regina Police Service on December 22, 2013. [2] The Crown ’ s case against Ms. Wicijowski relies upon observations made of her that early morning and from the results of breath samples obtained from Ms. Wicijowski by the police. There were three witnesses for the Crown. Pierre Cook and Susan Wenger are both employed as security guards at Casino Regina. Mr. Cook testified about his encounters with Ms.

Wicijowski in the central foyer of Casino Regina in the early morning hours of December 22, 2013. Sue Wenger testified about her video surveillance of Ms. Wicijowski and interaction with the Regina Police Service. Constable Shannon Slater testified about her dealings with Ms. Wicijowski. [3] Ms. Wicijowski takes the position that Constable Slater did not have reasonable grounds to make a breath demand of her, thus violating her

section 8 Charter rights As a result, Ms. Wicijowski argues that the Court should exclude the Certificate of Qualified Technician from evidence. Ms. Wicijowski also takes the position that Constable Slater did not observe her continuously for at least 15 minutes prior to the first breath sample being taken and as a result the police failed to follow proper operating procedures for the breath testing instrument, and accordingly there is a reasonable doubt as to the accuracy of the results. [4] In this case I have determined that Constable Slater had reasonable grounds to make a breath demand of Ms.

Wicijowski pursuant to section 254(3) of the Criminal Code . I did not find a breach of Ms. Wicijowski’s

section 8 Charter rights. As a result the Certificate of Qualified Technician will be admitted into evidence at the trial proper. FACTS [5] In the early morning hours of December 22, 2013 Pierre Cook was working in the central foyer of Casino Regina. He was observing people as they came into and left the casino. Ms. Wicijowksi first came into the central foyer of Casino Regina at 1:50:26 a.m. Mr. Cook asked for her identification. Ms. Wicijowski indicated that her identification was in her vehicle. She briefly left the casino and then returned. When she left to get her identification, Mr. Cook observed Ms.

Wicijowski to stagger quite a bit. On her return to the casino, Mr. Cook smelled alcohol coming from Mr. Wicijowski and observed her to fumble with some of her cards before providing him with some identification. Mr. Cook thought Ms. Wicijowski was intoxicated by alcohol and refused her entry to the casino. Mr. Cook also told Ms. Wicijowski not to drive her vehicle.

He warned her that if she did drive, the Regina Police Service would be contacted. [6] Susan Wenger works in the control room of Casino Regina and is responsible for monitoring the entrances and exits of the casino, as well as external video cameras, On December 22, 2013 Ms. Wenger received a call at 1:50 a.m. from Mr. Cook who advised her that he was refusing entrance to a person at the central doors to the casino. Ms. Wenger looked at video camera number 37 which showed Ms. Wicijowski in the central foyer. [7] Ms.

Wenger testified that when an individual is refused entry for intoxication, it is policy of Casino Regina for security to track the movements of that person using video cameras until they are off the property. This policy is to ensure the person does not re-enter the casino or drive a vehicle. Ms. Wenger began tracking Ms. Wicijowski using different powerful external video cameras. The tracking of Ms. Wicijowski’s movements by Casino Regina video cameras was entered into evidence as Exhibit P-1. Exhibit P-1 begins at 1:50: 23 a.m. and shows part of Mr. Cook’s second encounter with Ms.

Wicijowski at the central foyer. The video then shows Ms. Wicijowski walking to her car, a blue four dooor Suberu Impreza, licence plate 235 IUT, which is situated in the east parking lot. The video shows Ms. Wicijowski: 1. Getting into the driver’s seat and starting her vehicle 1:51:28 am

2. Back out of the parking stall 1:52:02 3. Turn right and proceed further into the east parking lot 1:52:30 am 4. Turn right into a row of cars park further to the west, 1:52:50 5. Turn right into an empty parking stall 1:52:55 6. Back up out of the parking stall 1:53:02 7. While turning left out of this row of cars, partially drive over a concrete barrier at 1:53:17 -18 8. Retrace her route past the row of cars where she started from to the exit from the east parking lot. 1:53:47 9. Signal and turn left onto a roadway which leads out of Casino Regina Parking Lot area. 1:53:48 to 1:54:58. 10.

Signal and turn right onto Saskatchewan Drive and proceed to the intersection of Saskatchewan Drive and Albert Street. 1:55 to 1:56: 02 11. Signal and turn left onto Albert Street. 1:56:03 to 1:56:11. [8] Ms. Wenger testified that she called the Regina Police Service communications as soon as Ms. Wicijowski got into her vehicle and advised them that Casino Regina had refused entry to a patron for intoxication who subsequently drove her vehicle. Ms. Wenger also provided the police service with a description of Ms.

Wicijowski, indicated she was driving a blue Suberu Impreza licence plate 235 IUT, and indicated that she had pulled into an empty stall and had ran into a curb while in the Casino Regina parking lot. Ms. Wenger testified that police dispatch advised her that police had located the vehicle and would be by to pick up the video surveillance related to this event. [9] Constable Shannon Slater was working with Constable Nicholson in a marked patrol car in the early morning hours of December 22, 2013. At 1:59 a.m. the officers were advised by police dispatch of a possible impaired driver in progress.

The officers were advised that a female in her late 20's or 30 wearing a black jacket and blue jeans was refused entry at Casino Regina due to intoxication. The female left the Casino and got into and was driving a four door blue Suberu Impreza, licence plate no. 235 IUT drove over some curbing in the east parking lot and was heading southbound on Albert Street. [10] Constable Slater and Nicholson responded to the call from dispatch. The officers proceeded southbound on Albert Street and caught up with a blue Impreza vehicle with licence 235 ITU at the intersection of Hill Avenue and Albert Street.

The officers followed the vehicle for a few city blocks. During this time Constable Slater made the following observations: 1. The Impreza swerved in its own traffic lane.

2. The Impreza was travelling along at inconsistent speeds which varied from 40 to 70 kilometres per hour on Albert Street where the speed limit is 50 kilometres per hour. On cross examination, Cst. Slater conceded that the speed of the Impreza could have been off by plus or minus 5-6 kilometres per hour. 3.

When the Impreza came to a green traffic signal light at the intersection of Albert Street and 25 th Avenue the brakes lights were activated and the vehicle slowed down. [11] The officers activated the emergency lights on the patrol car south of the intersection of Albert and 25 th Avenue for the purpose of initiating a traffic stop. Constable Slater testified that after the police emergency lights were activated she did not initially observe the Impreza to brake, however, near the intersection of Albert Street and Parliament Avenue the Impreza abruptly slowed down.

In order to get the Impreza to come to a full stop the police activated an air horn. The vehicle then came to a stop south of this intersection. Overall it took 20 to 30 seconds for Ms. Wicijowski to pull over and stop. [12] The two officers approached the Impreza and encountered the sole occupant, Ms. Wicijowski. Constable Nicholson asked Ms. Wicijowski if she had been drinking. Ms. Wicijowski indicated that she had not been drinking and was on her way home after dropping some friends off. Constable Nicholson obtained Ms. Wicijowski’s driver’s licence and vehicle registration and went back to the patrol car.

Constable Slater then spoke to Ms. Wicijowski who remained seated in her vehicle. In the course of their conversation Constable Slater asked Ms. Wicijowski if she had been to Casino Regina and if she had been refused entry. Ms. Wicijowski said she had not been to the casino. When asked if she had anything to drink, Ms. Wiijowski replied that she had “rum and coke” and had been drinking at O’Hanlon’s Pub. Ms. Wicijowski was adament that she had come from O’Hanlon’s. [13] Constable Slater testified that during the course of her conversation with Ms. Wicijowski she made the following observations: 1. Ms.

Wicijowski’s speech was slurred. 2. Ms. Wicijowski had glossy red eyes. 3. Ms. Wicijowski appeared to have short term memory problems. At first she denied drinking alcohol and subsequently said she had been drinking rum and coke. In addition she either forgot she had been to Casino Regina and was refused entry or she was not being candid. [14] Constable Slater arrested Ms. Wicijowski for impaired driving at 2:10 a.m. and read Ms. Wicijowski her Charter rights to legal counsel from a police issued card. Ms. Wicijowski indicated that she understood and that she wanted to speak to a lawyer.

A police warning and breath demand were also read to Ms. Wicijowski who indicated that she understood both. [15] Once Ms. Wicijowski was placed in the back of the patrol car, Constable Slater could smell the odour of alcohol coming from her. Ms. Wicijowski was then taken to the Regina Police station where she was provided with a telephone and spoke to a lawyer. Constable Slater then accompanied Ms. Wicijowski to a hallway outside the breath room in the police station. Constable Slater remained with Ms.

Wicijowski outside the breath room until two samples of her breath were taken. [16] The Crown filed the Certificate of a Qualified Technician as Exhibit P-2. Two breath samples were obtained from Ms. Wicijowski at 3:00 a.m. and 3:20 a.m. respectively.

VOIR DIRE ISSUES [17] The circumstances in this voir dire give rise to the following issues: 1. Did Cst. Slater have the necessary reasonable grounds to make the breath demand of the accused pursuant to s. 254(3) of the CriminalCode: and if not, were the accused's rights under

section 8 of the Charter breached? 2. If the accused 's

section 8 Charter rights were violated, should the evidence of the Certificate of a Qualified Technician be excludedpursuant to section 24(2)? VOIR DIRE ANALYSIS Did Cst. Slater have the necessary reasonable grounds to make the breath demand of the accused pursuant to s. 254(3) of theCriminal Code: and if not, were the accused's rights under

section 8 of the Charter breached? [18]

Section 8 of the Charter states as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. [19] In R. v. Breland, 2011 SKPC 54, 373 Sask.R. 130, Judge Gray provided a succinct

summary of the law relating to

section 8 ofthe Charter and compelling breath samples as follows: [22] Although the onus lies upon an accused to establish a Charter violation on a balance of probabilities, compelling breath samplesamounts to a warrantless search which is prima facie unreasonable. Thus the Crown must establish that the search was authorized bylaw, the law was reasonable and the search was conducted in a reasonable fashion. [23] Section 254(3) of the Criminal Code sets out the test for when a police officer may demand a breath sample: If a peace officer has reasonable grounds to believe that a person is committing or at any time within the preceding three hours hascommitted, an offence under

section 253 [impaired driving] as a result of the consumption of alcohol, the peace officer may, by demandmade as soon as practicable, require the person to provide, as soon as practicable, (

a) samples of breath that in a qualified technician's opinion, will enable proper analysis to be made to determine the concentration, ifany, of alcohol in the person's blood ... [20] In the present case there is no argument that s. 254(3), which authorizes the search, is unreasonable or that the manner in which the search was conducted is unreasonable. The only issue is whether Constable Slater wasentitled to make the demand; in other words did she have reasonable grounds? [21] In R. v. Gunn, 2012 SKCA 80, 399 Sask.R. 170, Mr Justice Caldwell provided a helpful

summary of the law on reasonablegrounds for breath demands as follows: [7] .... This means the officer must subjectively (or honestly) believe the individual has driven while impaired or "over .08" within thepreceding three hours and that belief must be rationally sustainable on an objective basis (see R. v. Bernshaw, (SCC),[1995] 1 S.C.R. 254 at para. 48). This does not mean that the Crown has to demonstrate a prima facie case for conviction (R. v.Shepherd, 2009 SCC 35 , 2009 S.C.C. 35, [2009] 2 S.C.R 527 at para. 23), let alone prove its case beyond a reasonable doubt(R. v.

Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127); rather, the standard of "reasonable grounds to believe" is one of lesser probabilitywhich simply requires the reviewing court to determine whether the factors articulated by the officer who made the breath demand were

reliable and were capable of supporting the officer's belief that the individual had driven while impaired or "over .08" within thepreceding three hours. [8] Where an individual challenges the validity of a breath demand on the basis that the police officer's belief was not reasonable, thequestion for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officerwould have believed the individual's ability to operate a motor vehicle was impaired (See: R. v. Storrey, (SCC), [1990]1 S.C.R. 241 at p. 250; and R. v. Restau, 2008 SKCA 147, 314 Sask.

R. 224 at para. 17). .... .... [9] When determining whether the standard of "reasonable grounds to believe" has been met, it is important to keep in mind that a policeofficer need only believe an individual's ability to drive is slightly impaired. .... As such, a pre-condition to an officer's authority to makea breath demand may be satisfied where, objectively speaking, an officer has reasonable grounds to believe an individual's ability todrive is even slightly impaired by the consumption of alcohol (see: R. v. Bush at para. 48). [21] Mr.

Justice Caldwell goes on to set out how the Court should assess the evidence when determining the reasonableness of the police officer's belief at paragraph 15: [15] ... The trial court must consider whether the observations and circumstances articulated by the officer are rationally capable ofsupporting the inference of impairment which was drawn by the officer; however, the Crown does not have to prove the inferencesdrawn were true or even accurate. In other words, the factors articulated by the arresting officer need not prove the accused was actuallyimpaired.

This is so because that is the standard of proof reserved for a trial on the merits (i.e. proof beyond a reasonable doubt). [22] In R. v. Vandal, 2009 SKQB 32 , [2009] SKQB 32, 330 Sask.R. 84, Mr. Justice Foley held that the time to test whether the officer had the requisite reasonable and probable grounds to believe the driver’s ability to drive the vehicle was impairedby alcohol is at the time the formal Criminal Code demand was made. [23] Constable Slater arrested Ms. Wicijowski for impaired driving at 2:10 a.m. and subsequently read Ms.

Wicijowski her Charter rights, a police warning and breath demand. [24] Shortly after 2:10 a.m., the time of the breath demand, Constable Slater had the following information: 1. The accused had recently been refused entry to the casino due to being intoxicated. After being denied entry into the casino theaccused got into her motor vehicle and drove over some curbing while leaving the casino parking lot. After leaving the parking lot theaccused drove westbound on Saskatchewan Drive and southbound on Albert Street. 2.

The vehicle driven by the accused swerved in its own traffic lane while proceeding southbound on Albert Street. 3. The vehicle driven by the accused travelled southbound on Albert Street at inconsistent speeds ranging from approximately 40 to 70kph (plus or minus 5-6 kph) on a roadway where the posted speed limit is 50 kph. 4. The vehicle driven by the accused slowed down while coming to an intersection displaying a green traffic light. 5. The accused did not initially apply her brakes after the police activated the emergency light on the patrol car.

The accusedsubsequently abruptly slowed her vehicle down, however, did not bring her vehicle to a full stop until after the police activated an airhorn. In total it took 20 to 30 seconds for the accused to pull over and stop her vehicle. 6. Initially the accused denied that she had been drinking. She also denied being at Casino Regina. She subsequently said she had rumand coke and had been drinking at O’Hanlon’s pub. The accused was adamant she had come from O’Hanlon’s. 7. The accused had glossy red eyes and it appeared that she speech was slurred.

[25] In this case I am of the view that Constable Slater subjectively (honestly) believed that the accused had committed the offence of impaired driving or driving “over .08” in the preceding three hours.

I am also of the view that Constable Slater’s subjective belief that the accused's ability to operate a motor vehicle was impaired by alcohol is supported on an objective consideration of all the evidence. [26] I am of the view that factors articulated by Constable Slater who made the breath demand were reliable and were capable of supporting the officer's belief that the individual had driven while impaired or "over .08" within the preceding three hours .

I am of the view that on the whole of the evidence adduced, a reasonable person standing in the shoes of Constable Slater would have believed the accused ’ s ability to operate a motor vehicle was impaired or over .08. I therefore find that there was no breach of the accused ’ s right to be protected from an unreasonable search under

section 8 of Charter. [27] I specifically reject the notion that Constable Slater effectively had “ tunnel vision ” respecting her investigation of Ms. Wicijowski. While it is true that Constable Slater had recently received information via police communications that the driver of blue Suberu Impreza, licence plate 235 IUT had recently been refused entry to Casino Regina due to being intoxicated, I find that Constable Slater ’ s own independent observations respecting Ms.

Wicijowski as set out in paragraph 24, items 2 to 5, as well as the time of day (just after 2:00 a.m.) would lead any competent police officer to pull over such a motorist.

Thereafter, Constable Slater had personal contact with the accused whose physical appearance (glossy red eyes), words (slurred speech) and behaviour (1. initially denies drinking, then admits to drinking alcohol & 2. denies being at Casino Regina) would, when coupled with her previous observations, lead a reasonable person standing in the shoes of Constable Slater to believe the accused ’ s ability to operate a motor vehicle was impaired or over .08. VOIR DIRE CONCLUSION [26] As I found that there was no violation of the accused ’ s rights under

section 8 of the Charter, the Certificate of a Qualified Technician will be admitted into evidence at the trial proper. The Certificate reveals that at 03:00 a.m. Ms. Wicijowski had 120 milligrams of alcohol in 100 millilitres of her blood. An identical blood alcohol reading of 120 was obtained from Ms. Wicijowski at 3:20 a.m. TRIAL [27] The defence takes the position that Constable Slater did not follow the proper operating procedures for the breath testing instrument in that she did not observe the accused continuously for fifteen minutes prior to each breath test. As a result Ms.

Wicijowski submits that she has raised a reasonable doubt that the instrument was “ operated properly ” within the meaning of

section 258 of the Criminal Code and has rebutted the presumption of accuracy. TRIAL ISSUES [28] The issues raised at trial are as follows: 1. Has the accused shown there is evidence which establishes that the reliability of the breath test results are in doubt due to the improper operation of the breath instrument? 2. Has the Crown proved the accused is guilty of the offence of driving while impaired?

TRIAL ANALYSIS Has the accused shown there is evidence which establishes that the reliability of the breath test results are in doubt due to theimproper operation of the breath instrument? [29] In this case Constable Nicholson acted as the Qualified Technician and operated the Intox EC/IR II, an approved breath instrument. Constable Nicholson obtained two breath samples from Ms. Wicijowski at 3:00 and 3:20 a.m. At all other relevant times Constable Slater remained with Ms. Wicijowski at the Regina Police Station and observed her. [30] Constable Slater testified that at 2:39 a.m. she examined Ms.

Wicijowski’s mouth to ensure Ms. Wicijowski did not have anything in her mouth such as foreign objects or gum. Thereafter, Constable Slater conducted a 20 minuteobservation period of Ms. Wicijowski. While Constable Slater indicated she did not have formal training regarding observation periods,she was well aware that if she observed the person awaiting a breath test to hiccup, burp, regurgitate or vomit she was to immediatelymake the Qualified Technician aware of this. I am satisfied that the purpose for the observation procedure is as my brother, JudgeKovatch stated in R. v.

Heibein-Langen 2013 SKPC 20 at para 13, 413 Sask.R. 221 “... to make sure that all the mouth alcohol hasdissipated so that accurate and valid readings may be obtained from the Intoxilyzer.” [31] On cross-examination, Constable Slater testified that she is not familiar with the Intox EC/IR II Resource Reading Material, July 2011 (marked as Exhibit P-for identification) published by Her Majesty the Queen in Right ofCanada, represented by the Royal Canadian Mounted Police. The defence attempted to rely on this document, in particular

Chapter Drespecting Observation Period and Interfering Substances. The defence takes the position this document is a business record and shouldbe a full exhibit at trial. I disagree. The proper foundation for this exhibit was not established at trial. While counsel indicated heobtained the document from a Government of Canada website, I note the document is dated July 2011. I am uncertain whether thecontents of the document are current and reliable.

I also note that had defence counsel sought and obtained leave of the court to crossexamine the Qualified Technician (pursuant to section 258(6) of the Criminal Code) Constable Nicholson may have been familiar withthe document and been able to establish its origin and the reliability of its contents. [32] In this case Exhibit D-1 is a video recording showing the hallway outside the breath room at the Regina Police Service on December 22, 2013. The video shows Constable Slater’s proximity to and interaction with Ms. Wicijowskiprior to her breath tests.

Constable Slater is standing and is situated adjacent to Ms.Wicijowski who is seated on a bench. At all timesConstable Slater remains within a few feet of Ms. Wicijowski. Initially, Constable Slater appears to be making notes in her police notebook. At other times she engages in conversations with Ms. Wicijowski and someone (likely, Constable Nicholson) who is situated offcamera in the breath room. Constable Slater also has a brief verbal exchange with an officer passing through the hallway. While itcannot be said that Constable Slater had her eyes fixed on Ms.

Wicijowski, I am satisfied that Constable Slater placed Ms. Wicijowskiin her field of view and within close proximity for at least 15 continuous minutes prior to each breath test. During this time she did notdetect any consumption of alcohol, burps, regurgitation or vomiting by Ms. Wicijowski. Simply put there is no evidence before the courtthat Ms. Wicijowski consumed any alcohol, burped, regurgitated or vomited in the 15 -20 minutes prior to the breath tests. As a result Iam of the view that the Intox IC/IR II was operated properly. The presumption of accuracy has not been rebutted.

Accordingly I find theaccused guilty of the offence of driving while over .08. Has the Crown proved the accused is guilty of the offence of impaired driving? [33] R. v. Stellato, (ON CA), [1993] O.J. No. 18 (C.A.), affd. (SCC), [1994] 2 S.C.R. 478(SCC), provides the test to be applied in determining whether the offence of impaired driving has been established. If the Crown has proven beyond a reasonable doubt that the ability of an accused to operate a motor vehicle

is even slightly impaired by drug or alcohol, there is sufficient proof of the offence. This does not mean that only slight evidence will be adequate. Rather, the evidence as a whole must establish that such an inference can reasonably be drawn from conduct which is a departure from the norm. That departure may fall upon a continuum from slight to great, but it must lead to no other reasonable conclusion but that the accused ’ s ability to operate a motor vehicle was impaired to some degree by the consumption of alcohol. [34] In this case the casino security guard, Mr. Cook testified that he saw Ms.

Wicijowski staggering quite a bit. However, the casino video evidence contradicts this evidence and shows that Ms. Wicijowski walked some distance on snow covered ground to her vehicle without any difficulty. Likewise the video taken from the hallway of the Regina Police Station shows that Ms. Wicijowski was able to walk and follow police directions without difficulty. It also shows Ms. Wicijowski was responsive to questions put to her by Constable Slater and fully able to carry on a coherent conversation. Overall the video evidence shows Ms.

Wicijowski to possess reasonably good motor and verbal skills. [35] There is, however, the cumulative evidence of Ms. Wicijowski ’ s driving behaviour before the court. Any singular driving transgression, such as driving over a curb in a parking lot, swerving in one ’ s own lane, driving at inconsistent speeds or braking at green lights, when looked at in isolation can be of course be explained. However, I must consider the evidence as a whole. After considering the evidence as a whole, I am satisfied that the Crown has established that Ms. Wicijowski ’ s ability to drive a motor vehicle was impaired by alcohol.

TRIAL CONCLUSION [36] I find the accused guilty of both counts set out in the information. In accordance with the usual practice in this jurisdiction, a conditional stay shall be entered on count #1 (impaired), to be made complete upon the expiration of the appeal period or alternatively until such time as all initiated appeals have been completed, whereby a conviction on count #2 (drive over .08) is maintained. _________________________ M. Hinds, J