Her Majesty the Queen - v. -, 2013 SKPC 187

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 187 Date: November 15, 2013 Information: 24430881 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gregory David Cox Appearing: Ms. L. O ’Connor For the Crown Mr. R. Piché For the Accused JUDGMENT B.G. MORGAN , J Introduction [ 1 ] Mr.

Cox is charged with what is commonly referred to as impaired operation of a motor vehicle and driving while his blood alcohol level exceeded the permitted amount (“over .08”), as the charges are more particularly set out on the Information. There is no question Mr. Cox was the operator and sole occupant of a motor vehicle that was stopped by the RCMP on March 19, 2011 in the Tisdale area of Saskatchewan.

[ 2 ] In brief, when Mr. Cox was in the 7-11 store in Tisdale, he was observed by the store manager and an employee, both of whom formed the opinion that he may have been impaired. A call was made to the RCMP and shortly after Constable Schmidt, upon seeing a vehicle matching the description he had been given, stopped and arrested Mr. Cox. Breath tests were conducted, and Mr. Cox’s blood alcohol level exceeded the permitted amount. [ 3 ] Three issues are raised by the Defence, which will be dealt with in order: 1.

Were the observations of Constable Schmidt made at the roadside, prior to providing rights to counsel, admissible for the purposes of proving the charge of impaired operation? 2. With respect to the “over .08 ” charge has the Crown established proper service of a true copy of the Notice of Intention to Produce the Certificate? 3. Is the evidence sufficient to establish the “over .08 ” charge beyond a reasonable doubt, in light of the fact that there is competing evidence from two experts as to this issue? [ 4 ] I will deal with the facts in more detail as necessary to resolve each of these issues. 1.

Were the observations of Constable Schmidt made at the roadside, prior to providing rights to counsel, admissible for the purposes of proving the charge of impaired operation? [ 5 ] I start by noting that although the Defence raises the issue of observations made by the officer before providing Charter notice, that is only part of the question. That is, even if such evidence is found to be inadmissible, I need to look at all of the evidence of alleged impairment in order to decide this count.

Accordingly, I will start by reviewing the evidence, and then focus on the impugned evidence. [ 6 ] In the early afternoon of March 19, 2011, Mr. Cox walked into the 7-11 store in Tisdale. It was apparent on Mr. Cox’s evidence that he had stopped the vehicle to gas up. Melanie Rodgers noticed Mr. Cox, who was then at the magazine rack, and said there was “quite a commotion”, and that he was being very loud, that he walked to the vehicle without paying for fuel, and that he had to be called back in to pay.

She observed his speaking was somewhat different, such that, “I believed he had a speech impediment”, referring to him having words that were not clearly spoken and were slurred, and that he was staggering after he had paid for the fuel. She indicated she didn’t smell alcohol on his breath, but said she had a cold. Seeing him get into a truck and drive eastwards, either she or her co-worker called the police. [ 7 ] In cross-examination, she confirmed that her use of the term “staggered” could perhaps be explained as well as “missteps”.

She was cross-examined on some of her evidence respecting her then description of the individual, but I remain totally satisfied that the individual she was referring to was Mr. Cox. [ 8 ] Jaime Dawn Ruether stated that she could smell alcohol coming from Mr. Cox, that it appeared to her that Mr. Cox had trouble getting into the truck when he left, and with respect to his talking, said it “wasn’t like slurred”, but was not “normally pronounced . . . it wasn’t right”.

She referred to his walking as being off balance, and although he wasn’t falling over, “he would sway kind of”. [ 9 ] In cross-examination, she related that the smell of alcohol was coming from him, but she couldn’t say where on his body, and she said that she would have called the police based on how he was walking in the store, that is, she was not relying on signs she observed after he came back to pay, to decide, at least in her mind, that he was potentially impaired. Her evidence was that his eyes looked “glassy” but she agreed she may have earlier referred to them as “bright”.

[ 10 ] Constable Schmidt, who received the call at approximately 2:00 p.m., actually pulled Mr. Cox’s vehicle over at 2:14 p.m. Mr. Cox would have been travelling east from Tisdale and Constable Schmidt would have been travelling west from Crooked River, where he was when he got the call, heading towards Tisdale. I am satisfied they met up near the small community of Eldersley, and that upon seeing the vehicle that matched the description he had been given heading towards him, Constable Schmidt turned around and followed that vehicle for a short distance.

While doing so, he noted that the plate number was identical to the plate number he had received, and based on that, and the fact that the vehicle exhibited, in his mind, “a bit of a drift . . . side to side”, pulled the vehicle over to, among other things, request licence and registration and check the situation out further. [ 11 ] Constable Schmidt testified that Mr. Cox fumbled with his licence and when Mr. Cox was asked for his registration, which the officer observed he already had in his left hand, Mr. Cox said he couldn’t find it. The officer noted the odour of alcohol coming from the breath of Mr.

Cox, he said he had glassy eyes, was slurring his speech, and “he looked like he was impaired”. [ 12 ] As authorized to do under s. 209.1 of The Traffic Safety Act , Constable Schmidt asked Mr. Cox if he had had anything to drink, to which he received a negative answer, and when he pointed out to Mr. Cox that he could smell alcohol, Mr. Cox stated he had a few in Hudson Bay (a town further west in Saskatchewan) and that he had gone to Tisdale on personal business and was on his way home. [ 13 ] It was at this point that the impugned evidence comes into play. Mr.

Cox exited the vehicle, apparently at the officer’s request, at which point the officer noted “staggered steps” and a “back and forth movement” and at 2:20 p.m., Constable Schmidt arrested him for impaired operation of a motor vehicle. He then advised him of his right to counsel and the police warning by memory, and made arrangements to have Mr. Cox transported to Tisdale, the nearest community, to have the breath samples taken. No technician being available, he then made arrangements to have Mr.

Cox’s breath tested in Melfort, a community approximately 40 kilometres further west of Tisdale. [ 14 ] While waiting, Constable Schmidt indicated that he observed a flushed face and watery eyes on Mr. Cox, and that the latter had slurred speech. Giving an example, he said that Mr. Cox, in referring to the community of “St. Albert”, pronounced it more as “Slalbert”. [ 15 ] On the issue that Mr. Piché raises, in cross-examination, Constable Schmidt was asked why he asked Mr. Cox to exit the vehicle. The officer testified that he did so to see if he was impaired and to get both of them off the highway.

The officer confirmed that this was part of his investigation to watch him walk, and make other observations, and that all of this was done prior to providing rights to counsel. [ 16 ] Constable Bourhis arrived at the scene at 2:30 p.m., having received Constable Schmidt’s request for assistance. At the time he arrived, Mr. Cox was standing outside the vehicle that had been stopped, and he said that when he saw that man, he was “stumbling”, taking “short, choppy steps”, and was “unsteady on his feet”. He observed that individual had watery blue eyes, an odour of alcohol and that his words were slurred.

In cross-examination, for example, he said the expression “no, I’ll be . . .” was stated as one word. [ 17 ] Constable Bourhis found two empty open Kokanee beer cans, and six full unopened beer cans in the vehicle. In checking his notes, he then said there were two cans in the cup holder, one empty and one full, and eight other full cans behind the driver’s seat. [ 18 ] Auxiliary Constable Sawatzky was with Constable Bourhis and he noted that, upon arrival, the driver was outside the blue truck with Constable Schmidt, and that he “appeared a little unbalanced” and was “wobbly”.

He said he wasn’t standing perfectly still, but rather had a “little bit of swaying”. [ 19 ] Mr. Cox testified he had awoken at 8:00 a.m. in Hudson Bay, Saskatchewan and had consumed a regular size Kokanee beer at approximately 10:00 a.m. He then left for Tisdale for an appointment with his accountant, and drank two and a half cans of Kokanee beer en route. He then met briefly with his accountant before lunch, had lunch, being some ribs and a “caesar” and after lunch played the VLTs for awhile and had another caesar.

He estimated that he finished his second caesar at approximately 1:00 p.m., and had gone to the beer store for a six pack of beer and then to 7-11 for gas, snacks, and a magazine. When he left, he acknowledged he forgot to pay for the gas, was summoned by the intercom, and went back in to pay.

[20] He disagreed that his vehicle was weaving in the lane and unlike Constable Schmidt, described a more controlled motion inpulling the vehicle over. He states he was nervous because he was dealing with a police officer in a situation where he had an open one-half can of beer, and with respect to the fumbling, stated he was nervous generally, in the situation. He was looking for a Saskatchewanregistration and he wasn’t quite sure what that looked like, having recently moved here; he was therefore not familiar with theSaskatchewan documentation.

He says he had some difficulty in entering the cruiser as the cuffs were behind his back, it was a tight fitand there was a narrow space in the back seat, and in his opinion, he was not impaired when he was driving the automobile. He said thathe had no alcohol at all prior to 10:00 a.m., and that his red eyes would be due to allergies, although he couldn’t specifically say he hadallergies at that time. In cross-examination, although he agreed that drinking could cause memory problems, he remained firm in statingthat he didn’t drink enough to forget. [21] As indicated earlier, the nub of Mr.

Piché’s argument is that some of the evidence of impairment was obtained by thearresting officer prior to the officer providing rights to counsel and should be excluded as compelled evidence obtained in violation ofthat Charter right. [22] This situation often arises in considering an alleged Charter breach. The principle has been dealt with in detail in R. v.Demers, 2006 SKPC 65, in which Judge Whelan of this Court did a thorough analysis of the case law. Her reasoning was upheld onappeal to the

summary conviction appeal court, 2007 SKQB 348 , [2007] S.J. No. 684. I refer specifically to pages 14 through17 in Demers. In particular, at para. 37, Judge Whelan neatly summarised the issue by stating that while “...observations from sobrietytests may form the basis for reasonable and probable grounds to demand breath samples, it may not be used as direct evidence toincriminate the accused on the issue of impairment”. [23] The Demers trial decision was considered in R. v. Kaszas, 2013 SKPC 150, in particular at paragraphs 70 through 75.

In bothDemers and Kaszas, evidence of observations made by the arresting officer after that officer had asked the accused to accompany him orher to the police vehicle was admissible evidence on the question of whether or not the “impaired operation” charge had been made out. [24] In this case, the evidence of Constable Schmidt in cross-examination is clear that, at the time he asked Mr. Cox to exit thevehicle, it was to see if his ability to operate a motor vehicle was impaired, as well as to get the parties off the highway. He confirmedthat part of his investigation was to watch how Mr.

Cox walked, et cetera, and all this was done prior to rights to counsel being granted. [25] However, I do not accept the argument that these observations were “compelled” evidence, or that the evidence is somehowinadmissible as such. Such observations were, as stated in Demers, “routine”. In Demers, Judge Whelan held that “...the observationsmade while exiting the vehicle are incidental to a request that the officer is otherwise entitled to make and as such these observationsshould not be excluded” (para. 42). I apply that reasoning to this case and will allow the observations made of Mr.

Cox when he exitedthe vehicle to be used as evidence on the issue of impairment. [26] I note further that in Demers, evidence of the results of the field sobriety tests that were conducted was not admissible toprove the issue of impairment. In this case, there was no evidence of the results of a field sobriety test tendered to prove the issue ofimpairment. [27] Thus, in looking at the evidence of impairment, I consider the following facts. In doing so, I apply the test set out in R. v.McKenzie (1996), (SK CA), 141 Sask. R. 221 (C.A.).

I also apply the reasoning set out in paragraph 35 of Demers,which reiterates the point that the evidence is to be looked at in total, not in a piecemeal fashion. The evidence of Ms. Rodgers: 1. that Mr. Cox’s speaking was not clear and was slurred; 2. that he was being very loud when buying the Sports Illustrated magazine which he kept referring to as a Playboy magazine; 3. that Mr. Cox went to his vehicle without paying for the fuel;

4. that Mr. Cox was staggering after he paid for the fuel; it should be noted in cross-examination this was referred to as “missteps”; 5. that she saw him get into the driver’s side of the vehicle and saw him drive east towards Eldersley. The evidence of Ms.

Ruether: 1. that his speech wasn’t “like slurred”, but was “not normally pronounced . . . it wasn’t right”; 2. that his walking was off-balance, that he was “losing balance as he got into the driver’s side of the vehicle”; 3. that he exited the parking lot heading east; 4. that she could smell alcohol on his person; 5. that his eyes “looked glassy” which she agreed in cross-examination she may have previously referred to as “bright”.

The evidence of Constable Schmidt: 1. that as he turned around and followed the vehicle, it swayed into the other shoulder of the highway, signalled to the right to pull over and kind of “weaved” and had “a bit of a drift” and a “side to side movement” as it pulled over; 2. when asked for his licence and registration, Mr. Cox fumbled with his licence; 3. when asked for his registration Mr. Cox could not readily produce it although he had it in his hand; 4. there was the odour of alcohol coming from the breath of Mr.

Cox; 5. that he had glassy eyes; 6. that he was slurring his speech; 7. that he had poor balance when he exited the vehicle; “staggered steps” and was swaying “back and forth”; 8. after being provided with rights to counsel, and after declining to speak to a lawyer, the officer noted again that his speech was very slurred; 9. at the detachment at Melfort, while waiting for the breath samples to be taken, he had a flushed face, watery eyes, slurred speech (as indicated earlier, referred to “Slalbert”). [ 28 ] The evidence just referred to deals with observations made prior to or at the time of the stop.

There is, in addition, the evidence of Cst. Bourhis and Auxiliary Cst. Sawatzky that provides confirmation as to the balance problems that Mr. Cox was having immediately after being stopped, and the presence of alcohol in his vehicle, all of which I accept as accurate and credible observations. [ 29 ] I have considered the evidence of Mr. Cox on a number of these points, and where his evidence is in conflict with that of any of the Crown witnesses just referred to, I reject his evidence. [ 30 ] First, Mr.

Cox indicated that he had pulled over before the lights on the police vehicle were activated, and had observed the police vehicle turn around in his rear view mirror. His evidence was that he then saw the police vehicle right behind him, so close that he could not see the hood of the police vehicle, and estimated that the police vehicle was probably four feet behind him. He said he pulled over slowly, but properly. [ 31 ] I do not accept that that evidence is accurate. There would be no need for Constable Schmidt to come that close to the vehicle that he was intent on pulling over. [ 32 ] Secondly, although Mr.

Cox does not agree the vehicle he was in was weaving in the lane, that was a bold statement from him without any basis. That is, I accept that he doesn’t agree with what the officer said happened respecting the stop. Again, however, I find the evidence of Constable Schmidt more compelling on that point; he was clearly warned of a possible impaired driver, would have been looking for such type of driving behaviour, and Mr. Cox would simply not have been alert or thinking of these issues.

[33] With respect to the fumbling, he said he was looking for the Saskatchewan registration. He said in cross-examination that henormally keeps his registration in the visor. He had indicated he pulled a lot of papers out, and he would have had, in his words, “severalyears of Alberta registration stored there”.

As he had only been one and a half years in Saskatchewan at the time, he wasn’t familiar withthe Saskatchewan registration. [34] Why one would leave a number of old registration forms attached to a visor, particularly from another province, is somewhatpuzzling; in any event, when he gave that explanation he appeared to me to be creating the story. I simply do not accept that he wastruthful on that.

Further, although he may have been nervous when stopped by a police officer, which is not that unique a reaction formost drivers, I found Constable Schmidt’s observation as to the fumbling to be accurate and truthful. [35] With respect to his explanation as to the red eyes being due to allergies, he also indicated that he couldn’t say if he hadallergies at the time. [36] Although Mr. Cox remained true to his version of how much alcohol he had consumed, I noted that he was hesitant andunsure in providing those details, I am satisfied that he was reconstructing things in his mind as he testified.

I have no confidence in hisassessment of how much he drank, or when he drank, and I have no confidence in his belief that he was not impaired at the time ofoperating his motor vehicle. The evidence of each of the five Crown witnesses paints an entirely different picture as to his condition andI find is reliable and credible. [37] Applying the McKenzie test, I do not believe the evidence of Mr. Cox, nor am I left in doubt by it. I accept the evidence of theCrown witnesses.

On the basis of that evidence, I must determine if I am satisfied by that evidence, beyond a reasonable doubt, of theguilt of the accused. [38] Applying the test set out in R. v. Stellato, (ON CA), I am satisfied beyond a reasonable doubt that Mr.Cox’s ability to operate a motor vehicle was impaired by alcohol. Even had I removed from consideration evidence of the observationsof Cst. Schmidt made after Mr. Cox exited the vehicle, the totality of what would remain is compelling, credible, and reliable. Taking allof the evidence of impairment into consideration, I find Mr. Cox guilty on count #1. 2.

With respect to the “over .08” charge has the Crown established proper service of a true copy of the Notice of Intention to Producethe Certificate? [39] When Cst. Hennigar came on shift that evening, he was aware that there was a detainee (Mr. Cox) who was to be releasedwhen it was appropriate to do so. He testified that the necessary papers had been left by the officer he was relieving, although he did notrecall if he had spoken to the arresting officer.

He testified that he filled out the Notice of Intention to Produce Certificate at the bottomof the Certificate of Analyses, which was a multi-layered document, gave the “Service” copy to Mr. Cox, and released him at 9:00 p.m. In cross-examination, he was specifically asked if he at any time took the original, set it aside and compared the copy to the original, andhe stated that he did not. [40] The argument of Mr. Piché is that s. 258(7) of the Code casts a positive obligation upon the Crown to prove that a “true copy”was served upon the defendant, and that in these circumstances, the Crown has failed to do so.

He argues that the Certificate of Analysesis therefore inadmissible, and the Crown cannot rely on it, such that there is no evidence of the blood alcohol concentration of Mr. Cox. That would of course put an end to count #2. Mr. Piché relies in particular on R. v. Stewart, 2012 SKPC 39 , 2012 SKPC 039and R. v. Danielson, 2013 SKPC 121. [41] Although conceding that Cst.

Hennigar did not in fact actually compare what he served with what had been prepared, Ms.O’Connor argues that I can conclude on a balance of probabilities that what was served was in fact a true copy. [42] Judge Jackson dealt with this latter point in Danielson, supra, at paragraph 13 and concluded that the appropriate standard ofproof for service of the Certificate of Analyses is that of proof beyond a reasonable doubt, as the certificate would contain, if admitted,

“conclusive effect regarding determination of guilt”. As such, it deals with proof of a vital issue and requires the higher standard ofproof. I agree. [43] As to the first leg of the argument, in R. v. Laing, [1998] S.J. No. 295, a similar issue arose to the present case. In that case, asin this one, the officer was serving a carbon copy, and did not go through the copy word for word to see if it was “totally identical”.

Thetrial judge held that the officer “served a carbon copy, compared that carbon copy to the top copy to ensure that the writing which he hadprovided on the top copy had come through the copy he gave to the accused and then gave that copy to the accused” (para. 9, emphasisadded). The

summary conviction appeal court agreed with the trial judge’s finding that “if there is evidence that a carbon copy wasused, this can be sufficient to demonstrate that a true copy was served on the accused” (para. 14). The Court relied on earlier case lawthat held that a detailed comparison is not required when dealing with carbon copies. [44] In the ordinary course of events, one would assume that a carbon copy would be an accurate representation of the original.

For example, it would be impossible for an officer to write, for example, “.130” on a pre-printed carbon form, only to have that numbersomehow appear on a carbon copy as some other number. [45] However, that does not address the issue as to whether or not the number that was placed on the original actually camethrough to the carbon copy.

As Judge Jackson points out in para. 17 of Danielson, supra, the carbon process “had the potential ofproducing copies that did not accurately match either through smudging or illegibility due to failure to sufficiently depress the writing onthe original, hence the necessity for studied comparisons often undertaken on a line by line basis.” [46] In the cases referred to in Laing, there is some evidence to support the view that the carbon copy was in fact created; here,there is none.

I find that what happened was that the officer simply picked up a form that had been left, filled out the bottom portion,pulled out the service copy, and gave it to Mr. Cox. The officer could have no idea what information the service copy contained, or ifthe service copy was legible. [47] The law is set out by Judge Jackson in Danielson, supra, at para. 14: [14] It is important then to bear in mind that it is the service of the copy that must be established by the Crown in order to satisfy the requirements of section 258(7).

Further, it must be a “true copy”[1] in the sense that it was an accurate reproduction of the original whichthe serving officer must satisfy himself or herself of - in other words the obligation to look. There is no onus on the Accused todemonstrate an error on the Certificate - rather has the Crown met its onus to prove service? If not, the Certificate ought not to beadmitted into evidence. [48] The same result came about in R. v.

Vogel, 2010 SKPC 36 , in which the Court held the Certificate of Analyses wasinadmissible where the officer testified he made a tripartite carbon copy without checking the accused’s copy against the original. JudgeBaniak applied Vogel in Stewart, supra, and summarises the law at paragraphs 40 through 48. [49] In this case, the evidence of the officer who served the document is clear. He indicated that he served the Certificate ofAnalyses after it had been filled out. However, at no time did he take the original, set it aside and compare it with the copy.

He didindicate that the form he received was “sealed at the top so there are multiple copies” but that would only mean that whatever was placedon the top copy would line up properly on lower copies; however, I don’t know what if anything actually came through to the carboncopies nor does the officer who served it. In my view, this is not a matter of conjecture. The point is that, without any comparison, letalone a detailed comparison, one doesn’t know if a “true copy” was served, and the obligation is on the Crown to prove, beyond areasonable doubt, that a true copy was served.

Thus, in this case, I have a reasonable doubt that a true copy was served, and as such, Ifind that the Certificate of Analyses is not admissible at the trial to prove count #2. [50] In light of that determination, there is no evidence on count #2, the “over .08” charge, and I find Mr. Cox not guilty on count#2. This determination renders the consideration of the third issue raised moot.

________________________ B.G. Morgan, J [1] R. v. Glass (1973), (SK CA), 12 C.C.C. (2d) 450, [1973] 5 W.W.R. 761 (Sask. C.A.)