Her Majesty the Queen - v. -, 2015 SKPC 107

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 107 Date: August 11, 2015 Information: 24451176 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dirk Watson Appearing: Mr. Kelly Onyskevitch For the Crown Mr. Brian Smith For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused is charged with impaired driving and driving while over .08 percent. In this case there was a blended Charter voir dire and trial. Defence argues that the accused’s rights under s. 10(

a) of the Charter were breached, and asks for exclusion of the Certificate of Analyses. He argues that if this evidence is excluded, there is insufficient evidence to convict. THE EVIDENCE

[ 2 ] The only witness called in this matter was Cst. Ryley Doud, of the Weyburn Police Service. He testified that he has been with the Weyburn Police Service for four years, and during this time it has been a very common occurrence for him to deal with intoxicated persons and impaired drivers. [ 3 ] On January 29, 2013, at approximately 12:40 a.m., he was dispatched to deal with a completely unrelated incident at the Detour Bar in Weyburn. He testified that he knows the accused from previous encounters. While at the Detour Bar, he stopped to speak with the accused.

He estimated the length of his conversation was between two and five minutes. As mentioned, he was acquainted with the accused. He said that the accused looked and sounded different on that night. He said the accused was swaying and unsteady on his feet and his speech was slurred. The accused was having a drink at the time. The officer believed it was an alcohol based drink. [ 4 ] After this brief encounter at the bar, the officer left and continued to look for someone else. He patrolled in the vicinity of the Detour Bar.

Approximately 15 minutes after entering the bar, at about 12:55 a.m., the officer heard and saw a blue Dodge truck exit the parking lot for the Detour Bar and head east. The officer followed the truck, and noted it had no tail lights. The truck travelled for just a couple of blocks making a couple of turns. Just before the truck stopped, the officer activated his emergency lights. The truck turned into a driveway and stopped, and the officer parked his police vehicle across the driveway behind the truck.

The officer testified that the accused could have pulled over a bit more quickly, but it was only seconds until the accused brought his vehicle to a stop. [ 5 ] The officer immediately approached the driver’s door of the truck. As he did so, he heard a sound. He indicated that it sounded like keys were being dropped or thrown. The accused was the driver and lone occupant of the truck. He was just exiting the vehicle, as the officer approached. Apparently, he asked the officer where his keys were. The officer immediately recognized the accused.

He testified that the accused’s words were slurred. [ 6 ] The officer noted there was an open case of beer on the passenger seat in the truck. He asked the accused how much he had to drink, and the accused said a lot. The officer asked the accused to come back to the police car and have a seat in the back of the police car. The accused did that. Once again, the officer noted that the accused was swaying and unsteady on his feet as he walked back to the police car. Immediately upon the accused being seated in the back of the police car, the officer noted a strong smell of beverage alcohol.

The officer then asked the accused his date of birth, and the accused gave three different dates. At this time, the officer determined that the accused was impaired and at 1:01 a.m., approximately five or six minutes after the stop, he made the breath demand. He then immediately advised the accused that he was under arrest, advised of his Charter rights and read the police warning. [ 7 ] At 1:09 a.m., they left for the Weyburn Police Station, arriving there at 1:12. The accused subsequently provided two samples in the Intoxilyzer.

The technician prepared the Certificate of Analyses, and gave an original and copy to Cst. Doud. The constable completed the Notice of Intention portion and served a true copy on the accused. ANALYSIS Evidence of observations of the accused at the Detour Bar [ 8 ] Defence counsel argued that the officer’s evidence of observations of the accused at the Detour Bar were of little use to the prosecution or the Court, and should be disregarded. I completely disagree.

This is very good and reliable evidence. [ 9 ] Firstly, I would point out that in the case of R v Allan , 2011 SKPC 84 , I dealt with a very similar situation. The officer encountered the accused in a bar. She was very drunk. A short while later he stopped the vehicle, and found she was driving. I think as a matter of common sense, and judicial notice, I am entitled to know that it takes a fair amount of time for a person to burn off or eliminate any significant amount of alcohol from their system.

As a result, if an individual police officer can testify that a person was intoxicated at a particular point in time, very likely that same person will still be intoxicated just minutes later.

[10] While in the Detour Bar, the officer was able to engage the accused in a casual conversation for a few minutes. He testifiedthat he was acquainted with the accused, and had past dealings with him. Further, that the accused looked and sounded very different onthis occasion. He said the accused looked and sounded intoxicated. The accused’s speech was slurred and he was unsteady on his feet. [11] On many occasions, defence counsel have cross-examined an individual and had that individual admit that he had never seenthe accused prior to the night in question.

Counsel will then challenge the individual’s assessment that an accused showed signs ofimpairment. In my view, applying that reasoning in reverse, this officer’s observations are more reliable and relevant. He had thatbaseline information on the accused, and was well able to testify that the accused looked and sounded differently on the night inquestion. [12] In my view, the officer was entitled to rely upon the observations of the accused at the Detour Bar, and the Court is entitled torely upon his evidence of those observations. Was there a breach of the accused’s s. 10(

a) Charter rights? [13] For a number of reasons, this argument must fail. In the case of R v Carriere, 2010 SKPC 118 [Carriere], his Honour JudgeKalmakoff found that the accused was stopped at 9:00 p.m., and the police officer immediately asked him to return to the police vehicle. At 9:03, once inside the police vehicle, the police officer made the ASD demand. His Honour Judge Kalmakoff concluded that the ASDdemand sufficiently informed the accused of the reason for his detention, and the demand having been made approximately threeminutes after the initial stop, the accused was promptly advised as required by the Charter section. He found there was no breach of thes. 10(

a) Charter right. [14] In R v Glass, 2013 SKPC 31, the officer made the vehicle stop, and asked the accused to come back to the police vehicle. Assoon as she was in the police vehicle, and he still had the strong smell of alcohol, he made the Intoxilyzer demand. I followed theCarriere decision, and ruled this was sufficient compliance with s. 10(

a) of the Charter. I then went on to make the followingcomments: Even if I am wrong in this conclusion however, I would still conclude that the police officer did not obtain any evidence by reason of thisfailure. From the time of the initial vehicle stop until the Intoxilyzer demand, he merely spoke to the accused and not in an impolite orintimidating fashion, observed her and listened to her responses. He did not compel her to submit to any sobriety tests and did notcompel her to incriminate herself.

In my view, the Supreme Court of Canada determined that this investigation and this evidence wereproper and admissible in the case of R. v. Orbanski, 2005 SCC 37. If I were to do the analysis required by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I would conclude that the officer’s evidence was admissible. [15] In the case of R v Borley, 2014 SKPC 146, the accused was asked to come back to the police vehicle, but was not given anyreason for that request. Immediately upon being placed in the police vehicle, the officer made the ASD demand.

Her Honour JudgeGordon held that any Charter breach was so minor and technical in nature, that no Charter relief was required. [16] In all of the circumstances, I would be reluctant to conclude that there was a s. 10(

a) Charter breach. If I were to concludethat, I would still conclude that it took only about five minutes from the time the police officer asked the accused to come back to thepolice car until the formal Intoxilyzer demand was made. By making the formal Intoxilyzer demand, it became very apparent to theaccused why he was detained, and any s. 10 breach was rectified. During the intervening five minute period, no evidence was obtainedagainst the accused. During the intervening time period, the officer determined he had reasonable and probable grounds for theIntoxilyzer demand and made that demand.

There is no evidence obtained during this five minute period that could be excluded asCharter relief. Furthermore, if I were to do the Grant analysis, I would determine that the evidence is admissible in any event. CONCLUSION ON VOIR DIRE [17] The only argument that defence counsel advanced regarding the admissibility of the officer’s testimony on the .08 charge, andthe admissibility of the Certificate of Analyses on the .08 charge, was the s. 10(

a) Charter breach. Having concluded that there was nos. 10(

a) breach and this evidence would be admissible in any event, I now admit all of the officer’s evidence on the Charter voir dire in

the trial proper and admit the Certificate of Analyses in the trial proper. CONCLUSION ON THE TRIAL PROPER [ 18 ] During the trial, defence counsel advised this was a blended Charter voir dire and trial. At the conclusion of the Crown’s evidence, defence counsel advised there was no defence evidence on the Charter voir dire or the trial. Having concluded that the officer’s evidence and Certificate of Analyses are admissible on the trial proper, I have no doubt about the matter and find the accused guilty of driving a motor vehicle while his blood alcohol content exceeded .08 percent.

I impose a judicial stay with respect to the charge of impaired driving. [ 19 ] Dated at the City of Weyburn, in the Province of Saskatchewan this 11 th day of August 2015. D. Kovatch, J