Her Majesty the Queen - v. -, 2014 SKPC 139

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 139 Date: August 21, 2014 Information: 24491433 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Audrey Stanley Appearing: Fran Atkinson For the Crown Ronald Piche For the Accused DECISION M. M. BANIAK, J [ 1 ] The accused, Audrey Stanley, stands charged as follows: On or about the 28 th day of September A.D. 2012, near Big River, Saskatchewan, did:

(1) While her ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle contrary to section 253(1) (

a) of the Criminal Code ;

(2) Having consumed alcohol in such quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle contrary to section 253(1) (

b) of the Criminal Code . [ 2 ] The proceeding commenced by way of a Charter voir dire . It was agreed by both counsel, at the outset, that the evidence from the voir dire would be applied to the trial proper. [ 3 ] The Crown called two witnesses: Sergeant Josh Hallett and Constable William Ferguson. Defence did not call evidence. [ 4 ] The Crown elected not to call any further evidence at trial and closed its case. Defence chose not to call any evidence at the trial. FACTS: [ 5 ] The Crown’s first witness, Sergeant Josh Hallett, testified that he is a ten year member of the R.C.M.P.

On September 28, 2012, he was working a night shift patrolling the area of the Whitefish First Nation. Constable Ferguson was with him, and was the operator of the police cruiser. [ 6 ] At 23:30 hours they noticed a white pickup turn onto Cyr Road from a side road or driveway. The vehicle was driving slowly (50 km./hr.) and swerving. According to him they followed the vehicle for about a minute before engaging the lights on their cruiser. The accused pulled over quickly. [ 7 ] The driver rolled down the window and spoke with the sergeant.

At that point, Sergeant Josh Hallett testified, “I could smell strong odour of beverage alcohol from her.” [ 8 ] He asked the accused for her driver’s licence and registration. She had some difficulty in producing the licence explaining that “can’t get it out, it’s sticky.” He attributed that to her poor dexterity. [ 9 ] He next asked for the registration and she could not find it.

Finally, the passenger in the truck, Fred Whitehead, pulled the registration out of his wallet and handed it to him. [ 10 ] When asked about her alcohol consumption, she told the officer that she had one drink, then three drinks, while the passenger, Mr. Whitehead offered that she had two drinks. [ 11 ] At 23:36 hours Sergeant Hallett asked the accused to exit her vehicle and go to the police cruiser. He queried her licence and registration, which took a few minutes. [ 12 ] At 23:40, he testified, he formed the belief that she was impaired. At 23:41 he read to the accused her Charter rights and police warnings.

She indicated that she did not wish to call a lawyer. [ 13 ] After arranging for the care of the vehicle and the passenger, they departed for the detachment at 12:01. [ 14 ] When asked if the police had an ASD with them, Sergeant Hallett was not sure or could not recall if one was in the police vehicle.

[ 15 ] Breath samples were taken at 00:33 and 00:54 hours and both exceeded the legal limit. [ 16 ] During cross-examination, Sergeant Hallett stated that the accused swerved once; that the road does not have painted lines on it with respect to the centre of the road or the shoulder demarcation.

He also acknowledged that the one swerve was the only bad driving he observed. [ 17 ] He also agreed with defence counsel that mere smell of alcohol does not necessarily mean impairment; that it took the accused some time to produce her driver’s licence because it may in fact have been sticky; that her inability to find the registration was due in part to the poor lighting in the vehicle and the fact that the passenger had it on him. [ 18 ] With respect to the accused’s condition, the following questions were asked and answers provided: Q: …slurred speech? A: Not witnessed by me. Q: …bloodshot eyes?

A: I couldn’t see anything. Q: Did you ask when her last drink was? A: No. Q: …type of alcohol consumed? A: No, I didn’t ask. Q: Why did you ask her to exit the vehicle? A: One, safer for me; two, so I could speak with her without interruption by Mr. Whitehead. Q: You were not at this point making a breath demand or an arrest? A: No. Q: …any lack of motor skills?

A: Did not notice. [ 19 ] When questioned about his policy with respect to the ASD, and whether one was available to him, Sergeant Hallett answered as follows: “I was convinced that I had reasonable grounds and I would not have used it even if I had one.” [ 20 ] The Crown’s second, and final, witness was Constable William Ferguson, a member of the R.C.M.P. since 2005. On September 28, 2012, he was, together with Sergeant Hallett, patrolling the Big River detachment area.

Around 23:30 hours he came upon the accused’s vehicle which had come out of the driveway and onto Cyr Road. [ 21 ] According to Constable Ferguson they caught up to the slow moving vehicle very quickly and activated the police cruiser’s emergency lights. They wanted to check the driver for licence, registration and sobriety.

[ 22 ] Sergeant Hallett went to speak to the driver. Constable Ferguson was behind him. [ 23 ] The driver found the licence in her purse and started looking for her registration, firstly pulling down her visor.

Constable Ferguson testified that he had told her to put on the interior light and that she pulled out the registration from the glove box. [ 24 ] He further testified that when Sergeant Hallett asked the accused how many drinks she had that she said one and then two. [ 25 ] He testified that the accused’s voice “appeared slurred”; that there was an odour of alcohol emanating from her breath and that she was very unsteady, “… while walking to the vehicle she weaved, nearly hitting the vehicle, but did not.” [ 26 ] He was with Sergeant Hallett in the police vehicle, and, according to him, the accused was arrested at 23:39 for impaired driving. [ 27 ] During cross-examination, Constable Ferguson agreed with the following suggestions made by defence counsel: “we followed the vehicle for a few moments”; that there were no painted lines on Cyr Road; that the accused’s response time to pull over once the emergency lights were activated was good; and that the main report of the occurrence was written by the main investigating officer, who was Sergeant Hallett. [ 28 ] Constable Ferguson had no explanation as to why his testimony differed from Sergeant Hallett’s with respect to whether the interior lights were on in the accused’s vehicle; why he believed that the accused pulled the registration out of the glove box whereas Sergeant Hallett testified that it was Fred Whitehead who produced the registration after pulling it out of his wallet; the discrepancy as to what the accused said when she was asked how many drinks she had; how he noted that the accused’s speech was slurred and her balance poor whereas Sergeant Hallett observed no such indicia either at the roadside or at the detachment. [ 29 ] Where there is discrepancy in their testimonies, I prefer the evidence of Sergeant Hallett.

He had more interaction with the accused prior to the demand and he was the one who made the demand. As the main investigator, he prepared the general occurrence report. DEFENCE POSITION: [ 30 ] The main argument advanced by the defence is that Sergeant Hallett lacked reasonable grounds to arrest and demand breath samples from the accused.

Even if he held subjective belief that the accused was impaired, that belief would not withstand scrutiny based on the objective analysis. [ 31 ] The only evidence, and therefore grounds for the demand, was that the accused drove, that she had something to drink and that she smelled of beverage alcohol. [ 32 ] There was no evidence of bad driving; slurred speech; bloodshot or glossy eyes; or unsteadiness or lack of balance. [ 33 ] The police officer admitted that he lacked grounds to make the demand when he asked the accused to exit her vehicle and go to the police car, yet four minutes later, even though no new evidence manifested itself in the car; he came to the conclusion that he had reasonable grounds to make a demand for a breath sample.

[34] Accordingly, defence submits, the accused’s s. 8 and s. 9 Charter rights were breached. [35] This triggers a Grant analysis, and if it is found that the admission of the evidence obtained would bring the administration ofjustice into disrepute it should be excluded. CROWN POSITION: [36] The Crown argues that defence failed to establish or prove a Charter breach. As such, the evidence obtained is admissible. Crown pointed to R. v.

Gunn, 2012 SKCA 80 and argued that the totality of the evidence has to be considered when determining whetherthe police officer had reasonable grounds to make the demand. [37] If this approach is adopted, so argues the Crown, it will be evident that the police officer not only had the subjective belief,but that his belief was objectively reasonable.

ANALYSIS: [38] Section 254(3) of the Criminal Code reads as follows: If a police officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under s. 253 as a result of the consumption of alcohol, the police officer may, by demand made as soon aspracticable, require a person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol, in the person’s blood. [39] This section, therefore, authorizes a warrantless search if the police officer had reasonable grounds to believe that the accusedhad within the preceding three hours operated a motor vehicle while his ability to do so was impaired by alcohol. [40] Mr. Justice Caldwell in R. v.

Gunn, supra, paras. 7 and 8 states the law as follows: …the officer must subjectively (or honestly) believe the individual has driven while impaired or “over .08” within the preceding threehours 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. Shepard, 2009 SCC 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 possibilities which simply requires the Court todetermine whether the factors articulated by the officer who made the breath demand were reliable and were capable of supporting theofficer’s belief that the individual had driven while impaired or over “.08” within the preceding three hours. [8] Where an individual challenges the validity of the 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.

Storey, (SCC), [1990] 1S.C.R. 241 at 250; and R. v. Restau, 2008 SKCA 147 at para. 17). This is a question of law and the trial judge’s answer to it is measuredon appeal against the yardstick of correctness. [41] At paragraph 10 in Gunn, supra, the Court of Appeal states what the police officer needs to do in order to support hisconfirmation that his belief was objectively reasonable:

… where the reasonableness of the officer’s belief is challenged in Court, the officer must be in a position to articulate sufficientobservations and to point to other evidence which would rationally and reliably sustain the officer’s belief of impairment on an objectivebasis. [42] In the instant case, Sergeant Hallett formed the opinion that he had reasonable grounds to make a demand for a breath sampleon the basis that the accused smelled of beverage alcohol and that she admitted to having one or three drinks. [43] None of the other indicia of impairment, which is commonly noted, such as bloodshot and glossy eyes, slurred speech,unsteady balance were observed by Sergeant Hallett.

He testified that when he asked the accused to exit her vehicle and go to the policecruiser he had not formed the grounds for a demand. I did not hear any evidence during the four minute interval that she was in thepolice vehicle that would change the situation and create reasonable grounds. [44] I find that Sergeant Hallett did not ‘articulate sufficient observations’ to sustain his belief on an objective basis. [45] The driving, other than one swerve and lower speed, was unremarkable. He followed her for one minute and did not noticeany other infractions.

When the emergency lights were activated she pulled over immediately, which suggest to me that she was awareof the vehicle behind her. [46] It is likely, taking the totality of Sergeant Hallett’s testimony, that he had a subjective belief that the accused was impaired. But on the whole, he had at best only equivocal evidence of impairment. This would have provided him the grounds to use furtherscreening tools, such as sobriety tests or a roadside screening test. [47] Sergeant Hallett chose not to do so.

He testified that he was not sure if he had the ASD in his vehicle, but that even if he hadone he would not have bothered using it. This type of cavalier or flippant attitude is not to be encouraged or ignored. [48] It is possible that Sergeant Hallett confused or failed to appreciate the distinction between reasonable suspicion and reasonablegrounds. This distinction was addressed by the Supreme Court in a couple of recent cases. In R. v. McKenzie, 2013 SCC 50, the Courtdifferentiated the two as follows: [74] Parenthetically, I note that there are several ways of describing what amounts to the same thing.

Reasonable suspicion means“reasonable grounds to suspect” as distinguished from “reasonable grounds to believe” (Kang-Brown, at paras. 21 and 25, per Bunnie J.,and para. 164, per Deschamps J.) To the extent one speaks of a “reasonable belief” in the context of reasonable suspicion, it is areasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual isconnected to the offence.

As Karakatsanis J. observed in Chehil, the bottom line is that while both concepts must be grounded inobjective facts that stand up to independent scrutiny, “reasonable suspicion” is a lower standard, as it engages the reasonable possibility,rather than the probability, of crime (para. 27). [49] Taking all of Sergeant Hallett’s testimony into account, I am of the view that he suspected that the accused was impaired.

Reasonable suspicions do not in and of itself, without more, provide reasonable grounds for a breath demand. [50] I find that this reasonable suspicion would have given Sergeant Hallett grounds for an ASD demand but not for a breathdemand.

As such, the accused’s s. 8 Charter rights were violated. [51] Having found a Charter violation, it is necessary to engage in the three point Grant (2009 SCC 32 , [2009] 2 S.C.R.353) analysis to determine whether the evidence obtained as a result of the warrantless search should be excluded. [52] To that end, three factors have to be considered: 1) The seriousness of the Charter-infringing state conduct which led to the discovery of the evidence;

2) The impact of the breach on the Charter rights of the accused; 3) Society’s interest in the adjudication of the case on its merits. [ 53 ] The right to be free from unreasonable search and seizure is something that has been recognized as important by all levels of Court in Canada. Accordingly, there would have to be extraordinary or compelling reasons to admit evidence obtained in a contravention of this important right.

No such reason existed in this case: the accused was cooperative; there were no time constraints and Sergeant Hallett had alternate screening measures available to him. [ 54 ] It seems that he chose to proceed in a manner which disregarded the accused’s Charter right when he clearly did not need to do so.

Such disregard, particularly by an experienced officer, favours exclusion. [ 55 ] In considering the impact of the breach on the Charter –protected rights of the accused it is important, firstly, to acknowledge the intrinsic value of that right, and then determine whether its violation is in any way justifiable. [ 56 ] To be detained, arrested and required to provide incriminating evidence is anything but trivial.

The future consequences to the accused – suspension of driving privileges, fines or jail – are also significant. [ 57 ] The course of action undertaken in this instance by Sergeant Hallett was improper especially if one takes into account his investigative options.

This, therefore, would also weigh in favour of exclusion. [ 58 ] Finally, it is necessary to consider society’s interest in the adjudication of the case on its merits. [ 59 ] One cannot deny that society is well served when drinking and driving offences are prosecuted vigorously. [ 60 ] By the same token, no one can deny that society benefits greatly when an individual’s Charter rights are respected. [ 61 ] It is also true that quite often the two are not necessarily mutually exclusive.

In this case, if the police officer had followed the accepted practice and investigative technique of requesting the accused to take

part in a roadside screening test, we would not be discussing this issue. [ 62 ] Whatever his reason, Sergeant Hallett’s hasty decision to proceed with the breath demand resulted in the s. 8 breach. That breach would have been avoided altogether by basic, sound and diligent police work. It warrants exclusion – as the admission of the breath test results would bring the administration of justice into disrepute. That evidence is excluded. [ 63 ] Dated this 21 st day of August, A.D., 2014, at the City of Prince Albert, in the Province of Saskatchewan. _______________________ M. M. Baniak, J