Her Majesty the Queen - v. -, 2013 SKPC 197

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 197 Date: December 13, 2013 Information: 43212322 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Derek J. Nernberg Appearing: Ms. R. Wempe For the Crown Mr. A. Fox, Q.C. and Mr. P. Wood For the Accused DECISION ON VOIR DIRE M.

HINDS , J INTRODUCTION [ 1 ] Derek Nernberg is charged that on or about the 21 st day of June A.D. 2012 at or near Regina, Saskatchewan, he had the care and control of a motor vehicle while impaired by alcohol or a drug, contrary to section 253(1)(a), and that he operated a motor vehicle while over .08, contrary to section 253(1) (

b) of the Criminal Code .

[ 2 ] A Charter voir dire was conducted during the testimony of Constable Eric Lauf and Corporal Jason Wilkinson who were involved in the investigation of the charges before the Court. The Defence takes the position that Constable Lauf did not have reasonable grounds to make the breath demand on Mr. Nernberg. As a result of the detention, Mr. Nernberg’s rights pursuant to

section 8 of the Charter to be secure against unreasonable search and seizure were infringed. The Defence seeks an order pursuant to section 24(2) of the Charter that the breathalyzer samples taken from Mr. Nernberg on June 21, 2012 should be excluded from evidence. The Defence also takes the position at trial, that the Crown has failed to prove that Mr. Nernberg was impaired by alcohol or drug. [ 3 ] In this case I have determined that there was a breach of Mr. Nernberg ’ s

section 8 Charter rights. I embarked upon the section 24(2) analysis set out by the Supreme Court of Canada in R. v. Grant , 2009 SCC 32 and I found that the Certificate of Analyses should not be admitted into evidence at trial. FACTS [ 4 ] Constable Lauf was working by himself on the evening of June 21, 2012. He was driving a police vehicle and wearing a police uniform. At 10:38 p.m., Constable Lauf was initially dispatched by police communications to the intersection of Donahue Avenue and Pasqua Street respecting an impaired driver in progress.

Constable Lauf was advised by police communications that a caller said that a silver coloured, four door 2006 Pontiac Grand Prix, Saskatchewan licence plate 821 DYT, was swerving all over the road and had hit a curb on Donahue Avenue. While en route Constable Lauf was advised that the caller said that they followed the Pontiac Grand Prix motor vehicle to 15 Gale Street. Constable Lauf was further advised that the caller believed they were following a male driver who was 40 years of age with dark hair. [ 5 ] Constable Lauf arrived at 15 Gale Street at 10:43 p.m.

He observed the accused inside a Pontiac vehicle parked in the driveway. He parked directly behind the vehicle. Constable Lauf observed that the brake lights were on. Constable Lauf then turned on his emergency lights. He observed the reverse lights of the Pontiac vehicle flash on and off and then the brake lights turn off. Constable Lauf got out of his police vehicle. The accused also got out of the driver’s seat of the Pontiac vehicle. Constable Lauf was unable to say whether the Pontiac vehicle was running or not. [ 6 ] The two men met about two feet away from the driver’s side of the Pontiac vehicle.

Constable Lauf spent about 1 ½ to 2 minutes with the accused before detaining him. He asked the accused where he was coming from. The accused said he was “just coming out to his car to grab his wallet”. Constable Lauf observed that the accused had his wallet and keys in his hands. Constable Lauf advised the accused that he had a call for service in regards to his vehicle and that witnesses had observed a male driver of the vehicle which had parked in this driveway.

At that time Constable Lauf smelled a strong odour of beverage alcohol coming from the accused’s breath and asked the accused how much he had to drink. The accused told the officer that he had come from Brewster’s South where he had two pints of beer and that his girlfriend had driven him. [ 7 ] Constable Lauf testified in-chief that he observed a Pilsner can inside the cup holder of the middle console of the vehicle and a partially opened beer box on the passenger floor.

He further observed that the accused was “kind of” swaying from left to right and that the accused had red, glassy eyes. [ 8 ] Constable Lauf escorted the accused to the patrol car and advised him that he was being detained for impaired driving. He placed the accused in the back of the patrol car. Constable Lauf got into the front driver’s seat of the patrol car. Constable Lauf observed the accused to be texting on his cell phone. He asked him several times to shut his cell phone off. Constable Lauf testified that he could smell a strong odour of alcohol coming from the accused again.

I find that at that point in time he would have reasonably suspected that the accused had alcohol in his body. He arrested the accused at 22:47 (10:47 p.m.) for impaired driving. [ 9 ] Constable Lauf read the accused his Charter rights and police warning at 10:47 p.m. and read the breath demand at 10:49 p.m. [ 10 ] Corporal Wilkinson and Constable Lebel arrived at 15 Gale Street. The officers exchanged information and Corporal Wilkinson agreed to act as a breath technician in relation to the accused.

[ 11 ] The accused was transported to the Regina Police Station. The accused spoke to Legal Aid duty counsel between 11:22 and 11:26 p.m. Breath samples were subsequently obtained from the accused. Constable Lauf testified that he observed that the first breath sample was obtained from the accused at 11:42 p.m. A second breath sample was unsuccessful at 12:02 a.m. However, a third breath sample was successfully obtained at 12:03 a.m. The accused was subsequently charged and lodged in cells. [ 12 ] Corporal Wilkinson obtained the breath samples from the accused.

He testified that the first breath sample was obtained at 11:47 p.m. and a second breath sample was obtained at 12:08 a.m. Corporal Wilkinson testified that a third breath sample was not taken from the accused. ISSUES [ 13 ] The circumstances in this voir dire give rise to the following issues: 1. Did the police have the necessary reasonable grounds to make the breath demand of the accused pursuant to s. 254(3) of the Criminal Code ? If not, has the accused established a breach of his

section 8 Charter right? 2. If the accused ’ s rights under

section 8 of the Charter were breached, is the remedy of the exclusion of the Certificate of Analyses evidence pursuant to section 24(2) of the Charter warranted? ANALYSIS 1. Did the police have the necessary reasonable grounds to make the breath demand pursuant to s. 254(3) of the Criminal Code ? If not, has the accused established a breach of his

section 8 Charter right? [ 14 ] In R. v. Breland , 2011 SKPC 54 , Judge Gray provided a succinct

summary of the law relating to

section 8 of the 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 samples amounts to a warrantless search which is prima facie unreasonable. Thus the Crown must establish that the search was authorized by law, 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 has committed, an offence under

section 253 [impaired driving] as a result of the consumption of alcohol, the peace officer may, by demand made 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, if any, of alcohol in the person's blood ... [ 15 ] In the present case the only issue is whether Constable Lauf was entitled to make the breath demand; in other words did he have reasonable grounds? [ 16 ] In R. v. Gunn , 2012 SKCA 80 , Mr. Justice Caldwell provided a helpful

summary of the law on reasonable grounds 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 werereliable 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). [17] Mr. Justice Caldwell goes on to set out how the Court should assess the evidence when determining the reasonableness of thepolice 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). .... [18] In R. v. Vandal, [2009] S.J. No. 153 (Sask. Q.B.), Foley J. held that the time to test whether the officer had the requisitereasonable and probable grounds to believe the driver’s ability to drive the vehicle was impaired by alcohol is at the time the formalCriminal Code demand was made. [19] In this case Constable Lauf detained the accused between 10:44 p.m. and 10:45 p.m. and took him to the police vehicle.

Hethen arrested the accused for impaired driving at 10:47 p.m. and he made the formal breath demand at 10:49 p.m. [20] At 10:49 p.m., the time of the breath demand, Constable Lauf had the following information: 1. Constable Lauf was advised by police communications that a caller said that a silver coloured, four door 2006 Pontiac Grand Prixvehicle, Saskatchewan licence plate 821 DYT was swerving all over the road and had hit a curb on Donahue Avenue. While en routeConstable Lauf was advised that the caller said that they followed the Pontiac Grand Prix vehicle to 15 Gale Street. 2.

Constable Lauf observed the accused in the driver’s seat of the Pontiac vehicle parked at 15 Gale Street. The brake lights were on. Then, the reverse lights of the Pontiac vehicle flashed on and off. He subsequently observed the brake lights turn off and the accusedexited the vehicle. . 3. Constable Lauf smelled a strong odour of beverage alcohol coming from the accused’s breath. Constable Lauf asked the accused howmuch he had to drink. The accused told him he had two pints of beer. 4.

Constable Lauf testified in-chief that he observed that the accused was “kind of” swaying from left to right and that the accused hadred, glassy eyes.

[ 21 ] In this case it appears that Constable Lauf subjectively (honestly) believed that the accused had committed the offence of operating a motor vehicle while impaired in the preceding three hours. [ 22 ] There are, however, in my view, serious problems with an objective assessment of Constable Lauf’s belief. These problems are as follows: 1. Constable Lauf’s police report indicates that when he arrived at 15 Gale Street he observed the accused in a brown Pontiac car parked in the driveway. On cross-examination Constable Lauf attempted to distance himself from his written report.

Initially he testified that the Pontiac looked to be grey , not brown. Constable Lauf thought he wrote down the colour brown based on licence plate information he obtained from SGI. He conceded on further cross-examination he did not bother sorting out the issue concerning the colour of the vehicle and that he was not sure what colour it was . 2. While Constable Lauf observed the accused in the driver ’ s seat of the vehicle, the accused told the officer that he was “ just coming out to his car to grab his wallet ” . Constable Lauf observed that the accused had his wallet and keys in his hands.

While the accused appears to be responsible for engaging the brake lights and reverse lights, Constable Lauf was unable to say whether the Pontiac vehicle was running or not. 3. While Constable Lauf smelled a strong odour of beverage alcohol coming from the accused who said he had two pints of beer, the accused maintained his girlfriend had driven him from Brewster ’ s. Although, Constable Lauf subsequently spoke to the girlfriend there is no evidence that he questioned the girlfriend about whether she had been driving. 4.

While Constable Lauf observed that the accused was “ kind of ” swaying from left to right, he conceded on cross-examination that the accused had no apparent balance problems. The accused had no difficulty getting out of his vehicle, producing his licence, walking, getting into the police car and following all of Constable Lauf ’ s commands. 5. On cross-examination, Constable Lauf testified that he did not note anything different about the accused from his first encounter with him that evening until he booked the accused in at cells.

After reviewing several videos taken at the Regina Police Station on the evening of June 21, 2012, Constable Lauf agreed that nothing in the police videos show the accused was impaired. Constable Lauf also agreed that there is nothing in the video showing the accused having problems with his balance, slurring his speech or following police commands. 6. While Constable Lauf observed the accused had red glassy eyes, he agreed that he was outside when he made this observation. On cross-examination he conceded he was also outside when he experienced difficulties determining the colour of the Pontiac vehicle. 7.

Constable Lauf could not recall whether the accused wore a ball cap or had facial hair. However, after watching the police videos he agreed the accused was wearing a ball cap and had facial hair. 8. Constable Lauf testified in-chief that police communications advised that the caller believed they were following a male driver who was 40 years of age.

On cross-examination Constable Lauf agreed that the accused looked younger than 40. [ 23 ] I do not find that Constable Lauf’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. I am of the view that on the whole of the evidence adduced, a reasonable person standing in the shoes of Constable Lauf would not have believed the accused ’ s ability to operate a motor vehicle was impaired. I therefore find that the accused ’ s right against unreasonable search under

section 8 of the Canadian Charter of Rights and Freedoms was breached. If the accused's rights under

section 8 of the Charter were violated, is the remedy of exclusion of evidence pursuant to section 24(2) warranted?

[24] In R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, the Supreme Court set out three types of inquirieswhich guide the determination of whether evidence obtained as the result of the violation of the Charter rights of an individual ought tobe admitted as evidence: (1) the seriousness of the Charter-infringing state conduct which led to the discovery of the evidence; (2) the impact on the Charter-protected interests of the accused; and (3) society's interest in an adjudication of the case on the merits.

(1) The seriousness of the Charter-infringing police conduct. [25] With respect to the first avenue of the inquiry, I must consider the police conduct involved in the violation of theaccused’s

section 8 right against unreasonable search under the Charter. [26] In this case I found that Constable Lauf subjectively (honestly) believed he had reasonable grounds for a breath demand,however, I was unable to conclude objectively that there existed the reasonable and probable grounds for this belief. [27] In this case Constable Lauf had the means and opportunity to proceed with his investigation of Mr. Nernberg in a way whichwould not have infringed his Charter rights. One issue that presented itself was whether he was investigating the driver of the rightvehicle.

The caller described a silver Pontiac Grand Prix which came to be at 15 Gale Street. Constable Lauf’s report reveals that uponarrival at 15 Gale Street he observed a brown Pontiac. After some cross-examination Constable Lauf was not sure of the colour of thevehicle he found at 15 Gale Street. The colour of the vehicle issue could have been cleared up. It was not. [28] Constable Lauf was also faced with a second issue being whether the accused had been the driver of the vehicle whichprompted a earlier call to the police. The accused told Constable Lauf that his girlfriend had been driving.

Constable Lauf agreed thatpolice dispatch knew who the complainant (caller) was and that he did not make any contact with the complainant to try to determine ifthe accused was the driver. There is also no evidence that Constable Lauf made any inquiries with the girlfriend as to whether she wasdriving. [29] In this case there is some evidence that the accused was in care and control of the vehicle. However, given the (at best)equivocal signs of impairment, Constable Lauf could have made an Approved Screening Device demand on the accused to determine ifthere were additional grounds for a breath demand. In R. v.

Watchel, 2012 SKQB 273, Mr. Justice Danyliuk commented on Charterbreaches like this at paragraphs 55 - 58: 55 It is worth noting that the trial judge found Cst. Focht would have had a valid reasonable suspicion that the respondent had alcoholin his body. At that point, alternate and additional screening mechanisms became available to the officer. He did not avail himself ofsame, instead proceeding to obtain conscriptive evidence after breaching the respondent's Charter rights.

Accordingly, on these facts,there was a sufficient basis for the trial judge to conclude that exclusion of evidence was appropriate. 56 Unlike the cases cited by the Crown, the breach here was not technical or trifling. It was significant. The officer had (at best)equivocal evidence of impairment. He did have enough evidence to use further screening tools the law makes available, but he opted notto do so. Instead, he chose to breach the respondent's Charter rights. 57 He did so in a particular factual and temporal context, which the trial judge appears to have properly considered.

As said, he foundhimself in an investigation where the facts were equivocal. There was no need for undue haste. The respondent was not fleeing, and wasfully cooperative. There was no danger to anyone. Alternate screening measures could have been employed. Evidence was notdisappearing. No other witnesses were being lost. 58 Instead of acting precipitously and proceeding with an investigation that breached the respondent's Charter rights, the officer couldhave embarked on a different course. That course was not onerous.

It would have preserved the respondent's Charter rights and obtainedevidence necessary to the investigation.

[ 30 ] In this case I am of the view that the police misconduct was serious. While I have found that Constable Lauf would have had a valid suspicion that the accused had alcohol in his body, I was unable to conclude objectively that there existed the reasonable and probable grounds to believe the accused ’ s ability to operate a motor vehicle was impaired. There was no need for undue haste. The accused was not fleeing, rather he was fully cooperative. There was no danger to anyone. Evidence was not disappearing. Constable Lauf could have utilized an Approved Screening Device.

Instead he took a short cut and made the breath demand on the accused. I do not find that Constable Lauf acted in good faith.

(2) The impact of the breach on the Charter -protected interests of the accused. [ 31 ] With respect to this avenue of inquiry, I am of the view that the breach of the accused’s

section 8 Charter right seriously unde rmined the privacy interests of the accused.

(3) Society's interest in the adjudication of the case on its merits . [ 32 ] The evidence in question is a Certificate of Analyses which sets out the results of the analysis of the breath samples provided by the accused following the Charter breach. The evidence is pr esumed to be scientifically reliable although that can be challenged in the trial itself. In R. v. Lamoureux , 2012 SCC 57 , the Supreme Court of Canada upheld the provisions of section 258(1) (

c) of the Criminal Code which place a significant onus on the accused in establishing evidence to the contrary. In doing so, the Court noted at paragraph 66 that the breathalyzer scheme set out in the Criminal Code “ includes certain guarantees that place limits on police action and protect the presumption of innocence ” .

One of those limits is that an officer must have reasonable grounds before proceeding with the breath demand. [ 33 ] While society does have an interest in having drinking and driving charges adjudicated on their merits, I am of the view that society also has an interest in ensuring that provisions of the Criminal Code respecting the breathalyzer, such as section 254(3) are complied with and further that an accused’s rights under

section 8 of the Charter are not overridden. [ 34 ] In this case, having regard to all the circumstances I am of the view that the admission of the Certificate of Analyses would bring the administration of justice into disrepute and accordingly, I rule that it shall be excluded from admission at the trial. ____________________________ M.J. Hinds, J