Her Majesty the Queen - v. -, 2010 SKPC 33

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 33 Date: April 22, 2010 Information: 36876591 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Barbara Russell Appearing: Mr. S. Bains For the Crown Mr. R. P. Piché For the Accused JUDGMENT Q. D. AGNEW , J [ 1 ] The accused, Barbara Russell, is charged that on or about March 4, 2008, at Saskatoon, Saskatchewan, she: (1) operated a motor vehicle while her ability to do so was impaired by alcohol or a drug contrary to ss. 255(1) and 253 (

a) of the Criminal Code , and; (2) operated a motor vehicle having consumed alcohol in such quantity that the concentration thereof exceeded 80 mg. in 100 ml. of her blood, contrary to ss. 255(1) and 253 (

b) of the Criminal Code .

[ 2 ] There are two issues to be decided. The first is whether or not, in the words of defence counsel, the arresting officer had “reasonable and probable grounds” to demand a breath sample from the accused under s. 254(3) of the Code . The second issue is whether or not the accused’s rights under ss. 7 , 9 and 12 of the Canadian Charter of Rights and Freedoms were violated by the length of time she spent in police custody following her arrest. [ 3 ] The uncontradicted evidence establishes the following:

a) on March 4, 2008, at approximately 3:30 a.m., a vehicle struck the front steps of a house located at 134 Forrester Road, in Saskatoon;

b) the house is located at a “T” intersection where Pendygrasse Road intersects Forrester Road. There is a stop sign on Pendygrasse Road;

c) Forrester Road is straight and uncontrolled at the intersection;

d) the house at 134 Forrester Road is located such that a car driving straight on Pendygrasse Road, if it did not stop or turn, would strike the house;

e) the vehicle which in fact struck the house avoided two vehicles parked in the front driveway of that house, driving instead across the lawn before striking the concrete stairs leading to the front door of the house;

f) there was extensive damage to the concrete steps, with enough concrete smashed to expose the rebar within. In addition, the steps moved sufficiently to destroy the aluminium outside door on the front door of the house. Damage to the car was sufficiently extensive that at least one of the police officers on the scene considered the car to be inoperable. There was steam coming from the hood of the car when one of the homeowners looked out, following the collision;

g) there was no ice on the road, but simply a light dusting of snow. There was otherwise nothing remarkable about the driving conditions. [ 4 ] The defence did not challenge the evidence that the accused was the operator of the car at the time of the accident, and indeed the evidence to that effect was conclusive. Reasonable grounds [ 5 ] The accused was taken into custody, charged with impaired driving and taken to the police station to have samples of her breath taken.

The defence argues that the arresting officer did not have “the reasonable and probable grounds required under s. 254(3) of the Criminal Code ” to make the demand. Under s. 254(3), the officer only needed to have “reasonable grounds” to believe that Ms. Russell had, within three hours prior to making the demand, been driving either while her ability to do so was impaired by alcohol or while “over .08”. [ 6 ] The demand was made at 4:00 a.m. by Constable Heather Navrot. She testified that she formed a suspicion of impairment when she first dealt with the accused.

This was at 3:53 a.m., when the accused was being treated in an ambulance by the ambulance attendants. At that time, Constable Navrot spoke with the accused and asked her if she had been drinking. The accused answered that she had drunk some wine at approximately 1:00 a.m. When the ambulance attendants released Ms. Russell, Constable Navrot asked her to step out of the ambulance and speak with her. Constable Navrot testified that at this time she was suspicious of impairment because of the accident and the accused’s admission with respect to drinking. She testified that Ms.

Russell was not under arrest at this point, but rather she was being detained for investigation.

[7] At this stage, according to Constable Navrot, Ms. Russell became belligerent and uncooperative, and it took two officers tohandcuff her and take her purse away from her. She was then placed in the back of the police vehicle, to the accompaniment of muchprofanity and screaming on her part. While in the car, Ms. Russell remained uncooperative. Constable Navrot thought that perhaps Ms.Russell could not hear her, and accordingly opened the “silent patrolman” separating the front seat from the back seat of the patrol car, atwhich time she detected a “strong odour of alcohol”.

At other points in her testimony, she referred to the odour as being “strong anddistinct” and “overpowering”. Constable Navrot then concluded that she had grounds for the breath demand. On cross-examination,Constable Navrot acknowledged that the belligerence and other conduct of the accused were part of the grounds she used in deciding tomake the breath demand. [8] The defence argues that, in the absence of other evidence, the constable did not have “reasonable grounds to believe” thatMs.

Russell was impaired or was “over .08”. [9] The test in essence requires that the officer, in making the breath demand, have an actual belief (the subjective test) that anoffence under s. 253 has been committed in the preceding three hours, and that there be (the objective test) grounds which make thisbelief reasonable. The defence, both in evidence and in argument, did not take issue with the constable’s subjective belief; rather, thethrust of the defence on this point was that the officer lacked objective grounds sufficient to make this belief reasonable.

That argumentturns largely on the absence of evidence from the constable with respect to other usual indicia of intoxication, including flushed face,lack of manual dexterity and lack of comprehension in conversation. [10] In considering the reasonableness of the officer’s belief, weighing the presence of various factors against the absence of otherindicia often present in such cases, I remind myself that to make out a charge of impaired driving, there is no set minimum on the degreeof intoxication.

Rather, if the accused’s ability to drive is impaired in any degree by alcohol, the elements of the offence have been madeout: R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C. A.), aff’d (SCC), [1994] 2 S.C.R.478n. It would therefore be possible for a driver to be impaired within the meaning of the Code while exhibiting few, if any, of theclassic signs of intoxication. I am accordingly more concerned with the factors seen by the officer than by those not seen, and mustdecide whether or not the factors noted are sufficient to constitute an objective basis for the officer’s subjective belief.

Saying, inessence, that the accused’s condition could have been worse does not assist me in deciding whether or not the Stellato, supra test hasbeen met. [11] With respect to factors present, the evidence is that:

a) the accused was the operator and sole occupant of a vehicle which, for no apparent reason, drove across a front lawn and struck ahouse with sufficient force to both render the car inoperable and damage the concrete steps to the point that Constable Navrot describedthem as appearing that there were “no stairs left”;

b) the accused acknowledged that she had been drinking earlier in the evening;

c) within the confines of the police cruiser once Ms. Russell was inside, there was an odour of alcohol which Constable Navrot variouslydescribed as “strong and distinct”, “overpowering” and filling the car;

d) the accused was belligerent and, despite her relatively small size, it required two officers to restrain her and take her purse away fromher. Thereafter she continued to be belligerent, complete with screaming and profanity. [12] It is of course always possible that any of these matters could be unrelated to alcohol consumption. It would be possible, forexample, for the accident to have occurred because Ms. Russell dozed off at the wheel. It would be possible for her belligerence to beexplained by an assertion that she was naturally a belligerent person, given to loud profanity.

However, the officer is not required toconsider every possible explanation of each separate indication on which she relied. Rather, the question is whether all of these factors(

a) through (

d) constitute an objectively-reasonable basis for believing that the accused’s ability to drive was impaired by alcohol.

[ 13 ] I consider that the totality of these factors constitute reasonable grounds pursuant to s. 254(3). Sections 7, 9 and 12 - Overholding [ 14 ] At the police station, the accused twice provided breath samples showing her blood alcohol level to be 150 milligrams of alcohol in 100 millilitres of blood. [ 15 ] The second defence argument was not a defence as such, but rather an allegation that Ms.

Russell’s rights under ss. 7, 9 and 12 of the Charter of Rights and Freedoms were breached by the length of time she was detained in custody at the police station, and accordingly that the charges against her should be stayed by the Court. I heard the evidence on this issue on a voir dire , and indicated that I would determine the outcome of the voir dire in the judgment on the trial proper. [ 16 ] The trial evidence was applied on the voir dire .

In addition, there were three further witnesses: the accused; Sergeant Mitzel, who was the sergeant in charge of detention for most of the period when the accused was in custody and was also the officer responsible for her ultimate release; and Constable Stokalko, at the time in question a special constable working in the detention area of the Saskatoon Police Station. Neither officer had any specific recollection of Ms. Russell but testified as to the documents which were completed with respect to Ms.

Russell, and the usual practices in the detention area at the time. [ 17 ] The Certificate of Analyses indicates that the accused’s second sample was taken at 5:40 a.m. that morning, and the evidence was that she would have been placed in a cell thereafter. She was released from police custody at 2:58 p.m. Sgt. Mitzel testified that this meant that she was literally on her way out the door at that time, all documents received, all processing completed.

He also stated that the process of serving documents and otherwise processing someone being released would typically take about 15 minutes, although events could increase this, such as having someone brought in to be booked into detention while the process was going on. According to the occurrence report of Constable van de Kamp, she served the accused with various forms relating to her charges at 2:20 p.m. There is no explanation as to why this occurred at 2:20 but the accused’s release was not completed until 2:58.

There was no suggestion in the evidence or in argument that this was problematic, and I am willing to accept that by 2:20 at the latest the decision had been made by Sgt. Mitzel that the accused could be released, and that the detention staff thereafter went about the release process in a reasonably diligent manner. I am accordingly treating the questionable period of her detention as being from 5:40 a.m. until 2:20 p.m. the same day, a period of eight hours and forty minutes.

As the accused could not in any event expect to have been released from custody the instant the second breath sample was completed, I am rounding this figure to eight and a half hours. [ 18 ] Sgt. Mitzel testified that on the day in question his shift ran from 5:30 a.m. to 5:30 p.m. and that he accordingly would have been the officer in charge of detention for the entire period the accused was held in cells. His evidence was that his practice at the time was to hold in cells for a period of time anyone who was “over .08”, regardless of their readings or other factors.

Again, he did not recall the accused specifically but referred to his general practice. [ 19 ] Sgt. Mitzel’s evidence was that on a typical morning, detention routine starts to pick up at about 6:00 a.m. Between approximately 6:30 and 7:30, adults going to court are processed out of the cells. Youth then take until roughly 8:30. Typically this busy period would be completed by 9:00 to 9:30. Thereafter, he would begin to look at releasing prisoners.

He stated that he would begin with persons brought in before midnight of the night before. [ 20 ] From looking at the detention documentation from the day in question, Sgt. Mitzel concluded that it was something of a busy morning in the detention area after the accused was locked up in the cells. His characterization in this regard was not challenged. There were what is apparently a large number of people being held in cells, including a number of people who were intoxicated.

A number of prisoners had to be prepared for, and transported to, court that morning, as well as a number of youths who had to be fingerprinted, processed and taken to vehicles for transportation. I took it from his evidence that the timings referred to in the preceding paragraph would likely have been increased on this particular day. He conceded that from the documents, it was likely that the accused could have been released from custody earlier than she was, likely about noon rather than almost 3:00. [ 21 ] The accused testified on the voir dire . She stated that she drank alcohol on the evening in question.

She also testified that she was on certain medications at that time, and that it was recommended that alcohol not be consumed while on those medications. She

gave evidence that she made the decision to drink that evening even though she was aware that she was not to drink alcohol while using those medications; that is, she deliberately disregarded that recommendation as opposed to simply having forgotten about it. [ 22 ] She also testified that the mixing of the medications and alcohol would “most likely” have an effect on her, including on her outward behaviour. She stated that having alcohol in her system “totally alters” her personality, including “probably” making her more belligerent.

Given that Cst. van de Kamp’s report refers to the accused as being “pleasant to deal with” at roughly 2:30 p.m., I believe that the accused’s view is accurate. [ 23 ] As indicated above, her behaviour at the time of her arrest was extremely aggressive and belligerent. According to Constable Navrot, whose evidence I accept, the accused continued to be uncooperative and belligerent from the time she was initially detained, at approximately 3:54 a.m., through the end of the constable’s dealings with the accused at or after 5:40 a.m.

This behaviour included yelling, screaming and use of profanities, although I do not know whether specifically the vocalizations continued throughout this entire time period. Cst. Rozon, the breath technician who dealt with the accused, also indicated that she was “very argumentative” and difficult. [ 24 ] The accused also gave evidence that the combination of her medication and alcohol “probably” had an effect on her recollection of the events to which she testified. The difficulties with the accused’s recollection may be partly to blame for the confusion in some of her testimony.

She testified that after being lodged in cells, the only time she saw a police officer was when breakfast and lunch were served. She also testified, however, that she could see an officer “down the hall” throughout the period of her incarceration.

She indicated that she never told anyone about requiring any medication because there was no one to tell, that she never saw anyone while in the cells, but again testified that she saw an officer sitting within hailing distance throughout, that officers came by at breakfast and lunch times, and that on at least one occasion two officers walked by closely enough that she could ask for a sheet or blanket without having to raise her voice. [ 25 ] In attempting to determine what happened during the time of the accused’s detention, therefore, I am left with the testimony of:

(1) Sgt. Mitzel and Cst. Stokalko, who do not recall the accused and can testify only as to their general practice and what meaning can be gleaned from the police booking documents; (2) the written report of Officer van de Kamp, who dealt with the accused only for a brief period immediately prior to her release; and (3) the testimony of the accused, which is by her own admission and by virtue of its internal inconsistencies of questionable worth. [ 26 ] In the end, I am left with almost no evidence of any assistance to me with respect to most of the period of the accused’s incarceration.

She was extremely belligerent and difficult for the first hour and three-quarters in which she was in police custody, and given that she also had a strong odour of alcohol about her, it would not be unreasonable to keep her in custody for a period for her own protection and that of others. When this period might have ended is not at all clear on the evidence. I accept that detention staff will have to deal with conflicting priorities from time to time, including getting prisoners to court on time, booking in new arrests, and reviewing and releasing those in cells.

It might in some case be appropriate to examine in minute detail how detention staff set their priorities in such situations; this is not such a case, as no evidence on such matters was entered before me. [ 27 ] Sgt. Mitzel testified that the accused likely could have been released at about noon, or two and a half to three hours before she was in fact released. Even this conclusion was based on his review of the detention documents, rather than any recollection of the accused’s particular situation.

Why she was not released then did not arise in the evidence before me. [ 28 ] In light of the above, I am not prepared to find an arbitrary detention with respect to the period before noon. With respect to the period thereafter, the only evidence I have of any change in circumstances is Sgt. Mitzel’s rather offhand remark that the accused likely could have been released by noon or earlier. Given that (

a) he had no recollection of the accused or her circumstances, (

b) he

made no reference to any documents which led him to that position and (

c) there was nothing in the reports filed with the Court whichseems to bear out his conclusion, I am uncertain as to the use I am to make of this remark. From observing Sgt. Mitzel in the courtroomand reviewing his testimony, I conclude that he was concerned that the accused may have been held too long, but had no recollection toaffirm or deny that concern. He was therefore hedging, conceding the possibility of an excessive detention but for a short period of timeonly, without actually having a basis for making that statement. Neither the defence nor the Crown chose to pursue this issue inquestioning Sgt.

Mitzel, nor did either choose to address it in their written submissions. I have concluded that the statement is of noprobative value at all, being based not on recollection or records, but born instead from a desire not to appear too unreasonable; as such, Ican have no confidence in it as a statement of fact. I cannot therefore conclude that the situation after noon was any different from thesituation prior to noon in which, as stated above, I have found no arbitrary detention. [29] Having concluded that Sgt.

Mitzel’s testimony in this regard is not credible, I have also reviewed the question of whether ornot this damages his credibility to the extent that I must discount his other testimony. I have concluded that I can still have someconfidence in the balance of his testimony. This statement was the only one which related specifically to the accused; all others dealtwith his usual practices or policies, or were

interpretations of the documents presented to him. [30] The onus is on the accused to establish a Charter breach on a balance of probabilities. Her evidence is, by her ownadmission, suspect; furthermore, it contains difficulties and contradictions which make me inclined to give it little weight. The evidenceof Sgt. Mitzel with respect specifically to the accused was likewise of little assistance, as he testified and I believe that he had norecollection of her.

The evidence of the greatest weight are the documents, specifically the report of Cst. van de Kamp and the PrisonerInsert Booking Form, and the testimony of Csts. Navrot and Rozon. All other evidence with respect to the overholding issue is soquestionable as to be of no weight. The accused has not established on a balance of probabilities that her right to be free from arbitrarydetention was violated.

Accordingly, I have concluded that the defendant’s application pursuant to the Charter fails. [31] Had I concluded that the accused’s Charter rights had been violated by the length of time she spent in custody, I would nothave stayed the charges against the accused in any event. The evidence that I accept does not persuade me that this is the “clearest ofcases” which justifies a judicial stay: R. v. Regan, 2002 SCC 12 , [2002] 1 S.C.R. 297.

From the circumstances outlined in thetrial, including the accident and its aftermath, even if the accused has no prior record I suspect I may look to a punishment above theminimum, in which event a remedy of a reduction in penalty would be both possible and more appropriate than a stay of proceedings. [32] I should mention that I am extremely troubled by Sgt. Mitzel’s testimony that at the time in question, it was his policy to keepin custody any person who was “over .08”.

Again, this issue was not pursued in evidence, but taken on its face it is clearly in violationof the law as it relates to release of accused persons from police custody. In the event, I do not find that the accused was detainedbecause of that policy but rather because of her conduct as indicated above. I accordingly am not dealing with the issue any further, as ithas no applicability to the case before me. [33] In light of the above, I find the accused guilty on both counts.

I direct a conviction be entered on count one, and a stay enteredon count two at the expiration of all applicable appeal periods. ____________________________ Q.D. Agnew, J