Her Majesty the Queen - v. -, 2013 SKPC 86

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 086 Date: June 24, 2013 Information: 24402308 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Henry Franke Appearing: Andrew Davis For the Crown Nicholas Robinson and Brian Smith For the Accused JUDGMENT K. LANG , J I. INTRODUCTION [ 1 ] This case involves a police investigation precipitated by a dispatch call of a possible impaired driver in a rural area where the officer was patrolling. [ 2 ] Mr.

Franke was ultimately charged with driving a vehicle while his ability to do so was impaired by alcohol and while his blood alcohol content was over 80 milligrams per 100 millilitres of blood.

[ 3 ] The circumstances give rise to two issues under the Charter of Rights and Freedoms and one substantive issue. [ 4 ] The only witness to testify was Cst. Upshall. Cst. Upshall initially testified at the voir dire relating to admissibility of evidence relating to the Charter issues. However, his evidence was then applied to the trial proper with the consent of both counsel. II.

FACTUAL BACKGROUND [ 5 ] At approximately 3:30 p.m., on May 10, 2010, Constable Upshall of the RCMP was patrolling near Avonlea, Saskatchewan when he overheard a dispatch from the Regina Detachment regarding a report of a possible intoxicated driver. The suspect vehicle had been observed leaving the City of Regina on Highway No. 6. Shortly thereafter Cst. Upshall was told by the Regina Detachment that the suspect vehicle had now turned onto the highway leading to Avonlea. Cst. Upshall was in the area. [ 6 ] At approximately 4:15 p.m., Cst.

Upshall located the suspect vehicle by way of a licence plate number and vehicle description provided to him by the Regina Detachment. The vehicle was westbound while the officer was eastbound. Cst. Upshall executed a U-turn and proceeded to follow the vehicle for approximately 1.5 kilometres. During that time he observed both the front driver’s side and passenger’s side wheels to cross the centre yellow line and the white shoulder lane line, three or four times. The suspect vehicle was driving approximately 70 kilometres per hour. At this time, Cst.

Upshall decided to execute a traffic stop to investigate driver sobriety. He activated his emergency equipment and the vehicle pulled off the highway, coming to a stop on the side road. [ 7 ] Cst. Upshall approached the vehicle and requested the driver’s licence of the sole occupant of the vehicle. As he did so, he testified that he noted a smell of alcohol coming from the vehicle. Upon speaking with the driver, he was able to identify him by his driver’s licence as Henry Franke, whom he later identified in the courtroom. During a brief conversation with Mr. Franke at the roadside, Cst. Upshall noted Mr.

Franke to have slow slightly slurred speech and red glossy eyes. Cst. Upshall also observed what appeared to be an open and half empty bottle of beverage alcohol (34.9% alcohol content) in the front console cup holder. He also gave evidence that, upon being questioned, the driver admitted to having “a couple” of drinks. At this time, given to be 4:25 p.m. by Cst. Upshall’s evidence, the ASD demand was made. [ 8 ] Cst. Upshall had the accused step from his vehicle and accompany him to the police vehicle in order to administer the ASD. During the walk from the vehicle, Cst. Upshall noted Mr.

Franke to stumble slightly. He also testified that he was also able to localize the smell of alcohol to Mr. Franke’s breath. [ 9 ] The ASD was administered at 4:41 p.m. Cst. Upshall stated the reason for the 16 minute delay was the result of his concerns over recent consumption, particularly with regard to the open and half empty bottle of alcohol observed in the vehicle. Mr. Franke blew an “F” on the ASD and was subsequently arrested by the officer at 4:43 p.m. for impaired driving. At this time Mr. Franke was read his Charter rights and warnings.

A further demand was made for an evidentiary breath sample, with which Mr. Franke agreed. At 5:09, Cst. Upshall left the scene with Mr. Franke in order to obtain a sample of breath at the nearest available location, Milestone. [ 10 ] Cst. Upshall and Mr. Franke arrived at the Milestone Detachment at 5:32 p.m. Mr. Franke was permitted to speak with legal counsel. Samples were taken at 6:06 p.m. and 6:27 p.m. Cst. Upshall noted Mr. Franke to be staggering when attempting to provide the second sample. [ 11 ] At the voir dire Mr.

Franke made application to have the ASD results and the breathalyzer certificate excluded as a result of alleged breaches of his s. 8 and 9 Charter rights. [ 12 ] At the conclusion of the voir dire both counsel agreed to apply all of the evidence to the trial proper and no further evidence was called by the Crown and no evidence was called by the defence.

III. ISSUES [13] During argument, the defence invited the Court to consider the following issues: 1. With respect to count 2 on the Information relating to the charge under s. 253(1)(

b) of the Criminal Code: (

a) Did the police officer have the required grounds to make an ASD demand and if he did not, did this constitute a breach of theaccused’s s. 8 Charter rights? (

b) Was the ASD sample obtained forthwith and if it was not, did this constitute a breach of the accused’s s. 9 Charter rights? (

c) If a breach of the accused’s Charter rights occurred, should this evidence resulting from the Charter breach be excluded? (

d) Was the ASD an approved instrument for the purposes of the Criminal Code? 2. With respect to count 1 on the Information relating to the charge under s. 253(1)(

a) of the Criminal Code, did the accused operate amotor vehicle while his ability to do so was impaired by alcohol? IV. ANALYSIS 1(

a) Did the police officer have the required grounds to make an ASD demand and if he did not, did this constitute a breach ofthe accused’s s. 8 Charter rights? [14] Section 254(2) of the Criminal Code sets out that in order to make an approved screening device (ASD) demand an officermust have “reasonable grounds to suspect” that a person has alcohol in their body and that the person has, within the preceding threehours, operated a motor vehicle. Furthermore, and as explained by the Supreme Court in R. v.

Collins, (SCC), [1987] 1SCR 265, such a demand results in a warrantless search, and therefore the onus is on the Crown to prove that it was a reasonable search. An ASD or Intoxilyzer demand will be reasonable if an officer has the necessary grounds. The relevant provision of the Criminal Codeis s. 254(2)(

b) which states: 254.

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has,within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railwayequipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, thepeace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs(

a) and (b), in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demandmay be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [15] The concept of what constitutes reasonable suspicion was discussed in R. v.

Donald (No. 2), 2010 SKPC 123, where JudgeKalmakoff states at paragraphs 17 and 18: 17...There is no requirement that an officer articulate his subjective suspicion of the presence of alcohol in the accused’s body using theprecise wording of section 254(2) in order for an ASD demand to be valid, as long as the Court can properly infer from all the evidencethat the officer had such a suspicion. 18...While a reasonable suspicion is something more than mere suspicion, it is also less than a belief based on reasonable and probablegrounds.

It is a question of whether a reasonable person, observing the same set of circumstances, could hold the same suspicion. Reasonable suspicion of the presence of alcohol in the body is a lower standard than reasonable grounds to believe the person is impairedby alcohol. Suspicion implies a belief or opinion based upon facts or circumstances which do not amount to proof.

[16] Judge Jackson provided guidance in R. v. Beechinor, [2004] S.J. No. 187 (Sask. Prov. Ct.) where he said at paragraph 23: Although the threshold is low, there nonetheless must be evidence capable of demonstrating that the officers have reasonable suspicionthat the driver has alcohol in his or her body in order to make the ASD demand. This does not mean simply that alcohol has beenconsumed at some point that day or the officer could detect alcohol in the vehicle or even on the person.

The suspicion must be that theaccused had alcohol in the body at that time and there must be objective evidence to support this conclusion. [17] The Saskatchewan Court of Appeal in R. v. Nahorniak, 2010 SKCA 68 , commented on the factors to be consideredwhen determining if there were grounds to make the demand at para. 23: In deciding whether an officer had grounds to make the demand and administer the test, a court must consider all the circumstances andevidence with respect thereto known to him when he made the demand. (See: R. v.

Shepherd, 2009 SCC 35 , 2009 S.C.C. 35, 309 D.L.R. (4th) 139, appealed from 2007 SKCA 29 , 2007 SKCA 29.) [18] In that case the Court also held that an officer’s suspicion may be founded by information communicated to them by theobservations of others. [19] In R. v.

Zapski, 2011 SKQB 67, put forth by Crown counsel in argument, Justice Acton pointed to the accused’s admission tohaving a couple of drinks and recently returning from a bar as examples of objective evidence on which an officer can base a reasonablesuspicion. [20] Other cases also provide examples with respect to what constitutes reasonable grounds. [21] In R. v. Duchek, 2012 SKPC 7, the arresting officer had followed the accused for one to two kilometres and noted erraticdriving, with the vehicle swerving between the centre line and the fog line. The vehicle was pulled over.

The officer noted slurredspeech and the driver admitted to consuming two beers at a party. Judge Green held these indicia constitute sufficient grounds for anASD demand. [22] In the immediate matter, the officer relied on outside information he received from the Regina dispatch as to the possibility ofan impaired driver. Following up on that information, he located the suspect vehicle and began following it. During this time heobserved the vehicle to weave three or four times in the lane, crossing either the centre line or the shoulder line on each instance.

Duringcross-examination the officer agreed that it is possible a vehicle may swerve due to the driver: - being tired; - not paying attention; - being followed by a police officer; and - windy conditions. [23] While I do not necessarily disagree with these speculations, there was no evidence of this before me other than wind speedsthat day (Exhibit D-1). Upon review of Exhibit D-1, which is an Environment Canada weather report relating to the relevant date, I notethat wind speeds were approximately 19 kilometres per hour at the relevant time.

In my view this wind speed would not have caused avehicle to swerve three to four times across the centre and shoulder lines in a short period of time. This pattern of driving is howeververy consistent with an impaired driver. [24] Cst. Upshall further testified that when he pulled the vehicle over, he observed a lone occupant in the vehicle. Upon

[24] Cst. Upshall further testified that when he pulled the vehicle over, he observed a lone occupant in the vehicle. Uponapproaching the vehicle he noted a smell of alcohol coming from the interior. He advised the driver that he was investigating acomplaint of an impaired driver. The officer gave testimony that he inquired into any alcohol consumption to which the accusedresponded that he had “a couple”. He also observed that the driver had slightly slurred, slow speech and glossy, red eyes. The officeralso noted a container of what appeared to be beverage alcohol in the console between the front seats.

This container was half empty. [25] It is notable that in cross-examination the officer admitted that he did not place into his notes the fact that he smelled alcoholat the suspect vehicle or that the accused admitted to having “a couple” in response to a question by the officer of whether Mr. Frankehad anything to drink. The officer’s testimony at trial was however that this happened. Despite these facts not being in the officer’snotes, I do accept this evidence based on the fact that I found Cst.

Upshall to be a credible and forthright witness and based on thesupporting facts that there was an open half empty bottle of alcohol in the console beside the driver’s seat (a fact that was in Cst.Upshall’s notes) and Cst. Upshall’s own observations of erratic driving (which facts were also in his notes). These facts would beconsistent with the smell of alcohol coming from the vehicle and the accused having consumed some amount of alcohol. [26] At page 12 of Cst. Upshall’s evidence he is asked during examination-in-chief specifically about the grounds he relied upon tomake the demand.

He testified as follows: Q So, officer, you said that you read an approved screening device demand because at that time you felt you had grounds. Whatwere those grounds that you were relying on? A The scent of the alcohol, the open alcohol in the vehicle, the glossy eyes and slurred speech. Q And do you recall whether or not the dispatch had anything to do with your grounds? A Just the fact that the witness with the driving evidence. She advised that he was swerving into oncoming traffic. [27] Based on the evidence of Cst.

Upshall, which I find to be credible, I am satisfied that at the time of making the ASD demand,Cst. Upshall had ample grounds to suspect that Mr. Franke had alcohol in his body, and that he had recently been operating a motorvehicle. [28] I therefore find that the ASD demand was lawfully made and therefore it follows that there was no breach of s. 8 of theCharter. 1(

b) Was the ASD sample obtained forthwith and if it was not, did this constitute a breach of the accused’s s. 9 Charter rights? [29] Section 254(2) of the Criminal Code contains a requirement that, where the peace officer has reasonable suspicion, they mayrequire a person to “provide forthwith” a sample of their breath. [30] In R. v. Bernshaw, (SCC), [1995] 1 SCR 254, Justice Sopinka for the Supreme Court interpreted themeaning of the forthwith requirement where there is a concern over residual mouth alcohol.

The Court approved of a “broadinterpretation” (para. 70) based on the wording and the context of the legislation. Justice Sopinka held that: The provision specifically contemplates that the police officer is entitled to demand a breath sample which enables a proper analysis ofthe breath. In the situation where the officer knows that a suspect has just recently consumed alcohol, a proper sample can only beattained by waiting at least 15 minutes. Thus, the wording of the provision adds support to the argument that “forthwith” must be givena flexible

interpretation. (para. 70) [31] Thus, as a basic proposition, the statute is to be interpreted and applied in a flexible manner, responsive to the circumstances. [32] Justice Sopinka in Bernshaw (supra at para. 73) concluded that:

Waiting 15 minutes is permitted under s. 254(2) of the Code when this is in accordance with the exigencies of the use of the equipment. This applies when an officer is aware of the potential inaccuracy in the particular case. [ 33 ] With respect to the duties of a police officer to inquire on recent consumption, Justice Sopinka held in Bernshaw ( supra at para. 81 ): However, in my view, there is no duty on the police to make any such inquiry. A suspect is under no obligation to answer such a question and thus it would be improper to impose such a duty on the police.

That is not to say that the suspect may not volunteer such information, either spontaneously or in response to a query of the police. In such a case, where the officer is told that the detainee has consumed liquor within the last 15 minutes, or where other reasons exist for the officer to believe that alcohol was recently present in the mouth of the suspect due to regurgitation, the officer may wait an appropriate period of time prior to administering the screening device.

However, the police are not required to ascertain such information by posing the question to the suspect prior to administering the screening device test. [ 34 ] This principle was applied by Justice Foley in R. v. Speir, 2007 SKQB 280 . In that case the officer observed a number of empty bottles of beer in the back of a truck but did not observe any inside the passenger compartment. The officer did not make any inquiries into recent consumption nor was he required to have done so. [ 35 ] In 2006, the Saskatchewan Court of Appeal revisited the topic in R. v. Janzen , 2006 SKCA 111 .

In that case the Court noted that the expression “forthwith” meant without delay, but that this was to be taken as meaning “without unreasonable or unjustified delay”: Janzen at para. 4 . [ 36 ] In an earlier case, R. v. Wiebe , 2006 SKQB 504 , the investigating officer noted a smell of alcohol on the driver’s breath and two cases of beer in the back seat. He subsequently ascertained that one of the cases was open, several bottles were missing, and one partly empty bottle had been recapped.

The officer was concerned that the accused had very recently consumed alcohol and had him wait an additional 12 minutes before administering the test. [ 37 ] The

summary conviction justice overturned the trial decision, ordering a new trial, but also held that the forthwith requirement had been satisfied given the officer’s concern about recent consumption. [ 38 ] In R. v. Goudy , 2007 SKPC 42 , the investigating officer delayed the administration of the ASD approximately 15 minutes due to an observation of open alcohol in the vehicle. In that case, there were two other occupants in the vehicle.

Judge Henning concluded that this was a reasonable delay and that the test was administered forthwith within the meaning of the law. [ 39 ] In this case, the officer articulated his concern with recent consumption in his trial testimony. He testified as follows at page 15: Q Officer, I notice that’s a - that’s 16 minutes later. What was the reason for waiting 16 minutes? A Well, I waited 16 minutes because the recency of alcohol, I assumed he possibly had drank some of the open alcohol that was in his vehicle. Not knowing when he had his last mouthful of alcohol I waited 15 minutes as per the ASD.

Q And what’s going on during this 15-minute wait period? A I just sat in my truck taking notes of what just happened then. [ 40 ] The officer’s concern was founded primarily on the fact that there was an open, half empty, alcohol container in the console next to the driver’s seat. The officer testified that he was concerned with the possibility of recent consumption of alcohol and assumed that Mr. Franke had drank some of the open bottle of alcohol that was in the vehicle. He also testified that he had smelt alcohol on the

accused’s breath. The officer further testified in cross-examination (at page 38) that he wanted to wait to ensure that all mouth alcohol dissipated before conducting the test. This was presumably for the benefit of Mr. Franke and in order to obtain an accurate reading. [ 41 ] It is my conclusion that the open container of alcohol along with the other indicia of impairment generally were sufficient to raise concerns over the reliability of a sample given immediately.

This belief is not undermined in fact or in law by a failure of the officer to inquire as to when the accused had last consumed alcohol, particularly in light of the open bottle of alcohol within easy reach of the driver. Accordingly, I find that the ASD demand was taken “forthwith” and accordingly no breach of the accused’s s. 9 Charter rights occurred. 1(

c) If a breach of the accused ’s Charter rights occurred, should this evidence resulting from the Charter breach be excluded? [ 42 ] As I found no Charter breach there is no need to conduct a s. 24(2) Grant analysis. However, had I been required to do so I would have concluded that any possible breach was so slight and based if anything out of an abundance of caution and in good faith by the police officer that I would not have excluded the evidence in any event. 1(

d) Was the approved screening device (ASD) used by Cst. Upshall an approved device pursuant to the provisions of the Criminal Code ? [ 43 ] The governing law on this issue appears to be that of the Ontario Court of Appeal in R. v. Gundy, 2008 ONCA 284 . A number of statements from that case are germane to the present discussion: [44] In determining whether the particular device was approved, the court must consider all the evidence, including any circumstantial evidence. The court is entitled to draw reasonable inferences from the evidence.

Thus, in my view, if the officer in his or her testimony refers to the device as an “approved screening device”, the trial judge is entitled to infer that the device was indeed an approved device. As such, the officer is entitled to rely upon the “fail” recorded by the device to find that there were reasonable and probable grounds to make the breath demand. [45] The officer is not required to refer to the device by its particular brand and number such as “Alcotest 7410 GLC”.

Further, references to a part only of the identification such as “Alcotest” or “Alcotest GLC” do not rebut the reasonable inference from the officer’s reference to the device as approved that it is indeed an approved screening device. The addition of the manufacturer’s name, for example “Drager Alcotest 7410 GLC”, is likewise not fatal: see R. v. Neziol (2001), 22 M.V.R. (4th) 299 (Ont. S.C.J.) . Further, in my view, the context in which the officer refers to the device as approved is of no particular moment.

Thus, if the officer testifies that he or she used an approved screening device, or agrees with the suggestion that it is an approved screening device, such testimony is direct evidence upon which the trial judge can rely: see e.g. R. v. Latulippe (2005), 26 M.V.R. (5th) 97 (Ont. S.C.J.) . [ 44 ] In R. v. Helm , 2011 SKQB 32 , Justice Popescul adopted the conclusions and principles of the Ontario Court of Appeal in Gundy , supra.

At trial the judge concluded that the screening device used was not “approved” as it had not been identified by a description that exactly matched any of those described in the regulations. Flowing from this analysis, the judge held that there were not reasonable and probable grounds to make the breathalyzer demand and the Certificate of Analyses was subsequently excluded. Much like in Gundy , Justice Popescul held that: 24 ... The court is entitled to draw reasonable inferences from all of the facts.

The officer referred to the device as an “ASD”, which, in all of the circumstances, could only mean that she used that term as an abbreviation for an “approved roadside device”. Furthermore, the fact that the officer described the machine as an “Alcotest 7410”, rather than using the full trade name used in the regulations, such as the “Alcotest ® 7410 PA3” or “Alcotest ® 7410 GLC”, is of no legal consequence. To hold that the officer must use terminology that precisely matches the gazetted regulations is an error in approach that amounts to an error in law. and further that 25...

The officer, a member of the R.C.M.P., testified that she gave the defendant an ASD demand and recounted the precise words used which included the phrase “approved screening device”. She said that she was qualified to be an “ASD” operator and that she had an

ASD with her that she described as an “Alcotest 7410”. It is inconceivable, in the circumstances of this case, that the officer would betrained and qualified to use an “unapproved screening device” and then given an “unapproved screening device” by the R.C.M.P. to beused in the course of her duties. [45] The law in Helm was also applied in R. v. Kachur, 2011 SKQB 347, where the defence argued that the officer’s testimonywas such that there was no evidence of an approved screening device.

In that case Justice Pritchard applied the principles from Helm,supra, in finding that the trial judge was entitled to infer that the device used at the roadside was an approved screening device. [46] Finally, in the very recent case of R. v. Jacob (J.A.), 2013 MBCA 29, the Court dealt with a similar issue. In that case therewas no direct evidence that the device used was an approved device. The Court of Appeal agreed with the

summary conviction appealjudge that the officer was entitled to infer that the device used was approved based on the facts and circumstances known to him at thetime, including the fact that he could assume that his superiors had arranged for him to use appropriate equipment.

The Court furtherheld that there was no requirement on the Crown to prove that the device was approved. [47] In the present case, Constable Upshall testified that he had used an approved screening device, that it was located in hisvehicle, that it was in good working order, that he had been trained to use said device, and that he actually watched it “power up” as hewas preparing to administer the test. Based on the foregoing principles, the officer was entitled to infer that the device he was using wasactually approved.

Following from that, the Court is entitled to infer, in the absence of evidence to the contrary, that the device used wasan approved screening device. CONCLUSION - RELATING TO S. 253(1)(

b) ISSUES [48] Section 258(1)(

c) of the Criminal Code allows that if samples of breath have been taken pursuant to a demand under section254(3) and comply with the statutory requirements in that the samples were: 258(1)(

c) ii. taken as soon as practicable with the first sample not more than two hours after the offence was alleged to have been committed; iii. received from the accused directly into an approved instrument operated by a qualified technician; and iv. analysis of the sample was made by means of an approved instrument operated by a qualified technician then evidence of the results of the analysis is conclusive proof that the concentration of alcohol in the accused’s blood at the time of thesample and the offence was the lowest of the concentrations shown by analysis after two tests (unless the two tests show the sameresult). [49] Thus the result of the certificate, if admitted, is conclusive proof of the blood alcohol content of the accused. [50] As I have not excluded the Certificate of Analyses which has been submitted into evidence, I find the accused, Mr.

Franke,guilty of count #2. 2. With respect to the charge under s. 253(1)(

a) of the Criminal Code, did the accused operate a motor vehicle while his ability todo so was impaired by alcohol? [51] In the event that the Certificate of Analyses was not admitted, the Crown has advanced the case with respect to impairedoperation of a motor vehicle. The oft-cited statement from R. v. Stellato, (ONCA) holds:

In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [52] In R. v.

A.L.E., 2009 SKCA 65, the Court of Appeal restated the law on the issue of impaired operation. The Court cited fromthe Alberta Court of Appeal in R. v. Andrews, 1996 ABCA 23 , 104 C.C.C. (3d) 392, a number of relevant principles: The courts must not fail to recognize the fine but crucial distinction between “slight impairment” generally, and “slight impairment ofone’s ability to operate a motor vehicle”. Every time a person has a drink, his or her ability to drive is not necessarily impaired. It maywell be that one drink would impair one’s ability to do brain surgery, or one’s ability to thread a needle.

The question is not whether theindividual’s functional ability is impaired to any degree. The question is whether the person’s ability to drive is impaired to any degreeby alcohol or a drug.

In considering this question, judges must be careful not to assume that, where a person’s functional ability isaffected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired. (Andrews at p. 399) [53] As well, the Saskatchewan Court cited the following guidelines as listed by the Alberta Court of Appeal in Andrews, supra: [40] Conrad J.A. then proceeded to lay down the guiding precepts, saying: In my view, the following general principles emerge in an impaired driving charge: (1) the onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt; (2) there must be impairment of the ability to drive of the individual; (3) that the impairment of the ability to drive must be caused by the consumption of alcohol or a drug; (4) that the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and (5) proof can take many forms.

Where it is necessary to prove impairment of ability to drive by observation of the accused and hisconduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof bemet. To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessingthe evidence and arriving at the required standard of proof that the ability to drive is actually impaired. [54] In R. v.

Palmer, 2012 SKPC 125, Judge Gray found that the following indicia were sufficient to found a conviction forimpaired driving: • the vehicle was observed weaving in the street, nearly causing an accident and crossing the centre line • a turn without signalling • glossy eyes • slurred speech • poor muscle control • poor balance • poor coordination. [55] In this case the fact that there was alcohol in the accused’s body may be established by the following indicia: the smell ofalcohol coming from the accused’s breath, the admission by the accused to drinking “a couple” and the open and partially consumedbottle of alcohol in the vehicle.

[ 56 ] That the accused was impaired may be established by observations of his slow, slurred speech, his red glossy eyes, and the stumbling noted both at the roadside and later at the police detachment. [ 57 ] Evidence that accused’s ability to drive was also impaired may be established by the observations of the officer while he followed the vehicle for 1.5 kilometres.

The vehicle was noted to have crossed the centre line or the shoulder lane line three to four times in a relatively short amount of time. [ 58 ] Based on the foregoing, I am convinced beyond a reasonable doubt that the accused did operate a motor vehicle while his ability to do so was impaired by alcohol and accordingly, I would therefore convict Mr. Franke of count #1. The impaired driving count (count #1) will be conditionally stayed pending appeal. K. Lang, J