Her Majesty the Queen - v. -, 2013 SKPC 132

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 132 Date: July 30, 2013 Information: 37292074 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Blane Owen McDonald Appearing: Mr. Gary Parker For the Crown Mr. Michael Owens For the Accused JUDGMENT D.A. LAVOIE , J [ 1 ] The accused stands charged as follows: (1) on or about the 25 th day of July, A.D. 2012 at or near Saskatoon, Saskatchewan did while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code ; and (2) on or about the 25 th day of July, A.D. 2012 at or near Saskatoon, Saskatchewan did having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle,

contrary to s. 255(2) and s. 253(1) (

b) of the Criminal Code . [ 2 ] Defence had given notice of Charter issues and at the commencement of trial the Court and counsel discussed technical procedural matters. It was agreed that we would first proceed by entering into a voir dire in relation to Charter issues.

The final process unfolded as follows: 1 st the Crown called all its evidence on the voir dire ; 2 nd Defence elected to call no evidence on the voir dire ; 3 rd all the evidence on the voir dire was applied by consent to the trial proper; and 4 th Defence elected to call no evidence on the trial proper. [ 3 ] Given this procedure the Court in this decision will make rulings in the following sequence: 1 st were there any violations of the accused’s Charter rights? 2 nd if yes, what is the proper remedy pursuant to s. 24(2) of the Charter ? 3 rd The Court will then rule on the issues from the trial proper and give a final determination. [ 4 ] Defence raised a number of issues: 1st was whether the accused’s s. 10(

b) Charter rights to counsel had been violated. 2 nd Did the investigating police officer address her mind to the time of driving, (i.e. the time of the motor vehicle accident) prior to making the s. 254(3) Intoxilyzer demand. If not, did she have the requisite objective information and subjective belief that “within the preceding three hours” the accused had committed an offence under s. 253, in order to have “reasonable grounds” to make the demand?

Defence did not frame this issue in the context of a Charter violation, however out of abundant caution the Court will deal with it in that context. [ 5 ] The above matters will be dealt with in the voir dire , Charter issues ruling. [ 6 ] Next in relation to the trial proper the following issues need to be addressed: 1 st does the evidence prove impaired driving, Count #1, beyond a reasonable doubt;

2 nd has the Crown proven the service of the Notice of Intention to tender the Intoxilyzer Certificate of Analyses as required by s. 258(7) of the Criminal Code ; and 3 rd does the evidence actually prove the time of driving such that the Court is satisfied the first sample was taken not later than two hours after the time the offence was alleged to have been committed as required by s. 258(1)(c)(ii) of the Code ? If not, then the Crown may not rely on the “presumption of identity” as provided for in the Code . [ 7 ] The following is a

summary of the evidence forthcoming from the witnesses during the voir dire and the trial proper. [ 8 ] Mr. Igor Aladzic testified that he was driving a semi-trailer in a northerly direction on Idylwyld Drive in the City of Saskatoon. He was in the left lane of a three lane highway when at a point between 51 st Street and the turn off where the highway proceeds to North Battleford his trailer unit was struck violently from behind. He immediately stopped, engaged the emergency flashing lights on his unit, exited the cab and walked to the back of the semi-trailer.

There he discovered a black half-ton truck had driven into the back of his trailer until bending the large back bumper of the trailer unit. The black pick-up truck was extensively damaged such that it could no longer be driven. The accused was standing outside of his half-ton truck and acknowledged he was the driver. Mr. Aladzic identified the accused in the courtroom with no hesitation. He indicated he had immediately phoned his dispatcher to report the accident and asked him to immediately contact the police. It should be noted that Mr.

Aladzic was a recent immigrant and struggled somewhat with his English vocabulary however, he was able to communicate satisfactorily for the Court to understand him. Immediately the accused suggested to Mr. Aladzic not to call the police and he would pay for the damages. Mr. Aladzic did not go along with the suggestion. Mr. Aladzic noted a smell of liquor from the accused’s breath and coupled with other observations, formed the opinion the accused was drunk. [ 9 ] Mr. Michael Ottenbreit, was a crucial, independent witness to the accident.

He was driving his vehicle in the left lane in a northerly direction on Idylwyld Drive between 51 st Street and the North Battleford highway off-ramp. He had his cruise control set at 90 kph. He explained how a dark half-ton drove by him very fast in the right lane, got past him and then swerved erratically back into the left lane. Then he observed the half-ton basically just drive right into the back of the semi-trailer driven by Mr. Aladzic. He did not observe any brake lights illuminate on the half-ton prior to impact. It was dark out however Mr.

Ottenbreit indicated he was around 300 metres behind the semi and could clearly see the semi’s night time driving lights. He indicated this was around 1:30 a.m., and the police arrived on the scene within 15 to 20 minutes. His recollection of time is supported by the police officers who indicated they arrived on the scene at approximately 1:45 a.m., thus the evidence establishes the accident at approximately 1:30 a.m. He estimated the speed of the semi to be similar to his at 90 kph and the speed of the half ton to be at least 110 to 120 kph. The speed limit in that area was 90 kph. [ 10 ] Mr.

Ottenbreit immediately stopped his vehicle and walked to the scene where he, Mr. Aladzic and Mr. McDonald stood between the semi and the half-ton. He confirmed overhearing the conversation of Mr. McDonald suggesting not to phone the police. As a result of Mr. Ottenbreit’s questions, Mr. McDonald indicated there was no one else in the truck. It is clear the uncontradicted evidence establishes Mr. McDonald was the sole occupant and driver of the half-ton at the time of the accident. [ 11 ] Mr. Ottenbreit indicated a tow truck driver happened upon the scene as well.

Then a few minutes later two police officers arrived. [ 12 ] Officer Kassie Block testified how she and her partner were driving north on Idylwyld and just came upon the accident scene at approximately 1:45 a.m. She immediately observed the half-ton being undriveable due to damage and the driver’s air bag having deployed. Three men were standing between the vehicles. She entered a general conversation with the three of them, and gathered the following information: 1. The two officers happened upon an accident, to which they had not yet received any information or dispatch from 911 operators;

2. She determined who the drivers were of the respective vehicles and that Mr. Ottenbreit had witnessed the accident; 3. She then detained Mr. McDonald and had her partner deal with Messrs. Aladzic and Ottenbreit. [ 13 ] Certain extracts from the transcript somewhat explain the information Officer Block gather immediately at the scene: Page 64, Lines 10 - 26 Q I’m asking did you learn from the witnesses present at the scene, who - - that Mr. McDonald was the driver of the half ton truck?

A At that time I don’t recall exactly what had happened there but my partner said - - the one guy identified himself as the witness of - - who saw the accident, the other man identified himself as the driver of the semi who said he made contact right away with the accused, and they stood right there. Any they remained at the scene between the two trucks and then that’s when my partner and I - - so there was five of us, total, and we just kind of talked like this and I said to Lisa, my partner, I said, you can go deal with the drivers and I’ll deal with Blane, because he said that he drove that truck.

I’m not sure if I’ve answered correctly. Page 66, Lines 25 and 26, Page 67, Line 1 Q So what did the driver of the semi truck say? The Court: Yeah. Witness: That this vehicle just rear-ended me. Page 68, Lines 6 - 26, Page 69, Lines 1 - 26 Q So after speaking with the semi truck driver, what did you think that Blane McDonald was in relation to this accident? A I thought he was the driver of the black truck. Q Okay. And so you did what? A So I spoke to him and I asked him questions. Q Okay. And what were your observations of him? A And at that time I noted that he had red eyes.

When I was speaking with him I could smell alcohol coming from his breath, from his - - from his breath when he spoke to me and I asked him if he could tell me what happened. And he told me that he was coming - Mr. Owens: Well there again, the witness doesn’t seem to grasp -

The Court: Well no, she can - - she can say it for the purposes of establishing reasonable and probable grounds. Mr. Owens: All right. The Court: But not for the purpose of proving anything. Mr. Owens: Thank you very much. The Court: Okay. Continue. Mr. Parker (continuing): Q: Go ahead. Now you can tell us what the accused said. A Okay. So I asked him to tell me what happened. When we were walking up to the truck I was able to see that the air bags had deployed. Knowing in an accident your eyes can get red from the air bag, with the powder that comes out of it.

So I wasn’t sure at that time if his eyes were red because of the air bag that just recently deployed or if he had been drinking because he smelled like alcohol as I spoke to him. He - - when I asked him what had happened, he said he was coming from the Shark Club, Circle Drive. The accident was on 60 th Street and Idylwyld just as the cloverleaf kind of turns going northbound. He said he was on his way home to Martensville and he stated that he had had four drinks at the Shark Club. Q Is the Shark Club on or about 42 nd Street? A Yeah, Circle Drive and - - by Denny’s Restaurant . Q Is Circle Drive 42 nd Street?

A Yes, 42 nd Street. Q Okay. So about 18 blocks away is where you - A Mm hmm. [ 14 ] At 1:58 a.m. from the information she had gathered and the observations she made of the accused, Officer Block read a s. 254(2)(

b) approved screening device (ASD) demand to the accused. It should be noted all demands and warnings verbalized to the accused by Officer Block were read verbatim from the scripted cards she had in her police notebook. [ 15 ] The accused registered a fail on the ASD. At 2:02 a.m. she read the accused his rights and warning: Page 76, Lines 15 - 26, Page 77, Lines 1 - 15 Q Just - - these are complicated and sometimes we don’t need all of specificity but because of the issue that counsel have discussed in front of the judge we do. So with respect to rights to counsel, you gave them at what time?

A 0202 hours. Q Okay. And - - and you did it how? A I read it from my police issued notebook that’s on the top here - Q Okay. A - and I read them 0202 hours. I said, “I am arresting your for impaired driving, you have the right to retain and instruct counsel without delay. You may call any lawyer you wish. Legal Aid duty counsel is available to provide you with immediate legal advice free of charge and can explain the Legal Aid plan to you. I can provide you with a number you can call free of charge. Do you understand?

Do you wish to call a lawyer?” To understanding he replied, “Yes”, to a lawyer he replied, “No”. I then went into the police warning. I read, “You need not say anything. You have nothing to hope for from any promise of favour and nothing to fear from any threat whether or not you say anything. Anything you do say may be used as evidence. Do you understand?” He replied. Q He replied what? A Yes. [ 16 ] Then at 2:04 a.m. she read a s. 254(3)(a)(

i) Intoxilyzer demand as follows: Page 74, Lines 1 - 12 Q You can tell us what - A Okay. What I read him here was, “I have reasonable grounds to believe that your ability to operate a motor vehicle is impaired by alcohol. In accordance with the Criminal Code I demand that you provide samples of your breath for analyses and that you accompany me for the purpose of providing such samples. These samples will be analysed on an approved instrument. Do you understand?” And then he replied, “Yes”. Q And that was at what time?

A 0204 hours. [ 17 ] The police officer called for a tow truck which arrived at 2:15 a.m. and at 2:18 a.m. they left the scene with the accused in the back of the marked police vehicle. [ 18 ] At 2:23 a.m. they arrived at the detention area of the police station. At 2:28 a.m. Officer Block noted Mr. McDonald had a slight cut and some bruising which she inferred was from the accident. The officer somewhat suggested and offered to Mr. McDonald that the M.D.

Ambulance EMT who was on duty should look at him for medical reasons. [ 19 ] A transcript of the evidence in that regard best sets out what happened: Page 78, Lines 12 - 26, Page 79, Lines 1 - 26, Page 80, Lines 1 - 26, Page 81, Lines 1 - 26, Page 82, Lines 1 - 13

Mr. Parker (Continuing): Q So at 0223 when you are at detention, what observations did you make of the accused? A I noted the clothing that he was wearing. I noted that he was wearing beige shoes, gray shorts, a yellow t-shirt and I also observed that he had a cut on is forehead, on his right forearm and that it was a little bit bruised. And now with detention where you booked in we have an M.D. medic on site so they - - especially if people have consumed any alcohol, we just get them to look over them and if there’s any injuries or whatever we can get them assess there. Q Okay.

So did you ask the M.D. attendant to check on Mr. McDonald? A Yes, I did. It looked like he had a cut and I remember it was quite red on is forehead so I just asked the medic if he could just take a quick look at him. Q Okay. And that was at what time? A That time was at 0228 hours. Q Okay. And what did Mr. McDonald say, or how did he react? Mr. Owens: Is the witness required to look at her notes to answer these because I see she’s paging through and answering from her notes directly.

The Court: Well just - - yeah, just close the notebook and then if you - - if you need it for the purposes of times then you can then refer to it again. Mr. Owens: Thank you, Your Honour. The Court: So at 0228 hours you asked the medic to look at him. Witness: Yeah. And Blane said no. Sorry, can I refer to my notes to say exactly. I wrote down what he wrote - - or said. The Court: Okay. Mr. Owens: If it’s for an exact quote, Your Honour, I don’t object to that. The Court: Yes . Witness: Okay. I don’t want to speak to - - or sorry, I want to speak to a lawyer before he touches me.

So at that time I explained at the booking counter, I said, Blane, do you want to speak to a lawyer. You can call one if you want to speak to a lawyer, because he said he didn’t want to before. At 029 and then I just read him his - - or confirmed with him that you can call a lawyer if you would like to call one.

Mr. Parker (Continuing): Q Okay. A And he stated that he did not. Q What time did you confirm that he can call a lawyer? A It was at 02 - - here, I’ll just double check. Can I look at my notes? The Court. Yes . Witness: It was 0229 I asked if he wished to speak to a lawyer. Mr. Parker (Continuing): Q Okay. And then what happened? What did he say? A I asked if he understood if he could - - he said no, and to wanting a lawyer. That he understood and that he did not want a lawyer. Q Okay. The Court: Okay, what words did you express to him? Witness: I can read it again.

You know, at that time I just said to him, do you want to speak to a lawyer. You can speak to a lawyer if you want. He said no. Mr. Parker (Continuing): Q Okay. And then what did you do? A We proceeded with the paperwork, so we went into - - once he was booked in. Q Okay. Was there any other - - you said - - what was done at 2:30? A Sorry, can I refer to my notes? Q Sure. A I - I just have in my notes here do you wish to speak to a lawyer, and to understanding he replied yes, and I’m sorry, I don’t recall. I don’t recall what I read to him. I must have read something to him because it says understanding a lawyer.

I don’t - - I wouldn’t have read him his rights and warnings again. So I’m sorry, I don’t recall what I would have read to him at that time. I believe it was just verbal say, are you sure you understand you can contact a lawyer, do you want to contact one. No.

Q Okay. So were you satisfied with his response that he didn’t want to contact a lawyer? A Yes. And there was just a bit of confusion because when he - - the paramedic had touched him he said I’m not talking to him before he talks to a lawyer, so I just wanted to confirm before we proceeded with anyting. Are you sure you do not want to talk to a - - speak to a lawyer. And both times he said no, at the car and no at the detention counter. So at that time, no, I did not believe that he wanted to speak to one. Q Okay. So then what occurred?

A So then we went into the phone room, or, sorry, into the interview room number three and we sat down and we started filling out paperwork waiting for the Breathalyzer. And Constable Calvin (unintelligible). Q Okay. And what time is this at that you’re in that room? [ 20 ] At 2:56 a.m. Mr. McDonald provided a first sample. At 3:05 a.m. the police officer contacted Mr. McDonald’s friend by phone to arrange for him to come to the police station to pick up Mr. McDonald. At 3:22 a.m. the accused provided a second sample. At 4:05 a.m.

Officer Block served a copy of the Certificate of Analyses and Notice of Intention to produce the Certificate of Analyses on Mr. McDonald. At 4:15 a.m. Mr. McDonald was released to his friend who had attended to pick him up. [ 21 ] At this point Officer Block then pointed out an issue with the Notice of Intention to produce the Certificate of Analyses. Her evidence was to the effect that she had forgotten to sign the “Notice of Intention” to produce the Certificate of Analyses on the line provided for in the printed form. Subsequent to July 25, 2012 she noticed this omission.

She then signed the original Notice of Intention which is incorporated into the same page as the original Certificate of a Qualified Technician, signed by Officer Keleman badge #678, the qualified technician. She then photocopied that page containing both documents and served that photocopy on a Ms. Laura Crawford who was at the front desk of the business premises of Mr. Owens, counsel on record for Mr. McDonald at 300 - 135 - 21 st Street East. Ms. Crawford had verbally acknowledged she was Mr.

Owens’ assistant. [ 22 ] In cross-examination the transcript sets forth a significant exchange about the time of the accident between defence counsel and Officer Block as follows: Page 95, Lines 2 - 26, Page 96, Lines 1 - 2 Q So you didn’t get a - - you didn’t get a call out to this accident, correct? A No, I did not. Q All right. So there’s no dispatch time or anything like that, correct? A I can’t - - a dispatch call was created by the time we got into our car and I believe that was because the driver of the semi had called it in to a police communications when we were on the street. Q All right.

But you know nothing about when he called it in. A That’s correct.

Q You don’t know how much time had elapsed since he had called it in, fair? A Fair. Q All right. So this accident, as I understand it, took place sometime between 12 and one o’clock a.m., is that correct? Is that what you learned? A Well we came up on it at 1:45. Q Yeah, I appreciate that, you came up on it but you don’t know what time the accident happened, correct? A I would say it was within a couple of minutes of us coming on it, only because the witness stayed. Most people in accident like that do contact the police.

Page 97, Lines 20 - 26, Page 98, Lines 1 - 26, Page 99, Lines 1 - 26, Page 100, Lines 1 - 3 Q All right. Just so we’re clear on this, nobody told you what time the accident occurred, fair? A No. Q So you don’t know the last time that Mr. McDonald was in care and control of that vehicle or behind the wheel driving, fair? A No. Q Am I correct? A I wouldn’t say that’s fair. Q I’m correct? A No, I wouldn’t say that. Q No. So what information did you have to say when he was last behind the wheel of that vehicle?

A We got - - my partner had got a witness statement saying that he had gotten out of the vehicle and had rear-ended him. Q Okay. Your partner did. You weren’t there for that conversation, were you? A No.

Q No. A But her and I - Q We’re only interested in what you have information on. A We are a partnership though and we - Q Yeah, but you’re not identical twins - A - talk. Q - and you’re not - - okay. I appreciate you talk but before you made the demand. You talked after the fact about when she got a statement from this gentleman, correct? Is that - A I would have established it first before he was driving that vehicle - Q Right. A - based on that he admitted to driving his vehicle. Q All right.

A And we in that brief discussion with the five of us, I guess the three men were standing between those vehicle when we arrived at scene. Q Right. A So we have a brief conversation of what took place and I had heard at that time that there was an accident and that he had been rear-ended and that’s - Q Fair enough. You have not mentioned anything about the time of that accident, correct? A No. Q So you didn’t know when the accident occurred, correct? A It would have been within the last several minutes.

Q You’re guessing, aren’t you. A No. Q No. So who told you that then? Mr. Parker: Well objection. The Court: Continue please. Mr. Owens (Continuing) Q Who told you that the accident happened within a few minutes of that conversation, or when you arrived?

A I would have established that when the five of us were standing - Analysis Did Officer Block fail to address the issue of the time of driving prior to making the s. 254(3) Intoxilyzer demand, thus lacking therequisite reasonable grounds to make the demand thereby breaching his s. 8 and/or 9 Charter rights? [23] The relevant portion of s. 254(3) of the Criminal Code states: 254(3) 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 as a result of consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the 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 [24] If a police officer does not comply with this

section it is a violation of an accused’s

section 8 Charter right to be free fromunreasonable search and seizure and/or their

section 9 Charter right to be free from arbitrary detention. See R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 (S.C.C.), R. v. Sperle 2004 SKQB 382(Sask. Q.B.) and R. v. Ward 2012 SKPC 176 (Sask.Prov.Ct.). [25] In this case defence strenuously put forth that Officer Block did not properly address the time of the accident prior to makingthe demand. By implication he suggests she did not have the requisite subjective belief that the accused had committed an offencewithin the preceding three hours and even if she did she did not have sufficient objective criteria upon which to form that belief.

Thusshe would not have the requisite grounds upon which to make the demand. [26] In R. v. Bush, 2010 ONCA 554 , [2010] O.J. No. 3453 (Ont. C.A.) the Ontario Court of Appeal gave some direction

to trial judges dealing with this concept of reasonable and probable grounds. Durno, J (ad hoc) speaking for the court said: [36] Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol inhis or her body, the standard for an Approved Screening Device (roadside) demand pursuant to s. 254(2) of the Criminal Code.

At theother end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator’s ability to operate a motorvehicle was impaired by the consumption of alcohol or that the driver’s blood alcohol concentration was over the legal limit. [37] Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds.

Section 254(3) of the Criminal Codeauthorizes peace officers to demand Intoxilyzer breath samples provided the officer “has reasonable and probable grounds to believethat a person is committing or at any time within the preceding three hours has committed” the offence of impaired operation or driving‘over 80.’ (emphasis added) Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima faciecase: see Censoni at para. 31 and R. v. Shepherd 2009 SCC 35 at para. 23. [38] Reasonable and probable grounds have both a subjective and an objective component.

The subjective component requires theofficer to have an honest belief the suspect committed the offence: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at para.51. The officer’s belief must be supported by objective facts: R. v. Berlinski, (ON CA), [2001] O.J. No. 377 (C.A.)at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to concludethat there were indeed reasonable and probable grounds for the arrest: R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241 at p.250. . . . . [54] Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. Thetotality of the circumstances must be considered: see Shepherd at para. 21; R. v. Rhyason, 2007 SCC 39; R. v. Elvikis [1997] O.J. No. 234at para. 26; Censoni at para. 47.

That an accident occurred, including the circumstances under which it occurred and the possible effectsof it, must be taken into account by the officer along with the other evidence in determining whether there are reasonable and probablegrounds to arrest for impaired driving.

Consumption plus an unexplained accident may generate reasonable and probable groundsalthough that may not always be the case: Rhyason, supra at para. 19. [55] In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection ofthe officer’s grounds looking at each in isolation, opinions that were developed at the scene “without the luxury of judicial reflection”:Jacques at para. 23; also Censoni at para. 43.

However, it is neither necessary nor desirable to conduct an impaired driving trial as athreshold exercise in determining whether the officer’s belief was reasonable: R. v. McClelland, 1995 ABCA 199 , [1995] A.J.No. 539 (C.A.). [56] An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of animpaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which areabsent as the essential test.

There is no mathematical formula with a certain number of indicia being required before reasonable andprobable grounds objectively existed; Censoni at para. 46. The absence of some indicia that are often found in impaired drivers does notnecessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; Wang, at para. 21. [57] Consideration of the totality of the circumstances includes the existence of an accident.

However, that the accident could havecaused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officerhas to totally eliminate those indicia from consideration: R. v. Duris, 2009 ONCA 740 at para. 2. They have to be considered along withall the other indicia in light of the fact there may be another explanation. To the extent that Uppal determines otherwise, with respect, itwas wrongly decided. . . . . [61] A trained police officer is entitled to draw inferences and make deductions drawing on experience. Here, the investigating officer

[61] A trained police officer is entitled to draw inferences and make deductions drawing on experience. Here, the investigating officerhad 18 years’ experience. The trial judge was entitled to take into consideration that experience and training in assessing whether heobjectively had reasonable and probable grounds: Censoni at paras. 36 and 37. In addition, in determining whether reasonable andprobable grounds exist, the officer is entitled to rely on hearsay: R. v. Debot, (SCC), [1989] 2 S.C.R. 1140 at p. 1167and 1168, Costello; R. v.

Lewis (1998), (ON CA), 38 O.R. (3d) 540 (C.A.) at paras. 15 and 16; Censoni, at para. 57. . . . . [66] In making his or her determination, the officer is not required to accept every explanation or statement provided by the suspect:Shepherd at para. 23. That the officer turned out to be under a misapprehension is not determinative: Censoni at para. 35. The importantfact is not whether the officer's belief was accurate. It is whether it was reasonable at the time of the arrest.

That the conclusion wasdrawn from hearsay, incomplete sources, or contained assumptions will not result in its rejection based on facts that emerge later. Whatmust be assessed are the facts as understood by the peace officer when the belief was formed: R. v. Musurichan, 1990 ABCA 170, [1990] A.J. No. 418 (C.A.). [67] An officer is required to assess the situation and competently conduct the investigation he or she feels appropriate to determine ifreasonable and probable grounds exist. In some cases, that might include interviewing witnesses and/or the suspect if necessary: Golubat para. 19.

In others, the officer’s observations and information known at the time may readily establish the requisite grounds. . . . . [70] The issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officermade the breath demand, he subjectively and objectively had reasonable and probable grounds to do so. That the belief was formed inless than one minute is not determinative. That an opinion of impairment of the ability to operate a motor vehicle can be made in under aminute is neither surprising nor unusual. [27] In R. v. Gunn, 2012 SKCA 80 , [2012] S.J.

No. 503 the Saskatchewan Court of Appeal waded in on the issue of howa court is to approach this question of whether an officer has reasonable grounds to demand a breath sample. Mr. Justice Caldwell,speaking for the panel said: [7] A police officer may not demand a breath sample of an individual unless the officer has “reasonable grounds to believe” theindividual has, within the preceding three hours, driven while impaired or while over the proscribed limit.

This means the officer mustsubjectively (or honestly) believe the individual has driven while impaired or “over .08” within the preceding three hours and that beliefmust be rationally sustainable on an objective basis (see: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 48). Thisdoes not mean that the Crown has to demonstrate a prima facie case for conviction (R. v. Shepherd, 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 standardof “reasonable grounds to believe” is one of lesser probability which simply requires the reviewing court to determine whether thefactors articulated by the officer who made the breath-demand were reliable and were capable of supporting the officer’s belief that theindividual had driven while impaired or “over .08” within the preceding 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). . . . . . . . [15] In a voir dire held to determine the reasonableness of the police officer’s belief, the trial court must consider whether theobservations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which wasdrawn by the officer; however, the Crown does not have to prove the inferences drawn were true or even accurate. In other words, thefactors articulated by the arresting officer need not prove the accused was actually impaired.

This is so because that is the standard ofproof reserved for a trial on the merits (i.e., proof beyond a reasonable doubt). . . . . [18] As both the trial judge and appeal court judge noted in this case, the accused bears the evidentiary and persuasive burden of proving

a Charter violation on the standard of a balance of probabilities (see: R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at p.277). However, what is at issue in the instant Charter inquiry is the objective reasonableness of the investigating officer’s belief.Logically then, the assessment of the reasonableness of this belief must be centred around the factors which actually led the officer toconclude there were reasonable grounds to believe Mr.

Gunn’s ability to operate a vehicle was impaired thereby satisfying the standardimposed under s. 254(3) of the Criminal Code. [28] The time for determining whether a police officer had the requisite reasonable grounds to make a breath demand is at the timethe demand is made. That is “the moment of truth - the point at which the officer’s belief falls to be tested against the legal standard.” See R. v. Vandal, [2009] S.J. No. 153 (Sask. Q.B.) at paragraphs 11 and 12; also R v.

Nahorniak, 2010 SKCA 68 , [2010] S.J.No. 300 (Sask.C.A.) at paragraph 23. [29] In the present case Officer Block arrived at the scene of what was a major motor vehicle accident, at very busy thoroughfarein the City of Saskatoon. It was in the middle of the night when such a scene could become a clear hazard for other motor vehicletraffic. It was a valid inference on her part that they had happened upon the accident as there had not yet been a dispatch from 911operators about the same. Three individuals were still standing in the middle of the damaged vehicles.

There was a group conversationamongst the five of them to get basic information about what happened so she could commence a proper investigation. She had receivedinformation to the effect: 1. The semi driver advised that this vehicle just rear-ended me”; 2. Mr. McDonald was on his way home from a known bar establishment less than five minutes away where he had at least four drinks; 3. Mr.

Ottenbreit had witnessed the collision and remained at the scene to assist. [30] From the nature and location of the accident scene, from the information she had from the group conversation and from thetotality of the circumstances, she indicated she believed the accident had just occurred a few minutes before she and her partner arrivedon the scene. [31] Similar accident timing issues were extensively canvassed by Labach, J in the decision of R. v.

Sherstobitoff 2013 SKPC 16, 2013 SKPC 016. [32] Officer Block may not have had much experience by July 25, 2012, in relation to investigating drinking and driving cases andcould have done more investigation or articulated what she had addressed her mind to with a bit more precision.

However, the Court iscognizant of the comments in both Bush and Gunn, that the Court’s function is to determine whether the factors articulated by theinvestigating officer were reliable and capable of supporting her belief that the accused had driven while impaired and within thepreceding three hours. [33] Looking at Officer Block’s evidence I am satisfied she had an honest belief that the accused had driven while impaired in thepreceding three hours.

The Court is also satisfied on the totality of the evidence that the police officer’s inferences, conclusions andbelief were objectively reasonable. [34] While the evidence does not establish the officer asked about the specific time that the accident had just occurred, thereasonable inference from all the evidence was that the accident had just occurred and certainly within the preceding three hours.

Thereis nothing in the evidence to lead one to any other conclusion, and certainly one cannot speculate. [35] The accused has not satisfied the Court on a balance of probabilities that his s. 8 and/or 9 Charter rights were violated. Officer Block had reasonable grounds and as such Mr. McDonald’s detention for the purpose of providing breath samples andsubsequent seizure of his breath was lawful.

[36] Defence also argued the evidence did not prove the first sample was taken within two hours of driving as required by s. 258thus negating the “presumption of identity”. As discussed earlier, the evidence about times as given by Mr. Ottenbreit, Mr. Aladzic andthe police officer arriving at the scene clearly establishes beyond a reasonable doubt the time of the accident to be around 1:30 a.m. Thefirst sample was obtained at 2:56 a.m., clearly within two hours of the accident. The defence argument in that regard is not supported bythe evidence and clearly must fail. Was there a violation of the accused’s s. 10(

b) Charter Rights to Counsel? [37] In R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429, (S.C.C.) the Supreme Court of Canada dealt with an appeal byan accused from a finding that the police did not deprive him of his right to counsel as guaranteed to him by

section 10(

b) of theCharter. In dismissing the appeal, the Court summarized the principles they had set forth in a litany of cases preceding Willier. For thepurposes of the present case, the comments of Chief Justice MacLachlan and Madam Justice Charron at paragraphs 33 and 35 are mostinstructive: 33 Detainees who choose to exercise their

section 10(

b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioningthe detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee’s reasonablediligence in attempting to contact counsel: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; R. v. Black, (SCC), [1989] 2 S.C.R. 138; R. v. Smith, (SCC), [1989] 2 S.C.R. 368.

What constitutes reasonable diligence in theexercise of the right to contact counsel will depend on the context of the particular circumstances as a whole. As Wilson, J stated inBlack (pp. 154-55): A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if hewishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain fromquestioning the accused are suspended: See R. v.

Tremblay (SCC), [1987] 2 S.C.R. 435. . . . . 35 Should detainees opt to exercise the right to counsel by speaking with a specific lawyer,

section 10(

b) entitles them a reasonableopportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees havethe right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amountsto a reasonable period of time depends on the circumstances as a whole, it may include factors such as the seriousness of the charge andthe urgency of the investigation: Black.

If the chosen lawyer cannot be available within a reasonable period of time, detainees areexpected to exercise the right to counsel by calling another lawyer or the police duty to hold off will be suspended. R. v. Ross, (SCC), [1989] 1 S.C.R. 3; and Black. As Lamer, J. emphasized in Ross, diligence must also accompany a detainee’s exerciseof the right to counsel of choice . . . . [38] In R. v. Luong, 2000 ABCA 301 , [2000] A.J. No. 1310, The Alberta Court of Appeal set forth a useful frameworkfor determining if a person’s s. 10(

b) Charter rights have been violated. The following portion of the framework appears in paragraph 12of the judgment and is pertinent to the present case: . . . . .

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existenceand availability of Legal Aid and duty counsel. 4. The implementational duties are twofold and arise upon the detainee indicating a desire to exercise his or her right to counsel.

5. The first implementational duty is “to provide the detainee with a reasonable opportunity to exercise the right (except in urgent anddangerous circumstances)”. R. v. Bartle (1994), (SCC), 92 C.C.C. (3d) 289 S.C.C. at 301. 6. The second implementational duty is “to refrain from eliciting evidence from the detainee until he or she has had that reasonableopportunity (again, except in cases of urgency or danger)”. R. v. Bartle, supra at 301 7.

A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonableopportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counselwas provided with a reasonable opportunity to exercise the right. 8. If the trial judge concludes that the first implementational duty was breached, an infringement is made out. . . . . . [39] The following statement of Meekma, J in R. v.

Flasch, supra, fairly sets forth the position of the defence and how the Courtmust analyze and apply the evidence of this case in relation to the same: [31] The Supreme Court of Canada in R. v. Prosper (1995), (SCC), 92 C.C.C. (3d) 353, held that once a detainee whohas asserted his right to counsel indicates that he has changed his mind, the police have an additional informational obligation.

They arerequired to tell him of his right to a reasonable opportunity to contact the lawyer, and of the obligation on their part during this time not torequire the detainee to participate in any potentially incriminating process. [32] The burden of establishing an unequivocal waiver is on the Crown. Prosper says the standard of proof is high.

In Prosper, theCourt found that as the accused was never properly informed of his right to have the police hold off in order to provide him with areasonable opportunity to contact a lawyer, it could not be said that he was in a position to know what he was giving up when hesubmitted to the breathalyzer test. [33] Lamer, C.J.C. wrote at page 385: To conclude, I find that the appellant neither explicitly nor implicity waived his right to counsel. His s. 10(

b) rights were infringed bythe police in two ways: first, when he was not properly informed of the obligation on the part of the police to hold off upon his changinghis mind about speaking to a lawyer; and secondly, when, after asserting his right to counsel and exercising it with due diligence, thepolice did not provide him with a reasonable opportunity to contact counsel and refrain from having him participate in a potentiallyincriminating procedure until he had had this opportunity. [34] Mr.

Flasch was never informed by the police that they had an obligation to refrain from obtaining the breath sample until he had areasonable opportunity to contact a lawyer. Despite the difficulty the accused had demonstrated to Constable Davies in understandingthe rights he had previously been read, there was no further information or explanation offered to him after he said “no” when asked atthe police station if he “would like to call a lawyer now.” [35] Propser holds there is further obligation on the police at that point and in the case of Mr.

Flasch, who had already shown difficultyunderstanding his rights, in my opinion that obligation is even greater. [40] In the decision of R. v. Edgington 2010 SKQB 381, 367 Sask. R. 44, the Court stated at para. 15: [15] Absent extraordinary circumstances, in facilitating a detainee’s right to choose and communicate with a lawyer the police areentitled to give the detainee credit for being able to think and to decide. The police are entitled to give normal

interpretation to the

detainee’s words and actions. Thus if a detainee indicates that he or she chooses a particular lawyer, it is appropriate for the police toaccept that decision at face value and to conclude that the detainee’s right to choose a lawyer has been provided and exercised. In thatevent, the police are not obliged to suggest that the detainee may want to consider other choices.

Indeed, the police may be wrong in sodoing, since the suggestion to consider other choices could be interpreted as an attempt to steer the detainee away from the choice that heor she has just communicated. [41] The Court reviewed numerous decisions submitted by defence including: R. v. McCrimmon, 2010 SCC 36 , [2010] S.C.J. No. 36 R. v. Willier, 2010 SCC 37 , [2010] S.C.J. No. 37 R. v. Curtis Coleman 2010 PCU 31, decision of Labach, J R. v.

Lozinski 2010 PCU 035, decision of Lavoie, J [42] Defence forcefully put forth that at 2:28 a.m. when the accused stated “I want to speak to a lawyer before he touches me” thatthis was a clear indication that Mr. McDonald had now changed his mind and now wanted to speak to a lawyer. Defence suggested thisnow clearly triggered a secondary implementational duty on Officer Block to now take him to a phone room to give him a “Prosperwarning” and allow him to phone a lawyer. Defence states the evidentiary onus now shifts to the Crown to prove Mr.

McDonald made aclear unequivocal waiver of his rights to counsel. [43] The statement made by Mr. McDonald must be placed in context. [44] At the scene, having been given a clear informational component of his s. 10(

b) Charter rights to counsel and being asked ifhe wished to contact a lawyer he gave a clear unequivocal response of “no”. [45] At the police station the police officer being very attuned to the accused’s medical needs suggested he be examined by M.D.Ambulance personnel. His response was “I want to speak to a lawyer before he touches me”. [46] The officer was again attuned to the accused’s rights and took the time to explain he had a right to phone a lawyer.

Uponbeing asked if he wanted to speak to a lawyer he answered “no”. [47] It must be remembered the onus rests with the accused to prove a breach of his rights to counsel on a balance of probabilities. [48] His words were “I want to speak to a lawyer before he touches me:. Not “I want to speak to a lawyer before I provide samplesof my breath”. Even with that ambiguity on his part, the police officer again offered to allow him to speak to a lawyer to which heanswered “no”. [49] It should be noted the officer’s clear

interpretation of the accused’s words remain unchallenged or contradicted by any otherevidence during the voir dire. The police are entitled to give normal

interpretation to the detainee’s words and actions. There is noevidence that Mr. McDonald was ever confused or that his clear answer of “no” was ever misinterpreted by Officer Block. [50] He did not take any positive, purposeful steps to carry out the opportunities Officer Block was prepared to give him to contacta lawyer. Officer Block met both the informational duty and implementational duties required of her in the circumstances. Given thecircumstance Officer Block properly interpreted Mr. McDonald’s words to mean he had twice given up his opportunity to contact alawyer.

The fact remains he made an informed choice not to call anyone and he communicated that. In the Court’s view he was notreasonably diligent in attempting to contact counsel.

[51] From the above it follows the Court is not satisfied that accused’s s. 10(

b) rights were violated. [52] Given the above findings that there was no breach of the accused’s ss. 8, 9 or 10(

b) Charter rights there is no need for theCourt to address the s. 24(2) issue of exclusion of evidence and te Court decline’s to do so. [53] Having ruled on the voir dire Charter issues, the Court must now address the remaining issues within the trial proper. [54] In regard to the issue of impaired driving, count #1 in the decision of R. v. Arevalo (2001) 2004 SKQB 439 , 255Sask. R. 315 (Sask. Prov. Ct.) starting at para. 8 Kolenick, J wrote: [8] Therefore, the evidence of impairment which is alleged by the Crown must be considered in the context of the principles contained in R v.

Stellato (1994) (SCC), 31 CR (4th) 60, in which the Supreme Court of Canada approved the following, from the Ontario Court of Appeal reasons, 18 CR (4th) 127, at paragraph 14: 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. [9] In the process of making this analysis, the Ontario Court of Appeal judgment made reference to the so-called “classic” signs ofimpairment, namely: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness onone’s feet.

Obviously this was not intended to be an all-encompassing list, and also, its application will very much depend on thecircumstances in the case. Further, in R. v. Landes (1997), (SK KB), 161 Sask. R. 305 (Sask. Q.B., Klebuc, J.), the Court referred to Stellato(supra) and made te following observations, commencing at para. 16: [16] An opinion as to impairment, be it by the trial judge or a nonexpert, must meet an objective standard of “an ordinary citizen” or a“reasonable person” in order to avoid the uncertainties associated with subjective standards, particularly when based inferences.

To thatend a list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’s mentalfaculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive a motor vehicle.

Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot or wateryeyes; (3) presence of a flushed face; (4) odour of alcohol beverage; (5) slurred speech; (6) lack of coordination and inability to performphysical tests; (7) lack of comprehension; and (8) inappropriate behaviour. [17] In my view, a trial judge must carefully review all of the reported tests and observations which inferentially support or negate anyimpairment of the accused’s mental and physical capabilities, and then be satisfied beyond a reasonable doubt that the reasonableinferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by ss. 253 and 255 of theCriminal Code.

A piecemeal approach supporting or negating impairment is not permissible. See: R. v. Hall at p. 66 (R. v. Hall (1994), (SK CA), 125 Sask. R. 62) See also: R. v. Schurman (2003), SK. PCJ 168 (White, PCJ) R. v. Huot (No. 3)(2001), (SK PC), 209 Sask. R. 171(Kolenick, PCJ) R. v. Hopkie (1994), (SK KB), 126 Sask. R. 44 (Sask. Q.B.) (MacPherson, CJQB) R. v. Holman(1998), S.J. No. 711 (Sask. Q.B.) (Smith, J as she then was) R. v. Edwards (2006), Sask. P.C. 23 (Kolenick, PCJ) R. v. Debusshere(2003), Sask.

P.C. 53 (Kolenick, PCJ) [55] The Crown in argument admitted the evidence in relation to indicia of impairment was thin. Clearly the evidence from the

witnesses falls short of proving Count #1 beyond a reasonable doubt. The Court finds the accused not guilty of count #1. [56] Lastly, Defence argued that the evidence fails to establish the requirements of notice set forth in s. 258(7) which reads asfollows: s. 258(7) No certificate shall be received in evidence pursuant to paragraph (1)(e),(f),(g),(

h) or (

i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate. R.S.C. 1985, C. 27 (1st Supp.), s. 36; c. 32 (4th Supp.), s. 61; 1994, c. 44, s. 14; 1997, c. 18, s. 10; 2008, c. 6, s. 24. [57] A

summary of the evidence in relation to service of the Notice of Intention in this case reveals the following: 1) Just prior to Mr. McDonald being released from custody the investigating officer served him with a true copy of the Certificate of aQualified Technician and Notice of Intention to Produce Certificate as they were completed at the time. 2) For whatever reason the officer failed to place her signature on the Notice of Intention on the line providing for the same.

Sometimelater she noticed this omission. 3) To somewhat rectify the same she subsequently placed her signature on the original Certificate and Notice of Intention. She made aphotocopy of the same now bearing her signature. She then attended at the law offices of Mr. Owens who was counsel on record forMr. McDonald. She gave the photocopy to a person at the front desk of the law office who verbally confirmed she was an assistant,employed by Mr. Owens. [58] The Code requires “reasonable notice” and case law has confirmed such notice may be verbal and need not necessarily be inwriting. In R. v.

McCullagh (1990), (ON CA), 53 C.C.C. (3d) 130 the Ontario Court of Appeal held that it is notenough for an accused to point to an error in a notice and then allege that, by reason of the error alone, there is ambiguity or confusionwhich results in the notice not being reasonable. The bold generalization of ambiguity or confusion must be brought down to concreteterms, based on the facts of the case, to show a particular ambiguity or confusion which detracts from the reasonableness of the notice.

Defence has chosen to call no evidence on the voir dire or the trial. [59] In this case there is nothing ambiguous of the intention of the Crown in relation to both notices served directly on the accusedor Mr. Owens law office. They were identical except the first one did not bear the signature of the police officer. That was remediedwith the second service. In addition, given this set of facts, the Court is satisfied leaving a copy with a front desk assistant, which wasbeing held out to the public as being the business premises and business representative of Mr.

Owens was reasonable notice to theaccused through his legal representative.

Given the combined effect of both written notices the Court finds beyond a reasonable doubtthat this was reasonable notice within the requirements of s. 258(7). [60] Given the above findings the Court is satisfied the Certificate of a Qualified Technician may be made a full exhibit within thetrial proper. [61] That Certificate sets forth two readings as follows: 1) 02:56 hours - 120 milligrams percent 2) 03:22 hours - 100 milligrams percent. [62] Accordingly the Court finds the accused guilty of count #2, contrary to s. 255(1) and s. 253(1)(

b) of the Criminal Code.

__________________________ D.A. Lavoie, J