Her Majesty the Queen - v. -, 2014 SKPC 178

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 178 Date: October 10, 2014 Information: 24530811 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Curtis Ian Mayoh Appearing: D. Howarth For the Crown B. Pfefferle For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused was charged on August 23, 2013 with impaired driving and driving while over .08. [ 2 ] On August 23, 2013 RCMP Constable Hill was working alone doing patrol duty in the town of Kindersley. He parked

curbside on Main Street at 8:50 p.m. to run radar and watch vehicular traffic in the area. At 9:55 p.m. he observed a vehicle heading west on 11 th Avenue East, to make a “quick stop” and then a “wide left turn . . . as if pulling a big trailer”, when in fact it was a small two door sports car. [ 3 ] Constable Hill pulled in behind the vehicle and activated his emergency lights for the purpose of checking driver’s license, registration and sobriety of the driver.

The vehicle continued further making a wide right turn again similar to the first he had observed and thereafter travelled approximately 50 feet before stopping next to the curb behind a parked car blocking a residential driveway. [ 4 ] Constable Hill approached the driver’s side and noticed that the driver’s window was down and that the driver was the lone occupant. He immediately smelled an odour of beverage alcohol emitting from the vehicle. The driver subsequently identified himself by driver’s license as the accused, Curtis Mayoh.

When asked for his registration, the accused simply stared straight ahead without responding and, according to the officer, “looking somewhat confused”. He then pulled out his registration with very shaky hands, dropping it twice before providing it. [ 5 ] When asked when his last drink was, he replied “about an hour ago”. As the accused spoke, an odour of alcohol was noted upon his breath. He then admitted to having had “a few”. His eyes were also noted to bloodshot and watery and he had a distant stare as if he had trouble focusing. [ 6 ] The accused was then asked to return to the patrol car with the officer.

Constable Hill stated “I just wanted to talk with him and see where it was; if it was on his breath for sure or if I was smelling it in the vehicle”. [1] [ 7 ] While walking back to the patrol car, the accused was observed to be unsteady on his feet and he “stumbled a bit as he was walking”.

In cross-examination, Constable Hill described this as “shifting weight to one side then shifting back to the other”. [2] [ 8 ] After a short exchange in the patrol car wherein the accused confirmed that he had a couple of drinks earlier, Constable Hill was satisfied that the alcohol odour was coming from the accused’s breath.

Based upon the smell of alcohol, the bloodshot, watery unfocused eyes, the shaky hands and his wide turns, Constable Hill stated “I believed that his ability to operate a motor vehicle was impaired by alcohol”. [3] [ 9 ] The accused was then asked to blow into an approved screening device (ASD) at 21:57 hours. [ 10 ] When asked why he chose to go with an ASD demand at this point he testified: In my experience, people that aren’t alcoholics and that don’t drink all the time will have strong odour of alcohol on their breath.

When the accused told me he only had a couple of beers an hour ago I believed that he could have been just under what we consider a 24 hour suspension and I wanted to rule that out before ‘cause if he was - if he would not have failed on the ASD I would have just either released him there, or if he would have blown an alert, I would have given him a 24 hour suspension and driven him home. [4] [ 11 ] After two unsuccessful attempts, the accused ultimately provided a sufficient sample resulting in a “fail” result on the ASD.

The time of the fail was not noted but it only takes a “couple of seconds” according to Constable Hill between each insufficient sample for the instrument to reset. [ 12 ] Constable Hill then testified:

At this point based on all my observations and the “Fail”, I believed that the accused’s ability to operate a motor vehicle was impaired by alcohol. I advised him of same and placed him under arrest for impaired operation of a motor vehicle. [5] [ 13 ] Prior to the “fail” result, Constable Hill stated in cross-examination that he “believed the accused was impaired, but I did not know the degree at that point” [6] and that up to then, he did not believe he had sufficient information to arrest the accused for impaired driving . [7] [ 14 ] Once the “fail” occurred, rights and warnings followed at 22:00 hours.

The accused implored the officer to simply let him go with a warning fearing possible loss of employment however this request was not acceded to. [ 15 ] A tow truck was then called due to the vehicle registration having expired and the fact that it was blocking a residential driveway. The patrol unit departed the scene and arrived at the detachment thereafter at 21:06 hours. [ 16 ] At the detachment while entering the Intoxilyzer Room, the accused was noted to walk into the doorframe as he entered the room.

Thereafter, he provided two samples of his breath in the amount of 140 and 140 milligrams, respectively. [ 17 ] After providing the samples, the accused was given the opportunity to contact someone who was sober for a safe place to stay. He was not able to do so and accordingly, he was lodged in the cells. In this regard, Constable Hill testified: . . .

As per our policy, we do not let intoxicated people go home by themselves in the event that they could puke or die in their sleep or anything like that, so I’d asked him if he had anyone that was over the age 18 that was sober that could either come pick him up and he could stay with or that we could drop him off at and he was unable to find anyone that was over the age of 18 and that was sober that could take care of him for the night. [ 18 ] In cross-examination, Constable Hill confirmed that this was not a formal policy but rather it was just utilised as a safety precaution when dealing with intoxicated persons.

He further testified that it was implemented in each occasion to his knowledge when dealing with intoxicated persons. The accused was then lodged in cells and released in the morning once sober. Constable Hill was unable to state what time this was but confirmed that he had left an e-mail for the next shift to do so. Regarding his decision to keep the accused in cells he stated: Q. . . . Okay. Let me ask you this. I guess, in your opinion, was - - was Mr. Mayoh intoxicated? A. Yes. He was. Q.

Okay and did - in your opinion, was there any - any risk at all - even - even I guess, slight that - that something could have happened to him if he was released on his own? A. Yes, I do. ( sic ) Q. Okay. And why do you - why do you think that? A. Just the level of intoxication. At any point he could have puked. Like I said he - he seemed down. I’m no doctor. I can’t tell

when someone’s going to puke, but I’m not going to take my risk in my career and say: “This guy’s not going to puke, send him home.” And have him puke. [8] II ISSUES [ 19 ] Defence counsel raised the following issues for determination:

a) Whether the s. 254(2) demand was lawful if the officer had already formed reasonable and probable grounds to make a formal breath demand, and if not lawful, that the subsequent evidentiary samples were not taken “forthwith ”;

b) That the accused was “overheld ” due to police policy. III DETERMINATION

a) Whether the s. 254(2) demand was lawful if the officer had already formed reasonable and probable grounds to make a formal breath demand, and if not lawful, that the subsequent evidentiary samples were not taken “forthwith ”; [ 20 ] The issue of whether an officer can utilise a s. 254(2) ASD demand once a determination of impairment has been made, is dependent, in the Court’s view, on whether the officer has determined that the driver can be arrested for a s. 253 offence, both on subjective and objective grounds.

In a very similar decision on the facts, R v Minielly [9] , Cozens, TCJ stated it thus at paras. 29 and 30: [29] The more difficult question that arises in the case before me is whether the triggering moment at which there is no longer any lawful authority for the s. 254(2) is at the moment of arrest, or is at the moment a detained individual is arrestable due to the police officer’s having concluded that he or she has reasonable and probable grounds to believe that a s. 253 offence has been committed. [30] It would appear that if the lawful authority for the demand is solely for the purpose of elevating a police officer’s suspicion to reasonable and probable grounds, then, once a police officer concludes that he or she has the reasonable and probable grounds to believe a

section 253 offence has been committed , the suspicion threshold has been passed and the section 254(2) demand cannot be made, regardless of whether the individual has been arrested or not. [Emphasis added] [ 21 ] Further, in R v Orbanski [10] Charron, J stated at para. 50: . . . In this case the request made to Orbanski fell within the scope of reasonable and necessary measures. . . the trial judge specifically held that these tests were reasonable and necessary: In my view the interference with liberty in this case was necessary for the carrying out of the police duties described above.

The police constable suspected the appellant had been driving while his ability to drive was impaired by alcohol. However, he did not think that he had reasonable and probable grounds to demand that the appellant take a breathalyzer test. He requested the sobriety tests in order to see whether his suspicions were well founded - whether he could obtain reasonable and probable grounds for a demand for a breathalyzer test. [Emphasis added] [ 22 ] Further in R v Russell [11] the Court held at paras. 52 and 53:

[52] I see nothing in the caselaw that indicates that a peace officer cannot form a subjective belief that he or she has reasonable and probable grounds before making an ASD demand or that an ASD demand is unlawful if the officer believes he or she has reasonable and probable grounds instead of merely a reasonable suspicion. [53] The caselaw submitted to me demonstrates that an otherwise lawful act by a police officer is not negated by further investigation, so it was not improper for Constable McDonald to demand an ASD sample instead of proceeding directly to the breathalyzer. [ 23 ] In the instant case, it is clear on the evidence that Constable Hill had not reached the point where he was satisfied that the accused was arrestable for impaired driving allowing Constable Hill to go directly to a formal breath demand.

As indicated in his testimony, he specifically wanted to use the ASD to ascertain the level of sobriety of the driver to determine whether he should rule out release or a 24 hour suspension, depending upon the result.

In other words, he was attempting to give the benefit of the doubt to the accused which would have resulted in much less of an imposition on him rather than going with a formal breath demand requiring transport and processing at the detachment. [12] [ 24 ] In addition, the ASD attempts took only a matter of minutes and once a fail had been registered, Constable Hill was then satisfied that the accused’s ability to operate was impaired to the degree that an arrest for impaired driving should be effected. [13] [ 25 ] Accordingly, the Court concludes that use of the ASD in these circumstances was lawful and that the “forthwith” requirement to take samples was met.

However, if the Court is in error in this regard, the evidence obtained as a result would not have been excluded pursuant to s. 24(2) under the Grant analysis. Constable Hill acted professionally and in good faith with respect to the accused at all times. He sought to give him every benefit of the doubt concerning whether charges would be laid. No delay was occasioned by waiting until the accused was in the patrol car to make the s. 254(2) demand.

Further, by his questions concerning his alcohol consumption and activities prior, the accused would have been well aware of the nature of the investigation - particularly considering his own remarks to simply let him go with a warning.

b) That the accused was “overheld ” due to police policy. [ 26 ] Crown counsel in written argument posited that because this alleged Charter breach was not set out in the advanced Charter notice of the accused, the application ought not to be entertained. As this Court stated in the recent decision of R v Worden [14] , late Charter notice may well, in appropriate circumstances, result in the Court declining to adjudicate upon the alleged breach.

However, in circumstances where the Charter issue materializes during the course of the trial which could not have been reasonably foreseen, the accused should not be deprived of such potential relief. In the instant case, the “overholding” issue appeared to arise from answers given in cross-examination of Constable Hill. Accordingly, the Court will decide the issue on the merits. [ 27 ] Constable Hill testified that detachment ‘policy’ was to hold intoxicated persons unless he or she could be released into the custody of someone over 18 who was responsible and sober.

This is primarily for the accused’s safety according to the officer and seems to make eminent good sense as a starting point for consideration of continued detention.

Such a policy, in the Court’s view, becomes arbitrary when, and if, no consideration is given by the officer in charge as to the level of intoxication or a reasonable opportunity is afforded the accused to have some safe alternative to custody implemented. [ 28 ] This Court had occasion to consider a similar argument of detention due to alcohol intoxication in R v Johnstone , [15] addressed it at paragraphs 13 to 15 inclusive: [13] The Court agrees that ss. 497 and 498 of the Criminal Code mandate the requirements that must be followed by an arresting officer ( s. 497 ) and an officer in charge of detention ( s. 498 ).

The “Exception” in each

section reads the same whereby continued

detention would be warranted.

Section 497 states in this regard: Exception

(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. [Emphasis added] [14] The determination of continued detention however does not rest solely upon the four criteria set out under “Exception” in ss. 497 and 498 . What also must be determined is whether the officer believes on reasonable grounds that it is necessary in the public interest having regard to all circumstances including the four criteria as set out. This would encompass for example the state of sobriety of the prisoner.

It certainly would not be in the public interest to turn someone out in an intoxicated condition where personal harm may well result to the individual or the public be put at risk by his or her conduct. It of course may encompass other considerations such as time of day, when the accused could be reasonably released and whether anyone was present to drive the accused (although not a positive obligation on the police - see paragraph 19 infra ). [15] Support in our province for the detention of the accused based on sobriety can be found in s. 52(2) of The

Summary Offences Procedure Act , 1990 S.S. (as well as subsection “3” referring to drugs or other intoxicants) which reads: 52

(2) Subject to

section 53, where: (

a) a police officer finds in a public place a person who the police officer reasonably believes: (

i) is intoxicated due to the use of alcohol; and (ii) if not detained, is likely to cause injury to himself or herself or be a danger or disturbance to others; and (

b) there is, in the opinion of the police officer, no other person capable of and willing to take care of the person mentioned in clause (a); the police officer may take the person into custody and deal with that person in accordance with this

section in lieu of proceeding pursuant to

section 139 of The Alcohol and Gaming Regulation Act, 1997 with respect to an offence against

section 126 or 127 of that Act or a provision respecting intoxication in a bylaw.

[29] On the facts of this case, Constable Hill considered the indices of impairment from the first encounter at roadside through tothe time he finished processing the accused, including the two Intoxilyzer readings of 140 milligrams which neared twice the legal limit. He then gave the accused the opportunity to contact a suitable sober individual to collect him, however, he was unable to locate anyoneto do so.

Constable Hill’s actions in the circumstances were not some blind adherence to a blanket standard policy but rather areasonable consideration of whether it was appropriate to release the accused in his condition at that time. Accordingly, no overholdingarises on these facts. Nor does the Court have the benefit of the accused’s evidence as to how such “overholding” impacted upon him,whether he slept throughout, the time of his release and so forth. IV CONCLUSION [30] Regarding the count of impaired driving, the driving evidence was unremarkable other than what appeared to be unusuallywide turns.

The accused’s roadside demeanour could be equally consistent with nervousness as alcohol impairment.

Althoughundoubtedly under the influence of alcohol to some extent as noted by the roadside observations and subsequent testing, the Court has areasonable doubt in all the circumstances that his ability to operate a motor vehicle was impaired by alcohol at the time of driving. [31] Based upon the readings in Exhibit P-1, which evidence is not excluded by reason of the Court’s findings, the accused isfound guilty of count #2 of the Information of driving a motor vehicle while over .08. _______________________________ R.D.

Jackson, J [1] Transcript page 23, lines 18 - 20 [2] Transcript page 86, lines 17 - 21 [3] Transcript page 24, lines 6 - 7 [4] Transcript page 26, Lines 4 - 14 [5] Transcript page 28, lines 6 - 8 [6] Transcript page 87, lines 13 - 14 [7] Transcript page 87, line 21 - 25 [8] Transcript page 53, Line 22 - 26 and page 54, Line 1 - 10 [9] 2009 YKTC 9 [10] R v Orbanski; R v Elias, [2005] 2 SCR 3, 2005 SCC 37 [11] 2014, 2014 ABQB 528 (AltaQB) [12] See R v Renouf (2013) 2013 SKPC 34 , 413 SaskR 226 (SaskProvCourt) where the investigating officer was commendedfor choosing to utilise the ASD rather than going straight to a formal breath demand. [13] At page 27, lines 15 - 28, line 1 Constable Hill stated: A.

From my - from my training a “fail” occurs on the approved screening device at 100 ml percent or higher.

Q. And did you believe that rating from that approved instrument to be reliable? A. Yes, I did. Q. Why do you say that? A. It was - the instrument was in working condition. I believed it to be in working condition? Q. How do you - why did you believe it to be in working condition? A. The - there’s a sticker on the side of it that states the last time the calibration was checked and was still within the calibrationdates. [14] 2014 SKPC 163; see also: R v Mellquist 2014 SKPC 48 , 2014, SKPC 048 and R v Kutynec (ON CA),[1992] O.J. No. 347 (C.A.) [15] 2009 SKPC 133