Her Majesty the Queen - v. -, 2015 SKPC 117

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 117 Date: August 14, 2015 Information: 24530799 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brian Eby Appearing: B. Rodgers For the Crown R. Piché For the Accused CHARTER RULING R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused was charged on August 7, 2013, with impaired driving, driving while over .08, and possession of marijuana under 30 grams. [ 2 ] The driving charges arose as a result of a single vehicle incident near Kindersley, Saskatchewan.

As reported by a following motorist, the accused’s truck was observed weaving and swerving across both lanes of traffic on Highway #7 before losing control and

entering an adjacent wheat field. [ 3 ] The accused was ultimately arrested at scene for impaired driving and given the standard rights and warning, including his rights to counsel, which the accused declined to pursue. [ 4 ] While being processed at the Kindersley detachment, a small bag of marijuana fell from the accused’s gym shorts resulting in the possession charge. The timing of this discovery was between the first and second breath tests on the Intoxilyzer. [ 5 ] At trial, the accused sought a s. 24(2) remedy to exclude evidence on the following bases:

a) the investigating officer, Constable Hilbig, did not have reasonable and probable grounds to make a formal demand for breath samples, thereby breaching his ss. 8 and 9 Charter rights warranting exclusion of the Certificate of Qualified Technician;

b) the failure of Constable Hilbig to immediately arrest the accused and provide his ss. 10(

a) and (

b) rights for the possession of marijuana charge would transfer and apply to all of his potential charges, such that the result of the second breath test should be excluded from the evidence. [ 6 ] The possession of marijuana charge was ultimately stayed by the Crown at the conclusion of its case. The Court agrees with the defence however that the fact that this charge was ultimately stayed, in itself, does not impact upon the arguments that possible Charter breaches nonetheless occurred.

II DETERMINATION Reasonable and probable grounds [ 7 ] To make a lawful breath demand, the investigating officer must have a valid subjective belief that the driver’s ability to operate the motor vehicle was impaired by alcohol at the time of driving (conceded in this case by defence). This belief must be capable of being supported objectively - the standard being of a reasonable third party standing in the shoes of the officer. [1] [ 8 ] The investigating officer is entitled to rely upon all of the information known to him or her at the time, including hearsay, to warrant the formal demand being made.

The question is whether, based upon the presenting indicia , the demand for breath samples was objectively reasonable, not that it was subsequently proven true or untrue, or that some other innocuous explanation was ultimately provided to explain away the symptoms of impairment. [2] [ 9 ] Nor does the absence of some indicators of impairment mean that the demand is flawed.

Rather, it is a proper demand where sufficient indices exist, from slight to great, that would support the conclusion that the accused’s ability to operate the motor vehicle was impaired by alcohol at the time of driving. [3] [ 10 ] In the present case, the investigating officer considered the following determinators:

a) an eye witness account from a motorist named “John” with whom Constable Hilbig spoke directly. This individual stated that he was following a gray Sierra truck which was going all over the road and that the driver was either impaired or texting, eventually oversteering and going into a wheat field;

b) arriving on scene shortly thereafter and locating the truck described by John in the wheat field;

c) hearsay evidence from a witness on scene, Josh Bluett, who had approached the driver shortly after the truck entered the field and believed that the driver was impaired by alcohol after interacting with him;

d) watching the accused walking towards her in a slow, careful, and deliberate manner as if concentrating on walking straight;

e) upon opening the cab door, detecting an odour of alcohol, observing a fresh wet spot on the seat, a beer cap in the console and a cup on the floor;

f) observing a fresh wet stain on the front of the driver’s shirt;

g) strong smell of alcohol coming from the breath of the accused;

h) words a bit slurred;

i) eyes red;

j) information from the accused that “he had three or four beer earlier”;

k) confirmation from the accused that he had just been medically cleared by onsite medical personnel;

l) information from the accused that he had a dislocated knee from a prior occasion; and

m) observation that the accused had sustained a cut lip and swelling from the driving incident; [ 11 ] Having regard to all the information and observations known to Constable Hilbig, both supporting and detracting from her subjective belief, the Court is satisfied that the overall indicia is capable of objectively supporting such subjective belief. Therefore, the Crown has proven that the reasonable and probable grounds required by law to make the formal breath demand existed in this case. Failure to immediately charge and provide ss. 10(

a) and (

b) rights to the accused regarding possession of marijuana [ 12 ] The crux of the defence argument is that the right to counsel ought to have been triggered immediately upon discovery of the marijuana which fell from the accused’s person. This would then have given the accused the opportunity to consult with legal counsel on all matters upon which he was facing criminal jeopardy, notwithstanding that he had declined to obtain legal advice earlier on the impaired driving charges. [ 13 ] In R v Adam Schraefel [4] , the accused was initially detained at roadside for small amounts of marijuana found in the vehicle.

Following a more complete vehicle search, the officer decided not to charge the accused with possession of marijuana and accordingly no rights to counsel were administered concerning same. While in the patrol car, however, the officer detected a smell of beverage alcohol coming from the accused and consequently made a s. 254(2) ASD demand, with which the accused failed to comply.

[14] At trial, the defence argued that a s. 10(

b) breach had occurred when the accused had not been given right to counselimmediately upon detention concerning the marijuana possession which then extended to the subsequent charge of refusing to complywith the s. 254(2) demand. [15] This Court however determined that the two matters were separate and distinct and that any perceived s. 10(

b) breach on the initial detention did not apply to the s. 254(2) charge.[5] [16] Also, in R v Bath[6], the accused was initially charged with impaired driving after striking a pedestrian. During the course ofthe investigation, the pedestrian died, however, the accused was not immediately charged and accordingly not given rights to counselregarding this new potential jeopardy. At trial, it was determined that although ss. 10(

a) and (

b) breach had occurred regarding the over.08 causing death charge, no breach occurred concerning the initial offence of impaired driving simpliciter and the Certificate ofQualified Technician was therefore admitted as it pertained to this offence. [17] In the present case, the accused knew the jeopardy he was facing regarding the impaired driving investigation and haddeclined to consult legal counsel before providing samples of his breath for analyses. Failure to arrest on the marijuana possession andadminister rights to counsel immediately may arguably have constituted a breach of ss. 10(

a) and (b). However, such breach wouldapply only to these charges and not the unrelated driving offences as there was no nexus whatsoever to the evidence gathering process onthe impaired driving charges. Accordingly, the Court is unable to accede to the defence proposition that the door would be open to abreach argument relating to all charges. [18] Even if the Court is in error regarding its determination, exclusion of the second reading on the Intoxilyzer would not havebeen warranted on the Grant analysis.

The accused was in the process of voluntarily complying with the demand for breath samples afterdeclining his right to obtain legal advice when the marijuana was discovered and ultimately faced no jeopardy on this charge. It is theCourt’s view in these circumstances that consideration of all three branches of Grant would favour inclusion of this evidence whereasexclusion would tend to bring the administration of justice into disrepute. III CONCLUSION [19] No Charter breaches having been found, the application to exclude evidence pursuant to s. 24(2) is dismissed. ____________________ R.D.

Jackson, J [1] R v Bernshaw, (SCC), [1995] 1 SCR 254; R v Shepherd, 2009 SCC 35 , [2009] 2 SCR 527; R v Bush(2010) 2010 ONCA 554 , 259 CCC (3d) 127, (Ont CA). [2] R v Bush, supra [3] R v Kopperud, 2011 SKQB 192; R v Russell (2010), 97 MVR (5th) 266 (Sask PC); R v Stellato (1993), (ON CA),78 CCC 380 (Ont CA).

[4] 2015 SKPC 54 , 2015 SKPC 054 [5] See also R v Good 2007 ABQB 696 at para. 58 [6] (NL SCTD).