Her Majesty the Queen - v. -, 2015 SKPC 36

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 036 Date: March 12, 2015 Information: 24462782 Location: Unity _____________________________________________________________________________ Between: Her Majesty the Queen - and - James Roadhouse Appearing: Brenda Korchinski For the Crown Michael Owens For the Accused DECISION L. DYCK , J [ 1 ] James Roadhouse is charged with impaired driving, dangerous driving, flight from police and refusal to provide a breath test, with all offences alleged to have taken place on or about January 27, 2013.

In addition, the accused is charged with speeding under The Traffic Safety Act . [ 2 ] Mr. Roadhouse entered not guilty pleas to all matters. Evidence was heard March 6, 2014, and November 13 and 14, 2014. By agreement, the evidence from the trial with respect to the Criminal Code charges was applied to the speeding ticket matter. The Crown called two witnesses at trial, Cst. Eric Macdonald, the investigating officer, and Cst. John Mackenzie, a qualified breath technician. As well, Mr. Roadhouse testified on his own behalf.

[ 3 ] The position of the Crown is that Mr. Roadhouse was driving his vehicle on a highway and a grid road at excessive speeds, while not in complete control of his vehicle. The Crown also argues that the accused did not stop during a period of time when signalled by the police to do so. Finally, the Crown says that when asked to comply with a valid demand to provide a breath sample, the accused refused to provide the sample. It is the Crown’s contention that all charges have been proven beyond a reasonable doubt. [ 4 ] Defence counsel takes the position that the Crown has not established that Mr.

Roadhouse was the driver of the motor vehicle in question, and therefore the accused should be found not guilty of the charges of impaired and dangerous driving, and failing to stop for the police. With respect to the refusal charge, it is argued that there was a breach of Mr. Roadhouse’s right to counsel, and as a result, the evidence of the refusal should be excluded from evidence. Defence counsel also argues that Mr. Roadhouse has a valid defence to the charge of refusal, as he offered to provide a sample after he had spoken to counsel. [ 5 ] Mr.

Roadhouse alleges a violation of s. 9 of the Charter , arguing that he was arbitrarily detained by the police, as he was not released until approximately 16 hours after the time of arrest for refusal. Defence counsel argues that the appropriate remedy is a stay of proceedings on all charges. [ 6 ] Counsel for the Crown takes the view that the accused has not established that a breach of right to counsel of the accused has occurred.

As well, the Crown submits that the accused has not established that an arbitrary detention occurred, or alternatively, that if it has been proven, a stay of proceedings is an inappropriate remedy. ISSUES [ 7 ] The issues are as follows: (

a) With respect to the charges of impaired driving, dangerous driving and flight from police has the Crown established, beyond a reasonable doubt, that Mr. Roadhouse was the driver of the motor vehicle? (

b) Has the Crown established beyond a reasonable doubt that Mr. Roadhouse’s ability to operate a motor vehicle was impaired by alcohol? (

c) Has the Crown established beyond a reasonable doubt that Mr. Roadhouse was operating his vehicle in a dangerous manner? (

d) Has the Crown established beyond a reasonable doubt that Mr. Roadhouse failed to stop for police in order to evade the peace officer? (

e) Has Mr. Roadhouse established, on a balance of probabilities, that his rights to counsel pursuant to s. 10(

b) of the Charter have been infringed, and if so, what is the appropriate remedy? (

f) Has the Crown established beyond a reasonable doubt that Mr. Roadhouse refused to comply with a demand to provide a sample of his breath? If so, has the accused provided a reasonable excuse for the refusal? (

g) Has the Crown established beyond a reasonable doubt that Mr. Roadhouse was speeding? (

h) Has Mr. Roadhouse established, on a balance of probabilities, that an arbitrary detention occurred, and if so, what is the appropriate remedy? FACTS [ 8 ] On Sunday, January 27, 2013, at approximately 2:23 a.m., Cst. Macdonald, a member of the Unity RCMP, was driving on a highway, eastbound, toward Unity. He noticed an oncoming truck that appeared to be going very fast, and turned on his radar, which noted the vehicle to be travelling at 149 kms./hr. The posted speed on the highway at that point was 100 kms./hr.

[ 9 ] Cst. Macdonald intended to stop the vehicle for speeding. He slowed down and made a u-turn on the highway. The vehicle in question did not appear to have slowed down, so he activated his emergency lights and continued to accelerate after the vehicle. The officer was able to catch up to the vehicle over a matter of several kilometres, by travelling at speeds of close to 200 kilometres/hr. The vehicle he was following did not slow and the brake lights did not come on. Cst. Macdonald came within about two car lengths of the vehicle, still following with his lights and siren on.

The vehicle was travelling at about 140 kms/hr. [ 10 ] When Cst. Macdonald’s vehicle came close to the suspect vehicle, the officer noticed the truck begin to swerve, touching the white and yellow lines multiple times. The vehicles neared a dangerous, steep curve and Cst. Macdonald observed the back end of the truck “kick out”. As they entered the curve, the officer noticed the truck was crossing the centre line, putting the vehicle in a position to be hit by any oncoming traffic.

As the vehicle was making the turn, the back end “really kicked out” and the officer was of the belief that the vehicle was about to roll. At this point, Cst. Macdonald pulled over to the side of the road, as he was concerned the vehicle might roll and harm the driver or that the vehicle might collide with another vehicle. [ 11 ] Cst. Macdonald noted that, from his experience patrolling this highway, there is traffic, such as “tandem semis hauling for Co- op, oilfield traffic, and people checking wells at all hours of the night”.

He said he would expect a few semi-trucks and a few passenger vehicles around these late night hours from 2:00 - 5:00 a.m. [ 12 ] When the officer stopped his vehicle, he saw the brake lights on the truck come on and the vehicle pulled over to the right. Cst. Macdonald thought the vehicle was going to stop, so he activated his lights and accelerated again to do the traffic stop. The truck turned north and appeared to go around the corner too fast, ending up in the southbound, or oncoming traffic, lane of the grid road.

The vehicle appeared to accelerate quickly and the truck skidded sideways, over-corrected, and came back to the centre of the road. [ 13 ] The officer was able to see the licence plate of the truck, which was 318 IPM. Because the vehicle was almost sideways to the officer and the headlights of the police vehicle were shining into the cab of the vehicle, the officer was able to see one person in the vehicle, a male driver with a blue hat and brown jacket. The suspect vehicle began to drive away and the officer again followed.

When it appeared that the vehicle was again accelerating, the officer once again was concerned for the safety of anyone on the road. As a result, at 2:28 a.m., the officer stopped, pulled over to the side of the road, and turned off his emergency lights. From the time the officer had originally observed the truck, until this time, was about 5 minutes, and they had travelled 5 or 6 miles. [ 14 ] The officer continued north on the grid, following the path of where he had last seen the truck.

There was a thin crust of older snow, which showed numerous tracks, but there was a distinguishable set of fresh tire tracks that the officer followed. Cst. Macdonald drove along the grid road for about 10 minutes, at a speed of between 60-80 kms/hour, from the point where he had stopped, to where he came across the truck, which was now stuck in the snow. [ 15 ] Although there were different turnoffs, Cst. Macdonald was able to follow the tracks to the point where he located the truck. The officer came over the crest of a hill, and observed the tracks appear to cross the road.

The officer believed the truck had turned completely around, and ended up stuck facing the opposite direction, the one from which the officer was travelling. Cst. Macdonald got out of his vehicle and noted a male, wearing a blue hat and brown jacket in the driver’s seat of the truck. [ 16 ] The male got out of the truck and was leaning on the door of the truck. The officer couldn’t see the hands of the individual, so he told him to get his hands out from behind the door. The male did not respond, so the officer yelled again, for him to raise his hands.

The individual complied by raising his hands, and was told that he was under arrest for flight from police. Cst. Macdonald held onto the accused and walked him to the police vehicle, placing him in handcuffs behind his back. [ 17 ] Cst. Macdonald noticed that Mr. Roadhouse was stumbling and unable to keep his balance on the road. Cst. Macdonald felt that if he didn’t keep holding onto the accused, the accused would fall down. Mr. Roadhouse’s eyes were “really red and bloodshot”, there was “a strong odour of liquour on his breath” and his “speech was heavily slurred”.

Once the officer began speaking to the individual, he recognized him as James Roadhouse, the accused. [ 18 ] Cst. Macdonald testified about the characteristics of the truck that made him believe it was the same truck he had seen before: it had a spare tire on the side of the box in the same position, it was a red single cab GMC, it had a grey kind of a cover with bars around

the back window, it had an unusual hitch assembly, and the licence number, 318 IPM, was the same. The officer saw there were footprints belonging to both he and Mr. Roadhouse, but no others. [ 19 ] Cst. Macdonald formed the opinion that Mr. Roadhouse’s ability to operate a motor vehicle was impaired by alcohol.

He based this on the fact that he believed this to be the same vehicle he had been following, with the same driver, since: (1) it had only been 12 minutes since he had lost sight of the vehicle; (2) he had not seen any other vehicles; and (3) there were no other footprints around the vehicle. [ 20 ] As for impairment, the officer relied on: (1) the fast speed; (2) the indifference to the police vehicle; (3) the fact this was late at night, on a weekend; (4) swerving from lane to lane, from line to line on the highway; that this increased when the officer came up behind him and the officer believed this to be from “divided attention”; (5) roads were clear of snow and not slippery, yet the truck almost lost control going around the turn; and (6) when the truck entered the grid road, there was too much acceleration, crossed to the wrong side of the road and the back end swerved out, with the driver almost again losing control of the vehicle. [ 21 ] The officer’s observations of Mr.

Roadhouse told him the accused had been drinking “lots” because: (1) the accused was holding onto the door for support; (2) the accused had difficulty standing to the point where the officer had to support him while handcuffing him; (3) there was a strong odour of liquor on the accused’s breath; and (4) the accused’s speech was slurred to the point where the officer had to have Mr. Roadhouse repeat himself (ie. “why are you ‘obtaining’ me?” and “who are you behind?”). [ 22 ] At 2:38 a.m., Cst. Macdonald advised the accused he was under arrest for dangerous driving, flight from police and driving while impaired.

The vehicles remained at the roadside from 2:39 - 2:46 a.m. During this time, the accused was handcuffed, searched, and placed in the police car. As well, the officer: (1) examined the scene to make sure no one else was there; (2) examined the area around the vehicle, checking for footprints leaving the scene; (3) checked the licence plate of the vehicle; and (4) began making his notes. [ 23 ] Cst. Macdonald provided Mr. Roadhouse with his “ Charter rights”, reading from his card, at 2:46 a.m.

It appeared the accused did not understand the reason for arrest, given his remarks to the officer (why are you “obtaining” me; who were you following?), so the officer re-explained the reason for arrest and re-read from the card at 2:52 a.m. At this time, Mr. Roadhouse said he understood. Mr. Roadhouse was asked if he wanted to contact a lawyer and he said he would like to. [ 24 ] At 2:53 a.m., Mr. Roadhouse was given the police warning. At 2:54 a.m., the breath demand was made to Mr. Roadhouse. He asked Mr. Roadhouse if he understood. The accused said “I don’t know what I should answer to that”.

The accused then said “why did you pull me over?” The officer then explained in his own words, rather than from the card, that he was asking for samples of the accused’s breath. At 2:55 a.m., the accused said “No, I’m not providing anything. I wasn’t even driving”. [ 25 ] Cst. Macdonald took photographs of the scene from 2:55 a.m. to 3:10 a.m. Photograph #3 of Exhibit P3 shows slide marks under the door, which in the officer’s view, is where the rear end of the truck slid around. The passenger’s side tires were in the snowbank.

It appeared the vehicle was stuck, however, there were no keys in the truck, so the officer was unable to confirm this. Prior to leaving the scene at 3:15 a.m., the officer felt the radiator of the truck Mr. Roadhouse was found in, and it was warm to the touch. [ 26 ] At 3:15 a.m., Cst. Macdonald and Mr. Roadhouse left the scene, which was about 57 kms. from Unity, and travelled to the Unity Detachment, arriving there at 3:51 a.m. The accused was taken to the “lawyer call room” as he had said he wanted to call a lawyer. Mr. Roadhouse said he wanted to use the washroom, and Cst. Macdonald took him there. Mr.

Roadhouse was unhappy about the officer escorting him to the washroom, but the officer explained to him that this had to be done to ensure that the accused did not take anything by mouth. [ 27 ] Mr. Roadhouse and the officer returned to the telephone room and Mr. Roadhouse said he wanted to call Sy Halyk. The accused was looking in the Saskatoon phone book under “F”, so Cst. Macdonald assisted him in finding the “H” listings. The accused was looking in the residential listings and there was no number.

The officer suggested they look in the Yellow pages, and there was a business, home and cellular number for Sy Halyk. The accused was told that he had to dial “9” then 1-306 and the number.

[ 28 ] The accused tried to dial 6 times and each time he would dial the wrong number. The accused then said, joking, that he was going to order a pizza, and starting dialling the local “228” exchange. The officer offered to dial the number for the accused. The officer dialled the number at 4:00 a.m. and gave the phone to the accused. The accused said “Hi, Sy” and the officer left the room. [ 29 ] At 4:04 a.m., the accused was off the phone. Cst. Macdonald entered the room and asked if he was done with his call to a lawyer. The accused answered sarcastically “No, I ordered a pizza”, then said yes.

The officer asked if he had talked to Sy Halyk and the accused would not respond. The accused was asked again if he had talked to a lawyer and Mr. Roadhouse said “Let’s go” and got up and exited the room. [ 30 ] Cst. Mackenzie, another Unity RCMP member, arrived at the detachment at 3:43 a.m. He is qualified to operate an Intoxilyzer. Cst. Mackenzie began preparing the instrument for testing. Cst. Mackenzie testified that the accused was wearing a black ball cap and a beige jacket. [ 31 ] Cst. Macdonald asked Mr. Roadhouse to have a seat on a bench just outside the interview room.

Almost immediately, the accused began to groan, hold his stomach and double-over. He said he felt sick and wasn’t sure he would be able to provide samples. The accused said “it’s the pill you gave me in the police vehicle” then said “before I got into the police vehicle”. The accused then collapsed slowly forward on the floor and he laid down there, groaning. [ 32 ] Cst.

Macdonald stated that it was obvious to him that the accused was not really in distress, given (1) the sounds he was making; (2) saying the officer had given him a pill, when he had not; and (3) he was just laying there with his eyes closed, but it was clear that he was squinting his eyes forcefully closed. At one point, Cst. Macdonald talked to Cst. Mackenzie about using “shock treatment”, meaning the defibrillator, on Mr. Roadhouse. Cst. Macdonald said that he had no intention of doing that, it was just a strategy to see if he could get Mr. Roadhouse to admit that he was not unconscious. [ 33 ] Cst.

Macdonald told the accused that when the time comes, you will have to get up and provide a sample. The officer then repeated the accused’s name over and over. There was no response. The officer wasn’t sure if Mr. Roadhouse had slipped into unconsciousness, so he did a basic pain test by squeezing the accused’s earlobe and there was a reaction. The officer tried to get the accused to sit up by: (1) holding the accused’s wrist; (2) squeezing the accused’s wrist; and (3) slapping the floor beside the accused.

The officer continued to be of the belief that the accused was feigning his condition. [ 34 ] At 4:14 a.m., Cst. Macdonald said “James, time to provide a sample”. The accused remained on the floor. The Intoxilyzer was ready for a sample, but the accused did not get up off the floor. The Intoxilyzer is only able to obtain a sample for a two minute period, after which it “times out”, which it did at 4:19 a.m. [ 35 ] Cst. Macdonald was unable to move Mr. Roadhouse from the floor to the bench. Cst. Brian Focht, another RCMP officer, came into the detachment and assisted Cst. Macdonald with the accused.

The two officers lifted Mr. Roadhouse up, the accused “came to” and sat on the bench with no problem. The time on the floor was approximately ten minutes. During that time, Cst. Macdonald told the accused at least twice that he could be charged with refusal. [ 36 ] At 4:24 a.m., Cst. Mackenzie, the qualified breath technician, said the instrument was ready, and Cst. Macdonald walked with Mr. Roadhouse over to the instrument. [ 37 ] At 4:28 a.m., Cst. Mackenzie told Mr. Roadhouse how to blow, and to blow and not stop, otherwise he would have to redo it. Mr. Roadhouse tried to hold onto the tube. Cst.

Mackenzie told Mr. Roadhouse not to do this. The accused put his mouth onto the tube, and blew very suddenly, in an explosive manner, with spit flying around the tube. The air went around the tube and into the tube. The accused only blew for one second, a very short blow, and then pulled his head back off of the mouthpiece so there was no air going in there. Cst. Mackenzie noted that this was an insufficient sample for the instrument to get a proper reading. At 4:29 a.m., the accused was taken out of the room and sat back on the bench. [ 38 ] At 4:30 a.m., Cst.

Mackenzie said the instrument was ready for a second sample. Cst. Macdonald took the accused into the

[ 38 ] At 4:30 a.m., Cst. Mackenzie said the instrument was ready for a second sample. Cst. Macdonald took the accused into the room where the instrument was and Cst. Mackenzie tried to explain to Mr. Roadhouse how to provide a sample. The accused continually interrupted Cst. Mackenzie, wasn’t listening, then was demanding to know what Cst. Macdonald was writing down. Mr. Roadhouse started walking away from the tube that he had been asked to blow in and was trying to see what the officer was writing in his notebook.

Finally, the accused blew exactly as he had before, without forming a tight seal with his mouth around the mouthpiece. Cst. Mackenzie again noted that this was an insufficient sample. [ 39 ] It appeared that Mr. Roadhouse was not going to provide a suitable sample of his breath. At 4:32 a.m., first, Cst. Brian Focht, then Cst. Macdonald, told Mr. Roadhouse that he was under arrest for failing to comply with a breath demand. At 4:33 a.m., Cst. Macdonald provided the accused with his right to counsel and Mr. Roadhouse said that he did wish to speak to counsel.

The accused was searched, then taken into the interview room at 4:39 a.m. to allow Mr. Roadhouse another opportunity to contact a lawyer. [ 40 ] In cross-examination, Cst. Macdonald admitted that Mr. Roadhouse was in the interview room on the phone with Mr. Halyk again for about 4-5 minutes. When Mr. Roadhouse exited the interview room, he immediately said that he would like to provide a breath sample. Cst. Macdonald did not allow the accused to provide a sample as he considered Mr. Roadhouse had already refused. He acknowledged there was nothing physically preventing Mr. Roadhouse from providing the sample. Cst.

Macdonald said that he was concerned that at this time, approximately 4:29 a.m., it was becoming close to being outside two hours from time of driving. Cst. Macdonald was aware that this would not allow the Crown to rely on the results of the breath test without further evidence and that this would complicate things. Cst. Macdonald also stated that he had never advised Mr. Roadhouse that “refusal” was a Criminal Code charge and that it carried the same penalty as impaired driving. [ 41 ] Given the state of intoxication of the accused, the officer believed that Mr.

Roadhouse would have difficulty understanding the release documents provided to him. Cst. Macdonald also felt it would not be safe to release the accused on his own. In addition, the officer thought that given the serious nature of the charges, flight from police and dangerous driving, there was a concern about continuation of the offence, namely that Mr. Roadhouse would gain access to another vehicle and drive. Finally, again noting the serious nature of the charges, the officer thought that he should have the accused released before a Justice of the Peace the following day. Cst.

Macdonald felt that being released by a Justice of the Peace “would put greater accountability on the accused to abide by the conditions he was on and a Justice of the Peace would be the best authority to release him on a more serious charge such as flight and dangerous operation”. [ 42 ] There was a discussion between Cst. Macdonald and another officer about the options of release for the accused. There are Justices of the Peace in North Battleford, however, they come in only once a day, at approximately 7:00 a.m.

It was believed that the accused would have been too intoxicated to participate in a show cause hearing at that time. [ 43 ] Cst. Macdonald also considered having a Justice of the Peace release the accused later in the day in North Battleford. According to Cst. Macdonald, he has tried to get a Justice of the Peace to come in at other times, but “they don’t appreciate it because they’re very busy and so they set times over the weekend when they’re going to be available”. [ 44 ] Cst. Macdonald asked Cst. Focht if he would be working the next day, and the officer said he was. Cst.

Macdonald asked the officer to release Mr. Roadhouse before their local Justice of the Peace as soon as he was able the next morning. There was also discussion about taking the accused to the Cutknife Justice of the Peace, if need be. [ 45 ] As there is no holding facility in Unity, at 5:02 a.m., Cst. Macdonald drove the accused to North Battleford to be held for release the next day before a Justice of the Peace. Mr. Roadhouse was lodged in a cell in North Battleford at 6:00 a.m. He was still intoxicated at that time. [ 46 ] Cst.

Macdonald returned back to the Unity Detachment and prepared documents for the release of the accused before the Justice of the Peace. At about 10:00 or 10:30 a.m., the officer contacted the local Justice of the Peace for the Unity area. He was told by the Justice of the Peace that “if the person was drinking last night I don’t want to see them right away and I’m going to be busy until the evening so bring him before me in the evening”. The officer then went off shift. [ 47 ] When Cst. Macdonald returned to work at 4:30 p.m., he discovered that Mr. Roadhouse was still in custody in North Battleford. Cst.

Macdonald went to North Battleford to pick up the accused, arriving there at 5:35 p.m. He returned back to Unity at

6:40 p.m. The arrangement was the Justice of the Peace was to arrive as soon as she was able. The hearing was conducted at 8:00 p.m. and the release on the undertaking was at 8:25 p.m. [ 48 ] In his testimony, Mr. Roadhouse explained what he had done the evening and early morning hours of January 26 and 27, 2013. He said that it was cold night, - 25 or -30 degrees Celsius. During the early evening, Mr. Roadhouse was at a friend’s shop, working on a ski-doo. At about 10:00 p.m., he and his friend drove in the accused’s truck to the Blue Bar and Grill in Unity for supper.

They met three other friends there. [ 49 ] Mr. Roadhouse consumed about 4 or 5 drinks and had some pizza. He began to feel ill, and went to the bathroom. He decided he was not going to drink anymore. At about 1:00 a.m., Mr. Roadhouse said he was going out to his truck. One of his friends was to come out and take him home. Mr. Roadhouse fell asleep in the truck. Mr. Roadhouse stated that the rear glass of the cab has dark tinted windows and the side windows are lightly tinted. As a result, you cannot see clearly into the truck. [ 50 ] Mr. Roadhouse woke up because he felt the truck stop moving, and it jolted him.

He could also feel a brisk rush of air. The accused was in the passenger’s side of the vehicle and he was unable to get out his door. As a result, he moved over to the driver’s side of the vehicle and got out. The accused saw the vehicle was on the side of the road. He got back in the vehicle. He would have started the vehicle, but there were no keys in the vehicle. [ 51 ] When Cst. Macdonald came upon the scene, he told the officer he had not been driving and suggested that Cst. Macdonald look for the driver of the vehicle. Mr.

Roadhouse said that two of his best friends’ parents live just 400 yards up the road from where the truck stopped. [ 52 ] When Mr. Roadhouse was at the police station, he again became ill, and as a result was rolling around on the floor. He was in a lot of pain, and so wasn’t really paying attention to what was being said. Mr. Roadhouse said that he tried to blow into the Intoxilyzer. He was told that he would be charged with refusal after the second attempt to blow. The accused said he hadn’t been told that before. Mr. Roadhouse was told that he could also contact a lawyer. [ 53 ] Mr. Roadhouse spoke to Mr.

Halyk again. He was told that it couldn’t hurt to blow. Mr. Halyk told him that they could make a demand even if he wasn’t driving. When he came out of the interview room, he told the police that he would like a chance to blow. The accused was told by the police that he had his chance to blow. [ 54 ] In examination-in-chief, Mr. Roadhouse testified that there is not usually traffic on Sunday mornings at that hour, especially in the middle of January. In cross-examination, Mr. Roadhouse admitted that the area is right in the middle of the oil patch and that in a 50 mile radius there is lots of oil.

The accused said that workers could get called to come out and check if there was a problem with a well. [ 55 ] The accused testified that he had seen Cst. Macdonald on another occasion in 2012, and on that occasion Mr. Roadhouse had been wearing a ball cap and a brown jacket. [ 56 ] Mr. Roadhouse said that he was not allowed an opportunity to call someone to come and get him after he was arrested for refusal. He could have called his Mom and Dad, or there are other people, such as two aunts and a sister, who live relatively near Unity. ANALYSIS (

a) With respect to the charges of impaired driving, dangerous driving and flight from police has the Crown established, beyond a reasonable doubt, that Mr. Roadhouse was the driver of the motor vehicle? [ 57 ] Since the accused has provided evidence in this matter, the Court must examine what evidence can be relied upon in coming

to a decision. It is evident there is a credibility issue in this case, as both Cst. Macdonald and Mr. Roadhouse cannot be correct in theirexplanation of who was the driver during the time the officer was following the motor vehicle.

In reviewing the evidence, I relied on thedecision of R v McKenzie, (SK CA), [1996] 141 Sask R 221 (SKCA) where at p. 223, Justice Tallis referred withapproval to a composite of the appropriate legal principles to be applied by the Court in determining credibility, and stated: First, if you believe the accused, obviously you must acquit; Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in a reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [58] In looking at the evidence as a whole, I find that I must reject the evidence given by the accused in its entirety.

Thesuggestion that some unknown stranger came upon Mr. Roadhouse while he was asleep in his vehicle outside the bar in Unity and droveaway with his vehicle while he was in it is beyond belief. The idea that Mr. Roadhouse might have been able to sleep through the chaseby the police, given the high speeds and uncontrolled nature of the driving, is incredible. Finally, to propose that this person, when thetruck was stuck in the snowbank, simply fled the scene, in the middle of nowhere, during a winter night in Saskatchewan, isunimaginable. However, I appreciate that sometimes unusual things do occur.

Thus, I look to the evidence of Cst. Macdonald. [59] Cst. Macdonald gave his evidence in a fair, careful manner. He was able to maintain his composure and train of thought, evenwith numerous interruptions by defence counsel in examination-in-chief, and throughout vigorous cross-examination. He was unshakenin his evidence. This was not an officer who investigated using “tunnel vision” or jumped to assumptions about what might havehappened.

He continued to investigate as the incident evolved and continued collecting evidence throughout, for example takingphotographs of the location where the vehicle he was following became stuck in a snowbank. [60] I am cognizant that the video that was played in court which shows the turn made by the suspect vehicle does not showclearly what Cst. Macdonald testified to, namely that there was one person in the driver’s seat, with a blue hat, that there was no one inthe passenger’s seat, and the make, model and licence number of the truck. Cst.

Macdonald testified that the video, due to the lowresolution, does not provide the detail he was able to see. As well, the camera is in a fixed position, while Cst. Macdonald had an abilityto look at the vehicle in a different way. I understand from his evidence that his ability to observe was better than what the recordingreflects. I accept Cst. Macdonald’s evidence on this point. [61] Cst. Macdonald was able to see only one person in the vehicle, whom he believed was a male person, as the driver, wearing ablue hat and brown jacket.

Although the officer lost sight of the vehicle he was pursuing for a period of 10-12 minutes, when he didcome across the vehicle again, the person in the driver’s seat of the vehicle was wearing a blue hat and brown jacket. There can be nodoubt that this is the same vehicle as the description of the vehicle and the licence plate number are the same. [62] On the point of what Mr. Roadhouse was wearing, I note as well the evidence of Cst. Mackenzie, who stated that Mr.Roadhouse was wearing a black ball cap and a beige jacket. Mr.

Owens, in argument, suggested the Court look at the video to determinewhat his client was wearing, and suggested that it was a black ball cap and a tan jacket. [63] I have reviewed the video on this point, and observed that Mr. Roadhouse was wearing a light brown jacket, which could beseen as brown, beige or tan, and a dark coloured ball cap, which could be seen as black or blue. [64] What is noteworthy is that Cst.

Macdonald said that the driver of the motor vehicle was wearing a ball cap and jacket when heobserved him turning the corner onto the grid road, and that the accused is ultimately seen to be wearing a ball cap and a jacket whenarrested by Cst. Macdonald. Cst. Macdonald specifically confirmed that the person he arrested was wearing what he had seen the personwearing when the vehicle turned onto the grid road. [65] If this were all the evidence, there could be a doubt that someone else might have slouched down in the passenger seat whileCst. Macdonald was following the vehicle and it made the turn.

However, when Cst. Macdonald arrived at the location of the vehicle

stuck on the side of the road, he examined the scene to see if there were footprints coming from the vehicle. The only footprints he couldsee were his own and those of the accused. Given that the tire tracks left by the suspect vehicle were visible enough in the snow for Cst.Macdonald to follow the vehicle to its final location, I have no doubt that had there been footprints coming from the vehicle left byanyone other than the officer and the accused, Cst. Macdonald would have been able to see them. [66] It may well be that Mr.

Roadhouse, due to his level of intoxication on the night in question, honestly believed that someoneelse was driving the motor vehicle. Or it may be that Mr. Roadhouse is intentionally trying to mislead the Court. In any event, I do notbelieve the evidence of the accused and there is no part of Mr. Roadhouse’s evidence that leaves me in a reasonable doubt. I accept theevidence of Cst. Macdonald in all respects. [67] James Roadhouse was the driver of the truck followed by Cst. Macdonald. (

b) Has the Crown established beyond a reasonable doubt that Mr. Roadhouse’s ability to operate a motor vehicle was impairedby alcohol? [68] Defence counsel filed the following cases on the issue of impairment:

(1) R v Von Madelghem, [2005] AJ No 914 (Alta CA)

(2) R v Fuchs, 2006 SKPC 71

(3) R v A.L.E., 2009 SKCA 65

(4) R v Krausher (unreported, June 25, 2009, Lavoie J.)

(5) R v MacArthur, 2012 SKPC 110

(6) R v Roy (unreported, June 25, 2014, Lavoie J.) [69] I have read all the cases filed by defence. It is not clear to me the purpose for filing these cases, as the facts in each of thecases are substantially different than those in the case before me.

The governing test with respect to impairment is found within the1993 Ontario Court of Appeal decision of R v Stellato, (ON CA), 78 CCC (3d) 380 at 384, affirmed by the SupremeCourt of Canada at (SCC), [1994] 2 SCR 478, which states: 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. [70] The other case that is important to note is R v Andrews, 1996 ABCA 23 , 104 CCC (3d) 392, a 1996 Alberta Court ofAppeal decision, where at p. 399 the following is stated: ...The trial judge felt that the Stellato decision meant that “slight impairment by the accused at the particular time” was sufficient for aconviction.

In applying this as the legal test, he made a critical error. He failed to focus the issue upon the question of whether Mr.Andrews’ ability to operate a motor vehicle was impaired. Stellato approves the principle that a conviction on a charge of impaired driving can be founded on proof beyond a reasonable doubt ofslight impairment of the ability to drive. If the ability to operate a motor vehicle is impaired (even slightly) by alcohol or drugs, it is notnecessary that the degree of that impairment be marked.

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 may

well 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 the individual’s functional ability is impaired to any degree. The question is whether the person’s ability to drive is impaired to any degree by alcohol or drug. In considering the question, judges must be careful not to assume that, where a person’s functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired. [ 71 ] Before I review the evidence regarding whether Mr.

Roadhouse’s ability to operate a motor vehicle was impaired, there are two pieces of evidence that need to be addressed. The first is with respect to the speed Mr. Roadhouse was travelling and specifically that he was found, with the assistance of radar, to be going 149 kms per hour. The Crown tendered tuning fork certificates to establish that the tuning forks were properly calibrated. Mr. Owens objected to these certificates being used as he had not been provided notice of them. [ 72 ] In addition, when Cst. Macdonald arrested Mr. Roadhouse at the roadside, the officer also searched the truck Mr.

Roadhouse was operating. Located within the vehicle was Mr. Roadhouse’s driver’s licence, one unopened can of beer and a cell phone. Mr. Owens objected to this evidence being tendered on the trial as he felt the officer did not have a legal right to search the vehicle, and thus the search was a breach of Mr. Roadhouse’s s. 8 Charter rights. [ 73 ] At the conclusion of the March 6, 2014 day of evidence, I ordered a transcript of that day’s evidence. I also directed that Mr. Owens was to provide case law on these two legal issues by October 15, with the Crown’s reply by November 1.

When we returned back to the trial on November 14, both the Court and the Crown had a copy of the transcript. Mr. Owens did not. The matter was looked into and it was determined that transcript services had sent Mr. Owens a copy of the transcript, but for some unknown reason he did not receive it. As a result, not only did Mr. Owens not provide any case law or argument on the two legal issues, he also was not in a position to cross-examine the officer who had testified the first day. [ 74 ] Mr. Owens was questioned as to why he had not followed up with obtaining a copy of the transcript.

He suggested that he thought that was for transcript services to ensure that he had received his copy. The Court advised him that it was counsel’s duty to locate the transcript when counsel is aware one has been ordered. However, in fairness to the accused, and since we had a second day available, Mr. Owens was given leave to adjourn his cross-examination of Cst. Macdonald until the following day. The Crown concluded the examination-in-chief of Cst. Macdonald and called Cst. Mackenzie, the Intoxilyzer operator. The cross-examination of Cst.

Mackenzie was also adjourned to the following day. [ 75 ] On November 14, 2014, Mr. Owens was able to more fully articulate his position on the admissibility of the tuning fork certificates.

He argued that he accepted they were admissible on the speeding trial, which was being held simultaneously with the Criminal Code matters, but that given the Crown had not given notice of its intention to tender the tuning forks and put the evidence of readings from the radar into evidence on the Criminal Code matters, the evidence of the tuning forks, and therefore the evidence of the results of the radar, should not be admissible on the charges of impaired and dangerous driving and flight from police. [ 76 ] Section 258(2) of The Traffic Safety Act provides that, in a prosecution under “this Act, the regulations or a bylaw of a municipality” a certificate with respect to a tuning fork bearing a date of no more than one year before or after the date of the offence charged, is admissible as proof, in the absence of evidence to the contrary, of the facts stated in the certificate and of the authority of the person who signed the certificate, without proof of his or her appointment or signature. [ 77 ] There is no requirement in s. 258 that notice need be provided to the defendant.

Had this been the intention, this would have been done, such as in the following

section relating to affidavits relating to red light camera systems, where the affidavit cannot be received in evidence unless a copy of the affidavit is served by ordinary mail at least 10 days before the date of the hearing. There is no requirement in The Evidence Act of Saskatchewan notice need be provided to the defendant in order for the tuning forks to be admissible. [ 78 ] In argument, Mr. Owens referred to the following decisions: R v Abrametz , 2014 SKCA 84 [ Abrametz ] and R v Dillabough , 2013 SKPC 141 [ Dillabough ].

The Abrametz decision is clear that the tuning fork test certificates are necessary for a conviction on a speeding trial. However, the issue of whether notice to tender the certificate needs to be provided was not addressed. [ 79 ] In Dillabough , Judge Kaiser was determining the admissibility of a Certificate of Analysis on an over .08 charge, as there was some question as to whether the officer had signed the Notice of Intention to Produce Certificate portion before or after he had served the certificate on the accused.

The Court relied on the decision of R v Oslowski , 2006 ONCJ 488 , and specifically paragraph 36 which states:

...After all, in any other case where a defendant represented by counsel receives a package of disclosure, it goes without saying that it is understood that the material may be presented in evidence. Why should the understanding be any different here?

Add to this understanding the fact that proof by certificate is a routine procedure and the certificate’s admissibility is clearly set out in a well-known statutory provision, and the conclusion is inescapable that the test for notice has been satisfied. [ 80 ] Ultimately, in Dillabough , the learned trial judge held that a copy of the Certificate of Analysis was provided to defence counsel in disclosure and that satisfied him that the appropriate notice had been provided to the accused. [ 81 ] I find that there is no notice required of the use of the certificate pertaining to the testing of the tuning forks if the certificate is being used in a prosecution under The Traffic Safety Act .

If I am wrong in that, I am satisfied that defence counsel had a copy of the certificate in disclosure and was reasonably put on notice that it would be used at the speeding trial. As such, the tuning fork test certificates, P2, are admissible as against the charge of speeding. [ 82 ] The matter is somewhat different as it relates to the Criminal Code charges. Given the fact that both trials were being run at the same time, and since it was unclear from the evidence whether it had been made clear to Mr.

Owens that the reading from the radar unit was to be used in the Criminal Code trial, I have decided that I will not use this evidence on the charges of impaired and dangerous driving and flight from police. [ 83 ] A voir dire was entered into at the request of defence counsel to determine the validity of the search by the officer of Mr. Roadhouse’s vehicle. The officer found the driver’s licence of the accused and a full, closed bottle of Labatt Blue beer on the front seat, in a box. A cell phone was also located. [ 84 ] There was no warrant for the search.

The officer admitted that he was searching to find further evidence of the offence. He said he did not believe he needed a warrant and in any event, he could not have gotten one as he needed to get Mr. Roadhouse to the detachment to contact counsel and the officer did not want to leave the vehicle, unlocked, as he would lose continuity of the scene. [ 85 ]

Section 8 of the Charter states that “Everyone has the right to be secure against unreasonable search or seizure”. It is well accepted that the onus for establishing a Charter breach is on the balance of probabilities and lies with the party making the application. The Crown, in the circumstances of a warrantless search, bears the onus of proving the search was reasonable, except where the search is incidental to a lawful arrest.

Search incidental to arrest is an exception to the rule, and the accused therefore bears the burden of establishing the search incident to arrest was unreasonable (paragraph 37 of R v Nolet , 2009 SKCA 8 [ Nolet ]). [ 86 ] The questions to be resolved on this issue are as follows: (

i) Were there reasonable and probable grounds to effect the arrest of Mr. Roadhouse or was the arrest valid? (ii) Was there a valid search incidental to arrest? (iii) If a breach of s. 8 is established, should the evidence be excluded pursuant to s. 24(2) of the Charter ? (

i) Were there reasonable and probable grounds to effect the arrest of Mr. Roadhouse or was the arrest valid? [ 87 ] On the issue of search incidental to arrest, Wilkinson J.A., at paragraph 143 of Nolet , notes: An exception to the principle that warrantless searches are prima facie unreasonable is that of a search incidental to a lawful arrest: R. v. Golden . The validity of that type of search depends on the arrest being lawful, the manner of search being reasonable, and the purpose of the search being truly incidental to the arrest: R. v. Stillman .

[88] The first determination that must be made is whether the arrest was lawful, and in this case, that requires a determination ofthe reasonable and probable grounds for the arrest of Mr. Roadhouse. In R v Storrey, (SCC), [1990] 1 SCR 241, theCourt had the following to say at paragraph 17 regarding the standard required to establish reasonable and probable grounds: ... an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, inaddition, be justifiable from an objective point of view.

That is to say, a reasonable person placed in the position of the officer must beable to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need notdemonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case forconviction before making the arrest. [89] The question at this point is whether Cst. Macdonald had reasonable and probable grounds to believe that Mr.

Roadhouse hadcommitted the offences of flight from police, dangerous driving and impaired driving, and was therefore arrestable. Given his evidenceon the voir dire, there is no doubt that Cst. Macdonald had a subjective belief that he had reasonable and probable grounds for his belief. That does not end the matter. The real issue is whether those grounds were objectively reasonable. [90] I have carefully reviewed the evidence that was in the possession of Cst. Macdonald at the time of arrest, including the drivingactions and physical condition of Mr. Roadhouse.

I am satisfied there were reasonable and probable grounds for the belief of the officerregarding whether Mr. Roadhouse had committed the offences of flight from police, dangerous driving and impaired driving and that Mr.Roadhouse was therefore arrestable. (ii) Was there a valid search incidental to arrest? [91] In R v Caslake, (SCC), [1998] 1 SCR 51 [Caslake], at paragraph 25, the Court noted the following withrespect to governing principles regarding search incidental to arrest: ...searches must be authorized by law.

If the law on which the Crown is relying for authorization is the common law doctrine of searchincident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be trulyincidental to the arrest. This means that the police must be able to explain, within the purposes articulated by Cloutier, supra (protectingthe police, protecting the evidence, discovering the evidence) or by reference to some other valid purpose, why they searched. They donot need reasonable and probable grounds.

However, they must have had some reason related to the arrest for conducting the search atthe time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude asearch from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may berebutted by a proper explanation. [92] The legality of the search is related to the legality of the arrest. I have already found that the police had reasonable andprobable grounds to effect the arrest of Mr. Roadhouse. Cst.

Macdonald testified that one of his reasons for conducting the search was tofind other evidence relating to the offences. This is obviously a valid objective in pursuit of the ends of criminal justice. There is nosuggestion that the search was used to intimidate, ridicule or pressure the accused in order to obtain admissions. There is no indicationthat the search was conducted in an abusive fashion; in fact, Cst.

Macdonald said that from 2:55 a.m. - 3:10 a.m. he took photographs ofthe scene and searched the vehicle. [93] The issue of the justification for the search is discussed at paragraph 22 of Caslake, where the Court pointed out that: Requiring the search to be truly incidental to the arrest means that if the justification for the search is to find evidence, there must besome reasonable prospect of securing evidence of the offence for which the accused is being arrested.

For example, when the arrest isfor traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further. [94] In this case, the arrest was for very serious driving related charges. Clearly, the search for possible evidence, such as alcoholin the motor vehicle, is appropriate. I find that this was a valid search incidental to arrest.

[ 95 ] Since I have found there were reasonable and probable grounds to arrest Mr.

Roadhouse for flight from police, dangerous driving and impaired driving, and as I have found that the search was a valid search incidental to arrest for the charges, it follows that there was no need for the police to obtain a search warrant in the circumstances. (iii) If a breach of s. 8 is established, should the evidence be excluded pursuant to s. 24(2) of the Charter ? [ 96 ] As I have found there was no Charter breach, this question need not be considered. [ 97 ] The evidence from the voir dire , including that the officer located the driver’s licence of the accused, a full, unopened bottle of beer, and the cell phone in the truck the accused was driving is applied to the trial. [ 98 ] What is the evidence on the issue of impairment by alcohol to operate a motor vehicle?

There is the evidence of driving described by Cst. Macdonald which consists of: (

a) seeing a vehicle coming toward him at a high rate of speed; (

b) when the officer turned around to stop the vehicle, that it continued at a high rate of speed, approximately 140 kms./hr.; (

c) that the vehicle swerved between the white line and yellow line multiple times; (

d) that the vehicle appeared to lose control on two occasions, once on the curve, and once while turning onto the grid road; (

e) that the vehicle drove for a period of time in the oncoming lane when it made the turn onto the grid road; and (

f) that the vehicle ended up stuck in the snow. [ 99 ] Aside from Cst. Macdonald’s evidence on the nature of the driving, we also have the video evidence of the driving that was played in court and I have watched this video a few more times. I have noted that there are at least 7 or 8 times that the truck driven by Mr. Roadhouse wanders from one side of the highway near the white, or fog line, over to the middle of the highway, near the centre line. There is one point where both of the driver’s side tires are over the centre line for a second or two.

When the vehicle is travelling into the curve, it is evident that Mr. Roadhouse does not have control of the vehicle, as one can see the back of the vehicle swaying. When Mr. Roadhouse turns the corner onto the grid road, he loses control of the vehicle, and the truck is slightly sideways on the road. The accused corrects the direction of the vehicle, but is then driving in the oncoming lane of traffic for a short period of time. [ 100 ] In addition, there is the evidence of the condition of Mr. Roadhouse when Cst. Macdonald initially interacts with him. Signs of impairment include: (

a) Mr. Roadhouse leaning onto the door of his vehicle for support; (

b) Mr. Roadhouse had difficulty standing to the point where the officer had to support him while handcuffing him; (

c) Mr. Roadhouse was unable to keep his balance while standing; (

d) Mr. Roadhouse had red and bloodshot eyes; (

e) a strong odour of liquour on Mr. Roadhouse’s breath; (

f) Mr. Roadhouse’s speech was slurred to the point where the officer had to have the accused repeat himself; and (

g) in addition to the slurring, the statements made by the accused were nonsense (“why are you obtaining me?” and “who are you behind?”). [ 101 ] On the issue of the accused’s slurring his words, that was evident from the audio evidence played in court. In addition, Mr. Roadhouse testified at trial, and the manner of his speech when testifying was significantly different than it was on the night of this

incident. [102] Finally, there is the evidence from Mr. Roadhouse. When asked about his state of sobriety at the detachment, the admitted thathe had 4 or 5 drinks at the bar so he was “not completely sober”. He also stated that he was “definitely intoxicated, a little”. [103] There can be no other conclusion on this evidence but that the ability of Mr. Roadhouse to operate a motor vehicle was greatlyimpaired. I am drawing this conclusion from the driving evidence and the physical characteristics displayed by the accused at theroadside only.

The evidence of the accused’s actions at the detachment only confirms the fact that Mr. Roadhouse was impaired byalcohol, but is additional evidence not required in this case. [104] As a result, the Crown has established beyond a reasonable doubt that Mr. Roadhouse is guilty of the offence of impaireddriving. (

c) Has the Crown established beyond a reasonable doubt that Mr. Roadhouse was operating his vehicle in a dangerous manner? [105] Mr. Owens, on behalf of Mr. Roadhouse, filed a brief dated November 12, 2014, with respect to the issue of dangerous driving. In the brief, he referenced the following cases:

(1) R v Strange, (SK KB), [1985] SJ No 88 (Sask QB)

(2) R v Hundal, (SCC), [1993] 1 SCR 867

(3) R v Rajic, (ON CA), [1993] OJ No 819 (Ont CA)

(4) R v Topping, [1993] BCJ No 2517 (BCCA)

(5) R v Francis, [1995] OJ No 416 (Ont CJ)

(6) R v MacAlister, [1996] AJ No 240 (Alta PC)

(7) R v Brannan, [1999] BCJ No 2669 (BCCA)

(8) R v W.J.M., [2000] SJ No 863 (Sask PC)

(9) R v Mahon, [2001] OJ No 719 (Ont CJ)

(10) R v Oughton, [2001] BCJ No 1181 (BCPC)

(11) R v Dellezay, 2002 ABPC 21

(12) R v Beatty, 2008 SCC 5 [Beatty]

(13) R v Lamouroux, 2008 SKQB 342

(14) R v Nordby, 2010 SKQB 365

(15) R v Kedves, 2013 SKPC 147 [Kedves] [106] In addition, Mr. Owens relied on the Queen’s Bench decision of R v Alves (unreported, October 10, 2013) [Alves], as well as theCourt of Appeal decision in that same matter (2014 SKCA 82). [107] In reviewing the recent decisions from the Court of Appeal in Alves and from the Provincial Court in Kedves, it is clear that thegoverning cases in this area are the Supreme Court of Canada decisions in Beatty and R v Roy, 2012 SCC 26 [Roy]. It is puzzling whyMr. Owens filed the brief with fifteen cases in this instance.

Many of the cases have little or no bearing on the fact pattern in this casebefore the Court. I note that on p. 1 of the brief, the following appears in the first paragraph: “The appropriate principles that shouldhave been applied in this case ...”. This leads to a suspicion that this brief may have been prepared for another, unrelated, purpose. In

addition, in none of the 15 pages of the brief was any attempt made to link the cases to the facts before me. This was not helpful. [ 108 ] In Roy , at paragraph 28 , the Court reviewed the principles found in Beatty , namely that: ...The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place ( s. 249(1) (

a) of the Criminal Code ). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances ( Beatty , at para. 43 ). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm.

While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). [ 109 ] The facts with respect to the issue of the actus reus of dangerous driving are essentially those as noted for the offence of impaired driving: driving too fast, swerving from side to side, losing control of the vehicle, and the alcohol consumption.

It is to be remembered that this driving activity took place at night time, with winter driving conditions, for at least 5 minutes as observed by the officer. It cannot really be seriously contended that this kind of driving is not dangerous. The only real question that needs to be closely examined is whether this is dangerous to the public, having regard for the amount of traffic that “at the time or might reasonably be expected to be at that place”. [ 110 ] Defence argues that there was no one else on the road that night, so the driving was not dangerous.

The difficulty with this argument is that, at a minimum, the police officer was on the road that night, and the driving by Mr. Roadhouse put him in danger when he attempted to pursue the accused. There is no doubt that Cst. Macdonald reasonably thought that the driving activity of the accused was putting other users of the highway in danger, and that the officer thought it important to try and stop this driver from continuing to drive. [ 111 ] In addition, there is the evidence of Cst.

Macdonald that, in his experience, there is traffic such as tandem semis hauling for Co- op, oilfield traffic, and people checking wells at all hours of the night. The accused also admitted that he is aware that there can be oilfield workers checking on problems with wells on the highways at that time of day. [ 112 ] As a result, I find that the actus reus has been established by the Crown. [ 113 ] At paragraph 36 of Roy , the Court indicated the following with respect to the mens rea analysis: ...It is helpful to approach the issue by asking two questions.

The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances. [ 114 ] In this case, it is difficult to imagine that a reasonable person would not have foreseen the risk of driving impaired, at high rates of speed on a highway, then grid road, at night, in the winter.

With respect to the second question, I find on these facts that the accused’s failure to foresee the risk and avoid this type of driving was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances. Quite frankly, it is here that the cases filed by defence in the brief with respect to dangerous driving are the most peculiar. Many of the cases discuss extremely brief errors in judgment in driving, many of the cases are with respect to occurrences that take place on dry pavement in daylight, and not all of the cases involve alcohol consumption.

As I noted previously, the cases are of little assistance to the Court. [ 115 ] As a result, the Crown has established beyond a reasonable doubt that Mr. Roadhouse is guilty of the offence of dangerous driving. (

d) Has the Crown established beyond a reasonable doubt that Mr. Roadhouse failed to stop for police in order to evade the peace officer?

[116]

Section 249.1(1) of the Criminal Code reads as follows: Every one commits an offence, who, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, fails,without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as is reasonable in the circumstances. [117] In R v Britz, 2014 SKPC 54, a case filed by the Crown in these proceedings, at paragraphs 73-75 Judge Crugnale-Reid hadoccasion to look at the definition of “pursued”.

She concluded that it meant “to catch up with” or “to follow or chase”. [118] On the facts before me it is clear that the accused was being pursued by Cst. Macdonald. When Cst. Macdonald initially sawthe vehicle driven by the accused coming toward him at a high rate of speed, he intended to stop the vehicle for speeding. As a result, heturned around and activated his emergency lights and siren. The officer came within about two car lengths of the vehicle and followedfor some distance, at night, with the emergency lights flashing.

It is clear that the accused would have seen the emergency lights of thepolice vehicle, and I find that Mr. Roadhouse intentionally did not stop in order to evade the officer. [119] As a result, the Crown has established beyond a reasonable doubt that Mr. Roadhouse is guilty of the offence of failure to stopfor police. (

e) Has Mr. Roadhouse established, on a balance of probabilities, that his rights to counsel pursuant to s. 10(

b) of the Charterhave been infringed, and if so, what is the appropriate remedy? [120]

Section 10(

b) of the Charter states that “Everyone has the right on arrest or detention ... (

b) to retain and instruct counselwithout delay and to be informed of that right”. [121] There is no issue with Mr. Roadhouse having been given his rights to counsel. As well, there is no issue with Mr. Roadhousehaving been given an opportunity to contact counsel upon his arrival at the Unity RCMP Detachment. Defence counsel suggests thatthere was a request to call a lawyer while the officers were attempting to obtain breath samples from the accused, and this was denied. This was alleged to have occurred between the time that the Intoxilyzer “timed out” the first time, and the two times that Mr.

Roadhousewas unable to provide samples of his breath. [122] I have gone back to the recording and listened several times to the words the accused used. It might be that he said, atapproximately 4:21 a.m., that “I’d like a lawyer”. During the entire time Mr. Roadhouse was at the detachment, he was rude,argumentative and belligerent with the officers. He was slurring his words and not making sense with what he was saying much of thetime. With respect to this particular statement, it is difficult for me to make out what he was saying.

The officer does not respond in away that makes me believe that the officer heard that the accused was asking to speak to a lawyer. [123] As always, the onus is on the applicant to establish, on the balance of probabilities, that his rights to counsel were breached as aresult of the police not allowing him to contact counsel while waiting for the testing. There is insufficient evidence to satisfy me that abreach has taken place. (

f) Has the Crown established beyond a reasonable doubt that Mr. Roadhouse refused to comply with a demand to provide asample of his breath? If so, has the accused provided a reasonable excuse for the refusal? [124] The Crown filed the following cases on the issue of refusal:

(1) R v Brown, [2004] OTC 967 (Ontario Superior Court of Justice) [Brown]

(2) R v McIntyre, (ON SC), [2005] OTC 597 (Ontario Superior Court of Justice) [McIntyre]

[ 125 ] Defence counsel filed the following cases on the issue of refusal:

(1) R v Rose , [1992] SJ No 674 (Sask PC)

(2) R v Cunningham , 1989 ABCA 163 [ Cunningham ] [ 126 ] The Crown takes the position that the accused has clearly refused providing the breath sample. They ask the Court to look at the totality of the evidence to make this determination. I find the timeline and statements by the accused relating to the refusal charge to be as follows: (a) 2:55 a.m.: at the roadside, in response to the questions as to whether he would provide a breath sample, Mr. Roadhouse initially stated “I don’t know what to say to that”. Later, when the officer explained the demand again, Mr. Roadhouse said “No I’m not providing anything.

I wasn’t even driving”; (b) 4:09 - 4:19 a.m.: the period of time when Mr. Roadhouse was on the floor, feigning illness in an attempt to avoid the breath test suggests that Mr. Roadhouse was not prepared to provide a suitable sample. The breath testing instrument “timed out” while Mr.

Roadhouse was on the floor; (c) 4:24 a.m.: the accused did not provide a suitable first sample; (d) 4:30 a.m.: the accused did not provide a suitable second sample; and (e) 4:33 a.m.: the accused is arrested for refusal, and given his Charter rights to counsel. [ 127 ] If this were the end of the events with respect to the refusal charge, I would have no hesitation in finding the accused guilty. However, when Mr. Roadhouse is given his rights to counsel the accused says “I’m not really sure what’s even happening here”. Cst.

Macdonald asks the accused “Do you understand?”, to which the accused replies “Yeah, I would like counsel, I guess”. Cst. Macdonald then asks the accused “Do you want to call a lawyer now?”, to which Mr. Roadhouse replies “Yes”. Cst. Macdonald then tells the accused that he is being charged with impaired driving, dangerous driving, flight and refusal. Mr. Roadhouse then says “Yeah, I definitely want to see a lawyer!” [ 128 ] At 4:36 a.m., Mr. Roadhouse was placed in the interview room again and allowed to call a lawyer again.

The accused was in the interview room for approximately two minutes and apparently spoke to Mr. Halyk again. Mr. Roadhouse came out of the interview room and within one minute said to the officer “I would like to give my breath”. Cst. Macdonald then told the accused “you had your chance”. The accused was then lodged in cells and arrangements were made to transport the accused to North Battleford. [ 129 ] What effect does a change of mind have on a refusal charge?

In Cunningham , at p. 11, the Court noted that: [i]n each case the issue is whether in the particular circumstances the Appellant’s refusal and subsequent assent “all formed part of one continuous sequence of events forming a single transaction”. [ 130 ] I want to note at the outset that I was struck throughout the testimony, and again while listening to the audio while preparing these reasons, at the incredible patience Cst. Macdonald exhibited in dealing with the very difficult, impaired Mr. Roadhouse. Mr.

Roadhouse’s behaviour when interacting with the police was appalling, but I credit most of that to his state of inebriation. [ 131 ] The difficulty is that once the second failed attempt took place, it seemed that Cst. Macdonald, and to some extent, Cst. Mackenzie, the breath technician, lost control of the process. It was Cst. Focht who stepped in and decided that Mr. Roadhouse was going to be charged with refusal, and then Cst. Macdonald appears to agree to that. There was never in my mind a clear direction from the breath technician that he was of the view that Mr.

Roadhouse’s opportunities to provide a sample were at an end.

[ 132 ] It is also significant that no one thought it might be of value to advise Mr. Roadhouse what a “refusal” charge was, namely that it is also a Criminal Code charge, carrying the same penalties as impaired driving or exceeding .08. Cst. Macdonald admitted that it is usually his practice to advise an accused person of this, but that in these circumstances it does not appear that he did so. [ 133 ] In any event, at 4:39 a.m., approximately six minutes after the refusal, the accused is allowed an opportunity to consult counsel and does so for a period of 4-5 minutes. Mr.

Roadhouse came out of the interview room and immediately said he would like to do his breath test now. [ 134 ] I find that the time from the refusal to the time of Mr. Roadhouse offering to provide a sample was approximately 10 minutes. In all the circumstances, this must be seen as one continuous transaction. [ 135 ] I have determined that the offer of the breath sample is evidence of a change of mind of the accused, brought about by the very real possibility of being charged with another Criminal Code charge, refusal, and speaking to his counsel again.

I appreciate that given how drunk the accused was, there still may have been challenges for the police in obtaining the requisite samples. Nonetheless, I find that they should have tried. [ 136 ] I have read the cases filed by the Crown. The facts are substantially different than what occurred in the present case. In Brown , the accused was given 10 separate opportunities over a 12 minute time frame to provide roadside screening samples. The accused was told by the officer of the ramifications of refusing, that being the same legal consequences as a drinking and driving offence.

In McIntyre , the accused was given 17 chances to blow into the roadside screening device. Because both of these cases involved roadside screening demands, the issue of rights to counsel did not arise. I note as well that as demands were made for roadside testing, it is unlikely that Mr. Brown and Mr. McIntyre were nowhere near the impaired condition that Mr. Roadhouse was. [ 137 ] On all of the evidence, I find that Mr. Roadhouse did express a change of mind after speaking to counsel. If the right to counsel is to have any meaning, I find that the police should have allowed Mr.

Roadhouse an opportunity to provide a sample of his breath. As a result, the accused is found not guilty on the charge of failing to comply with a demand to provide a sample of his breath. (

g) Has the Crown established beyond a reasonable doubt that Mr. Roadhouse was speeding? [ 138 ] With respect to the speeding charge, as I noted earlier, I am satisfied that Mr. Roadhouse was the driver of the motor vehicle at all times. Cst. Macdonald testified that he observed the vehicle, which appeared to be travelling very fast. The officer used radar to confirm the speed, and the vehicle was determined to be travelling at 149 kms/hour in a 100 kms/hour speed zone. [ 139 ] Cst. Macdonald is a qualified radar operator as evidenced by Exhibit P1.

He checked the calibration of the radar unit prior to his shift with tuning forks, and the certificates of calibration with respect to the accuracy of those tuning forks were tendered as P2 at trial. As mentioned previously, I find that the tuning fork certificates are able to be tendered on the provincial ticket matter without the Crown needing to provide notice. [ 140 ] As a result, I am satisfied beyond a reasonable doubt that Mr. Roadhouse was speeding and he is found guilty on Ticket # 7455463. (

h) Has Mr. Roadhouse established, on a balance of probabilities, that an arbitrary detention occurred, and if so, what is the appropriate remedy? [ 141 ] Mr. Owens, on behalf of Mr. Roadhouse, filed a Notice Pursuant to the Constitutional Questions Act , dated February 14, 2014, alleging a violation of Mr. Roadhouse’s right to be free from being arbitrarily detained or imprisoned as protected by s. 9 of the Canadian Charter of Rights and Freedoms . In support of his argument, he referenced the following cases in his Notice:

(1) R v Bender (unreported, March 27, 2002, Kalenith P.C.J.)

(2) R v Fox, 2007 SKPC 61 (O’Hanlon P.C.J.) [Fox]

(3) R v Holbrook, 2008 SKPC 133 (Harradence P.C.J.) [Holbrook]

(4) R v McKelvey, 2008 ABQB 466 [McKelvey]

(5) R v Wilcox (unreported, June 12, 2008, T.W. Ferris P.C.J.)

(6) R v Sawatzky, 2010 SKPC 9 (Carter P.C.J.) [Sawatzky] [142] The first date of the trial was March 6, 2014. In response to the Notice provided by Mr. Owens, Crown counsel filed thefollowing cases:

(1) R v Poletz, 2009 SKPC 121 (date of decision: October 29, 2009)

(2) R v Poletz, 2012 SKQB 148 (date of decision: April 11, 2012)

(3) R v Poletz, 2014 SKCA 16 (date of decision: February 12, 2014)

(4) R v Mahal, 2012 SKPC 157 (date of decision: October 23, 2012) [Mahal] [143] On November 13, 2014, the date set for continuation of the trial, Mr. Owens filed with the Court a brief of law regarding theover holding issue. Interestingly, Mr. Owens was able to prepare and file a brief of law even though he had not received a copy of thetranscript of the first day’s proceedings. At the beginning of the brief there are six short lines of facts noting, in essence, that the policehad come into contact with the accused at 2:40 a.m. and that Mr. Roadhouse was released at approximately 8:29 p.m. [144] In his brief, Mr.

Owens referred to and attached the six cases listed in his Notice. In addition the following cases were copiedand attached:

(1) R v Schemenauer, (SK KB), [1986] SJ No 840 (Sask QB) [Schemenauer]

(2) R v Ahenakew, (unreported, October 13, 2010, G. Morin P.C.J.)

(3) R v Hall, 2010 SKPC 133 (Kolenick P.C.J.) [Hall]

(4) R v Solic, (unreported, October 6, 2009, B. Huculak P.C.J.; Crown Appeal abandoned January, 2011) [Solic] [145] Once again, pps. 2-10 simply review the cases tendered without any effort made to tie them into the case before me. What isparticularly noteworthy is that a number of the cases show the dates that they were printed off: Fox, Holbrook, McKelvey, Schemenauer,March 22, 2010 and Sawatzky, May 18, 2010, and Hall, December 1, 2010. I am appreciative that one may print off a case and thenreuse it in later material.

Unfortunately, this looks like the material was gathered in 2010, and then updated with the notation about theCrown Appeal being abandoned in Solic in 2011. [146] What is troubling about the cases filed by Mr.

Owens, all of which support the notion that a stay of proceedings can, and likelyshould, be ordered in situations where an accused person has been held by police in custody following drinking and drivinginvestigations, often referred to as “over holding”, is the complete lack of reference to the four cases filed by the Crown. [147] In Mahal, the trial judge did not order a stay of proceedings in an over holding case.

In Poletz, although the accused wassuccessful at the Provincial Court level in achieving a stay of proceedings as a result of a breach for over holding, this decision wasoverturned on appeal to Queen’s Bench. The Court of Appeal also disagreed with the trial judge’s finding regarding a stay and upheldthe Queen’s Bench decision that a stay was not an appropriate remedy. There can simply be no doubt that the governing law inSaskatchewan is that as set out by the Court of Appeal in Poletz. What is more disturbing to the Court is the fact that Mr. Owens wascounsel on all four cases filed by the Crown.

[ 148 ] The Court asked Mr. Owens on November 13, 2014, about the fact that his brief did not contain references to the cases filed by the Crown in March, 2014. Mr. Owens’ response was that he knew the Crown had filed them. [ 149 ] In addition, upon reading the Court of Appeal decision in Poletz , reference is made at paragraph 10 to R v Hall , 2012 SKQB 233 . Recognizing that there may be a number of accused with the name “Hall”, I reviewed the 2012 Queen’s Bench decision in which Justice Currie overturned a previous stay that had been entered at Provincial Court with respect to a breach of s. 9 of the Charter .

The matter was remitted back to the trial judge for the completion of the trial. [ 150 ] The accused was Daniel Hall, and the matter appealed from was R v Hall , 2010 SKPC 133 , which was cited in Mr. Owens’ brief. Mr. Owens was counsel at both Provincial Court and Queen’s Bench Court. [ 151 ] The question for me now to determine is if there has been an arbitrary detention in this case.

Section 9 of the Charter states that “Everyone has the right not to be arbitrarily detained or imprisoned.” [ 152 ] The facts are that Mr. Roadhouse was observed by Cst. Macdonald between 2:23 a.m. and 2:28 a.m. driving in a fast, unsafe manner. Cst. Macdonald came across Mr. Roadhouse about 10 minutes later, and at 2:38 a.m. the accused was arrested for dangerous driving, flight from police, and driving while impaired. [ 153 ] There is a period of time at the detachment where samples were attempted to be taken from Mr. Roadhouse, without success.

The accused was arrested at 4:32 a.m. for failing to comply with a breath demand. The accused was taken to cells in North Battleford and lodged there at 6:00 a.m. Cst. Macdonald then went back to North Battleford later that day and brought Mr. Roadhouse back to Unity at 6:40 p.m. [ 154 ] It was determined that Mr. Roadhouse would be held until he could be released before a Justice of the Peace. It is significant to note that Cst. Macdonald was clearly able to articulate the reasons for holding the accused in custody: (

a) due to the serious nature of the charges, Cst. Macdonald felt it more appropriate for release to be before a Justice of the Peace, thinking that this would provide greater accountability to the accused; (

b) due to the state of intoxication of the accused, Cst. Macdonald believed that Mr. Roadhouse would have difficulty understanding the release documents if released immediately; (

c) due to the impaired condition of Mr. Roadhouse, Cst. Macdonald believed that it was not safe to release Mr. Roadhouse at that time; and (

d) d

[…]