Her Majesty the Queen - v. -, 2012 SKPC 43

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 043 Date: March 8, 2012 Information: 36652002 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ryan Neil Palmer Appearing: Bryce Pashovitz For the Crown Jonathon Abrametz For the Accused DECISION ON VOIR DIRE M.L. GRAY , J BACKGROUND [ 1 ] On July 14, 2010, Mr. Palmer was charged with operating a motor vehicle while his ability to do so was impaired by alcohol or a drug contrary to ss. 255(1) and 253(1) (

a) of the Criminal Code , and also with operating a motor vehicle after consuming alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to ss. 255(1) and 253(1)(

b) of the Criminal Code .

[ 2 ] The proceedings commenced with two Crown witnesses called on the trial proper. As counsel for the accused provided notice of his intention to raise certain Charter issues, the evidence of a third Crown witness Constable Walz was called on a voir dire. His testimony is the only evidence left for the Court to consider in determining the Charter application. The accused asserts that he was arbitrarily detained as the officer did not have reasonable grounds to make a demand for a sample of his breath for analysis. [ 3 ] Thus, the only issues to resolve are: (

i) Did the investigating officer have reasonable grounds to make the Intoxilyzer demand pursuant to s. 254(3) of the Criminal Code ? (ii) If a Charter breach is made out, is the appropriate remedy the exclusion of the Certificate of Analyses? EVIDENCE Constable Matthew Walz [ 4 ] Constable Walz has been a member of the Saskatoon Police Service since December 2004. On July 14, 2010 he was in uniform, in a marked police vehicle and on patrol with Constable Bradley.

Shortly after midnight, he was dispatched to investigate a complaint of a suspected impaired driver who was weaving on the roadway and up onto a sidewalk. A licence number for the offending vehicle was reported and Constable Walz went in search of it. At approximately 12:10 a.m. he saw a vehicle with that licence plate weaving in the right lane in a fashion that brought it very close to parked cars. He watched the vehicle as it continued to weave from the right to the left lane.

The vehicle suddenly braked and made a right turn from the left lane whereupon the officer activated the emergency lights of the patrol car. The vehicle pulled over quickly but as the officer walked toward the driver, the vehicle lurched forward then stopped very abruptly. [ 5 ] The accused was the operator and only occupant of the vehicle. Constable Walz made the following observations of the accused: glossy eyes, slurred speech in that words were blended together in a seeming lisp. The accused demonstrated poor muscular control, particularly in keeping his head still.

He also had difficulty grasping his licence and when he reached to place it in the officer’s outstretched palm he missed by three or four inches, dropping the identification beneath the officer’s hand and onto the ground. Constable Walz asked the accused to step out of his vehicle and noted that his balance was poor, that he stumbled and that when he walked his upper body leaned forward. He watched the accused walk to the front of the patrol car and at that point felt that he had reasonable grounds to arrest the accused for impaired driving.

When the accused was placed in handcuffs he stumbled and fell forward. [ 6 ] At 12:20 a.m. the accused was read his rights to counsel and when asked whether he wished to call a lawyer replied “yeah, when we get there to the police station.” This was followed by the standard police warning which he said he understood. When read the demand for breath samples and asked whether he understood, the accused indicated that he would not be saying anything and directed that he be taken to the police station. The officers promptly transported the accused to detention arriving at 12:33 a.m.

Once the accused was booked, he was taken to a phone room. Because the officer had not received a clear indication from the accused that he understood the demand the first time it was made, the officer read the demand again at 12:41 a.m. At 12:43 a.m. Mr. Palmer asked to speak to Legal Aid; duty counsel was reached about one minute later. The accused spoke to duty counsel for approximately three minutes. At the completion of that call the accused wanted to speak to a private lawyer, but received only a message manager. The accused did not wish to leave a message but rather called Legal Aid again.

At 12:50 he spoke to duty counsel and afterward decided that he would like to leave a message for his private counsel. He was permitted to do so and when asked if he was satisfied with this he said that he was and that he did not want to make any more calls.

At 1:03 a.m. the lawyer responded to the message by calling the police station; the accused spoke to that lawyer until 1:06 a.m. [ 7 ] Shortly thereafter the technician arrived and spoke to the accused who confirmed that he was satisfied with his legal consultation. [ 8 ] The accused provided two breath samples whereupon he was arrested for driving while over .08 and again provided his rights to counsel. He asked to call the lawyer to whom he had spoken earlier but received only a message manager.

The officer provided the Prosper warning to which the accused advised that he might wish to speak to another lawyer later. The detention staff were

instructed to allow him to do so. [9] Constable Walz also attempted to find a sober person to collect Mr. Palmer and keep him safe but Mr. Palmer could orwould not name anyone. As a result, instructions were given to hold Mr. Palmer until he was sober or until a competent person couldtake him into their care. [10] The accused was identified with a photo driver’s licence which the officer photocopied. The officer was also able to make anin court identification.

DEFENCE POSITION [11] Counsel for the accused argues that although the officer made observations indicative of impaired driving, there is noobjective evidence to suggest that the impairment of the ability to drive was the result of the ingestion of alcohol or drug. Consequently,the grounds upon which the demand was based cannot be said to be objectively reasonable, the detention was arbitrary, the breathsamples unlawfully seized and therefore, the evidence thus obtained should be excluded pursuant to s. 24(2) of the Charter.

CROWN POSITION [12] The Crown takes the position that even though the officer did not note a smell of alcohol, he did list a number of indiciawhich a person reasonably could conclude were the result of impairment by alcohol. Further, if there were insufficient grounds to makethe demand, the Certificate of Analyses should not be excluded given the reasoning of R. v. Grant, 2009 SCC 32 , 2009 S.C.C.32. ANALYSIS (

i) Did the investigating officer have reasonable grounds to make the Intoxilyzer demand pursuant to s. 254(3) of the Criminal Code? [13] Although the onus lies upon an accused to establish a Charter violation on a balance of probabilities, a demand for breathsamples amounts to a warrantless search which is prima facie unreasonable. As a result, the Crown must establish that the search wasauthorized by law, the law was reasonable and the search was conducted in a reasonable fashion. In this case, there is no dispute that s.254(3) of the Criminal Code authorizes the search and is reasonable.

No issue was taken with the authority of the officer to stop thevehicle driven by the accused.

Rather, defence counsel argues that Constable Walz did not have reasonable grounds within the meaningof s. 254(3) to make a demand for breath samples, nor did he have the grounds to make an arrest for impaired driving, thus the arrest wasunlawful, the search unreasonable and the rights of the accused pursuant to ss. 8 and 9 of the Charter were violated. [14] It is well settled that there is a subjective and objective component to a finding that reasonable grounds existed within themeaning of s. 254(3) of the Criminal Code. As stated by the Supreme Court of Canada in R. v.

Bernshaw (1995), (SCC), 95 C.C.C. (3d) 193 at para. 51: The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as aprecondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms. And further at para. 216: ...the existence of reasonable and probable grounds entails both an objective and subjective component.

That is, s. 254(3) of the Coderequires that the police officer subjectively have an honest belief that the suspect has committed the offence and, objectively, there mustexist reasonable grounds for this belief: R. v. Callaghan, (SK KB), [1974] 3 W.W.R. 70 (Sask. Dist. Ct.); R. v.

Belnavis, [1993] O.J. No. 637 (Gen. Div.) (QL)... R. v. Richard (1993), (ON SC), 43 M.V.R. (2d) 144... [15] The test is not an onerous one; there must exist more than the reasonable suspicion required by s. 254(2) for a roadsidedemand but less than proof beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired to even a slightdegree by alcohol or drug. The officer need not establish a prima facie case for conviction of impaired driving before proceeding tomake a demand: see R. v. Shepherd, 2009 SCC 35 , [2009] S.C.J. No. 35 at para. 23.

The issue is not whether the officershould have asked more questions or conducted a more thorough investigation, but rather, whether the information which he had and theindicia which he observed can be said to provide an objectively reasonable basis for a demand pursuant to s. 254(3) of the CriminalCode. [16] This test does require an assessment of the evidence to determine whether the belief was reasonable, both from the perspectiveof the officer making the demand and an objective observer.

Such an assessment by necessity requires a review of all the relevantinformation in the possession of the officer at the time the demand was made: see R. v. Vandal, 2009 SKQB 32 at para. 11. A plethoraof cases have been reported on the subject of what constitutes reasonable grounds but there is no formula or checklist to be derived fromthem. Rather, a case by case analysis is required in every instance. Or, as stated by Mills J. in R. v.

Gunn, 2010 SKQB 451, at p. 11: Although it is tempting to list indicia of possible impairment in a particular case and to compare them with similar indicia from othercases to come up with a formula for assessing an officer’s grounds, that is not the appropriate approach to take. [17] In R. v. Kopperud, 2011 SKQB 192 , [2011] S.J.

No. 303, Wilkinson J. made a similar observation at para. 57: ... the absence of some indicia commonly found in impaired drivers does not necessarily undermine a finding of reasonable andprobable grounds based on the observed indicia and available information viewed in totality. [18] In the case before me, there is no dispute that the officer’s belief was honestly held and subjectively valid.

The only questionis whether, in the absence of any smell of or admission of consumption of beverage alcohol, his belief can be verified objectively. [19] The evidence establishes the following information to be within the knowledge of the arresting officer at the time of thedemand: 1. there had been a citizen’s complaint of a suspected impaired driver who had driven up onto a sidewalk; 2. a detailed description of the offending vehicle, including the licence plate number, had been relayed; 3. his personal observations of the manner in which that vehicle was operated: (

a) it was weaving on the roadway coming very close to cars parked on the street; (

b) it braked abruptly; (

c) it made a right-hand turn from the left driving lane; (

d) it stopped very quickly in response to the emergency lights on the patrol car being activated; and (

e) it lurched forward as the officer approached on foot; 4. the personal observation of the following physical symptoms of the accused: (

a) he had glossy eyes; (

b) his speech was slurred; (

c) he had poor muscle control as evidenced by a bobbing head, overactive arms and difficulty grasping his licence;

(

d) he had poor eye hand coordination as demonstrated by dropping his licence beneath the officer’s outstretched palm, rather than intoit; (

e) he had poor balance as demonstrated by his body tilting forward as he walked; (

f) he stumbled when he walked; and (

g) he fell forward when his hands were cuffed. [20] Based on the totality of the above evidence, was it objectively reasonable for the officer to conclude that the accused wasimpaired by alcohol or a drug even without any explicit evidence such as a smell of alcohol or an admission of consumption? Impairment “by alcohol or drug” is critical to the offence of impaired driving, but there may be instances where the totality of theevidence does result in a reasonable inference that the impairment was the result of alcohol or drug ingestion.

An officer is entitled todraw inferences and conclusions based on experience: see R. v. Bush, 2010 ONCA 554, para. 61 and is not obliged to rule out everyother possible cause because, as was pointed out in para. 66 of Bush, supra, “the important fact is not whether the officer’s belief wasaccurate.

It is whether it was reasonable...”. [21] Clearly, Constable Walz could have asked the accused if he had consumed alcohol, but the weight attached to any responsewould have been up to the officer; he is not required to accept what he was told and terminate an investigation in the face of a denial orexplanation from the accused: see Shepherd, supra, para. 23 and R. v.

Wang 2010 ONCA 435, para. 68. [22] Although one might speculate that the symptoms and driving in the case at hand were caused by some medical condition,there is no evidence of any other possible reason which would explain the egregious driving and the physical condition of the accused.

In the absence of any evidence suggesting an alternative explanation, the Court finds that it is reasonable to conclude, as the officer did,that the most obvious cause was impairment by alcohol. [23] It is the view of this Court that the driving irregularities and the physical symptoms of the accused in this case paint a virtualstereotypic portrait of a motorist impaired by alcohol. The absence of the smell of beverage alcohol or any admission of consumption ofbeverage alcohol does not vitiate the probative value of the other indicia considered in their totality.

In the face of the manner of drivingdemonstrated by the accused and the very significant symptoms of impairment, it would be ludicrous to suggest that the officerreasonably could have only a mere suspicion that the accused had alcohol in his body. On the whole of the observations and informationin the possession of the officer, I find that he did have reasonable grounds to effect an arrest for impaired driving and that the grounds tomake the demand are objectively sustainable.

Accordingly, there was no breach of s. 8 or s. 9 of the Charter and the Certificate ofAnalyses is therefore admissible ii) If a Charter breach is made out, is the appropriate remedy the exclusion of the Certificate of Analyses? [24] However, in the event that I have erred in my assessment of the evidence with respect to the grounds for arrest and for thebreath demand, I will consider whether the admission of the evidence in the face of a breach so created would bring the administration ofjustice into disrepute. As set out in R. v. Grant, 2009 SCC 32 , 2009 S.C.J.

No. 32, such a determination requires an inquiryalong the following three lines: (

i) the seriousness of the state conduct which infringed the Charter; (ii) the impact on the Charter-protected interests of the accused; and (iii) the interest of society in having the matter adjudicated on the merits. [25] With respect to the issue of the seriousness of the Charter-infringing state conduct, Grant supra at para. 74 defined the rangeof seriousness in the following way: At one end of the spectrum, admission of the evidence obtained through inadvertent or minor violations of the Charter may minimallyundermine public confidence in the rule of law.

At the other end of the spectrum, admitting evidence obtained through a wilful orreckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringingthe administration of justice into disrepute. [26] Therefore, the more serious or deliberate the state conduct, the more likely the courts should be to disassociate from thatconduct by weighing in favour of exclusion. In my view, any potential violation of the rights of this accused would fall toward the lowerend of the spectrum.

The officer subjectively believed that he had reasonable grounds to arrest the accused for impaired driving and tomake a demand for breath samples. If the grounds fell short objectively, it was by a small margin. The accused displayed very

significant symptoms of impairment and drove in a fashion indicative of a marked departure from the norm. This is not a situation where there was nothing to substantiate the subjective belief held by the officer; what was lacking was a smell of or admission of consumption of alcohol. A smell or admission of consumption is not an absolute prerequisite to a reasonable belief that the offence of impaired driving had been committed. There is nothing in the evidence to suggest that the officer wilfully or recklessly disregarded the rights of the accused.

If the officer did violate the rights of this accused, he did so in good faith. In conclusion, the balance would weigh in favour of admission on this line of inquiry. [ 27 ] The second line of inquiry concerns the impact on the accused of any breach of a Charter - protected interest. At para. 76 of Grant , supra , the Supreme Court of Canada gave this guidance: The impact of the Charter breach on the Charter -protected interests of the accused may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. And later at para. 78: Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity.

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.

Providing a breath sample is a relatively unobtrusive procedure which does not demean dignity or invade privacy; thus an inquiry on this arm will generally militate in favour of admission of the results of the analyses of the sample . [ 28 ] With respect to the third line of inquiry, society’s interest in the adjudication of the case on its merits, the Supreme Court in Grant explained at para. 79 : Society generally expects that a criminal allegation will be adjudicated on its merits.

Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.

This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to law...” Thus the Court suggested in Collins that a judge on a 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. [ 29 ] The reliability of the evidence and its importance to the prosecution are very relevant to the truth seeking function of the trial process and as was pointed out in Grant , supra , the results of breath sample analyses are generally considered reliable and their exclusion would end any prosecution for the offence of driving while over the legal limit : see Grant , supra, para. 99-110 incl.

The Supreme Court concluded at para. 111: While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted.

For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. Accordingly, an assessment based on this criteria, would also favour the admission of the evidence. [ 30 ] In balancing the three lines of evaluation directed in Grant , I would conclude that the admission of the certificate would not bring the administration of justice into disrepute. The breach was not the result of a wilful or blatant disrespect of the Charter by the officer and was at the lower end of the spectrum of breaches.

The impact on the accused was also at the lower end of the spectrum and the admission of the evidence would serve to enhance rather than detract from the public interest in the truth seeking function of the

criminal trial process, particularly since the evidence in question is reliable and was obtained in a non-invasive manner. __________________________ M.L. Gray, J