Her Majesty the Queen - v. -, 2014 SKPC 077

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 077 Date: April 15, 2014 Information: 24500920 Location: Prince Albe rt _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lawrence Hrenevich Appearing: Evan Thompson For the Crown Timothy Foster For the Accused DECISION ON VOIR DIRE F. M. DAUNT , J [ 1 ] Lawrence Daniel Hrenevich stands charged that on February 25, 2013, near Shellbrook, SK, while his ability to operate a motor vehicle was impaired by alcohol, he did have care and control of a motor vehicle contrary to s. 253(1) (

a) of the Criminal Code . [ 2 ] A voir dire was held on January 21 st . The issue on the voir dire is the admissibility of the police officer’s observations of the accused after he was detained at the roadside near Shellbrook. Crown and Defence agreed to apply all admissible evidence arising out of the voir dire to the trial proper.

[ 3 ] Two witnesses testified on the voir dire , Justin Stieb, a civilian, and Constable Ryan Rempel of the Shellbrook RCMP. [ 4 ] Mr. Stieb was driving along a gravel highway on the morning of February 25, 2013, when he observed Mr. Hrenevich driving a truck and trailer in a very erratic manner. Alarmed, he followed the vehicle at a safe distance until it pulled off the highway into a roadside lay-by. Mr. Stieb was also driving a truck pulling a trailer, and so there was no room for him to stop as well. He therefore continued driving toward Shellbrook. As soon as it was safe, Mr.

Stieb pulled over to the side of the road and called the police. He described the vehicle and its location. He told the police details of the manner of driving that led him to believe the driver was either intoxicated or having some other serious problem. He said the truck was speeding up and slowing down, moving from side to side on the road, cutting off oncoming traffic, and basically driving erratically. [ 5 ] After phoning the police, Mr. Stieb continued into Shellbrook, where he met Constable Rempel, who was on his way to investigate the complaint. Mr.

Stieb had a brief conversation with the officer, where he reiterated his concerns about the manner of driving. [ 6 ] Within five to ten minutes of the initial phone call, Constable Rempel found Mr. Hrenevich at the lay-by as described. He pulled up behind the truck and trailer and engaged his emergency lights. He approached the driver door and observed Mr. Hrenevich sitting in the driver’s seat, which was reclined. He appeared to be sleeping. The truck was running and in “Park”. Constable Rempel turned the vehicle off and removed the keys from the ignition. The accused continued sleeping.

Constable Rempel could smell liquor from inside the cab of the truck. As there was only one person in the truck, Constable Rempel concluded the smell was coming from Mr. Hrenevich. The officer saw an open can of beer in the truck console. [ 7 ] Constable Rempel had to push on Mr. Hrenevich’s shoulders quite a bit to wake him. Mr. Hrenevich seemed disoriented, or “delirious”, in the words of the officer. Constable Rempel asked him to get out of the truck. On the walk to the police truck, about 30 feet back, Constable Rempel observed the accused was unbalanced and that he “somewhat staggered”. The officer told Mr.

Hrenevich he needed to look in his pockets to make sure he had nothing that could be used as a weapon. Then he placed him in the back of the police vehicle. Constable Rempel got in the front of the vehicle and opened the “silent patrolman”. He detected an odour of liquor coming from the accused. Constable Rempel then formally arrested Mr. Hrenevich for being in impaired care or control of a motor vehicle and demanded a breath sample. [ 8 ] Constable Rempel did not make an ASD demand, nor did he direct Mr. Hrenevich to perform any roadside sobriety tests. He did observe Mr.

Hrenevich’s movements while walking to the police vehicle and emptying his pockets. [ 9 ] One factual question that must be answered is: Had Constable Rempel already formed his grounds for the breath demand when he asked Mr. Hrenevich to exit the vehicle? If he had, then Defence all but conceded that all of the officer’s observations would be admissible. In examination-in-chief, the following exchange took place: (Transcript, starting on p. 76, l. 25) Q And why did you ask him to get out of the vehicle? A Because I believed he was intoxicated in – in control of the vehicle, so for officer safety reasons, yes.

Q I – I take it then had you formed an opinion at that point about anything? A I – I believed that he was intoxicated and shouldn’t be in care and control of a motor vehicle. [ 10 ] Later, at p. 78 of the transcript, line 10: Q What did you do after you opened up the silent patrolman? A I, I – I could smell the odour of liquor, and I had Mr. Hrenevich’s driver’s licence, so at that point, I had formed my grounds for arrest, and I arrested him for impaired care and control of a motor vehicle ... [ 11 ] I find that, at the point Constable Rempel asked Mr.

Hrenevich to get out of the vehicle, the officer had not yet completely solidified his grounds for arrest. However, he was confronted with a potentially dangerous situation, i.e. an apparently intoxicated driver behind the wheel of a running vehicle, who had reportedly been driving in that state only minutes before.

[12] As in all impaired driving investigations, Constable Rempel did not stop observing the accused after he asked him to get outof the vehicle. The following exchange took place on cross-examination: (Transcript, p. 107, starting at line 13) Q ... when you asked him to go back to your police vehicle, was he under arrest at that point? A I didn’t arrest him until I got him into the vehicle. Q Okay. And one of the reasons that you had asked him to get out was you wanted to see if he had any difficulties getting out of thevehicle? A One of the reasons, yes, yes. Q Okay.

And – and in walking back to your vehicle, you wanted – I think what you told us before was as part of your investigation,you wanted to see how his walking was? A First of all, I wanted him to get out of his vehicle because I believed he may be intoxicated in – in a motor vehicle in a – in asituation where he could possibly drive the vehicle. [13] I find as a fact that Constable Rempel asked Mr. Hrenevich to get out of the vehicle because he believed the man to beintoxicated and in control of a vehicle.

The officer’s primary intention was to separate the apparently intoxicated driver from the runningvehicle, and he felt that for officer safety, Mr. Hrenevich should not remain in the driver’s seat. Furthermore, in stating that he feared theaccused might drive the vehicle, Constable Rempel was expressing obvious concerns both for public safety and for Mr. Hrenevich’s ownsafety. At that point, the officer had, at the very least, formed a very strong suspicion that the accused was in impaired care or control ofa vehicle.

A secondary purpose in asking the accused to exit the vehicle was to continue to watch for signs of impairment, to make surethat suspicion was correct. However, the officer did not completely form his grounds for the breath demand until the accused was in theback of the police vehicle emanating an odour of liquor. Analysis [14] I have reviewed the cases submitted by both Crown and Defence. The ultimate authority, of course, is the Supreme Court ofCanada in R. v. Orbanski (2005), 2005 SCC 37 , 196 CCC (3d) 481 (SCC).

Madam Justice Charron outlined the limited use ofevidence obtained through roadside screening techniques such as roadside sobriety tests and the ASD demand. That is, because the rightto counsel is suspended while the police, in effect, compel the accused to incriminate himself, the evidence gathered can be used only toestablish reasonable grounds for making a breathalyzer demand. Adopting Moldaver J.A.’s reasoning in R. v. Milne (1996), (ON CA), 107 CCC (3d) 118 (Ont.

C.A.), she says (at para. 58): ...this limitation applies only to evidence obtained from the compelled direct participation by the motorist in roadside tests and, in ourcase, police questioning about alcohol consumption. Moldaver J.A. explained further, at p. 132: I am not referring to observations the officer might make of the driver while carrying out other authorized duties.

Thus, by way ofexample, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, bloodshot and glassy eyes, dilatedpupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would beadmissible at trial to prove impairment. [emphasis added] [15] In R. v. Demers, 2006 SKPC 65, the police officer, though not stating so, conducted a series of thinly disguised roadsidesobriety tests.

Judge Whelan could “find no reason for these requests, save to gather evidence by observing the accused.” [Para. 43] The observations made in the course of those tests were held inadmissible to prove impairment at trial. Judge Whelan’s reasons wereadopted by Mr. Justice Mills on appeal (2007 SKQB 348 at para. 8), and further adopted by Mr. Justice Goldenberg in R. v. Hult, 2008SKQB 52. However, the law on how to apply the limited use doctrine in Orbanski and Milne is far from settled. [16] In Mr.

Hrenevich’s case, the officer made no ASD demand; he conducted no roadside sobriety tests; he didn’t even ask theusual questions about alcohol consumption. Constable Rempel was confronted with an apparently intoxicated driver in apparent care orcontrol of a running vehicle. He had information from a civilian witness about the erratic manner of driving. His primary purpose indirecting the accused to exit the vehicle was to separate him from the vehicle for officer safety, for public safety, and for Mr.Hrenevich’s own safety. This was pursuant to his common law duty to protect life and property and prevent harm.

The constable wouldnot be letting this driver go on his way, even if he proved to be sober. The driving described by the civilian witness was so alarming that,whether it be intoxication, a medical emergency, some serious mechanical problem, or some other explanation for the driving, theconstable simply could not let Mr. Hrenevich remain behind the wheel. In other words, Mr. Hrenevich would have been asked to leavethe vehicle in any event. Any observations made by the officer would have been made anyway. This is exactly the situationcontemplated in Orbanski and Milne (supra). [17] R. v.

Visser 2013 BCCA 393 is helpful in its proposition that the purpose of the officer in making the direction is relevant.

However, police may have more than one purpose in directing a detainee to do something. In the case at bar, the primary purpose was to separate an apparently intoxicated driver from his vehicle. A secondary purpose was to observe the driver’s movements and note any signs of impairment or intoxication. However, Mr. Hrenevich was not directed to participate in statutorily compelled roadside sobriety tests, as contemplated by Orbanski .

To find these observations inadmissible is to take the limited use rule in Orbanski too far. [ 18 ] A more helpful way to look at it is this: Do the directions of the police officer objectively appear to be in the nature of compelled roadside sobriety tests? If so, the results are inadmissible to prove impairment, as would be the results of an ASD demand or the answers to direct incriminating questions about the consumption of alcohol or drugs.

If not, then the officer is simply making passive observations in the course of his duties, and any observations he makes are admissible against the accused to prove impairment. [ 19 ] I do not agree with the Defence

interpretation of the cases that anything done at the direction of a police officer for any purpose must necessarily be excluded from evidence because a detainee’s right to counsel is suspended. Nothing in this case resembled the roadside sobriety tests envisioned by the Supreme Court in Orbanski , or those thinly disguised roadside sobriety tests in Demers . [ 20 ] I therefore find on the facts of this particular case, that all of the observations Constable Rempel made of Mr. Hrenevich are admissible at trial on the issue of impairment. [ 21 ] Dated this 15 th day of April, A.D. 2014, at the City of Prince Albert, in the Province of Saskatchewan. _____________________ F. M. Daunt, J