Her Majesty the Queen - v. -, 2012 SKPC 113

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 113 Date: July 24, 2012 Information: 24406893 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dustin Dale Kinzel Appearing: Mr. William Burge For the Crown Mr. Ron Piche For the Accused DECISION M.T. GORDON , J [ 1 ] Dustin Dale Kinzel is charged that on or about the 17 th day of July, 2011, at 11 Highway, Craik, Saskatchewan, did, while his ability to operate a motor vehicle was impaired by alcohol did operate a white 2003 Dodge SX 2.0 with Saskatchewan license plate 110HXX contrary to Section 253(1) (

a) of the Criminal Code ; [ 2 ] And did, having consumed alcohol in such a quantity that the concentration thereof in his blood exceed eighty milligrams of alcohol in one hundred milliliters of blood did operate a motor vehicle, to wit, a white 2003 Dodge SX 2.0 with Saskatchewan license plate 110HXX contrary to Section 253(10) (

b) of the Criminal Code .

Overview of the Evidence [ 3 ] Misty Churko, Celynne Braun, Jaycee Turtle and Deanna Orpen, were returning to the Saskatoon area after having spent the weekend in Regina and the Regina Beach area. Three of the women testified, namely Misty, Jaycee and Celynne, and described an incident that resulted in two of the women calling 911. [ 4 ] Misty was driving her friend Deanna’s vehicle. The two passengers testified that a car was in front of them on Number 11 Highway, driving in an erratic manner.

Each of the witnesses described the vehicle in front of them slowing down, speeding up, and the car was swerving all over the road. Each testified that on the single lane portion of the highway that this car was driving in the oncoming traffic lane, and the oncoming traffic had to swerve.

They also testified as to a semi-trailer that tried to pass this car, having to brake when the car drove without warning into the passing lane. [ 5 ] While these young women were not sure of the location that they observed this driving, it was clear it was in the Chamberlain area on the Number 11 Highway. [ 6 ] The young women vary on their estimate of the time they followed this vehicle. Celynne Braun stated it was ten to fifteen minutes. Misty estimated it was more like seven to eight minutes, and Jaycee said it was long period of time.

All the young women said there was one male in the vehicle, and that the vehicle was clearly visible to all of them, and the licence plate number was provided to the police. [ 7 ] At one point the suspect vehicle pulled over, and the women pulled over and discussed among themselves whether they should approach the vehicle, as perhaps the driver was sick and needed medical attention. Celynne states that she and Deanna approached the suspect vehicle and Deanna spoke to the male driver while Celynne was present. They were standing about one metre from the driver and a little behind him.

The driver said he was fine and when advised that there had been complaints about his driving to the police, he became upset and took off. Celynne describes the driver as a younger fellow, lighter hair, tanned with some tattoos. He wore a Craven wristband. Celynne testified that in her opinion this male person was obviously intoxicated. She observed delayed reaction time, his head was tilted looking up at them and he was making very slow manoeuvres. He did not appear to be alert or sober.

This vehicle accelerated quickly and they never caught up with this vehicle again. [ 8 ] Celynne said she recognized the driver of the vehicle in Court as well as recognizing him in the hallway before Court. During cross-examination, Celynne explained that she never saw any scars on the accused’s face as she didn’t get a direct view of his face. She did say she noticed he had a phone in his lap and appeared he might be texting. [ 9 ] Jaycee Turtle was sleeping in the back seat of the vehicle and woke up when her vehicle slammed on its brakes.

The suspect car in front of them was swerving all over the highway and she observed this suspect vehicle swerve into oncoming traffic in a single lane portion. She said that all the way to Chamberlain his speed was fluctuating significantly. She made a call to 911. She also noticed that at one point the suspect vehicle was driving half in the right hand ditch. In other words, there was one set of tires in the ditch. The vehicle would then go to the other ditch. She described his swerving in the passing lane on the divided highway.

She saw the licence plate of the suspect vehicle and gave it to the police officer while speaking to him by telephone. She only saw one male person in the vehicle. She also noticed a semi trying to pass this vehicle and having to take evasive action. [ 10 ] Cst. Robert Head has been a police officer since 2006. He was stationed in Craik at the time of this incident. He testified at 8:10 p.m. on July 17, 2011, he received a call from his dispatcher regarding complaints about a silver northbound vehicle with Saskatchewan licence 110HXX.

He was at the detachment and provided his cell phone number to the individual who had called and told her to call back if anything changed. He headed southbound on Number 11 Highway and just north of Chamberlain received a call that this vehicle was northbound. At the next turnaround point, he proceeded north on Number 11 and located a small silver car with the same licence plate as had been given to him. He observed this vehicle to hug the white line and then weave in its lane. It did not cross out of its lane. He pulled the vehicle over about two kilometres north of Chamberlain.

There was a lone occupant male driver. The driver talked very quietly and as the officer got closer to hear him the officer could smell beverage alcohol on this driver. He asked for the registration and licence, and the driver looked around, leaned over but was having difficulty locating his documents. The officer noted a wallet in the back pocket of the driver, and after about thirty to sixty seconds, he asked the driver to exit the vehicle. When this driver exited the vehicle, the officer noted he took a wide step almost into the driving lane, so he cautioned the driver to be careful.

According to the officer, there was higher than normal traffic that day. [ 11 ] The driver produced his licence and registration eventually, although he did not know he had dropped his registration and the officer bent down and picked it up. He identified the driver as Dustin Dale Kinzel. He was asked if he had been drinking, and Kinzel

replied “no”. The officer could smell alcohol on Kinzel’s breath, and at that point the officer formed the opinion that the accused was impaired by alcohol and should not be operating a motor vehicle. The time of the stop was 8:27 p.m., and at 8:31 p.m., Cst. Head arrested Mr. Kinzel for impaired driving. [ 12 ] Cst. Head read Mr. Kinzel his rights and the police warning. The police officer explained the police warning in simple language when Mr. Kinzel said he did not understand. Afterwards the accused acknowledged he understood. Mr.

Kinzel was handcuffed and searched, and the officer found what appeared to be drink tickets on him. He was put in the back of the police vehicle. The officer searched the suspect vehicle and found no alcohol. The officer wanted to ensure there were no valuables in the vehicle and in fact took the face plate off the CD player to better secure the vehicle. [ 13 ] At 8:40 p.m., back at the police vehicle, he spoke with the accused and the officer realized he had not read the breath demand to the accused. At 8:45 p.m. he read the demand, and called his partner, Cst. Rushewick to meet him at the RCMP Detachment.

He read the breath demand from the card that he keeps with him. [ 14 ] The accused told the officer he was upset with the officer for keeping him in the vehicle for an hour. The officer explained that it had just been about eight minutes. The officer returned directly to the RCMP Detachment at Craik, which was fifteen kilometres away. At 8:59 p.m. the officer arrived with Mr. Kinzel at the Craik Detachment and escorted Mr. Kinzel into the interview area. The officer told Mr. Kinzel he could call Legal Aid, but the accused said he wanted to call Mr. Piche.

A Saskatoon phonebook was provided and the officer phoned the after hours number for Mr. Piche’s office. The officer listened to the recorded message, and asked Mr. Kinzel if he wanted to leave a message, which the officer did on Mr. Kinzel’s behalf. A direct call-back number for the detachment was provided and the officer took all the phones off call forwarding to ensure that any return calls by Mr. Piche would in fact be received at the detachment. [ 15 ] The officer waited about fifteen minutes and when there was no call back, the officer dialled again, trying the other options.

The accused said he did not want Mr. Piche paged. The officer noted the main office number for Mr. Piche and dialled it, and a person identifying himself as Mr. Piche answered. The officer explained the situation and then turned the phone over to Mr. Kinzel and exited the room. [ 16 ] Cst. Head told Cst. Rushewick who had come to the detachment that after Mr. Kinzel was finished on the phone, Cst. Rushewick should keep him under observation to ensure he had nothing by mouth and to let Cst. Head know if there were any burps or vomiting. [ 17 ] Mr. Kinzel concluded the phone call and Cst.

Rushewick entered the room. At this time Cst. Head was in the intoxilyzer room preparing his notes documenting his interaction with Mr. Kinzel. Cst. Rushewick was to keep Mr. Kinzel under observation for about fifteen minutes. Cst. Rushewick was told that the accused had burped at 9:57 p.m. Cst. Rushewick was then told to return and restart a fifteen minute observation period on Mr. Kinzel, and again advise of any burps, vomit, or regurgitation. At 10:18 p.m., Mr. Kinzel was brought into the intoxilyzer room and Cst. Head instructed him on how to blow into the machine. The first time Mr.

Kinzel provided an insufficient sample. At 10:19 p.m., Mr. Kinzel provided a satisfactory sample which indicated his blood alcohol reading was 170 mg. per 100 ml. of blood. Cst. Head then instructed Cst. Rushewick to take Mr. Kinzel back to the interview room for another fifteen minute observation period. At 10:34 p.m., Cst. Head was told Mr. Kinzel burped, therefore he decided to wait another fifteen minutes before administering the intoxilyzer tests. At 10:53 p.m., a second sample was taken. Exhibit P-1, the Certificate of Analyses, was entered. Cst. Head testified he served Mr.

Kinzel with a true copy, being a carbon copy of the Certificate of Analyses and Notice of Intention. Cst. Head said he compared the documents as he had them in front of him while explaining them to Mr. Kinzel. Mr. Kinzel was advised of the results of the tests. Mr. Kinzel was upset and throughout the entire time at the detachment his mood changed from being cooperative to being very loud and upset. [ 18 ] The accused provided the name of a contact person, and was released. [ 19 ] On cross-examination, Cst.

Head agreed that in his notes he described that the suspect vehicle “hugged the white line and then drove to centre white line”. This happened on one occasion. He observed the vehicle for approximately one kilometre which took about one minute. He acknowledged that Mr. Kinzel’s vehicle pulled over when required and stopped without incident. It was when the police officer moved closer to Mr. Kinzel to hear what he was saying that he noticed the odour of alcohol from the accused’s breath. The officer acknowledges that he did not make any notes with respect to Mr. Kinzel’s walking or any other indicia of alcohol.

The officer agreed that Mr. Kinzel was able to walk satisfactorily from the police vehicle to the garage area into the detachment, and then back and forth on two separate occasions to the breath testing room. Mr. Kinzel exhibited comprehension as his rights were read.

[ 20 ] Cst. Rushewick testified that he was contacted by Cst. Head to assist with an impaired driver on July 17, 2011. He arrived at 9:05 p.m. at the Craik Detachment. Cst. Rushewick sat within three to five feet of the accused in the interview room. He observed that the accused had flushed cheeks, bloodshot watery eyes and the odour of liquor was present. He slurred the word “windshield” and called the officer “Pushewick” rather than Rushewick. The officer exited the interview room from 9:18 p.m. to 9:30 p.m., when the accused talked to counsel. Afterwards, Cst.

Rushewick noticed the accused to be agitated and at about 10:00 p.m., the accused stood up and belched. The officer then advised him that he cannot belch, and was instructed by Cst. Head to wait another fifteen minutes before the first sample was taken. He observed the accused to be very agitated during this observation period. At 10:32 p.m. when the officer had the accused under observation again, the accused belched and as a result Cst. Head again advised that taking of the second sample had to wait another fifteen minutes. Cst. Rushewick tried to keep the accused calm during this time period.

The accused’s mood fluctuated from calm to becoming quite upset after blowing. At 12:30 a.m. he was released to his girlfriend. [ 21 ] There was no Charter application. The Defence did not call evidence. Issues [ 22 ] Has the Crown proved beyond a reasonable doubt that there was a proper demand made to Mr.

Kinzel pursuant to section 254(3)? [ 23 ] Has the Crown proved beyond a reasonable doubt that each breath sample was taken “as soon as practicable” after the time when the offence was alleged to have been committed, and in the case of the first sample, not later than two hours after that time, as contemplated in section 258(1) (c)(ii) of the Criminal Code . [ 24 ] Has the Crown proved beyond a reasonable doubt that a true copy of the Notice of Intention to produce the Certificate of Analyses was served on Mr. Kinzel? [ 25 ] Has the Crown proved beyond a reasonable doubt that Mr.

Kinzel drove a motor vehicle while impaired by alcohol or a drug? Analysis [ 26 ] The issues will be dealt with in the order raised by the Defence, as stated. Has the Crown proved beyond a reasonable doubt that there was a proper demand made to Mr. Kinzel pursuant to section 254(3)? [ 27 ] Cst. Head testified he read from his card that he carries with him, the breath demand to Mr. Kinzel. This occurred at 8:45 p.m. while Kinzel was seated in the back of his police vehicle. Mr. Kinzel had been read his rights and police warning prior to this. Cst.

Head took care to explain the police warning in simple terms as Kinzel indicated he did not understand. [ 28 ] In my view, it is clear that the essence of section 254(3) is to ensure that it conveys to the detainee that the demand is being made pursuant to this section. In R. v. Clarke , 2010 SKPC 180 , Judge R. Jackson stated at paragraph 13: Several decisions over the years have canvassed the adequacy of the demand to obtain breathalyzer/intoxilyzer samples.

It appears to the Court that the essence of these decisions is that it is not the particular wording of the demand that is critical as long as it is conveyed to the accused that pursuant to an impaired driving investigation he or she must accompany the officer for purposes of providing breath samples for analysis in accordance with the Criminal Code . [ 29 ] R. v. Heighton, [1993] N.S.J. No. 635 , is a fact situation very close to this case. In Heighton , the police officer read the accused his Charter rights, and right to counsel. The breathalyzer demand was read to Mr. Heighton from “the card”.

There was no evidence of the exact wording read. The Supreme Court of Nova Scotia dismissed the accused’s appeal stating there was no evidence

that the demand was in any way deficient. [30] See also R. v. Tovsroy (2007), 2007 ONCA 67 , 217 C.C.C. (3d) 571 at paragraph six, leave to Supreme Court ofCanada refused (2007), SCCA 120. Also used with approval, R. v. Caplette, 2010 SKPC 32 and R. v. Carriere, 2010 SKPC 118. [31] In this case, there is no evidence to show there was any confusion, uncertainty or misunderstanding on the part of Mr. Kinzel. The officer stated he read the standard demand from his card that he keeps with him and uses in such cases. Mr. Kinzel complied and at8:59 p.m. they arrived at the Craik RCMP Detachment.

I am satisfied beyond a reasonable doubt that the demand read by Cst. Head toMr. Kinzel was sufficient to convey to the detainee that a demand had been made pursuant to the Criminal Code. [32] I have read the cases Defence counsel has forwarded to the Court on two separate occasions. They do not change mydecision. The most recent case forwarded, namely R. v. Kristin Semchuk, 2012 ABPC 135, is distinguishable on the facts. In Semchukthe police officer testified he read the “breath demand” and then “administered the approved screening device”.

He then said he read an“ASD demand”. [33] The trial judge was not prepared to conclude that a proper demand had been provided to Ms. Semchuk. [34] This is not the case with respect to Kinzel. In my findings of fact there was no such confusion.

Has the Crown proved beyond a reasonable doubt that each breath sample was taken “as soon as practicable” after the timewhen the offence was alleged to have been committed, and in the case of the first sample, not later than two hours after that time,between the times when the samples were taken, as contemplated in section 258(1)(c)(ii) of the Criminal Code. [35] The Defence did not make Charter application and thereby did not argue for the exclusion of the Certificate of Analyses. Rather, the Defence argues that the Crown cannot rely on the presumptions in

section 258. Consequently, the Crown is not able to provethat the blood alcohol concentrations in the Certificate of Analyses were the same as at the time of driving. [36] In R. v. Duchek, 2012 SKPC 7 , 2012 SKPC 007, Judge Green adopted the Queen’s Bench Court decision of R. v.Dolezsar, 2012 SKQB 6. At paragraphs 51 to 52 in Dolezsar, he reviews the law in Saskatchewan. Mr. Justice Sherman heard theappeal of the accused Dolezsar and concluded at paragraph 20(c): Once the admissibility issue is dealt with, that question is settled. Within the context of s. 258(1)(

c) the focus must be on whether theconditions that ensure scientific reliability have been satisfied. See: R. v. Carter (1981), (SK CA), 9 Sask. R. 1 (C.A.) R. v. Allin, 2003 SKPC 58, 233 Sask. R. 73 [37] In R. v. Huot, [2001] S.J. No. 356, Judge Kolenick states at paragraph 8: In R. v. McCoy (1990), (SK KB), 86 Sask. R. 204, Gerein J. (as he was then) described the

interpretation of s.258(1)(

c) of the Criminal Code, in the following terms, at paragraph 6: [6] Section 258(1)(

c) of the Criminal Code creates a presumption as to the concentration of alcohol in a person’s blood at the time ofdriving. However, if the presumption is to apply certain requirements must be met. One of them is that the samples of breath be taken‘as soon as practicable after the time when the offence was alleged to have been committed’. I adopt the view that the phrase ‘as soon aspracticable’ means ‘as soon as reasonably can be expected’. See R. v. Mudry (1979), 1979 ABCA 286 , 50 C.C.C. (2d) 518 at519. Thus the time lapse may vary from case to case depending on the circumstances.

[ 38 ] The Defence referred to the case of R. v. Allin , supra . In that case, Judge Kolenick found that the breath samples were not taken as soon as practicable. The police did not account for a delay of 23 minutes, from the time of arrival in the detention area to the time of the first sample. In Allin the police had arranged for a breathalyzer operator to be at the detachment. As well, Mr.

Allin was cooperative and compliant and early on emphatically declined his right to contact counsel. [ 39 ] There have been many cases on this point and the cases point out that what is reasonable will depend on the circumstances of each case. [ 40 ] A review of the evidence I accept indicates the following time lines: 8:27 p.m. Time of driving and stop Rights and police warning Cst. Head searches and secures vehicle. 8:45 p.m. Breath demand. 8:59 p.m. Arrive at Craik Detachment.

Phoned lawyer, waited five minutes for call back, phoned lawyer and office, and accused talked in private to lawyer. 9:18 p.m. to 9:30 p.m. Accused talks to counsel. 9:45 p.m. to 10:00 p.m. Cst. Rushewick observes accused belch. 9:57 p.m. Cst. Rushewick told Cst. Head the accused burped so advised had to wait fifteen minutes. 10:18 p.m. Accused provided insufficient sample. 10:19 p.m. Accused provided first sample. 10:34 p.m. Cst. Rushewick told Cst. Head accused burped so advised had to wait fifteen minutes. 10:53 p.m. Second sample provided. [ 41 ] Cst. Head told Cst. Rushewick to keep Mr.

Kinzel under observation for a period of fifteen minutes to ensure that he took nothing by mouth. Cst. Rushewick was told to advise Cst. Head if Mr. Kinzel burped or vomited. [ 42 ] At 9:57 p.m. Cst. Rushewick told Cst. Head that Mr. Kinzel had burped. Cst. Head said they had to restart the fifteen minute observation period. [ 43 ] Cst. Head advised Cst. Rushewick and the accused the reason for the delay. There was no evidence as to what effect, if any, the burps, or the additional waiting would have on the intoxilyzer results. This was Cst. Head’s practice. Mr.

Kinzel was clearly advised of the situation even though he was not told the scientific basis for this practice. [ 44 ] The Criminal Code does not require a waiting period in advance of the first test. There was no evidence to explain why this waiting period was required other than it was Cst. Head’s usual practice. There was no evidence that Mr. Kinzel had regurgitated or consumed anything that would affect the test result. During some of this time Cst. Head testified he was in the intoxilyzer room, documenting his interactions with Mr. Kinzel. [ 45 ] The Defence referred to the case of R. v.

Oakley (2012), BCPC 98, the Court considered a similar type of delay and stated at paragraph 63: I would conclude this time period was not reasonably used in furtherance of the investigation and to that extent the samples were not taken, strictly speaking as soon as practicable. But the analysis requires that I consider the whole of the evidence and the entire time

period leading up to the taking of the samples relative to the two hour period available. At paragraph 65 the Court states: In all these circumstances bearing in mind Cst. Kumar was of the view that he needed to conduct the observation period and so to thatextent acted in good faith. I am satisfied the samples were taken as soon as practicable. [46] In my view, the police acted reasonably, in all of the circumstances.

The accused was told the reason for the delay was thathe would be under constant observation to ensure he took nothing by mouth and did not vomit, burp or regurgitate for fifteen minutesprior to each test. Any delay was as a result of the burping of Mr. Kinzel. [47] This situation can be distinguished from other cases where the police held off taking the tests for no apparent reason or for theconvenience of the police. This was not a deliberate delay for a wrong reason. I find that the action of the police officer in taking thesamples was reasonable.

Therefore, I conclude that the requirement “as soon as practicable” in section 258(1)(

a) in all of thecircumstances was fulfilled. The Crown can rely on the presumption of identity in this subsection. Has the Crown proved beyond a reasonable doubt that a true copy of the Notice of Intention to produce the Certificate ofAnalyses was served on Mr. Kinzel? [48] The Defence submits that there is insufficient evidence to prove beyond a reasonable doubt that Cst. Head served a true copyof the Notice of Intention (Exhibit P-1). The Defence relies on cases such as R. v. Vogel, 2010 SKPC 36J, and R. v. Stewart, 2012 SKPC39. [49] I find no basis for this assertion in the evidence.

There was viva voce evidence from Cst. Head before releasing Mr. Kinzelthat he sat him down and had the original and carbon copy of the document in front of him. He reviewed the contents of the certificatewith Mr. Kinzel. In so doing I am satisfied that he compared the original and carbon copy, concluded they were the same and gave Mr.Kinzel the copy. [50] The purpose of this certificate is notice of the Crown’s intent to introduce it at trial. The accused was not misled or caught bysurprise at trial. The jurat of the affidavit of service was not complete. However, Cst.

Head testified that he prepared the document andserved it on Mr. Kinzel. The certificate was a carbon copy and the officer ensured that what he had written “had come through”. R. v.Lang (1998), 166 Sask. R. 120 QB. [51] Judge Baniak in R. v. Stewart, supra, quotes at paragraph 44 R. v.

Glass (1973), (SK CA), 12 C.C.C. (2d)450 para. 10, as follows: …that the certificate and notice of intention to produce does not have to be signed as a duplicate original, but will be acceptable if it “…is a true copy in all essential particulars and conveys to the defendant all the required information”. (Emphasis added.) [52] In Stewart, supra, there was no evidence that the officer did anything other than “glanced” at the certificate. The certificatewas copied by someone else. In R. v.

Vogel, supra, the officer testified he had not compared the two documents. [53] Therefore, having considered all arguments raised by the Defence, I find that the Crown has proved beyond a reasonabledoubt count 2 of the Information. Driving While Impaired

[54] Mr. Kinzel is also charged with operating a motor vehicle while impaired in the same set of circumstances. [55] The well-known case of R. v. Stellato, (SCC), [1994] 2 S.C.R. 478, states the test for impairment. Atparagraph 74, the Court stated: 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 established any degree of impairmentranging from slight to great, the offence has been made out. [56] Judge Matsalla elaborates in R. v. Kratchmer, 2011 SKPC 49 , 2011 SKPC 049 at paragraph 20: It is clear that extreme intoxication need not necessarily be evidence to permit a police officer to lawfully arrest a person.

Even slightimpairment in the operation of a motor vehicle can amount to impaired driving because the operation of a motor vehicle involvescomplex motor functions. [57] The evidence of all three women who were travelling in the car behind Mr. Kinzel for some distance and who phoned 911 isrelevant to this charge. Lay persons can provide opinion evidence of intoxication and on the subject of impaired driving. A

summary ofthe lay witness testimony with respect to the vehicle Mr. Kinzel was driving is as follows: -car swerving, cutting people off, erratic driving -car varied speed from slow to very fast, less than 60 km per hour to over 130 km per hour -car cut off a semi-truck that had to take evasive action -car driving in oncoming lane of traffic -driver of car (Kinzel) had very slow reaction time and did not appear alert and sober -driver “on” or “off” something -driving at one point with one set of wheels in the right ditch and then to the other ditch -car squealed tires and spun off [58] Cst.

Head pulled the Kinzel vehicle over after observing it weave once in its lane. He smelled beverage alcohol coming fromthe driver. The driver took a very wide step exiting the vehicle causing the police officer to warn him to watch his step. The driverslurred his words and had some difficulty producing his licence and registration. The driver denied he had been drinking. Both policeofficers testified that Mr. Kinzel’s mood fluctuated. At the vehicle Mr. Kinzel accused Cst. Head of leaving him in the police vehicle foran hour, when it was actually eight minutes. [59] Defence counsel concedes that Mr.

Kinzel had the odour of alcohol, bloodshot eyes and a red face. However, if all of thecircumstances are considered, he argues this is not sufficient to prove the charge. He points to the following: -Mr. Kinzel stopped his vehicle when signalled to do so by Cst. Head. -Mr. Kinzel walked to and from the intoxilyzer room on two occasions without difficulty. -Mr. Kinzel had a good understanding of the events of that night. [60] Defence counsel referred to the case of R. v. Andrews, 1996 ABCA 23 , 46 C.R. (4th) 74 Alberta C.A., whichdiscusses the evidence of proof necessary to support a conviction of impaired driving.

At paragraph 29 of that decision the Court states:

In my view the following general principles emerge in an impaired driving charge: (1) the onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt; (2) there must be impairment of the ability to drive of the individual; (3) that the impairment of the ability to drive must be caused by the consumption of alcohol or a drug; (4) that the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and (5) proof can take many forms.

Where it is necessary to prove impairment of ability to drive by observation of the accused and his conduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof be met. To that extent the degree of deviation from normal conduct is a useful took in the appropriate circumstances to utilize in assessing the evidence and arriving at the required standard of proof that the ability to drive is actually impaired. [ 61 ] Impairment can be proven in different ways.

In this case there is the evidence from the three women of erratic driving, including speed, swerving and driving in the lane of oncoming traffic, and the smell of alcohol. [ 62 ] Cst. Head observed Mr. Kinzel up close in his dealings and observations which I have detailed. [ 63 ] In my view, the only reasonable inference is that Mr. Kinzel’s ability to drive a motor vehicle was impaired by alcohol. I say this, bearing in mind that Mr. Kinzel is not charged with dangerous driving.

However, the evidence of his driving, general conduct, and the smell of alcohol, his appearance and attitude, and his wide step out of the vehicle, lead me to this conclusion. Therefore, I find Dustin Kinzel guilty of count one, being driving while impaired. [ 64 ] Having found the accused guilty of both counts set out in the information, a judicial stay will be entered on count one to be made complete upon the expiration of the appeal period or alternatively until such time as all initiated appeals have been completed, whereby a conviction on count 2 is maintained.

Dated at Moose Jaw, Saskatchewan, this 24 th day of July, 2012. ________________________________ M.T. Gordon, J