Her Majesty the Queen - v. -, 2016 SKPC 124

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 124 Date: September 23, 2016 Information: 90102005 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Henry Enns Appearing: M. Pilon For the Crown R. Piché For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused stands charged in a two count Information of driving while impaired and driving while over .08. [ 2 ] The charges arose from a traffic stop in Kindersley at approximately 12:30 a.m. on October 11, 2015, by a lone RCMP officer, Constable Fillion, who constituted the only Crown witness.

[ 3 ] The accused was the driver and sole occupant of the subject vehicle, a 2015 Chevrolet Silverado. [ 4 ] By consent, the trial proceeded by way of blended voir dire and trial. The defence elected to call no evidence on the voir dire or trial proper. II ISSUES [ 5 ] The defence raises three issues for determination:

a) whether the investigating officer’s subjective suspicion of alcohol in the body can be objectively supported; and

b) whether the implementation duties of s. 10(

b) were fulfilled, specifically whether the arresting officer should have provided rights to counsel to the accused subsequent to the breath demand, notwithstanding rights to counsel had been administered prior to the demand moments before.

c) whether the Crown has proven beyond a reasonable doubt that the accused was operating his motor vehicle while his ability to do so was impaired by alcohol. III DETERMINATION Background [ 6 ] Constable Fillion observed the accused’s vehicle exiting the Kindersley Inn parking lot at approximately 12:30 a.m. He decided to perform a vehicle stop to check driver’s licence, registration and driver sobriety. [ 7 ] At the driver’s window, he confirmed Henry Enns to be the operator and lone occupant of the vehicle. He observed Mr. Enns to have bloodshot and droopy tired looking eyes. He also noticed that Mr.

Enns was chewing gum, which in his experience of some 66 prior impaired driving investigations could be an attempt to mask the smell of alcohol on the breath. He also detected an odour of alcohol coming from the vehicle. [ 8 ] At that point the officer stated that he had reasonable grounds to suspect that the driver had alcohol in his body so asked him to return to the patrol car with him. While in the patrol car Mr. Enns confirmed that he had his last drink one hour ago.

Constable Fillion also noted the accused to have a dry pasty mouth at this point which he associated with consumption of alcohol. [ 9 ] Constable Fillion testified in chief that he did not make any notes nor could he recall pinpointing where the alcohol smell came from. He also could not recall whether the alcohol smell continued throughout the balance of the investigation. [ 10 ] At 12:32 a.m. an approved screening device (ASD) demand was made upon Mr. Enns which produced a fail result.

Constable Fillion understood this to mean that the driver had a blood alcohol content (BAC) in excess of 100 milligrams per cent. [ 11 ] At 12:40 a.m. Mr. Enns was informed that he was under arrest for impaired driving and then was administered rights to counsel, the formal breath demand and the police warning, in quick succession.

[12] Mr. Enns acknowledged that he understood each in turn. Concerning rights to counsel, when asked if he wished to contact alawyer now, he replied “I’m okay thanks”. Thereafter, throughout the course of the investigation and detention the subject was notraised again either by Constable Fillion or the accused. [13] Thereafter, at the detachment, Mr. Enns provided two Intoxilyzer samples of his breath of 220 milligrams per cent and 200milligrams per cent respectively, as evidenced by the Certificate of Analyses, entered as Exhibit P-1. [14] Mr.

Enns was subsequently detained overnight as he chose not to summon a sober driver to whom he could be released. ASD demand [15] Defence counsel maintains that Constable Fillion did not have an objective basis to make an ASD demand i.e. that he held anhonest subjective belief that the driver had alcohol in his body but that this conclusion cannot be objectively supported on the facts. [16] Principally, counsel points to the evidence that the alcohol odour was noted to be coming only from the vehicle.

Moresignificantly, Constable Fillion took no notes or could recall pinpointing the alcohol smell thereafter particularly throughout the dealingsin the confined space of the patrol car. [17] Defence counsel cites an earlier decision of this court, R v Thompson[1], on similar facts where inter alia, the smell of alcoholcoming from the vehicle was not sufficient to ascribe to the accused as it related to a suspicion of alcohol in her body as the driver.

Inthat case however, the evidence disclosed there were three other passengers in the car as well as a bag of empty beer bottles, any one ofwhich, or a combination thereof, could have explained the odour of alcohol. In the instant case, the accused was the lone occupant of his vehicle and no alcohol bottles were found therein. In any event, Thompson would have to be read in light of R v Yates[2], a 2014 decisionfrom our Court of Appeal directly on point. [18] R v Yates, supra, involved driving evidence consisting of intermittent residential speeding and two abrupt lane changes for noapparent reason.

Upon stopping the accused the officer noted “somewhat bloodshot” eyes and an alcohol smell coming from thevehicle.

Our Court of Appeal held this to be sufficient, stating variously at paras 15, 29 - 31, 45, and 48: [15] In passing, I note that the trial and appeal court judgments in this case were rendered prior to the release of the Supreme Court ofCanada’s decisions in R v Chehil, 2013 SCC 49 , 364 D.L.R. (4th) 1 and R v MacKenzie, 2013 SCC 50 , 363 D.L.R.(4th) 381. . . . [29] The Supreme Court of Canada in Chehil and MacKenzie comprehensively reviewed the standard of “reasonable grounds to suspect”and the application thereof to potential criminal activity.

Of particular significance are the following requirements stipulated in Chehiland discussed in MacKenzie: 1. Reviewing judges must be cautious not to conflate reasonable grounds to suspect with the more demanding reasonable and probablegrounds standard (Chehil, para. 27); 2. The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the policewill reasonably suspect that innocent people are involved in crime (Chehil, para. 28);

3. Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect ( Chehil , para. 29 ); 4. The constellation of factors will not ground reasonable suspicion where they merely amount to a “generalized” suspicion ( Chehil , para. 30 ); 5. Factors that may “go both ways” by themselves may not support reasonable suspicion but do not preclude reasonable suspicion arising when they form part of a constellation of factors ( Chehil , para. 31 ); 6.

Reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors ( Chehil , para. 32 ); 7. Exculpatory, neutral or equivocal information cannot be disregarded when assessing a constellation of factors ( Chehil para. 33 ); 8. The obligation of the police to take all factors into account does not require the police to further investigate or seek exculpatory factors or rule out possible innocent explanations ( Chehil , para. 34 ); 9.

When conducting an inquiry to ascertain whether a reasonable suspicion was present, the court is to assess the circumstances the police were aware of at the time of execution of the search ( Chehil , para. 34 ); 10.

The objective facts must be indicative of the possibility of criminal behaviour in order to ground reasonable suspicion but the evidence itself need not consist of unlawful behaviour or evidence of a specific known criminal act ( Chehil , para. 35 ). [30] The reasons of Moldaver J. in MacKenzie at para. 74 are instructive: 74 Parenthetically, I note that there are several ways of describing what amounts to the same thing.

Reasonable suspicion means “reasonable grounds to suspect” as distinguished from “reasonable grounds to believe” ( Kang-Brown , at paras. 21 and 25, per Binnie J., and at para. 164, per Deschamps J.). To the extent one speaks of a “reasonable belief” in the context of reasonable suspicion, it is a reasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual is connected to the offence.

As Karakatsanis J. observes in Chehil , the bottom line is that while both concepts must be grounded in objective facts that stand up to independent scrutiny, “reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime” (para. 27). [31] Although the decisions in Chehil and MacKenzie discuss suspicion in the context of a “crime” or “criminal activity,” their ratios equally apply to the standard of reasonable grounds to suspect that a person had alcohol or a drug in his or her body.

They also provide guidance on the burden borne by the Crown in circumstances where a s. 254(2)(

b) demand is challenged. . . . [45] There is no onus on the Crown to adduce evidence to support or disprove the alternative scenarios of the defence as to the possible source of the odour of beverage alcohol. The Crown need only prove that the inferences drawn by the investigating officer are rational and reliable on the basis of the evidence it has adduced and that, on the whole of it, the facts known to the investigating officer and inferences of fact drawn by the investigating officer reasonably support a suspicion that the accused had alcohol in his or her body.

. . . [48] Without more, the possibility of another person or source for the odour of beverage alcohol emanating from the respondent’svehicle by itself cannot override the rational inference that the odour might have been coming from the respondent (see R v Chehil; R vGunn; and R v Lindsay (1999), (ON CA), 134 C.C.C. (3d) 159, 40 M.V.R. (3d) 225 (Ont. C.A.)). In other words,given the officer had smelled the odour of beverage alcohol flowing out of the vehicle’s open window, the officer could rationally inferthat the respondent was the source of the odour.

Moreover, nothing in the evidence before the trial court eliminated the respondent as apossible source of the odour. [19] Accordingly, the bar has now been set significantly lower for making an ASD demand requiring only a reasonable possibility that the accused has alcohol in the body among other reasonable possibilities that might suggest otherwise. In R v Chehil[3], supra, it wasstated thus: [32] . . . Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors thatgive rise to a reasonable suspicion may also support completely innocent explanations.

This is acceptable, as the reasonable suspicionstandard addresses the possibility of uncovering criminality, and not a probability of doing so. [20] The twist, so to speak, in the present case, is the lack of alcohol odour in the dealings with the accused in the patrol car whichdefence counsel argues, would logically suggest that the alcohol smell could not have been coming from the accused.

The evidence atits highest however only supports that the arresting officer made no notes of such nor could he recall this at trial. [21] Also, one would have to ignore the other indicia testified to, namely, that he was observed leaving the parking lot of theKindersley Inn bar, bloodshot and tired droopy eyes, dry pasty mouth, chewing gum to possibly mask any alcohol odour on his breath,the admission of alcohol consumption one hour previously, and that an alcohol odour was coming from his vehicle when he was the loneoccupant and no other liquor containers were present. [22] In all the circumstances, the Court must conclude that Constable Fillion had the requisite objective criteria based upon thestandard set down in Yates.

Section 10(

b) breach [23] The accused asserts that his s 10(

b) rights to counsel have been breached by reason of the arresting officer’s failure to re-readhim these rights after the formal breath demand had been made upon him. [24] The Crown’s position is that “the order in which the right to counsel and breath demand is irrelevant, so long as they are closein proximity and have a clear connection to one another”. [25] The defence relies upon the recent decision of R v Pavey[4] from our Court of Queen’s Bench. In that case the arrestingofficer forgot to give the formal breath demand at the scene following rights to counsel.

He remembered to do so some 25 minutes laterwhen he was at the detachment. Mr. Justice Chicoine held, inter alia, at para 41: [41] . . . I am of the view that the making of the formal breathalyzer demand effectively changed the reason for Mr. Pavey’s detention,namely, to obtain conscriptive evidence for a charge of driving while over .08. This was, in my opinion, a significant enough change injeopardy to warrant a re-reading of the right to counsel. [26] Accordingly, the defence asserts the police now must provide rights to counsel subsequent to the breath demand being made,

notwithstanding that such rights may have been administered just prior to the breath demand only moments before. In other words, unless rights to counsel follow in the order set down in Pavey , a s. 10(

b) breach occurs. [ 27 ] Although this Court would respectfully disagree that the obligation to provide breath samples in an impaired driving investigation amounts to a significant change in jeopardy requiring rights to counsel to be re-administered, the principle of stare decisis in ordinary circumstances would bind this Court accordingly. The Crown argues however that the decision of the Supreme Court in R v Schmautz [5] provides a complete answer to the argument before the Court. [ 28 ] Defence counsel asserts that Pavey is explicit in its finding so must be followed by this Court.

The Crown on the other hand maintains that Schmautz is directly on point and is a higher authority thereby binding accordingly. Having considered the matter at some length, the Court is of the view that since Schmautz was not referenced in the Pavey decision, this Court has the obligation to review both decisions carefully to decide whether Schmautz would indeed apply to the facts of this case notwithstanding the determination in Pavey .

To be clear, had the Pavey decision ruled as it did, having due regard to the Schmautz decision, the Court would agree with the defence position that, whether or not this Court agreed with such

interpretation, it would be bound by it. As noted, this is not the case. [ 29 ] In Schmautz , the accused was being investigated for a hit and run and given his rights to counsel. Following approximately ten minutes of questioning he was then charged with the entirely different offence of impaired driving with no further rights or warnings being administered. All subsequent appeals were dismissed in relation to this alleged breach. [ 30 ] One of the issues for determination in Schmautz related to whether or not the accused was even detained when rights to counsel were first administered.

The Supreme Court however stated unequivocally that rights to counsel were properly administered whether or not the accused was actually detained at that moment and further, makes some instructive comments on the role of s. 10(b): [51] . . . there is nothing that prohibits, as a general rule, the investigating officers from giving such a warning when an investigation begins or during its course. It cannot be that a warning falls short of being sufficient compliance with s 10(

b) of the Charter for the sole reason that it is given before the exact moment in time when detention commences . . . Finding a Charter violation upon the sole fact that the warning was read before detention arose would be demonstrative of a legalistic and technical approach having little regard to the purpose of s 10(b), as reflected by its very wording. It provides in its English version that “[e]veryone has the right on arrest or detention” [emphasis added] to retain and instruct counsel without delay and to be informed thereof.

The French version reads “[c]hacun a la droit, en cas d’arrestation ou de détention” [Emphasis added]. If one reads the two versions together, it becomes clear that s 10(

b) refers to a factual connection between the detention and the right to a warning rather than a mere coincidence in time . . . [my emphasis] [ 31 ] Mr. Justice Gonthier went on to state the following at paragraphs 52 and 53: [52] In this case, by serving both the police and the Charter warnings on the appellant at the outset of the short interview, the police officers alerted him that he was suspected and was being investigated in relation to a serious offence.

These warnings made him aware that all he would say could incriminate him and that he had the right to remain silent and to instruct counsel on every aspect of the interview that followed. The situation that arose with the breathalyzer demand was directly connected to the investigation. Indeed, the demand generated the type of situation where the appellant might be expected to take advantage of the warning given to him a few minutes earlier.

The demand itself, together with the fact that he was also advised of the criminal consequences of a refusal, would normally trigger the consideration of the appellant of whether or not to instruct counsel. The appellant never mentioned that he wished to contact a lawyer. [my emphasis] [53] The situation, then, was not one where another more serious offence was suddenly being investigated because of changed circumstances external to the encounter and destructive of the close factual linkage relating the prior advice to the detention.

In this case, the demand arose directly and immediately out of the inquiry; it was part of a single incident at which the appellant was fully made aware of his rights. [my emphasis] [6] [ 32 ] In the instant case, the accused was given his rights to counsel at 12:40 a.m. and immediately declined the opportunity to call

legal counsel. Roughly one minute thereafter, the accused was given the demand for samples of his breath to be provided at the detachment followed by the police warning, to all of which the accused responded that he understood. [ 33 ] In Pavey , the Court did not hold that the 25 minute delay in the breath demand warranted reinforming the accused of his rights to counsel, but rather the breath demand itself amounted to a significant change in jeopardy requiring this.

Yet, the Supreme Court in Schmautz held that even where the accused was being investigated for a different offence, hit and run, with a ten minute delay in laying a new charge of impaired driving, this did not require the officers to give rights to counsel again once the breathalyzer demand had been given. [ 34 ] In the Court’s view, it is impossible to reconcile the determination in Pavey on the point in issue with the very clear dicta in Schmautz , as cited above. Therefore, the Court must agree that Schmautz is indeed a complete answer, and as a Supreme Court authority must prevail such that no s 10(

b) breach has been made out in this case. Section 24(2) - exclusion of evidence [ 35 ] If the Court is in error on the determination of whether a s 10(

b) breach occurred in the instant case, such breach would not have warranted exclusion of the evidence upon a Grant [7] analysis. [ 36 ] In R v Schlamp [8] Madam Justice McMurtry on very similar facts to Pavey involving a 25 minute delay in making the breath demand did not exclude the evidence. This was mainly because there were no other breaches established which was different from Pavey where multiple breaches had been found.

Similarly here, no other breaches have been alleged or established. [ 37 ] When considering the three prongs of Grant in this case, the Court determines the seriousness of the alleged breach to be at the very low end in that rights to counsel had been given less than a minute before the breath demand. Further, the impact on the accused, absent any evidence to the contrary (he did not testify) appears from the evidence to be minimal, if not non-existent.

Finally, the right of society to have this matter adjudicated when weighed against the particulars of the alleged breach, far outweighs exclusion of the evidence and would otherwise bring the administration of justice into disrepute. Impaired Driving [ 38 ] The evidence relating to the accused’s ability to operate the motor vehicle while impaired, is thin. Constable Fillion noted no driving evidence whatsoever nor any difficulties in stopping, parking and production of requisite documentation.

The accused was polite and cooperative and otherwise exhibited few indicia that could rise above mere consumption to the threshold of impairment [9] . In Constable Fillion’s words he was “surprised” at the readings ultimately obtained. Accordingly, the Court is not satisfied beyond a reasonable doubt that the Crown has proven the accused’s ability to operate the motor vehicle to be impaired by alcohol at the time of driving. IV CONCLUSION [ 39 ] The accused is found not guilty on count #1 of the Information of impaired driving and guilty on count #2 of driving while over .08. _______________________ R.D.

Jackson, J

[1] 2003 SKPC 56 [2] 2014 SKCA 52; see also R v Mitchell, [2013] MJ No 161 (CA) where an odour of alcohol from the vehicle was held to be adequate toform reasonable suspicion. [3] [2013] SCJ 49, 2013 SCC 49 at para 32 [4] 2015 SKQB 40 [5] [1991] 1 SCR 398 (SCC) [6] This exact issue before the Court was previously rejected in R v McNab - Brass, 2013 SKPC 210, Baniak, J, relying upon R vSchmautz at para 58 observed: [58] In my view, this argument may have had some substance if there was a fairly lengthy passage of time between the rights to counseland the demand; similarly, defence argument may have been enhanced if the accused had been charged with another or more seriousoffence after being given his right.

Neither of these scenarios are present in this case. [7] 2009 SCC 32 , [2009] 2 SCR 353, 245 CCC (3d) 1 [8] 2015 SKQB 348 [9] See R v Stellato, (1993), (ON CA), 78 CCC (3d) 380, 18 CR (4th) 127 (Ont CA)