Her Majesty the Queen - v. -, 2013 SKPC 31

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 031 Date: February 27, 2013 Information: 37252546 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tanya Marie Glass Appearing: Mr. Dana Brule For the Crown Mr. Merv Nidesh, Q.C. For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, Tanya Marie Glass, is charged with driving while her blood alcohol content exceeded .08 percent and with impaired driving. It is alleged that both offences occurred shortly after midnight on March 3, 2011.

All of the evidence adduced at trial was adduced in a Charter voir dire . Simply stated, if the evidence is admitted, the accused must be found guilty. If the evidence is excluded, the accused must be acquitted.

DEFENCE ARGUMENT - ISSUES [ 2 ] Mr. Nidesh, for the accused, argues that the accused’s rights to be promptly informed of the reasons for her detention have been infringed, contrary to s. 10(

a) of the Charter . While he is very non-specific in oral argument, about the remedy being requested, it appears he is requesting exclusion of all evidence from and after the time when the officer asked the accused to accompany him to the police vehicle. This is virtually all of the evidence adduced. [ 3 ] Defence counsel also argues that the police officer did not have the requisite reasonable and probable grounds for the Intoxilyzer demand. As a result, he says that the seizure of the breath samples was unlawful and infringed the accused’s Charter rights under s. 8 and 9 of the Charter . EVIDENCE [ 4 ] Cst.

Kent Westrom testified that he has been with the Moose Jaw police force three years. During this time, he has dealt with quite a number of impaired individuals. [ 5 ] In the very early morning hours of March 3, 2011, he was involved in traffic enforcement. He was in full uniform and in a marked police vehicle. At this time, he witnessed the accused’s vehicle approaching an intersection with traffic lights. As the vehicle approached the intersection, the light for the accused turned amber. The accused’s vehicle accelerated quickly through the intersection and then went over the bridge. Cst. Westrom followed.

During this time, he used his radar gun and ascertained that the accused’s vehicle was travelling at 68 kilometres per hour in a 50 kilometre per hour zone. He activated his emergency lights and pulled over the accused’s vehicle. The accused was the driver. There was also one male passenger in the front seat of the vehicle. [ 6 ] He of course immediately approached the accused’s vehicle and she opened the driver’s window. He asked for her driver’s licence and registration. He indicated that she had some difficulty getting these out. At this time, he also quickly noted the smell of alcohol coming from the vehicle.

He noted there was an open box of Kokanee beer in the vehicle, and two beer had been removed from the box. He inquired of the accused if she had been drinking, and she said “no”. He said he did not believe her. He did not believe her because her eyes were somewhat bloodshot, there was the smell of alcohol, and her speech appeared somewhat slurred.

He asked her to come with him to the police vehicle, in order to isolate the environment and determine if the smell of alcohol was coming from the accused. [ 7 ] He testified that as she exited the vehicle, and in her subsequent speech in the police vehicle, her gestures and her speech were very exaggerated. He testified that her words and sentences were long and drawn out. Further that she was very talkative. He testified that he had previous dealings with this accused person and knew her. In his past dealings with her, her gestures and her speech were not exaggerated or like this.

She was quite different on this occasion. [ 8 ] He also testified that once she was back in the police vehicle, it became clear that an odour of alcohol was coming from this accused person. [ 9 ] He testified that for the following reasons, he concluded that she was probably impaired by alcohol and he made the Intoxilyzer demand. The stated reasons were: (1) her driving actions. She drove to beat the light, and drove at a speed of 68 kilometres per hour in a 50 kilometre per hour zone; (2) the odour of alcohol coming from the accused; (3) slurred speech; (4) bloodshot eyes; (5) alcohol in the vehicle; and

(6) exaggerated and flamboyant language and gestures; very talkative. These traits were different than when he saw her on a previousoccasion. [10] At 12:21 a.m., he arrested the accused and advised of her rights to counsel. He then made the standard Intoxilyzer demand. She was then taken to the police station. At the police station, she was allowed to use the washroom and call legal counsel. Later, sheprovided two samples of her breath in the Intoxilyzer. The results were 130 milligrams of alcohol and 120 milligrams, respectively. [11] The technician prepared the Certificate of Analyses and supplied that to Cst.

Westrom. Cst. Westrom then prepared the noticeof intention to produce. He served the document upon the accused, following which she was released from custody. [12] Defence counsel cross-examined the police officer extensively. This was particularly so with respect to the officer’s notes. Inaddition, he had the officer play the video from the in-car camera and the video of her at the police station. He argued that this video didnot indicate that the accused was impaired. ANALYSIS

Section 10(

a) Charter Argument [13] Mr. Nidesh has very substantially based this argument upon the decision in R. v. Klug, 2011 ABPC 97. However, I am of theview that I should not follow the Klug decision in this case. Firstly, in the subsequent decision of R. v. Gross, 2012 ABPC 286, hisHonour Judge Rosborough seemed to take a different approach, more consistent with the approach adopted in Saskatchewan. Atparagraphs 67 and 68, his Honour Judge Rosborough stated: While it is unfortunate that Det.

Steil could not accurately articulate the requirements of the Charter, s. 10(a), this will not impugn hisinvestigation, providing he complies with it. On these facts I find that he did so. Gross’ Charter, s. 10(

a) right was neither infringed nordenied. The cautious and diligent police officer will verbally advise detainees why they have been stopped at roadside, why they are asked toexit their motor vehicle and why they are being taken to a police vehicle. This, even when the circumstances make those reasonsobvious. The case of Klug reinforces the value of doing so. Nevertheless, the fact that this would prevent needless litigation of this issueor otherwise constitute a ‘best practice’ does not elevate it to the status of a constitutional norm.

I am satisfied on the basis of bindingauthority that, where the reasons are obvious and the detainee, as here, understands the nature of the process underway, additional verbaladvice is not constitutionally mandated. [14] In the case of R. v. Carriere, 2010 SKPC 118, his Honour Judge Kalmakoff found that the accused was stopped at 9:00 p.m.,and the police officer immediately asked him to return to the police vehicle. At 9:03, once inside the police vehicle, the police officermade the ASD demand.

His Honour Judge Kalmakoff concluded that the ASD demand sufficiently informed the accused of the reasonfor his detention, and the demand having been made approximately three minutes after the initial stop, the accused was promptlyadvised as required by the Charter section. [15] In a similar vein, I would conclude that the officer quite promptly made the Intoxilyzer demand, and when he did so it wasapparent to the accused that she was under detention and the reason therefore. As a result, I would not conclude that there was anybreach of the accused’s s. 10(

a) Charter right. [16] Even if I am wrong in this conclusion however, I would still conclude that the police officer did not obtain any evidence byreason of this failure. From the time of the initial vehicle stop until the Intoxilyzer demand, he merely spoke to the accused and not in animpolite or intimidating fashion, observed her and listened to her responses. He did not compel her to submit to any sobriety tests and didnot compel her to incriminate herself. In my view, the Supreme Court of Canada determined that this investigation and this evidencewere proper and admissible in the case of R. v.

Orbanski, 2005 SCC 37. If I were to do the analysis required by R. v. Grant, 2009 SCC32 , [2009] 2 S.C.R. 353, I would conclude that the officer’s evidence was admissible.

[17] For all of these reasons, the defence argument based upon s. 10(

a) of the Charter, must be dismissed. Officer Lacked Reasonable and Probable Grounds [18] In my view, the law is relatively well settled that the peace officer must have reasonable and probable grounds for theIntoxilyzer demand. The reasonable and probable grounds may be obtained by the ASD failure, or may be obtained by otherobservations that the peace officer makes of the accused person. If the Crown cannot establish that the officer had the requisitereasonable and probable grounds, the Court will in many cases exclude the Certificate of Analyses from evidence, resulting in theacquittal of the accused.

See for example R. v. Leach, 2011 SKPC 138; R. v. Wiebe, 2011 SKPC 70 and R. v. Sinclair, 2012 SKPC 97. However, in the case of R. v. Gunn, 2012 SKCA 80, the Court of Appeal attempted to clarify the analysis that must be made by the trialjudge. The Court made the following comments: [7] A police officer may not demand a breath sample of an individual unless the officer has “reasonable grounds to believe” theindividual has, within the preceding three hours, driven while impaired or while over the proscribed limit.

This means the officer mustsubjectively (or honestly) believe the individual has driven while impaired or “over .08” within the preceding three hours and that beliefmust be rationally sustainable on an objective basis (see: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 48). Thisdoes not mean that the Crown has to demonstrate a prima facie case for conviction (R. v. Shepherd, 2009 SCC 35 , 2009 SCC35, [2009] 2 S.C.R. 527, at para. 23), let alone prove its case beyond a reasonable doubt (R. v.

Bush, 2010 ONCA 554 , 2010ONCA 554, 259 C.C.C. (3d) 127); rather, the standard of “reasonable grounds to believe” is one of lesser probability which simplyrequires the reviewing court to determine whether the factors articulated by the officer who made the breath-demand were reliable andwere capable of supporting the officer’s belief that the individual had driven while impaired or “over .08” within the preceding threehours. [8] Where an individual challenges the validity of a breath-demand on the basis that the police officer’s belief was not reasonable, thequestion for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officerwould have believed the individual’s ability to operate a motor vehicle was impaired (see: R. v.

Storrey, (SCC), [1990]1 S.C.R. 241, at p. 250; and R. v. Restau, 2008 SKCA 147 , 2008 SKCA 147, 314 Sask. R. 224 at para. 17). This is a question oflaw and a trial judge’s answer to it is measured on appeal against the yardstick of correctness (see: R. v. Shepherd). [9] When determining whether the standard of “reasonable grounds to believe” has been met, it is important to keep in mind that a policeofficer need only believe an individual’s ability to drive is slightly impaired. This follows on the ratio in R. v.

Stellato (ON CA), (1993), 78 C.C.C. (3d) 380, aff’d (SCC), [1994] 2 S.C.R. 478n, where the Ontario Court of Appeal held that,for the purposes of s. 253(1)(

a) of the Criminal Code, an impaired ability to operate a vehicle may be established where the Crownproves any degree of impairment from slight to great. As such, the precondition to an officer’s authority to make a breath-demand maybe satisfied where, objectively speaking, an officer has reasonable grounds to believe an individual’s ability to drive is even slightlyimpaired by the consumption of alcohol (see: R. v. Bush, at para. 48). [10] Given the standard to be met, any inference useful to a police officer when attempting to satisfy it must logically tend to supporteither (

a) a belief that the individual has driven within the preceding three hours, or (

b) a belief that the individual’s ability to operate avehicle is impaired or that the individual is “over .08”. The fact an individual has operated a motor vehicle is, usually, readily establishedon the evidence without recourse to inferences of fact. However, an impairment assessment necessarily calls for the officer to draw oneor more inferences from his or her own observations and the surrounding circumstances.

Where the reasonableness of the officer’s beliefis challenged in court, the officer must be in a position to clearly articulate sufficient observations and to point to other evidence whichwould rationally and reliably sustain the officer’s belief of impairment on an objective basis. (emphasis added) [19] In my view, the Court of Appeal makes it clear that the trial court should not engage in a detailed analysis to determine if theofficer reached the correct conclusion that an individual was impaired.

Also, the Court should not enter into a detailed analysis todetermine whether there was some alternative explanation for the existence of a particular factor or indicia of impairment. A trial courtmay determine that there is another explanation for certain indicia of impairment and may in fact conclude that the accused was notimpaired at the relevant time.

However, even if the Court reaches such a conclusion, the officer’s demand may be based upon reasonableand probable grounds. [20] In the above quoted passage, the Court also makes it clear that the officer need only believe an individual’s ability to drive is“slightly impaired”.

[ 21 ] In this case, the officer identified six independent factors or indicia of impairment. There is no suggestion that the officer did not observe the accused accelerate through the amber light or observe the accused travelling 68 kilometres per hour in a 50 kilometre per hour speed zone. There is no suggestion that the officer did not observe that the accused had slightly bloodshot eyes, or that an odour of alcohol came from her.

There is no denial that there was an open box of beer in the vehicle. [ 22 ] Counsel strenuously argues that the Court should not accept that the accused had slurred speech or that the accused’s speech and gestures were exaggerated and flamboyant. Counsel says there is no basis for this. He says that there is no indication in the officer’s notes of previous dealings with this accused and no indication that he knew her. Counsel says this was not disclosed to him by the Crown. [ 23 ] In my view, this is not a disclosure issue and there is no failure to disclose by the Crown. Notes are notes and only notes.

There is no obligation upon a police officer to note all aspects of a case in order that this may be disclosed to the accused’s counsel. The police officer used his notes to refresh his memory and fully testified as to what happened.

The notes were all made available to defence counsel as part of the disclosure process and were utilized by counsel in cross-examination. [ 24 ] In terms of the police officer’s observations regarding this accused’s gestures and speech, it is significant that in very many cases, defence counsel argues that the officer did not know the accused and has no basis to say that the accused’s appearance or speech were altered by the consumption of alcohol.

Turning this around, in this case, given that the officer had prior dealings with this accused, and there is no evidence to the contrary, his observations of this accused were better and more valid than in most cases. Clearly he was in a very good position to testify that her speech and gestures were very different on this occasion than when he previously dealt with her, and he was entitled to take these factors into account in determining whether to make a demand. [ 25 ] Defence counsel made considerable use of the in-car video and the video at the police station, as he was entitled to do.

He says these videos do not show that the accused was impaired. I agree with him on this point. On the basis of these videos, I would not conclude that Ms. Glass was impaired.

But, these videos do not refute any of the six indicia of impairment or reasons for the Intoxilyzer demand identified in paragraph 9 of this judgment. [ 26 ] Given the totality of the officer’s observations and evidence, and clearly I am required to determine the reasonableness of the officer’s decision based upon the totality of the evidence, I conclude that the officer reasonably and rationally came to the conclusion that the accused was at least slightly impaired by alcohol, and that he properly made the Intoxilyzer demand. The Crown has met the standard required by the Gunn decision.

As a result, I conclude that the officer had reasonable and probable grounds for the Intoxilyzer demand, the demand was proper, the seizure of breath samples was proper, and that the accused’s Charter rights were not infringed. Accordingly, I conclude there was no violation of the accused’s Charter rights and the evidence of Cst. Westrom, in its totality and the Certificate of Analyses are properly admissible in this matter.

CONCLUSION [ 27 ] On the basis of the evidence which I have determined to be admissible, I have no doubt that on the night in question, the accused was driving her motor vehicle while her blood alcohol content exceeded the legal limit. Accordingly, I find her guilty of count 1 in the Information. I impose a judicial stay with respect to the impaired driving charge. [ 28 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan this 27 th day of February, 2013. D. Kovatch, J