Her Majesty the Queen - v. -, 2010 SKPC 40

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 40 Date: April 23, 2010 Information: 39981619 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - David C. Renny Appearing: Ms. D. Stahl For the Crown Mr. R. Danyliuk, Q.C. For the Accused DECISION ON VOIR DIRE B. M. SINGER , J Introduction [ 1 ] Mr. Renny is charged with driving a motor vehicle while over .08 on August 25, 2006. This is a re-trial that proceeded by way of a transcript of the original evidence which had been presented March 22 and May 28, 2007.

No other evidence was led. [ 2 ] The Accused applies to have this Court exclude evidence pursuant to section 24(2) of the Charter of Human Rights and

[ 2 ] The Accused applies to have this Court exclude evidence pursuant to section 24(2) of the Charter of Human Rights and Freedoms alleging a breach of his rights under

section 8 of the Charter . The allegation is that police officers failed to follow the appropriate procedures while testing the Accused on an Approved Screening Device [A.S.D.] and did not have the proper grounds to make the demand for the Accused to supply a sample of his breath into the A.S.D. The results of the test on the A.S.D. formed the basis of the officer’s opinion that led to the Breathalyzer demand.

If the A.S.D. demand was inappropriate or the test performed in a non- standard way then the officers were, perhaps, wrong in making the Breathalyzer demand and evidence that flowed from that might be a breach of the Accused’s rights under the Charter . The Defence therefore applies to have the evidence that the Accused failed the A.S.D. excluded for the following reasons: a. The police officer failed to follow the appropriate process in administering a test on an A.S.D. b.

The police officer who made the demand for the Accused to blow into the A.S.D. did not have a “reasonable suspicion” that the Accused had alcohol in his body. Circumstances [ 3 ] Two police officers, Constable Racicot and Constable Barbar, were on duty travelling in their police vehicle east on Taylor Street when a van, stopped at a traffic light in front of them, sped away as the light turned green. They followed the vehicle and when it had accelerated to about 20 k.p.h. faster than the speed limit, they turned on their emergency lights.

After they activated their siren the vehicle pulled over. [ 4 ] The Accused was the operator of the van and his wife was the passenger. Upon his arrival at the open driver’s side window, Officer Racicot noticed an empty alcoholic beverage container on the floor behind the driver’s seat and smelled alcohol coming from inside the vehicle.

He asked the driver for his licence and indicated that “he had problems getting his driver’s licence out of his wallet.” [ 5 ] The officer then testified, “I asked him based on the smell of alcohol from the vehicle, I asked him how much he had consumed as far as alcohol was concerned. He said a few drinks.” The police officer said he believed at that point he had a reasonable suspicion that the driver had alcohol in his body, so he read to the Accused the A.S.D. demand. [ 6 ] In

summary, he indicated that he formed his reasonable suspicion based upon: a. the smell of alcohol from the vehicle; b. the empty beer can behind the driver’s seat; c. the speeding; d. the fumbling for his licence; and e. the admission that he had been drinking. [ 7 ] On cross-examination the officer admitted that he did not smell alcohol on the breath of the driver.

He could not remember exactly what words he used but he agreed that he did not ask the Accused “have you had anything to drink tonight?” but asked the leading question “how much he had to drink tonight.” The Defence suggests that the Accused was never asked if he drank ‘alcohol’ and that the Accused never admitted that he drank ‘alcohol’ but only admitted that he had ‘a few drinks’. [ 8 ] When asked directly whether he asked the Accused, what he had been drinking, the officer said “Not that I recall.

I may have.” He then went on to say “I didn’t phrase it in the question as far as did you have alcoholic beverage to drink, no, I didn’t. I asked him how much he had to drink tonight, which is the common question we ask people we stop.” [ 9 ] He was then asked: “Sure. Did you specify you wanted to know how much alcohol he had been drinking?” and he answered “No. I said, how much have you had to drink?”

[ 10 ] I have determined, based upon my reading of this evidence, that the officer thought he was asking how much “alcohol” the Accused had that night and that upon hearing the answer “a few drinks” concluded that the Accused had alcohol in his body and so went on to make the A.S.D. demand. [ 11 ] At the same time that Constable Racicot was dealing with the driver, Constable Barbar was at the passenger side window talking to the Accused’s wife. He heard Constable Racicot make the demand.

As a matter of convenience, he went to the police vehicle, retrieved the A.S.D. and met the Accused and Constable Racicot at the front of the police vehicle where he operated the A.S.D. while Constable Racicot made notes. They acted in concert as they are both trained A.S.D. operators. The driver failed the test and a Breathalyzer demand was read to him.

One police officer made the demand and the other gave the test [ 12 ] Section 253(2) of the Criminal Code is as follows: If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph ( a ), in the case of a drug, or with either or both of paragraphs (

a) and ( b ), in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [ 13 ] A plain reading of this

section may require the officer who forms the reasonable suspicion that the driver has alcohol in his body, be the same officer who makes the demand, however, there is nothing to ban another officer, especially one who is acting in concert with the demanding officer, from administering the test. [ 14 ] Nor is there anything necessary to the fair operation of the A.S.D. that would require the same officer who makes the demand be the same officer who administers the test.

One can easily imagine a situation where the officer who forms the suspicion and makes the demand, is not qualified to operate the A.S.D., this would necessitate that a different officer administer the test. [ 15 ] Therefore, I conclude that the process followed by the officers was not wrong, illegal or in any way defective so as to effect the rights of the driver and require that the A.S.D. results be excluded.

Did Constable Racicot have a reasonable suspicion that the Accused had alcohol in his body [ 16 ] A “reasonable suspicion” means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. [1] It is insufficient if the police had a sincerely held subjective belief, if that belief was not supported by factual elements, which would permit a judicial analysis to determine if those beliefs were also reasonable in the circumstances. [ 17 ] In this case, I conclude that the officer based his opinion on the following: a. the speeding; b. the empty beer can behind the driver’s seat;

c. the smell of alcohol coming from the vehicle; d. the fumbling for the licence; and e. the admission, upon being asked “How much he had to drink tonight?” that the Accused had “a few drinks”. [18] Let me say at the outset that I believe it was reasonable in all the circumstances for the officer to believe that the Accused wasadmitting to drinking “alcohol”.

It would fly in the face of common sense and experience to conclude that the police officer or theAccused was talking about anything other than alcoholic beverages. [19] I am therefore left with a situation where an Accused admits drinking alcohol that night and is operating a motor vehicle. [20] In R. v. Vermette,[2] Allbright J. stated that “an officer must have a basis for suspecting that a person has alcohol in hisbody...and the suspicion must be reasonable in all the circumstances.” The officer does not have to eliminate all other possibilities, buthas to form his suspicion based upon all the circumstances.

The fact that an observation might be consistent with some other explanation does not, by itself, mean that when all of the circumstances are viewed as a whole, there is no basis for a reasonable suspicion.[3] Conclusion [21] I have concluded that any reasonable person, in the place of the officer, would have suspected that the Accused had alcohol inhis body. Perhaps that same reasonable person would not have held a reasonable and probable belief that the Accused had alcohol in hisbody, but he or she certainly would have suspected as much and such a suspicion would be more than a mere suspicion.

Therefore theofficer’s suspicion was a “reasonable suspicion” in all the circumstances. [22] It follows that the officer who made the demand for the Accused to blow into the Breathalyzer was correct in relying on theresults of the A.S.D. test. There is no breach of the Accused’s rights and the application for exclusion of evidence, that was the subjectof this voir dire is rejected. _____________________________ B. M. Singer, J [1]See Binnie J. in R. v. Kang-Brown, 2008 SCC 18 , [2008] S.C.J. No. 18, para 75 [2]June 20, 1997, Q.B.A. 5, Sask. Q.B. [3]R. v. Darcy Marcel Anderson, [2010] S.J. 89 Q.B. at para 23