Her Majesty the Queen - v. -, 2015 SKPC 82

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 082 Date: May 22, 2015 Information: 33386069 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ronald Edward Michalenko Appearing: Mike Pilon For the Crown Brian Pfefferle For the Accused JUDGMENT D.E. LABACH , J [ 1 ] On April 22, 2014, Brady Arnold was driving around Saskatoon in his Hyundai Sonata. He had his friends Hanna Hovland and Natalie Munroe with him.

At approximately 10:15 p.m, they were stopped at a red light at the intersection of Attridge Drive and Central Avenue. They were in the middle lane on Attridge Drive heading in a westerly direction. There was a truck in front of them and they were stopped about three or four feet behind the truck. They were talking and waiting for the light to turn green. None of them had been drinking that evening.

[ 2 ] Suddenly they were struck from behind by another vehicle. Instinctively, Mr. Arnold hit the brake to avoid sliding into the truck in front of him. Fortunately the driver of the truck moved his vehicle forward at that time and was not hit by them. The airbags in Mr. Arnold’s vehicle did not deploy although they were pushed some three to four feet forward by the collision. [ 3 ] Mr. Arnold and Ms. Munroe got out to inspect the damage and speak to the other driver. Ms. Hovland remained in the car.

As they approached the Chrysler 300 that had hit them, the accused, Ronald Michalenko, got out of the driver’s door. There was no one else in his vehicle. They both noticed that the accused was leaning against his vehicle, one of his sandals was half on and he had a scrape or gash on his forehead that was bleeding. They also noticed that the airbags in the accused’s vehicle had gone off. [ 4 ] Mr. Arnold tried to exchange information with the accused. However the accused was mumbling and did not seem to know his full name or licence plate number. Ms. Munroe noticed that the accused was trying to write Mr.

Arnold’s name down but could not get the letters right. She thought he was speaking slowly, slurring his words and having difficulty putting words together in a sentence. [ 5 ] By this time, Ms. Hovland had gotten out of Mr. Arnold’s vehicle and joined them. She noted that the accused could not grasp Mr. Arnold’s name and could not get the letters in his name right. He was not speaking clearly but she heard him ask why they were stopped and he seemed concerned about picking up his wife. She also thought he was having problems standing up as he was wobbling in all directions.

None of the three of them could smell alcohol coming from the accused or his breath but they all thought the accused may be intoxicated. Ms. Hovland called 9-1-1. [ 6 ] Constable McDade was working general patrol the evening of April 22, 2014 with Constable Hobbs. At 10:18 p.m., they were dispatched to a motor vehicle accident at the intersection of Attridge Drive and Central Avenue in the City of Saskatoon. The dispatch said that one of the drivers was impaired. [ 7 ] They arrived on scene at 10:21 p.m. As Constable McDade approached the two vehicles involved in the accident, Ms.

Hovland came up to him and told him that the two drivers involved in the accident were speaking by the vehicles. He moved on and noticed significant front end damage to a Chrysler 300. The accused was sitting in the driver’s seat of this vehicle and the airbags were deployed. As he approached, the accused went to get out of his vehicle but lost his balance and fell back, catching himself on the door. Constable McDade could smell beverage alcohol coming from around the accused and he noticed that the accused’s eyes were glossy.

Considering these observations and the dispatch that one of the drivers was impaired, at 10:24 p.m. Constable McDade told the accused he was under arrest for “impaired driving” or “driving under the influence”. [ 8 ] As he began putting handcuffs on the accused, he noticed that the accused had a broken sandal. It occurred to him that the accused may have lost his balance getting out of his vehicle because one of his sandals was broken. As he escorted the accused to the police cruiser, he began to think that some of the observations he made may be the result of the accident the accused was in.

Consequently he decided to make a roadside screening demand on the accused. [ 9 ] Constable McDade put the accused in the back of his police cruiser and at 10:25 p.m., he read him a formal approved screening device demand from a police issued card in his notebook. The accused advised that he understood the demand. At 10:28 p.m. the officer administered the roadside test and the result was a “fail”. [ 10 ] Based on this fail result, Constable McDade formed the opinion that the accused was under the influence of alcohol and at 10:29 p.m. he read the accused a breath demand. The accused advised he understood.

At 10:31 p.m., the officer read the accused his right to counsel. The accused said he understood the right and when asked if he wanted to call a lawyer, the accused responded “No”. Finally the officer read the accused a police warning and again the accused advised that he understood. [ 11 ] Constable McDade sat in the police cruiser with the accused making notes while they waited for tow trucks to arrive and for Constable Hobbs to speak to other witnesses.

While in the police cruiser, he noticed that the accused’s speech was slurred although he could still understand him. [ 12 ] At 10:33 p.m., MD Ambulance arrived and checked the accused over. Shortly thereafter two tow trucks arrived and began hooking up the vehicles. At 10:56 p.m., Constable McDade and his partner left with the accused for the Saskatoon Police Service. They arrived at the police station at 11:06 p.m. and took the accused to the detention area. After being booked into detention, the accused was

placed in an interview room where Constable McDade began an observation period. It was while they were in this interview room that the officer first noticed the smell of beverage alcohol coming from the accused’s breath. [ 13 ] Sergeant Amyotte, the Intoxilyzer technician, came into the interview room and at 11:25 p.m. he read the accused a secondary police warning. Constable McDade then read the accused a formal waiver of right to counsel.

The accused advised that he understood what was read to him and when asked if he was certain that he did not want to contact a lawyer, he said “Yes”. [ 14 ] Sergeant Amyotte took the accused into the breath room for his first breath test at 11:40 p.m. however this test was unsuccessful. Sergeant Amyotte reset the machine and at 11:41 p.m., the accused blew into the machine a second time. This result was also unsuccessful. Sergeant Amyotte administered breath tests on the accused at 11:42 p.m. and 11:43 p.m. and both of these tests were also unsuccessful.

Eventually at 11:44 p.m., the accused provided his first successful sample. The reading was .20. There was no evidence why the first four attempts were unsuccessful. [ 15 ] After this successful test, Constable McDade took the accused back to the interview room to wait until Sergeant Amyotte called them for the next breath test. At 12:05 a.m. Sergeant Amyotte had the accused come back into the breath testing room wherein the accused provided a second successful sample. This reading was .18.

Thereafter, Sergeant Amyotte prepared a Certificate of Qualified Technician and provided it to Constable McDade. [ 16 ] At 12:17 a.m. Constable McDade arrested the accused for driving while over .08. He again read him his right to counsel and police warning. The accused had a lot of questions for the officer so Constable McDade suggested that he contact legal counsel. He asked the accused who he wanted to speak to and the accused said Legal Aid.

At 12:38 a.m., Constable McDade put the accused in a phone room and facilitated his call to Legal Aid duty counsel. [ 17 ] After this call was completed, Constable McDade served a number of documents on the accused including a copy of the Certificate of Qualified Technician. The accused was released to a friend at 1:05 a.m. [ 18 ] The accused plead not guilty to both driving while impaired and driving while over .08. He came before me for trial on February 10, 2015.

At the beginning of trial, Defence counsel indicated that he had given the Crown notice that he was alleging breaches of his client’s sections 8, 9, 10(

a) and 10(

b) Charter rights and if any of these breaches were proven, he wanted all evidence obtained as a result of the breaches excluded pursuant to section 24(2) of the Charter . Crown counsel acknowledged receiving sufficient notice of Defence’s intention in this regard. [ 19 ] The trial proceeded with evidence from three civilian witnesses. Once their testimony was completed, counsel asked the Court to enter into a voir dire on the Charter issues identified at the commencement of trial. The only witness on the Charter voir dire was Constable McDade, the investigating officer.

However Crown counsel requested, and Defence agreed, that the civilians’ testimony be applied to the voir dire . [ 20 ] At the conclusion of the voir dire, Crown asked that Constable McDade’s evidence from the voir dire be applied to the trial proper subject only to my rulings on the voir dire issues. Defence counsel agreed. Neither Crown nor Defence had any further witnesses to call on the trial proper and both closed their respective cases. In this decision, I will first address the issues on the voir dire and then deal with the trial issues. ISSUES ON THE VOIR DIRE

a) Was Constable McDade’s initial arrest of the accused for impaired driving a violation of the accused’s

section 9 Charter right to be free from arbitrary detention?

b) Did Constable McDade violate the accused’s

section 10(

b) Charter right by not giving him his right to counsel upon his arrest for impaired driving?

c) Did Constable McDade violate the accused’s

section 8 Charter right by seizing a breath sample into an approved screening

device while the accused was under arrest for impaired driving?

d) Did Constable McDade violate the accused’s

section 10(

a) Charter right?

e) If any of the accused’s sections 8, 9, 10(

a) or 10(

b) Charter rights were violated, should the evidence obtained as a result of thosebreaches be excluded pursuant to section 24(2) of the Charter? ANALYSIS OF THE VOIR DIRE ISSUES

a) Was Constable McDade’s initial arrest of the accused for impaired driving a violation of the accused’s

section 9 Charterright to be free from arbitrary detention?

b) Did Constable McDade violate the accused’s

section 10(

b) Charter right by not giving him his right to counsel upon hisarrest for impaired driving? [21] The first two Charter breaches alleged by Defence counsel can conveniently be dealt with together. It was Defence counsel’sposition that Constable McDade did not have the reasonable grounds to arrest the accused for impaired driving and by doing so hearbitrarily detained the accused.

Despite this arbitrary detention, Defence said that since the officer continued to detain the accused for aroadside breath test, he should have provided him a right to counsel. [22] The facts as to what initially occurred between the officer and the accused are quite straightforward. Constable McDade andhis partner arrived at the accident scene at 10:21 p.m. By 10:24 p.m. he had arrested the accused for impaired driving.

When asked whyhe arrested the accused, he said because their dispatch said that one driver was impaired, he could smell beverage alcohol around theaccused, the accused lost his balance when he stepped out of his vehicle and his eyes were glossy. Even though he had arrested theaccused, Constable McDade did not advise him of his right to counsel. [23] As Constable McDade was handcuffing the accused, he noticed that one of the accused’s sandals was broken, the airbags haddeployed and the accused had a scrape on his head.

As he escorted the accused to the police cruiser he began to think that some of theobservations he had made were the result of the accused having been in an accident and his sandal being broken, rather than signs ofintoxication. As a result, Constable McDade decided to make an approved screening device demand on the accused. [24] On these facts, the Crown alleges that the accused was properly arrested. They agree that the officer did not advise theaccused of his right to counsel after arresting him for impaired driving and that this was a breach of

section 10(

b) of the Charter but theyargue that the breach is saved by

section 1 of the Charter. Section 495(1)(

a) of the Criminal Code reads as follows: 495(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence; . . . . [25] In R v Huff, 1979 ABCA 234 , [1979] AJ No 846 (AltaCA), the Alberta Court of Appeal determined that anindictable offence includes a hybrid offence. They made the distinction between the nature of an offence and the nature of theproceedings to enforce an offence. Until the Crown elects how they wish to proceed on a hybrid offence, the offence is considered to be

indictable. See also R v Karchmarski, [2014] SJ No 81 (SkQB) at paragraphs 20 to 21. [26] In R v Storrey, (SCC), [1990] 1 SCR 241, the Supreme Court of Canada set forth the oft quoted test forarrest under section 495(1)(

a) of the Criminal Code. At paragraph 17, they said: [17] In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds onwhich to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonableperson placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for thearrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they arenot required to establish a prima facie case for conviction before making the arrest. [27] The caselaw also says that immediately upon arrest or detention, a police officer has an obligation to advise a detained personof his or her right to counsel. See R v Taylor, 2014 SCC 50 , [2014] 2 SCR 495 (SCC) at paragraph 24. [28] Constable McDade was a new police officer at the time of this incident, having only been on the force for a little over a year. It is apparent from his testimony that he realized that he may have acted too hastily in arresting the accused for impaired driving.

Hevery candidly admitted that within seconds of arresting the accused, it occurred to him that some of what he felt were signs ofimpairment, were perhaps the effects of the accused being involved in the accident.

Prior to arresting the accused, he did not ask theaccused any questions about his alcohol consumption, he did not speak to the other driver or any other witnesses to the accident, he didnot know which of the two drivers the dispatch was suggesting was impaired, he did not do any investigation to determine why theaccident occurred and he did not speak to his partner to find out what his investigation revealed.

Upon further thought and given what heknew and what he observed, Constable McDade recognized that he did not have reasonable grounds to effect an arrest for impaireddriving but only a suspicion that the accused had alcohol in his body. As a result, he made an approved screening device demand.

Thiswas confirmed by the officer in his cross examination when he said that he only gives approved screening device tests to people hesuspects have alcohol in their body and when he needs more to get to impaired driving. [29] Immediately after arresting the accused for impaired driving, it became apparent to Constable McDade that he had made amistake and he tried to correct that mistake. He continued to detain the accused not as an arrest for impaired driving, but for thepurposes of an approved screening device test.

By his own actions and admission, Constable McDade did not have the necessarysubjective belief on which to base the arrest of the accused for impaired driving. That being the case, his initial arrest of the accused wasunlawful and a breach of the accused’s

section 9 Charter right to be free from arbitrary detention. [30] Since there was no basis to arrest the accused for impaired driving, there was no corresponding duty on Constable McDade toadvise him of his right to counsel. I have concluded that the unlawful arrest of the accused quickly became a detention for an approvedscreening device test. As a matter of fact, the arrest, the decision to demand a roadside breath test and the approved screening devicedemand all occurred within a minute. The approved screening device test followed on the heels of the demand and at 10:28 p.m. theroadside device registered a fail reading. The caselaw states that an accused’s rights under

section 10(

b) of the Charter are suspendedwhen they are detained for a roadside breath test. See R v Thomsen, (SCC), [1988] 1 SCR 640 (SCC). Once ConstableMcDade’s focus changed to that of an approved screening device test, there was no requirement that he provide the accused with hisright to counsel. As a result, I am not satisfied that there was a breach of the accused’s

section 10(

b) Charter right in this case.

c) Did Constable McDade violate the accused’s

section 8 Charter right by seizing a breath sample into an approved screeningdevice while the accused was under arrest for impaired driving? [31] Defence counsel argues that once Constable McDade formed his reasonable grounds and arrested the accused for impaireddriving, he no longer had the authority under section 254(2) of the Criminal Code to demand a roadside sample of the accused’s breath.

By making an approved screening device demand on the accused, he was compelling the accused to give evidence against himselfwithout the benefit of legal advice. [32] Despite ignoring judicial precedent that the results of a roadside breath test can only be used as an investigative tool and not asdirect evidence to convict someone, this argument fails for the simple reason that it assumes that the accused was properly arrested by

Constable McDade in the first instance. I have already determined that the officer did not have the reasonable grounds to arrest theaccused for impaired driving and that he realized this, changed his mind immediately and detained the accused for a roadside breath test. That being the case, as long as Constable McDade met the requirements of section 254(2) of the Criminal Code, the approved screeningdevice demand was lawful and not a violation of the accused’s

section 8 Charter right to be free from unreasonable search and seizure. [33] The requirement for a valid section 254(2) demand are threefold: (1) a police officer must have reasonable grounds to suspectthat in the preceding three hours, a person has been operating or in care and control of a motor vehicle, (2) they must have reasonablegrounds to suspect that that person has alcohol or a drug in their body, and (3) the sample must be provided forthwith.

See R v Stubel,[2013] SJ No 396 (SaskPC); R v Luider-Grebnev, [2013] SJ No 46 (SaskPC). [34] In this case, the officers were dispatched to an accident at the intersection of two major thoroughfares in the City ofSaskatoon. They were dispatched at 10:18 p.m. and arrived at the accident scene at 10:21 p.m. When they arrived, Constable McDadeobserved the accused sitting behind the wheel of his vehicle.

It was a reasonable inference that the accident occurred shortly before theofficers were dispatched and certainly within the preceding three hours of them arriving on scene. [35] Constable McDade only had to have a reasonable suspicion that the accused had alcohol in his body. A reasonable suspicionis a lower standard than reasonable grounds. The question to be asked is whether the officer who made the demand had a subjective orhonest suspicion that the accused had alcohol in his body and whether that suspicion was sustainable on an objective basis.

Here,Constable McDade testified that he made an approved screening device demand on the accused because there was a smell of alcoholcoming from around the accused, the accused had lost his balance getting out of his car and he had glossy eyes. He was honest in hisobservations and while they were scant, they were sufficient to support a reasonable suspicion that the accused had alcohol in his body. An ordinary person looking at these factors could certainly reach the same conclusion as Constable McDade. [36] I am also satisfied on the evidence that the “forthwith” requirement was met as well.

Constable McDade arrived on scene at10:21 p.m. After speaking to Ms. Hovland, he went to speak to the accused at his car. He made some observations of the accused andarrested him for impaired driving at 10:24 p.m. Within a very short time, seconds later really, he decided his observations did notsupport an arrest for impaired driving but only lead him to suspect that the accused had alcohol in his body. He decided to make aroadside demand on the accused and at 10:25 p.m. he read the accused a formal approved screening device demand.

By 10:28 p.m. theofficer had administered the test and the device registered a fail reading. There is no evidence of any delay and I am satisfied thatConstable McDade made the roadside demand forthwith upon formulating his grounds and that he administered the test to the accusedforthwith thereafter. [37] All of the requirements of section 254(2) of the Criminal Code have been established on the evidence and the approvedscreening device demand Constable McDade made on the accused was a lawful demand. As such, there was no breach of the accused’ssection 8 Charter right.

d) Did Constable McDade violate the accused’s

section 10(

a) Charter right? [38]

Section 10(

a) of the Charter states that everyone has a right on arrest or detention to be informed promptly of the reasonstherefor. In the present case, the Defence argues that once Constable McDade decided that he did not have the grounds to arrest theaccused but only the grounds to make a roadside breath demand, he was obliged by

section 10(

a) to explain that to him. He did not, ergothere was a breach. [39] In R v Evans, (SCC), [1991] 1 SCR 869, the Supreme Court of Canada discussed the purpose andrequirements of

section 10(

a) of the Charter as follows: [31] The right to be promptly advised of the reason for one's detention embodied in s. 10(

a) of the Charter is founded mostfundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R v Kelly (1985), (ON CA), 17 CCC (3d) 419 (Ont CA), at p. 424. A second aspect of the right lies in its role as an adjunct to the right tocounsel conferred by s. 10(

b) of the Charter. As Wilson J. stated for the Court in R v Black, (SCC), [1989] 2 SCR 138,at pp. 152-53, "[a]n individual can only exercise his s. 10(

b) right in a meaningful way if he knows the extent of his jeopardy". Ininterpreting s. 10(

a) in a purposive manner, regard must be had to the double rationale underlying the right.

. . . . [35] When considering whether there has been a breach of s. 10(

a) of the Charter, it is the substance of what the accused canreasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern.

The question iswhether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make areasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b). [40] Here, Constable McDade initially told the accused that he was under arrest for impaired driving or driving under theinfluence, placed him in handcuffs and put him in the back of his police cruiser. While he was walking the accused to his cruiser, theofficer had second thoughts about whether he had properly arrested the accused.

By the time he reached his police cruiser, he haddecided that all he had was a suspicion that the accused had alcohol in his body and not grounds for an arrest for impaired driving. Atthis stage he told the accused he would be employing an approved screening device and he read him the following demand off a policeissued card: I have reasonable grounds to suspect that you have alcohol or a drug in your body. In accordance with the Criminal Code I demand thatyou provide a sample of your breath suitable for analysis in an approved screening device and that you accompany me for the purpose ofproviding such sample.

Do you understand? [41] In answer to the question of whether he understood this demand, the accused responded “Yes”. The accused then blew intothe approved screening device and the result was a fail. Immediately after failing this roadside test, Constable McDade made a formalbreath demand on the accused and read him his right to counsel and a police warning.

The accused advised that he understood the breathdemand, his right to counsel and the police warning and when asked if he wanted to call a lawyer, he responded “No”. [42] Even though I have determined that Constable McDade’s initial arrest of the accused at 10:24 p.m. was not lawful, it isobvious that the accused was detained by the officer from that moment forward. When the detention first began, the officer immediatelyadvised the accused he was under arrest for a drinking and driving offence.

When he decided he was going to utilize an approvedscreening device, he immediately told the accused what he was going to do and then he read him a formal demand for an approvedscreening device sample which the accused acknowledged he understood. It would have been preferable for Constable McDade to haveexplained to the accused that he was no longer under arrest but only being detained for an approved screening device test and the reasonswhy he was now proceeding in that fashion, but he was not required to do this and the fact that he did not do so is not fatal to whethersection 10(

a) was complied with. [43] The accused did not testify on the voir dire so there is no direct evidence as to what he understood was occurring. But I amsatisfied on Constable McDade’s testimony that it would have been obvious to the accused from the outset of their interactions that hewas being detained for drinking and driving. The officer initially told him he was being arrested for impaired driving.

Then he made anapproved screening device demand on the accused and he acknowledged that he understood the approved screening device demand, heagreed to provide a sample into an approved screening device and he did so. Thereafter, he acknowledged that he understood the breathdemand made upon him, the police warning and right to counsel he was given and he even declined wanting to call a lawyer. He neverquestioned what the officer was doing, asked for clarification or requested to speak to a lawyer.

I have no hesitation finding that theaccused understood why he was being detained and made his own decisions as to whether to accede to that detention. At no point intime did he ever request to speak to a lawyer and in any event, since he was being detained for a roadside breath test, his right to counselwas suspended. It was only once the fail reading was obtained on the roadside device that the officer made a breath demand on theaccused. At that time he was given his right to counsel as it was no longer suspended, he understood the right and declined to call alawyer.

Consequently, I am not satisfied that there was a breach of the accused’s

section 10(

a) Charter right.

e) If any of the accused’s sections 8, 9, 10(

a) or 10(

b) Charter rights were violated, should the evidence obtained as a result ofthose breaches be excluded pursuant to section 24(2) of the Charter? [44] While I did not find a breach of the accused’s sections 8, 10(

a) or 10(

b) Charter rights, I did find a breach of the accused’ssection 9 Charter right and thus must consider whether any evidence should be excluded pursuant to section 24(2) of the Charter.

In R vGrant, 2009 SCC 32 , [2009] 2 SCR 353, the Supreme Court of Canada directed judges to consider the seriousness of theCharter-infringing state conduct, the impact of the breach on the Charter protected interests of the accused and society’s interest in theadjudication of the case on its merits when deciding a section 24(2) exclusion application. [45] In this particular case, while I found that Constable McDade did not have the grounds to arrest the accused for impaireddriving, I was satisfied that he had the grounds to detain the accused for an approved screening device test.

Constable McDade realizedthis almost immediately after arresting the accused and his interaction with him quickly went from an unlawful arrest to a lawfuldetention for a roadside screening test. He did not advise the accused that he was “unarrested” and only detained, but that did not make

the subsequent detention unlawful. Constable McDade recognized his mistake and corrected it. The seriousness of this breach was low. [ 46 ] The second step of the analysis is to consider the impact of the breach on the accused. In this case, the accused’s liberty was taken away from him without a lawful basis to do so. But even though the officer did not have the grounds to arrest the accused, he did have the grounds to detain him and he shifted his mind to this seconds after improperly arresting the accused.

As a result, the impact of this breach on the accused’s liberty was fleeting and slight. [ 47 ] Finally, the evidence gleaned as a result of the accused’s detention was both relevent and reliable and without it, the Crown would have no case. The seriousness of drinking and driving cannot be underscored.

Society has a strong interest in having these cases litigated on their merits. [ 48 ] Considering that the seriousness of the breach was low, the impact of the breach on the accused was minor and society’s interest in having drinking and driving cases assessed on their merits is high, admitting the evidence obtained following the

section 9 breach in this case would not bring the administration of justice into disrepute. Thus the signs of impairment noted, the fail reading on the approved screening device and the results of the accused’s breath tests are admissible. CONCLUSION ON VOIR DIRE [ 49 ] There was no breach of the accused’s

section 8, 10(

a) or 10(

b) Charter rights however there was a technical violation of the accused’s

section 9 Charter right to be free from arbitrary detention. The accused has not satisfied me that this breach warrants exclusion of any evidence in this case and as a result, all evidence on this Charter voir dire will be admissible on the trial proper. ISSUES ON TRIAL PROPER

a) Has the Crown proven beyond a reasonable doubt that the accused was driving his vehicle while his ability to do so was impaired?

b) Has the Crown proven beyond a reasonable doubt that the accused was operating a motor vehicle with a blood alcohol level exceeding .08? ANALYSIS OF THE TRIAL ISSUES

a) Has the Crown proven beyond a reasonable doubt that the accused was driving his vehicle while his ability to do so was impaired? [ 50 ] All of the witnesses that testified in this case said that they noted some signs of impairment in the accused. Ms. Munroe said that when she went to speak to the accused, he was leaning against his car and was having a difficult time communicating with her. In her view, he was speaking slowly, slurring his words and having difficulty putting words together in a sentence. She observed him trying to write Mr. Arnold’s name down but he could not get the letters right.

She thought the accused was intoxicated, but she was not certain of that. [ 51 ] Ms. Hovland said that the accused could not grasp Mr. Arnold’s name and could not get the letters of his name right as he tried to write it down. She said that the accused could not speak clearly and she could not understand what he was saying. She observed

that he could not stand up and was wobbling in all directions. At one point, she heard the accused ask why they were stopped eventhough it was obvious they were stopped at a red traffic light. She thought the accused was intoxicated. [52] According to Mr. Arnold, they were stopped with other traffic at a red light when the accused rear ended them for no apparentreason. When he got out to go exchange information with the other driver, it appeared that the accused did not know his full name orlicence plate number. The accused was mumbling and leaning against his car for support.

He felt that the accused was drunk. [53] When Constable McDade attended the accident scene, he saw the accused lose his balance as he tried to get out of his car andhave to catch himself on the door. The officer could smell beverage alcohol coming from around the accused and the accused hadglossy eyes. While dealing with the accused in his police cruiser, the officer felt that although he could understand the accused, hisspeech was slurred.

Later, back at the police station, the officer was able to confirm that the smell of alcohol was coming from theaccused’s breath. [54] Taking all of these observations into account, including the circumstances of the accident and the fact that the accused wasexamined by ambulance personnel and did not require hospitalization, I am satisfied beyond a reasonable doubt that at the time of theaccident the accused was driving his car while his ability to operate a motor vehicle was impaired by alcohol.

b) Has the Crown proven beyond a reasonable doubt that the accused was operating a motor vehicle with a blood alcohollevel exceeding .08? [55] The evidence establishes that the accused was operating his vehicle when he ran into the back of Mr. Brady’s car while it wasstopped at a red traffic light. Shortly thereafter, the accused blew into an approved screening device at the roadside and the result was afail. He was then taken to the Saskatoon police station where he eventually provided two samples of his breath into an IntoxilyzerEC/IR II.

His first sample at 11:44 p.m. was 200 milligrams of alcohol in 100 millilitres of blood and his second sample at 12:05 a.m.was 180 milligrams of alcohol in 100 millilitres of blood. [56] Based on this evidence, I am satisfied beyond a reasonable doubt that the accused was operating a motor vehicle with a bloodalcohol level exceeding .08.

CONCLUSION ON TRIAL ISSUES [57] The evidence establishes beyond a reasonable doubt that on April 22, 2014, the accused was driving a motor vehicle while hisability to do so was impaired by alcohol and that he was driving a motor vehicle with a blood alcohol concentration exceeding eightymilligrams of alcohol in one hundred millilitres of blood and I find him guilty of both of these offences. Considering the rule againstmultiple convictions set forth in R v Kienapple, (SCC), [1975] 1 SCR 729 (SCC), I will enter a judicial stay on thecharge of impaired driving. _________________________________ D.E. Labach, J