Her Majesty the Queen - v. -, 2016 SKPC 15

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 015 Date: February 18 , 2016 Information: 24507443 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyson Hain Appearing: Andrew Wyatt For the Crown Foster Weisgerber For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] Tyson Hain is charged with refusing to comply with a demand for a breath sample made under s. 254(3) of the Criminal Code and with having the care or control of a vehicle while impaired by alcohol.

The defence claimed that the police officer in question, Cst. Snowdy, did not have lawful grounds to make the breath demand to Mr. Hain and that, as a result, his rights under ss. 8 and 9 of the Charter of Rights and Freedoms were violated and any evidence of refusal should be excluded under s. 24(2) of the Charter .

[ 2 ] Aside from the Charter application, the two issues to be determined in this trial are: (1) whether the Crown proved beyond a reasonable doubt that the police officer made a lawful demand; and (2) whether the Crown similarly proved beyond a reasonable doubt that Mr. Hain was in care or control of his vehicle while impaired by alcohol. [ 3 ] Cst. Snowdy was the only witness to testify on the Charter voir dire . Her evidence was applied to the trial by agreement of the parties. Cst. Laferty and Nathan Gordon were the other witnesses called to testify by the Crown at the trial.

The defence called no evidence on the voir dire or the trial. II. BACKGROUND [ 4 ] Around 10:45 p.m. on July 25, 2015, Mr. Hain was driving alone in his vehicle, south on Highway 9 near Ebenezer and pulling a trailer with a boat on it. He collided with a bridge and, as a result, one of his wheels became embedded in the rail of the bridge and the rest of his truck and trailer, with him in it, ended up in the east ditch. Before he reached the ditch, his boat fell off the trailer and landed in the travelled portion of the highway. [ 5 ] A number of people stopped to help.

One was Nathan Gordon, who was as well driving south on Highway 9 and could see an accident scene and people on the highway as he drove up. He stopped and got out. Mr. Hain, whom Mr. Gordon spoke to, was running around frantically and said: “I need to get the boat off the highway”. Mr. Gordon, and others, helped Mr. Hain push the boat off the highway. Then a white van or SUV pulled up and Mr. Gordon heard Mr. Hain, who had blood on his face, say he needed to go to the hospital. Mr. Hain left the scene in that white vehicle, which proceeded south on Highway 9. [ 6 ] Mr.

Gordon, when he testified at the trial, described Mr. Hain’s speech as a little slurred and said his walk was slightly staggered. After Mr. Hain left the scene, Mr. Gordon phoned 911 to report the accident. He had located Mr. Hain’s identification cards (ID) in the vehicle in the ditch and read his name and license number to the dispatch operator. He, as well, described the accident scene to that operator. Shortly thereafter, he was contacted on his cell phone by Cst. Snowdy of the Yorkton RCMP. [ 7 ] Cst. Snowdy and Cst. Laferty were on duty this evening.

They received a call from their dispatch operator at 10:48 p.m., of an accident involving a white Dodge Ram pulling a boat which was now on the highway and with a driver named Tyson Hain, who was said to be intoxicated. The dispatch operator said the accident was south on Highway 10, but after the officers proceeded a short way down Highway 10 toward Melville, Cst. Snowdy called the complainant Mr. Gordon, and learned that the accident was actually north of Yorkton on Highway 9. [ 8 ] I accept Cst. Snowdy’s account of what Mr. Gordon said to her. Mr. Gordon described the accident scene to Cst.

Snowdy and said that a boat pulled by the vehicle in the accident had fallen off its trailer onto the travelled portion of the highway. He further told Cst. Snowdy that:

(1) Based on the picture ID he found, he believed Mr. Hain had been driving the vehicle involved in this accident;

(2) Mr. Hain was the lone occupant of this vehicle, which appeared to Mr. Gordon to have struck the bridge before ending up in the ditch;

(3) When Mr. Gordon arrived on the scene, Mr. Hain was running around erratically and hysterically on the highway;

(4) Mr. Hain’s speech was slurred when he spoke to him and he had blood on his nose and mouth;

(5) He and others helped Mr. Hain push the boat off the highway; and

(6) Mr. Hain had then left the scene of the accident in a white vehicle going south, he thought heading to the hospital. [9] As Mr. Gordon believed Mr. Hain was hospital bound, Cst. Snowdy proceeded directly to Yorkton Regional Hospital. Cst.Laferty drove separately to the accident scene on Highway 9 where he investigated the accident and took pictures (Exhibit P-1). Thosepictures are consistent with a single vehicle accident in which the vehicle struck the bridge railing and ended up in the ditch. Cst.

Lafertyfound and photographed a can of Bud Light beer and a can of Twisted Tea cooler, both about thirty feet from Mr. Hain’s vehicle on theshoulder of the highway. He also located a can of Bud Light in Mr. Hain’s boat. [10] When Cst. Snowdy arrived at the hospital, she saw a white SUV leaving. She went into the hospital and asked thereceptionist if a male with blood on his face had come in. The receptionist said such a male had been there, but had departed. Cst.Snowdy left her cell number with the receptionist and went to Mr. Hain’s address, but could not find him.

She then received a call fromthe receptionist, at 11:34 p.m., that Mr. Hain was now at the emergency ward. She returned to the hospital at 11:43 p.m. and spoke withMr. Hain in the ward. [11] Mr. Hain identified himself to the officer, but denied that he had been driving. Rather, he said that it was his buddy. When herefused to tell Cst. Snowdy who his buddy was, he then admitted that he had been driving. Cst. Snowdy noticed that Mr. Hain wasslurring, and that he had really glassy and red bloodshot eyes. He also had injuries to his nose and mouth.

She asked him if he had beendrinking, and he said that he “had a few”. [12] The officer then arrested Mr. Hain for impaired driving and, after he briefly saw a doctor at the emergency ward, she readhim his Charter rights and the breath demand. [13] In response to the breath demand, Mr. Hain said: “I don’t approve of doing my samples”. Mr. Hain continued to refuse toprovide a breath sample while he was at the hospital, and further continued the same refusal at the detachment where he said he refused“as a personal preference”. There is no doubt Mr. Hain refused the demand. III.

WAS THIS A LAWFUL DEMAND? [14] The issue of whether this was a lawful breath demand is determinative of both the Charter application and the trial issueregarding the refusal charge. Section 254(3) allows a police officer to demand breath samples from a person, if she believes, onreasonable grounds, that person has committed, within the preceding three hours as a result of the consumption of alcohol, an offenceunder s. 253. [15] The defence argued that Cst. Snowdy did not have reasonable grounds to believe Mr. Hain had committed an offence under s.253. Mr.

Weisgerber, in effect, said there were alternate explanations for some of the observations made of Mr. Hain by the officer, and,taken together, she had only sufficient information to base a reasonable suspicion he had been driving while impaired, rather than areasonable belief. For the reasons that follow, I disagree. [16] The standard to be applied in determining whether Cst. Snowdy had the requisite reasonable belief is set out by the Saskatchewan Court of Appeal in R. v.

Gunn[1]: A police officer may not demand a breath sample of an individual unless the officer has "reasonable grounds to believe" the individualhas, within the preceding three hours, driven while impaired or while over the proscribed limit. This means the officer must subjectively(or honestly) believe the individual has driven while impaired or "over .08" within the preceding three hours and that belief must berationally sustainable on an objective basis (see: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 48). This does

not mean that the Crown has to demonstrate a prima facie case for conviction ( R. v. Shepherd , 2009 SCC 35 , [2009] 2 S.C.R. 527, at para. 23 ), let alone prove its case beyond a reasonable doubt ( R. v.

Bush , 2010 ONCA 554 , 259 C.C.C. (3d) 127); rather, the standard of "reasonable grounds to believe" is one of lesser probability which simply requires the reviewing court to determine whether the factors articulated by the officer who made the breath-demand were reliable and were capable of supporting the officer's belief that the individual had driven while impaired or "over .08" within the preceding three hours. [ 17 ] In determining that standard, Justice Caldwell, for the Court, further said: In a voir dire held to determine the reasonableness of the police officer's belief, the trial court must consider whether the observations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which was drawn by the officer; however, the Crown does not have to prove the inferences drawn were true or even accurate.

In other words, the factors articulated by the arresting officer need not prove the accused was actually impaired. This is so because that is the standard of proof reserved for a trial on the merits (i.e., proof beyond a reasonable doubt). [2] [ 18 ] The basis upon which Cst. Snowdy made the demand to Mr. Hain under this

section was threefold. She said that she believed that Mr. Hain had been operating a motor vehicle within the previous three hours while impaired by alcohol based on: (

i) what she was told by the dispatcher; (ii) what she learned in her discussion with Mr. Gordon; and (iii) her observations and discussion with Mr. Hain at the hospital. [ 19 ] Regarding the time frame, the officer said that her belief was that the accident happened shortly before receiving the dispatch call at 10:48 p.m. She believed this because the accident happened on an area of Highway 9 that she knew to be straight, flat, busy and well travelled, with resulting debris, including a boat, in the middle of the highway.

As a result, she believed, and I accept this to be reasonable, that a complaint received from a member of the public would have come without any significant delay. Thus, I accept that she had a reasonable belief that the accident had happened shortly before the dispatch call at 10:48 p.m. and, in any event, much less than three hours before the breath demand to Mr. Hain, which was made shortly after 11:53 p.m. [ 20 ] In

summary, her grounds for making the demand to Mr. Hain under s. 254(3) were:

(1) She understood Mr. Hain had been the driver in a single vehicle accident on a flat and straight portion of Highway 9 in good driving conditions, where he ended up in the ditch and his boat fell onto the highway;

(2) She was told by the dispatcher that the driver Mr. Hain was intoxicated;

(3) Mr. Gordon, who described Mr. Hain as hysterical at the scene, heard Mr. Hain slurring his words when he spoke to him;

(4) Mr. Hain left the accident scene;

(5) Someone matching Mr. Hain’s description arrived at the hospital, but then left and later came back to the hospital;

(6) She confirmed in speaking to Mr. Hain that he had slurred speech;

(7) Mr. Hain had glassy and red bloodshot eyes;

(8) Mr. Hain admitted to her that he had been drinking; and

(9) Mr. Hain lied to her about whether he had been driving the vehicle that was in the accident, claiming it was his friend, and then subsequently admitted he was the driver. [ 21 ] Mr. Weisgerber argued that a number of factors supported a conclusion that Cst. Snowdy could only have held a reasonable suspicion that Mr. Hain was driving while impaired:

(1) While the dispatch operator said the driver was impaired, the initial location given for the accident was determined to be wrong;

(2) She was aware that Mr. Hain had been injured, and that an air bag may have deployed in his vehicle, which could have explained his eyes and his speech;

(3) His speech in a warned statement given after his arrest and at the detachment (tendered by the Crown as Exhibit P-2) was notnoticeably slurred and she said to him in that statement she suspected he was impaired when she saw him at the hospital; and

(4) The fact he left the scene of the accident and lied about whether he was driving did not necessarily show he was impaired. [22] My task is not to look at the grounds the officer held individually or piecemeal. Nor am I to focus only on what otherreasonable inferences or beliefs could have been resulted from the information the officer had. I am to look at the officer’s groundstogether, to see if they collectively supported a reasonable belief Mr. Hain was driving while impaired. I am so satisfied, considering theevidence of Cst.

Snowdy, including her evidence that she held this belief and the wording of the breath demand to Mr. Hain, in whichshe said she had reason to believe he had been driving while impaired. I am further satisfied that her reference to a “suspicion” in thevideo taken at the detachment was a slip of the tongue and did not bring into question the belief she held at the hospital. [23] Dealing with the concerns raised by Mr. Weisgerber:

(1) Regarding the incorrect location of the accident, that was quickly ascertained by Cst. Snowdy, and in my view everything else thatshe discovered was, at the least, consistent with a reasonable belief that Mr. Hain was driving while impaired.

(2) Regarding the potential effects to Mr. Hain of an air bag releasing in the accident, Cst. Snowdy was clear that while she knew thiscould cause burns to a driver, she did not know of other effects and did not turn her mind to this with Mr. Hain.

(3) While Mr. Hain’s speech on the video is not overly slurred, I am satisfied that the officer clearly heard him slurring his words at thehospital in a way which was consistent with that reported to her by Mr. Gordon.

(4) Lastly, regarding the inferences to be drawn from leaving the scene and from denying he was driver, while it may be that theseactions could have been done by a sober person, I am satisfied that a reasonable conclusion to be drawn from this, in addition to the otherinformation Cst. Snowdy had, was that Mr. Hain was trying to hide that he had been driving while impaired. [24] Taken together, applying the words of Justice Caldwell from Gunn, the factors articulated by Cst. Snowdy, upon which shebased her demand, were in my view reliable and were capable of supporting her belief that Mr.

Hain had driven while impaired withinthe past three hours. Put another way from Gunn, the observations and circumstances articulated by Cst. Snowdy were in my viewcapable of supporting the inference of impairment. As a result, I am satisfied beyond a reasonable doubt that Cst. Snowdy made a lawfuldemand to Mr. Hain for a breath sample under s. 254(3). IV. WAS HE DRIVING WHILE IMPAIRED? [25] The Supreme Court of Canada in R. v.

Stellato, (SCC), [1994] 2 SCR 478 approved the following test forimpairment: 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. [26] The Crown argued that there was in this trial sufficient indicia of impairment on Mr. Hain’s behalf to justify a conviction. Idisagree.

[ 27 ] Regarding the accident, I have considered the video statement given by Mr. Hain over an hour after he was given the breath demand at the hospital. In that statement, which formed part of the Crown’s case, Mr. Hain said he drove into the bridge and then the ditch because a deer jumped in front of his vehicle. Nothing in the investigation contradicted his statement. [ 28 ] Regarding evidence of his physical condition, Mr. Gordon testified that he was slurring a little and his walk was slightly staggered. Cst.

Snowdy said that at the hospital his speech was slurred and his eyes were really glassy and red and bloodshot. She noted no problems with his walk, coordination or comprehension while Mr. Hain was in her presence. In the video statement taken from Mr. Hain, there is no significant slur in his speech, although he appears shaken after the accident. [ 29 ] While there is evidence which supports impairment - including Mr.

Hain’s initial denial of driving to the officer - and having considered the adverse inference I may draw from his refusal under s. 258(3), nevertheless, considering all the evidence, including the potential effects of the accident on him, I have a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol. V. CONCLUSION [ 30 ] I am satisfied beyond a reasonable doubt that Cst. Snowdy made a lawful demand for a breath sample to Mr. Hain under s. 254(3) and that Mr. Hain refused this demand.

I am not satisfied that his rights under ss. 8 and 9 of the Charter were violated and his application under s. 24(2) is dismissed. As a result, Mr. Hain is found guilty of the refusal charge (count number 1). [ 31 ] Because I have reasonable doubt that Mr. Hain’s ability to operate a motor vehicle was impaired by alcohol, he is found not guilty on count number 2. R. Green, J [1] 2012 SKCA 80 at par. 7 . [2] At par. 15.