Her Majesty the Queen - v. -, 2015 SKPC 141

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 141 Date: October 9, 2015 Information: 24548024 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Zach Waldner Appearing: Lauren Ellis For the Crown Ronald Piche For the Accused DECISION M.M. BANIAK, J [ 1 ] The accused stands charged as follows: That on August 11, 2014 at Shellbrook, Saskatchewan, he did 1) Have care and control of a vehicle while impaired by alcohol, contrary to s. 253(1) (

a) of the Criminal Code ; and

2) Have care and control of a vehicle while the concentration of alcohol in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, contrary to s. 253(1) (

b) of the Criminal Code . [ 2 ] Counsel for the accused gave notice of an application for an exclusion of evidence under s. 24(2) of the Charter for the following relief: 1. That the arrest of the accused for impaired care and control could not be supported on an objective basis as the officer did not have adequate opportunity to observe any indices related to motor coordination; 2. That the approved screening device ought to have been used.

Failure to do so resulted in the accused’s s. 8 and 9 rights being breached. [ 3 ] At the outset of the proceedings, defence counsel brought an application for a stay of proceedings. The basis of this application was that the disclosure sought was not provided in a timely manner or at all. [ 4 ] Following submissions, I determined that the disclosure that was provided late was not of such a nature as to unduly prejudice the accused or require an adjournment.

Some of the other disclosure requested such as the cell block video, was simply not available. [ 5 ] The Crown evidence was called on a voir dire and then, as per agreement by the Crown and defence, was applied to the trial proper. The accused did not testify on either the voir dire or the trial. [ 6 ] The Crown’s first witness was Keith Ethier. He is a certified Red Seal Mechanic who resides in the Town of Shellbrook. He also has some experience as a first responder with first aid training.

On the day in question, around 9:00 p.m., he and his wife were going to go for a drive. [ 7 ] He noticed a woman, Linda Bucknell, talking on her cell phone. She was concerned that the man in the running truck may not be alive. [ 8 ] When Mr. Ethier approached the truck he noticed a person in the driver’s seat slumped over the steering wheel; he was very still. Mr. Ethier proceeded to give the person a “clavicle rub” which elicited a groan. “I gave him three clavicle rubs before he awoke. He mumbled.” [ 9 ] Mr. Ethier then reached into the cab, shut the motor off, and threw the keys into the adjoining open lot.

He noticed some empty beer cans in the back seat. [ 10 ] Mr. Ethier’s attempt to speak with the driver yielded limited results: “I asked him who he was; what he was doing; what day it was. He was drunk; he was passed out. I could smell booze in the vehicle… I’ve dealt with drunk people before.” [ 11 ] After the first responders arrived, the person started vomiting in the vehicle. Shortly afterwards, Officer Lien arrived. Mr. Ethier proceeded to tell Officer Lien what he observed and did, once he came upon the vehicle, including the fact that the motor was running and that he shut it off.

After the officer arrived, and once Mr. Ethier briefed the officer as to what he observed and did, he left. [ 12 ] During cross-examination, in response to the question as to what he said to the police officer, his testimony was as follows: “I told him that Linda showed up first. That his friends drove up and tried to get him out of the truck… I mentioned about rubbing his clavicle. I found his keys and threw them away.” [ 13 ] He acknowledged that in the statement that he provided to the police he did not mention the smell of booze in the vehicle.

[ 14 ] The Crown’s second witness was Constable Mike Lien, a seven year member of the R.C.M.P. stationed in Shellbrook. On the 11 th day of August 2014, he was on general patrol duty, in uniform, operating a marked cruiser. [ 15 ] He received a call from dispatch about an unconscious male in a vehicle. When he arrived, there were several people at the scene.

First responders (EMS) were there also. [ 16 ] Constable Lien spoke to Keith Ethier who pointed him to the accused’s vehicle and advised him that the driver was now conscious – “Keith told me what happened.” Keith Ethier also gave Constable Lien the keys to the accused’s vehicle. [ 17 ] When Constable Lien approached the vehicle, he noted the accused slumped over the steering wheel – in his words “… passed out, but breathing.” When he peered into the vehicle he noticed vomit on the accused and on the side of the driver’s door.

He also saw a 275 ml. bottle of Wiser’s whiskey in the front console of the vehicle and four cans of Budweiser beer in the back seat. [ 18 ] According to Constable Lien, he had difficulty obtaining the accused’s name, but eventually the accused identified himself as Zach. He described the accused as having slurred speech and being in a daze. [ 19 ] Constable Lien opened the door and asked the accused to step out. In his words, “he actually slid out the seat.” [ 20 ] Constable Lien testified that he observed the accused to have red, glossy eyes; slurred speech and poor balance.

Once he was placed in the police cruiser, Constable Lien noted the odour of liquor coming from the accused.

He was disorientated, didn’t know where he was, and could not provide the i.d. that was requested of him. [ 21 ] Constable Lien could not recall if he asked the accused if he had anything to drink. [ 22 ] Based on all the information at his disposal, both from Keith Ethier and his own observations, Constable Lien concluded that he had the grounds for a breath demand without resorting to the use of the ASD. [ 23 ] According to Constable Lien, the sequence of events were: 21:12 time of arrival; 21:23 arrest and breath demand; arrival time at the detachment was not noted; 15 minute wait at the detachment; 21:40 accused presented to the breathalyzer technician; 21:47 first test. [ 24 ] Constable Lien testified that the distance from where the accused was arrested to the detachment was some fifteen blocks and that the accused was taken there directly. [ 25 ] Constable Lien further testified that the demand, counsel rights and police warning were all read off a standard issued R.C.M.P. card.

The actual recitation of the demand, rights and warning were not repeated verbatim in Court. [ 26 ] According to Constable Lien, the accused indicated that he understood his right to counsel, the breath demand and the reason for his arrest.

When asked if he wished to speak to a lawyer, the accused said no. [ 27 ] Once the samples were obtained, the Certificate of Qualified Technician together with the Notice of Intention to Produce Certificate were served on the accused in the interview room of the detachment and he was released into the custody of his parents. [ 28 ] During cross-examination, Constable Lien was questioned about the discrepancies, or omissions, in his report as compared to his testimony at trial.

[ 29 ] Defence quoted from the report: “I arrested accused for care and control before he exited the vehicle”, and asked whether the accused was arrested for care and control. [ 30 ] Constable Lien answered as follows: “I arrested him for open liquor in a vehicle… I believe I had the grounds to arrest him for care and control… can’t recall if I arrested him before or after he exited the vehicle for care and control.” [ 31 ] He was also asked why the indicia of impairment – such as slurred speech or glossy eyes was not recorded in his notes.

He responded that this was probably due to the fact that he was pressed for time. [ 32 ] He did maintain, however, that at the detachment, like at the scene, the accused exhibited poor balance, slurred speech and red, glossy eyes. This, however, did not affect the accused’s comprehension with respect to his rights and warnings.

POSITION OF THE PARTIES [ 33 ] Defence raised a number of arguments which, it submits, has the effect of derailing the Crown’s case. [ 34 ] Firstly, defence argues that there was a lack of a formal demand – the police officer did not testify as to what words he used to demand the breath sample. [ 35 ] Secondly, defence questions the quality of evidence presented by the police officer.

More specifically, defence points to discrepancies in the officer’s testimony to the entries he made in his report. [ 36 ] Thirdly, defence submits that the officer lacked grounds to arrest the accused while he was still in the vehicle. [ 37 ] Fourthly, defence takes issue with the arrival time at the detachment, which it claims either does not satisfy the as soon as practicable test; or, in the alternative it gives rise to the possibility that the observation period was not complied with, in which case the Crown could not rely on the presumption. [ 38 ] Crown argues that if the totality of the evidence is considered, then the police officer had the grounds for arrest and demand of the breath sample.

Crown stated that the police officer was briefed as to the accused’s condition by Keith Ethier. Further, the police officer upon approaching the vehicle noticed an individual who was slumped over the steering wheel. He appeared dazed; could not provide any identification documents and had vomit on himself. He also noticed open liquor in the vehicle.

It was reasonable for the officer to conclude that the accused was intoxicated. [ 39 ] Further, the Crown submits that the demand was read off a standard issued card – the fact that the police officer did not recite the exact words in testimony does not affect the formality or validity of the demand. [ 40 ] Finally, the Crown argues that the accused was observed for approximately fifteen to twenty minutes in the interview room at the detachment before the first sample was taken.

Similarly, having regard to the time of the demand, the direct transport to the detachment, the distance travelled, the observation period and the time of the first sample, the Crown submits that the issue of whether the test was taken as soon as practicable does not even arise. ISSUES

(

i) Was a valid demand made pursuant to s. 254(3) of the Criminal Code? (ii) Did the police officer have the grounds to arrest the accused when he did? (iii) Were the breath samples taken “as soon as practicable”? (iv) Was the observation period followed properly? (

v) Have the offences alleged been proven beyond a reasonable doubt? ANALYSIS (

i) Was a valid demand made pursuant to s. 254(3) of the Criminal Code? [41] Constable Lien testified that he read the demand for the breath sample to the accused from his standard force-issued card. The actual words used to make the demand were not repeated in Court and do not form part of the evidence. [42] Defence counsel argued that without this evidence the Crown has failed to prove that the requirements of s. 258(1)(

c) havebeen satisfied and cannot, therefore rely on the presumption. [43] Section 254(3) reads as follows: If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, [44] As is clear from this section, the peace officer is not required to use specific wording in making the demand. What is requiredI believe, is that the accused understands the demand and what his obligations are pursuant to that demand.

If the accused states that hedoes not understand the demand, the peace officer should then proceed to further explain to the accused the nature of that demand – evenif that means employing language that is not identical to what is contained on the standard issued cards. [45] Our Court of Appeal in R v Flegel (1972), (SK CA), 7 CCC (2d) 55 (Sask CA) held that it is unnecessarythat the demand be in any particular form provided it is made clear to the accused that he has to give a sample of his breath. [46] More recently, this issue was addressed by our Court of Queen’s Bench in R v Kachmarski, 2014 SKQB 39 [Kachmarski]; andRoss v The Queen, 2015 SKQB 146. [47] In Kachmarski, Chief Justice Popescul (para 38), stated as follows: Even absent evidence of the specific words used by the officer, there was evidence – sufficient evidence – from which to conclude that alawful demand was made for the purposes of s. 258(1)(c).

The officer made a formal breath demand from his force-issued card. Thedefendant stated that he understood that demand and subsequently complied by providing two samples into an approved instrument. [48] In this case, Constable Lien testified that he read the demand to the accused off a force-issued card; that the accused indicatedthat he understood the demand; and that they then proceeded to the R.C.M.P. Detachment where the accused provided two samples. [49] Having regard to the findings of the superior courts, and the evidence before me, I find that there was a valid demand pursuant

to s. 254(3) and that this triggers the s. 258(1)(

c) presumption. (ii) Did the police officer have the grounds to arrest the accused when he did? [50] According to the testimony of Constable Lien, he was not sure if he arrested the accused before he exited his vehicle or rightafter.

In his report it states that he arrested the accused before he exited the vehicle. [51] Defence counsel argued that at the time of the arrest the only indicia of impairment that the constable relied on were red,glossy eyes and slurred speech – hardly reasonable grounds for arrest and a breath demand. [52] Crown takes the position that with all the information that was provided to Constable Lien by Keith Ethier, and theconstable’s own observations, more than adequate grounds existed for the arrest and demand. [53] In scrutinizing the police officer’s grounds, I must be cognizant of the context or environment within which the police officercame to the conclusion that he had reasonable grounds to effect arrest and make the demand pursuant to s. 254(3) of the Criminal Code. [54] This was not the typical scenario where the police officer either pulled a motorist over to check for sobriety or found a driverbehind the wheel of a running vehicle.

Here, when Constable Lien arrived at the scene there were a number of people there already:Linda Bucknell, the woman who called the police; Keith Ethier, who shut off the truck and was attempting to determine if the accusedwas alive; and the EMS personnel. [55] Keith Ethier apprised Constable Lien of the situation at hand. He advised him that he shut the vehicle off. He described thetechnique he used to awaken the accused.

He offered the opinion that it was the accused’s drunkenness which caused him to pass outbehind the wheel of a running vehicle. [56] Therefore, in this case, the grounds disclosed, and relied upon by Constable Lien were not based solely on his ownobservations but were supplemented by the information supplied to him by Keith Ethier. [57] In R v Strongquill (1978), (SK CA), 43 CCC (2d) 232 (Sask CA), Culliton C.J.S. held that a police officermay base his grounds on information supplied by third parties, who are not necessarily fellow police officers; and the officer may testifyas to the contents of the conversations which caused him to make the demand. [58] Based on the information he received from Keith Ethier, and his own observations and interaction with the accused,Constable Lien decided to arrest the accused and demand that he provide a sample of his breath. [59] The cumulative information, as well as his own observations, reveals that Constable Lien was aware of the following prior toarresting the accused: • The accused appeared to be passed out and it took considerable effort to wake him up; • His vehicle was running; • There was alcohol in the vehicle; • The accused vomited on himself and on the inside of the driver’s door; • The accused had red, glossy eyes; • The accused was slurring his speech; and • The accused could not provide identification when requested to do so.

[60] Once Constable Lien opened the door and asked the accused to step out “he actually slid out the seat.” His balance was poorand he appeared to be in a daze. [61] Based on these facts, I do not believe it makes much difference whether Constable Lien arrested the accused immediatelybefore he got out of the vehicle or right after. In my view, the grounds for the arrest and the breath demand existed.

I am satisfied thathis subjective belief as to the accused’s degree of intoxication can be supported objectively if one considers all the information at hisdisposal. (iii) Were the breath samples taken “as soon as practicable”? [62] Defence counsel argued that the evidence adduced does not adequately account for the time between the demand and thetaking of the first sample – as such, the Crown has failed to prove that the samples were taken as soon as practicable, and, therefore,could not rely on the presumption created by s. 258(1) of the Criminal Code. [63] The Crown’s position, simply stated, is that the ‘as soon as practicable’ argument does not even arise.

The Crown is notrequired to explain every minute, and, in any event, the ‘as soon as practicable’ does not mean immediately. [64] Various courts in our jurisdiction have held that ‘as soon as practicable’ means ‘as soon as can be reasonably expected’ [R vMcCoy (1990), (SK KB), 86 Sask R 204 (Sask QB)]. Implicit in that is the realization that every case is different andthat, accordingly, it must be viewed in the context of its own facts and circumstances. In some cases even significant delays may beexplained. [65] In this case, Constable Lien testified that the Shellbrook R.C.M.P.

Detachment is approximately fifteen blocks away from theaccused’s vehicle, and that once the accused was placed in the police cruiser they proceeded directly to the detachment. [66] Constable Lien testified that the demand was made at 21:23 hours. The first sample was taken at 21:47 hours – twenty fourminutes later.

Allowing for the two to three minute travel time, followed by the observation period, which the constable testified lastedfrom fifteen to twenty minutes, there was no delay to explain. [67] I find that breath samples were taken as soon as practicable. (iv) Was the observation period followed properly? [68] Following the time sequence outlined in the previous paragraph, I find that there was a proper observation period. (

v) Have the offences alleged been proven beyond a reasonable doubt? [69] There is no dispute that the accused was in care and control of a vehicle – defence conceded that point. I find that the policeofficer had reasonable grounds to effect arrest and demand a breath sample pursuant to s. 254(3) of the Criminal Code. The accusedprovided breath samples and these were taken as soon as practicable. The Certificate of Qualified Technician was prepared and a truecopy served on the accused (P-1). [70] Both readings exceeded the legal limit. Accordingly, I find the accused guilty. [71] Dated this 9th day of October, A.D. 2015, at the City of Prince Albert, in the Province of Saskatchewan.

_______________________________ M.M. Baniak, J