Her Majesty the Queen - v. -, 2014 SKPC 74

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 074 Date: April 29, 2014 Information: 37252866 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - David Gerald Turnmire Appearing: Brian Hendrickson, Q.C. For the Crown Merv Nidesh, Q.C. For the Accused DECISION M. GORDON , J [ 1 ] The final issue to deal with in this case is whether Mr. Turnmire is guilty of operating a motor vehicle while impaired.

Counsel made their submissions with respect to this matter on April 2, 2014, and I adjourned to April 29, 2014 to consider the matter. [ 2 ] The evidence of Cst. Torgunrud with respect to Mr. Turnmire’s driving is as follows:

- almost failed to stop at the stop sign exiting the mall parking lot; - swerved and almost hit curb; - wide turn onto Alder; - right turn onto Hall, into both lanes; - passenger rear tire very close to curb; - stopped at the stop sign longer than usual at Hall and Main; - driving on Hall Street, drifting to the curb and then to the centre line; - vehicle pulled over slowly; and - the vehicle stopped alright. [ 3 ] Cst. Torgunrud made the following observations of Mr.

Turnmire: - the driver had some difficulty finding his driver’s licence; - the officer could not smell any alcohol; - the driver was smoking and had his window open when the officer approached; - the officer observed the driver to have poor coordination (the way he was moving his hands), red and bloodshot eyes and slurred some words; - Mr. Turnmire tried to put the vehicle in park when it was already in park; - Mr. Turnmire “spilled out” of his vehicle; and - he walked slow and was swaying slightly. [ 4 ] Cst. Torgunrud relied on the following information: - Mr.

Turnmire said he had three drinks; - the officer had to read the ASD demand twice to Mr. Turnmire; - Mr. Turnmire did provide a satisfactory sample in the approved screening device; and - he appeared to understand the rights and warnings given to him by the officer and responded that he wanted to call a lawyer. [ 5 ] The other observations of Mr. Turnmire at the police station are as follows: - Mr. Turnmire asked Cst. McNaughton, the breath technician, if he was a lawyer when at the booking in counter; - on the DVD Mr.

Turnmire is shown at the booking in counter to be speaking satisfactorily although he is a bit argumentative as he wanted to go home; - said he only had three drinks that day and worked a long day; - on the DVD it appeared that he conversed and conduct himself in an appropriate manner without incident; - was generally cooperative; and

- asked to contact counsel being Mr. Nidesh and then his friend Jim Makowitch. [6] The test to be applied in determining whether the offence of impaired driving has been proven by the Crown is found in R. v.Stellato, (SCC), [1994] 2 S.C.R. 478 (S.C.C.) at paragraph 74: 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 establishes any degree of impairmentranging from slight to great, the offence has been made out. [7] The Stellato case emphasizes that the trial judge is required to consider all of the evidence in assessing whether there issufficient evidence of impairment to justify a conclusion that the accused’s ability to operate a motor vehicle is impaired by alcohol. [8] The observations or evidence must indicate behaviour that deviates from normal behaviour to a degree that the required onusis met. In R. v. Landes, a decision of December 8, 1997 of Klebuc J., Mr.

Justice Klebuc concluded that R. v. Andrews, 1996 ABCA 23,is not the law in Saskatchewan insofar as it requires conduct of a “marked departure”. Justice Klebuc noted that he was bound by thedecisions in R. v. Hall (1994), (SK CA), 125 Sask. R. 62 (C.A.); R. v. Pelletier (1995), (SK CA),128 Sask. R. 214 (C.A.); and R. v. MacDonald, [1996] 146 S.J. No. 442 (Q.B.). In the MacDonald case Justice Baynton endorsesPelletier as being a clear and concise statement of the law (based on R. v. Stellato, supra). This approach has been followed insubsequent cases in Saskatchewan such as R. v. Rice, 2011 SKQB 412; R. v.

Bonter, [2013] S.J. No. 447; and R. v. Meek, 2010 SKPC136. In other words, it is the totality of the evidence and a consideration of the accused’s conduct and condition that must be looked at toreach a conclusion whether his ability to drive was impaired to some degree. If the totality of the evidence is ambiguous, then the onuswill not be met. [9] The defence suggests that because the officer made an ASD demand that should be the end of the matter. The officer wasunsure as to whether the operator of the vehicle was impaired. In addition, the defence urges me to consider Mr.

Turnmire’s condition asshown on the video at the police station. At that point Mr. Turnmire appears to be functioning fine and there are no indications ofimpairment. [10] The Crown, on the other hand, says that the fact that the police officer made the approved screening device demand shouldnot be held against the Crown. The police officer, the Crown says, was acting prudently and in accordance with views held by somecourts that extensive use of the ASD should be made. It is a screening device and it can confirm the officer’s opinion that there aregrounds to make the Intoxilyzer demand.

It is not intrusive, it can be easily and quickly administered, it can serve to confirm theofficer’s observations and deal with any issue that might be raised about whether the officer had reasonable grounds to make theIntoxilyzer demand. [11] I accept the observations of the police officers. Cst. Torgunrud followed the Turnmire vehicle for approximately six blocksand there was more than one driving action that came to the officer’s attention. Cst. Torgunrud’s evidence is unchallenged. Defencecounsel said there was no need to cross-examine this officer.

Of course sober individuals can drive carelessly and fail to complete stopat a stop sign when there is no traffic. In this case the observations of Mr. Turnmire’s driving shows several different manoeuvres thatwere out of the ordinary. The fact that the police officer could not smell alcohol initially on Mr. Turnmire is really of no consequencegiven that alcohol is an odourless substance and any smell is indicative of what may be consumed with the alcohol. It also is noted thatwhen the officer approached the vehicle, the car window was already open and the accused was smoking.

The officer also observed Mr.Turnmire put the vehicle in park when it was already in park. The officer described Mr. Turnmire as “spilling out” of the vehicle. Defence counsel did not question the officer on these observations. The video of Mr. Turnmire in the police station, I agree, does notshow him to be a falling down drunk. I note however the stop was at 1:39 a.m. and it was 2:00 a.m. when the officer and Mr. Turnmirearrived at the station. It is the observations of Mr. Turnmire at the police station that the defence relies upon to raise a reasonable doubtas to whether Mr.

Turnmire was driving while impaired. However, looking at the totality of the circumstances, the number ofobservations made by Cst. Torgunrud and applying the test in Stellato, I am satisfied beyond a reasonable doubt that the Crown hasproved Mr. Turnmire was impaired by alcohol at the time of driving. Therefore I find him guilty as charged.

M. Gordon, J