Her Majesty the Queen - v. -, 2013 SKPC 102

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 102 Date: July 15, 2013 Information: 24497945 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Shane Robins Appearing: J. Claxton-Viczko For the Crown L. Watson For the Accused DECISION ON VOIR DIRE M.M. BANIAK , J I. INTRODUCTION [ 1 ] The accused, Shane Robins, was charged: On or about the 19 th day of December, A.D. 2012, at Prince Albert District, in the Province of Saskatchewan, did,

1) while his ability to operate a motor vehicle was impaired by alcohol or a drug, did have the care or control of a motor vehicle contrary to section 253(1) (

a) and section 255(1) of the Criminal Code . 2) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, did have the care or control of a motor vehicle, contrary to section 253(1) (

b) and section 255(1) of the Criminal Code . [ 2 ] Defence alleged breaches under sections 8, 9 and 10(

b) of the Charter , and seeks to exclude the evidence pursuant to s. 24(2) of the Charter . [ 3 ] Defence submits that Cst. Woodman lacked reasonable grounds to support that there was alcohol in the accused ’ s body at the time of the demand. Her demand constituted a breach of the accused ’ s right against arbitrary detention as guaranteed by s. 9 of the Charter ; and by obtaining the breath samples the accused ’ s right to be free of unreasonable search and seizure, as protected by s. 8 of the Charter , was breached. [ 4 ] Initially, defence alleged that the accused ’ s s. 10(

b) right to counsel was breached, but after the Crown presented its evidence on the voir dire , this argument was abandoned. [ 5 ] The Crown called two witnesses, while defence did not call any evidence on the voir dire . [ 6 ] The Crown ’ s first witness was Taylor Lamb. She testified that she was a passenger in a vehicle which drove behind the accused ’ s truck on Highway 2, towards Emma Lake. [ 7 ] She observed the accused trying to pass the vehicle in front of him on a couple of occasions but was unsuccessful in doing so because of oncoming traffic.

On the last try his attempt was thwarted by an oncoming vehicle which resulted in the accused taking the ditch to his left and, in the process, rolling his vehicle. [ 8 ] When asked if she made any observations about the accused ’ s driving, Ms. Lamb answered: “ not really, we were going about 100 km/hr ” . [ 9 ] With respect to the condition of the road, she said: “ some ice and snow on the road. Not great conditions. ” [ 10 ] She called 9-1-1 and, after concluding that no one was injured, left the scene. [ 11 ] The Crown ’ s second witness was Cst.

Tiffany Woodman, who, at the time of this occurrence was a member of the RCMP for some two years. [ 12 ] She testified that around 10:40 p.m. she was dispatched to an accident on Highway 2 North. The caller that reported the accident stated that the truck was being driven carelessly. [ 13 ] When she arrived at the scene, the accused was speaking to the Fire Chief, who was already there. [ 14 ] According to her, the accused appeared shaken, but otherwise there was nothing that she noticed about him. He advised her that he was coming from the Casino. “ I asked him if he was drinking. He said that he had one drink.

That gave me reasonable grounds

to make the ASD demand. ” [ 15 ] At 23:10 the ASD demand was made, and following a failed reading he was arrested for impaired driving at 23:14 and given his rights to counsel. At 23:16 the demand for the breathalyzer sample provision was made. Police warning was given at 23:17. [ 16 ] The Crown asked her: “ Up to the police warning, did you note anything about the accused? ” She answered: “ No, he was quite polite. ” [ 17 ] At 11:30 p.m. they arrived at the Prince Albert Detachment. At this point, Cst.

Woodman indicated that the accused was unsteady on his feet as he was walking; that his eyes were really bloodshot; and that she could really smell the alcohol coming from him. [ 18 ] Having been assured that the accused did not wish to call a lawyer he was taken to the breathalyzer room. The first reading at 23:47 was 100 milligrams of alcohol in 100 millilitres of blood, and the second reading at 00:08 was 90 milligrams. [ 19 ] A true copy of the Certificate of Analyses was served on the accused. [ 20 ] During cross-examination, the following exchange took place: Q: You did not see him driving? A: No.

Q: Driver appeared shaken up but normal? A: Yes. Q: Accused appeared coherent and understood what was going on? A: Yes. Q: Did you smell alcohol? A: No. Q: Did you see red eyes? A: Not at that time. [ 21 ] She was further asked the following: Q: He said he had one drink and you read him the demand? A: Yes. Q: You read the demand for the ASD because you didn’t think you had the grounds to make a demand? A: Yes. Q: He didn’t have any difficulty of getting into the police truck? A: No. Q: The smell of alcohol was coming from the back of the vehicle, not from the individual? A: No.

Q: It was a standard question regarding alcohol consumption? A: Yes. II. POSITION OF THE PARTIES [ 22 ] Defence argued that Cst. Woodman lacked reasonable grounds or suspicion to make the demand, for even if the subjective component is satisfied, the objective criteria is missing. [ 23 ] Defence submits that the constable was responding to dispatch information based on third party information which was lacking in detail.

Further, defence argues, one drink at 6:30 p.m. does not provide reasonable grounds for assuming that a person is over .08 at 11:30 p.m. [ 24 ] Here, the accused displayed no indicia of impairment when the constable interacted with him. [ 25 ] Therefore, even though the standard for satisfying the objective criteria or component is not very high, something more is required than what was presented in this case. [ 26 ] Defence submits that the s. 8 and 9 breaches cannot be saved by the R. v.

Grant analysis. [ 1] Even though the constable may not have been acting in bad faith, the detention of the accused was a serious breach and favours exclusion. [ 27 ] Impact of the breach on the interest of the accused was also serious and favours exclusion.

Defence argues that even if society ’ s interest in the adjudication of the case on its merits favours inclusion, on balance the certificate should be excluded. [ 28 ] The Crown argues for admission of the Certificate of Analyses for the following reasons: 1) There was acknowledgment of drinking (one drink at 6:30 p.m.); 2) The dispatch stated that the accused was driving recklessly; 3) There was an unspecified odour of alcohol; and 4) The constable did not act in bad faith. [ 29 ] Finally, the Crown submits that even if there was a breach, as alleged by the defence, it was not serious and a Grant analysis would favour the admission of the certificate.

III. ISSUES 1) Were the accused’s s. 8 and 9 Charter rights breached?

2) If the answer to question 1 is yes, should the evidence obtained by Cst. Woodman be excluded pursuant to s. 24(2) of the Charter , following a Grant analysis? IV. ANALYSIS 1) Were the accused ’s s. 8 and 9 Charter rights breached? [ 30 ] The test for an ASD demand under the Code is fairly low. However, a police officer must have reasonable grounds to suspect that the accused has alcohol in his body while operating the vehicle before they are entitled to make the demand. [ 31 ] As was stated by the Supreme Court in R. v.

Bernshaw , [2] the issue of whether an officer has reasonable grounds to demand the breath sample has both an objective and a subjective component. It is not sufficient that the officer believes that the accused is impaired, there must be reasonable grounds for that belief. [ 32 ] Our Court of Appeal, in R. v. Gunn , held that a roadside screening test may be conducted on the standard of “ reasonable suspicion ” . [3] [ 33 ] Popescul J. in R. v.

Nguyen , states that: [4] The concept of reasonable suspicion is a sincerely held subjective belief supported by factual elements that can be adduced in evidence and permit an independent judicial assessment.

It is a lower standard than that required for reasonable and probable grounds in that the degree of reliability and the amount of information to establish that is lower. [ 34 ] Therefore, even though the burden of proving a Charter breach falls on the accused on the standard of a balance of probabilities, it shifts to the Crown when it comes to adducing evidence to establish the reasonableness of the officer ’ s belief. [ 35 ] Madam Justice J. A. Smith, in R. v.

Besharah , when addressing the issue of the existence of reasonable grounds, stated: [5] [35] ...Where the lawfulness of the police arrest is put at issue on a Charter challenge, as it was here, the onus must fall on the Crown through police witnesses to establish that the police had subjectively and objectively reasonable and probable grounds for the arrest, for, as a practical matter, this proposition is asserted and relied upon by the Crown and is within the peculiar knowledge of the police.

Thus, fairness requires that the burden of proving this matter fall on the Crown and that the accused have an opportunity to challenge the police evidence by way of cross-examination... [ 36 ] It suggests to me, therefore, that even though the burden of proof imposed on the Crown may be rather low, there still has to be a foundation for the officer ’ s belief that the accused was impaired when driving.

If the evidence of impairment is so tenuous that a reasonable person could not objectively conclude that the accused had any alcohol in his system then the objective component is not established. [ 37 ] In the instant case, Cst. Woodman testified that she received a call from dispatch that stated that a vehicle was being driven recklessly. [ 38 ] Courts have held that information obtained from a third party can be used as a basis of an officer ’ s grounds for making a s.

253(4) demand. [6] However, the information would have to contain sufficient detail before it could be relied on exclusively. Here, the only information Cst. Woodman received was that the vehicle was being driven carelessly or recklessly - nothing more. I do not believe that this is sufficient. The standard may not be very high, but something more is required than a brief dispatch message based on a third party call. [ 39 ] Further, Cst.

Woodman testified that when she arrived at the scene the accused appeared completely normal; he was somewhat shaken, but he was polite; he did not slur his words; he did not have bloodshot eyes; he did not smell of alcohol; he was steady on his feet and he was fully coherent. [ 40 ] In response to her question about drinking, the accused stated that he had a drink at the Casino at 6:30 p.m. - some four and a half hours before. [ 41 ] I conclude therefore, that Cst. Woodman lacked the necessary evidence to make the ASD demand.

The evidence does not support the reasonable suspicion that the accused had alcohol in his body. [ 42 ] Consequently, the arbitrary detention of the accused, and the taking of the breath samples breached his s. 8 and 9 Charter rights. 2) If the answer to question 1 is yes, should the evidence obtained by Cst. Woodman be excluded pursuant to s. 24(2) of the Charter , following a Grant analysis? [ 43 ] Having come to this conclusion, I now have to address the issue of whether the evidence obtained pursuant to the breach should be excluded pursuant to s. 24(2) of the Charter . [ 44 ] In R. v.

Grant , the Supreme Court directs that the following three inquiries be conducted before a determination as to exclusion or inclusion of evidence is made: [7] (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct); (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little); and (3) society ’ s interest in the adjudication of the case on its merits.

(1) The seriousness of the Charter -infringing conduct by the state. [ 45 ] In this case, Cst. Woodman did not act in bad faith.

She was, rather, under the mistaken belief that if the grounds for a demand were not present, when she first encountered the accused, she was justified in conducting further investigation until such grounds appeared, even if that meant disregarding the accused ’ s Charter rights. [ 46 ] And while Courts have held that, “ breaches of an insignificant or technical nature or the result of an understandable mistake are of lesser concern and weigh in favour of the admission of evidence obtained by means of a breach of Charter standards, wilful blindness and carelessness will not. ” [8]

[ 47 ] Cst. Woodman ought to have known that in the absence of any apparent indicia of impairment by the accused (and upon being advised by the accused that he had one drink some four and half hours earlier), she was not entitled to arbitrarily detain him for the purpose of administering the ASD test. [ 48 ] I do not believe that Grant shields police officers, or allows them to ignore the law, or be careless in how they observe an accused ’ s Charter- protected rights. [ 49 ] As such, these factors weigh in favour of the evidence being excluded pursuant to s. 24(2) of the Charter .

(2) The impact of the breach on the Charter -protected interests of the accused . [ 50 ] In my view, the breach here was not “ merely transient or trivial or insignificant or technical ” in its impact on the accused. [ 51 ] The arbitrary detention, the demand for information and the taking of the accused ’ s breath affected the accused ’ s liberty and privacy rights. [ 52 ] I do not believe that the accused considered his detention as being trivial, transient or insignificant.

Similarly, I do not believe that the average reasonable person would consider these breaches as being trivial or insignificant. [ 53 ] Most people would likely agree that drivers should not be arbitrarily detained and ordered to provide incriminating evidence against themselves on the mere possibility that they are impaired, as such, this would favour exclusion.

(3) Society ’ s interest in the adjudication of the case on its merits. [ 54 ] Society clearly has an interest in serious criminal charges being decided on their merits. Drinking and driving offences are serious. Thousands of people are killed and injured on Canada ’ s roads annually - in many of these accidents alcohol is a factor. [ 55 ] Having said that, it is also true that society wants, and greatly benefits in the long run, from a justice system that vigorously respects and protects each person ’ s constitutionally protected rights.

And a system that guarantees that each person will get a fair trial is clearly of great benefit to society as a whole. [ 56 ] In the instant case, Cst. Woodman, by arbitrarily detaining the accused and obtaining incriminating evidence against him by demanding that he provide a sample of his breath into an approved screening device, breached his Charter -protected rights. On balance, this favours the exclusion of the evidence obtained. V. CONCLUSION [ 57 ] Accordingly, I find that the seriousness of the breaches outweigh society ’ s interest in having the charge tried on its merits.

Inclusion of the evidence obtained by Cst. Woodman would bring the administration of justice into disrepute. As such, it should be excluded. [ 58 ] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 15 th day of July, A.D. 2013.

___________________________________ M. M. Baniak, J [1] R. v. Grant, 2009 SCC 32; [2009] 2 S.C.R. 353 (S.C.C.). [2] R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254. [3] R. v. Gunn, 2012 SKCA 80, para. 21. [4] R. v. Nguyen, 2013 SKQB 36. [5] R. v. Besharah, 2010 SKCA 2, para. 35. [6] See: R. v. Renouf, 2013 SKPC 34. [7] R. v. Grant, supra, para. 71. [8] R. v. Lux, 2012 SKCA 129, para. 59.