Her Majesty the Queen - v. -, 2013 SKPC 207

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 207 Date: December 16, 2013 Information: 46431133 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Todd Elik Appearing: Norma Quaroni For the Crown Louis Browne For the Accused JUDGMENT K. LANG , J I. Introduction [ 1 ] Todd Elik was charged as follows:

(1) On or about the 16 th day of August, A.D. 2012 at or near Regina, Saskatchewan did, while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code ; and

(2) On or about the 16 th day of August, A.D. 2012 at or near Regina, Saskatchewan, having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, did operate a motor vehicle, contrary to section 255(1) and section 253(1) (

b) of the Criminal Code . [ 2 ] Upon entering into a voir dire , counsel for Mr. Elik argued that Mr. Elik’s rights under sections 8 and 9 of the Canadian Charter of Rights and Freedoms had been violated as the officer did not have reasonable grounds to make a breath demand. As a result of this alleged violation, counsel for Mr. Elik asked this Court to exclude the Certificate of Analyses as well as any indicia of impairment observed by the constables pursuant to section 24(2) of the Charter . [ 3 ] This decision concerns only the voir dire as counsel for Mr.

Elik did not consent to apply the evidence to the trial proper. II. Facts [ 4 ] On August 16, 2012, Constable Warnar was on patrol with his partner, Constable White. The two constables had been dispatched at 1:37 a.m. to an impaired in progress investigation. The officers were told that a staff member at the Regina Casino had refused the suspects entry due to one of the individuals attempting to bring open liquor into the Casino.

The informant also stated that the suspects’ vehicle had been observed leaving the Casino and had provided the police with the vehicle’s licence plate number as well as a description of the vehicle. [ 5 ] The officers were able to locate the vehicle driving down Saskatchewan Drive shortly after receiving the dispatch call. The constables followed the vehicle for approximately five blocks. While following the vehicle, Constable Warnar noticed the vehicle drifting outside of its lane and crossing the centre line of the road.

As Constable Warnar continued to watch the vehicle, he observed the vehicle stop at a green light at the intersection of Victoria Avenue and Arcola. [ 6 ] As a result of these observations, Constable Warnar turned on his overhead lights and stopped the vehicle. The driver, Mr. Elik, pulled over promptly without issue. Constable Warnar approached the driver’s side of the vehicle and requested to see Mr. Elik’s licence and registration. Mr. Elik complied without difficulty. While communicating with Mr. Elik, Constable Warnar smelt an odour of alcohol coming from the vehicle.

Around this time, Constable White informed Constable Warnar that there was open alcohol in the back seat of the vehicle. [ 7 ] During his communications with Mr. Elik, Constable Warnar informed Mr. Elik that he had received a dispatch call reporting the occupants of the vehicle’s conduct at the Casino. Constable Warnar also informed Mr. Elik that he had observed his vehicle swerving. Mr. Elik denied having swerved his vehicle. [ 8 ] Constable Warnar then removed Mr. Elik from the vehicle so as to determine whether the odour of alcohol was coming from his person. Constable Warnar instructed Mr.

Elik to enter the police cruiser on the rear passenger’s side. However, Mr. Elik entered the rear driver’s side of the vehicle. Constable Warnar made the same request and again Mr. Elik failed to comprehend the instruction. After making a third request, Mr. Elik entered the correct door of the vehicle. [ 9 ] During this time, Constable White had requested that the three passengers exit the vehicle and was engaging the passengers in conversation. Mr.

Elik testified that the passengers were being loud and attributed his failure to follow instructions to being distracted by the passengers. [ 10 ] Once in the vehicle, Constable Warnar detected an odour of alcohol coming from the back seat. While in the back seat, Mr. Elik explained that he was coming from a friend’s house and that the party had been refused entry into the Casino. Mr. Elik denied drinking any alcohol on the evening in question. However, upon being asked about the possibility of doing a roadside screening test, Mr. Elik admitted to having had a “couple of drinks”. During Mr.

Elik’s testimony, however, he stated that from 6:30 p.m. forward he had consumed three cans of beer, one shot of alcohol, and one six ounce glass of wine.

[ 11 ] At this point, Constable Warnar inquired as to Mr. Elik’s level of education and if he was capable of reciting the alphabet. Mr. Elik responded that he was capable of reciting the alphabet. However, Mr. Elik failed to recite the alphabet on two separate attempts. Based on his observations made up until this point, Constable Warnar believed he had reasonable grounds to make a breath demand. As such, Constable Warnar read Mr. Elik the breath demand, as well as his rights to counsel and the police warning. These statements were read from cards issued by the Regina Police Service. Mr.

Elik stated that he understood his rights and that he did not want to speak to a lawyer at that time. Although there was an inconsistency between Constable Warnar’s notes and his general report concerning whether Mr. Elik requested to speak to a lawyer, Constable Warnar affirmed that this was a typing mistake and that Mr. Elik responded that he did not wish to speak to a lawyer. It was approximately 1:53 a.m. when Mr. Elik was arrested. [ 12 ] Having arranged for Mr. Elik’s vehicle to be towed, Constable Warnar departed for the police station at 2:13 a.m.

The party arrived at the police station at 2:16 a.m. and shortly thereafter Mr. Elik was brought before a breath technician, Constable Workington. Mr. Elik provided his first breath sample at 2:22 a.m. The reading was 150 milligrams of alcohol in 100 millilitres of blood. At 2:42 a.m., Mr. Elik registered a second reading of 140 milligrams of alcohol in 100 millilitres of blood. At this point, Mr. Elik was advised that he would be charged with driving while his blood alcohol content was over the legal limit under s. 253(1) (

b) of the Criminal Code in addition to being charged with impaired driving under s. 253(1) (a). The same rights and warnings previously stated were again provided to Mr. Elik. He was then released with an appearance notice and served all of the appropriate documentation. III. Issues [ 13 ] The issues raised by Mr. Elik are as follows: (

a) Was Mr. Elik deprived of his right not to be arbitrarily detained pursuant to

section 9 of the Charter and his right to be secure against unreasonable search and seizure pursuant to

section 8 of the Charter as the officer arresting him did not have reasonable grounds to make the breath demand? (

b) If Mr. Elik ’ s rights were breached, is exclusion of evidence the appropriate remedy under section 24(2) of the Charter ? IV. Analysis (

a) Reasonable Grounds to make the Arrest [ 14 ] Counsel for Mr. Elik alleges that Constable Warnar did not have reasonable grounds to make a breath demand pursuant to section 254(3) of the Criminal Code . If Constable Warnar did not have reasonable grounds to detain Mr. Elik, an arbitrary detention will have been made out contrary to

section 9 of the Charter . Moreover, if the detention is found to be arbitrary any subsequent search of Mr. Elik will have been illegal, contrary to

section 8 of the Charter . [ 15 ] Section 254(3) of the Criminal Code states: If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, 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, if any, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and

(

b) if necessary, to accompany the peace officer for that purpose. [16] For an officer to establish reasonable grounds, the officer must subjectively believe the individual has driven while impairedwithin the preceding three hours and that belief must be rationally sustainable on an objective basis (R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 48, [1994] S.C.J. No. 87). This does not mean that the Crown has to demonstrate a prima facie casefor conviction (R. v. Shepherd, 2009 SCC 35 at para. 23, [2009] 2 S.C.R. 527) or prove its case beyond a reasonable doubt (R. v.

Bush,2010 ONCA 554, 259 C.C.C. (3d) 127); rather, as stated by Justice Caldwell of the Saskatchewan Court of Appeal in R. v. Gunn, 2012SKCA 80 at para. 7, [2012] S.J.

No. 503: The standard of ‘reasonable grounds to believe’ is one of lesser probability which simply requires the reviewing court to determinewhether the factors articulated by the officer who made the breath demand were reliable and were capable of supporting the officer'sbelief that the individual had driven while impaired or ‘over .08’ within the preceding three hours. [17] In determining whether the officer had reasonable grounds, the Ontario Court of Appeal in R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, [1993] O.J. No. 18, aff'd (SCC), [1994] 2 S.C.R. 478, [1994] S.C.J.

No. 51, heldthat an officer only needs to believe that the accused’s ability to drive is slightly impaired. Thus, if an officer’s belief that they havereasonable grounds to believe an individual’s ability to drive is slightly impaired by alcohol or drug is objectively reasonable, theirdemand will be lawful (Gunn, supra, at para. 9). [18] In support of an officer’s observation that an accused’s ability to operate a motor vehicle was slightly impaired by alcohol, theindicia of impairment cited need not be true or even accurate.

In Gunn, supra, at para. 15, Justice Caldwell states as follows: In a voir dire held to determine the reasonableness of the police officer's belief, the trial court must consider whether the observationsand circumstances articulated by the officer are rationally capable of supporting the inference of impairment which was drawn by theofficer; however, the Crown does not have to prove the inferences drawn were true or even accurate [emphasis in original]. [19] Finally, in determining if the arresting officer’s grounds to make a breath demand were reasonable, only those observationsthat occurred before the demand are to be taken into consideration: see R. v.

Nahorniak, 2010 SKCA 68 at para. 23, [2010] S.J. No. 300citing R. v. Shepherd, 2009 SCC 35, 309 D.L.R. (4th) 139. [20] In support of its submission that Constable Warnar had reasonable grounds to make a breath demand, the Crown cites thefollowing indicia of impairment: (

a) Driving behaviour of the accused, including swerving into the oncoming lane and the accused stopping at a green light; (

b) The accused was driving late at night when bars are closed; (

c) Failing to follow simple instructions of the officer, namely, failing to enter on the correct side of the vehicle three times; (

d) Not being able to recite the alphabet on two separate occasions notwithstanding the fact that the accused articulated to the policeofficer that he would be capable of this task; (

e) The accused’s admission to drinking alcohol; (

f) Smell of alcohol on the accused’s person; (

g) Dispatch information of an impaired in progress concerning the accused and his party having been refused entry to the Casino forhaving open alcohol; and (

h) Open alcohol being in the accused’s vehicle. [21] I find the Crown’s list of indicia to be helpful and correctly stated. However, defence counsel takes issue with a number ofthese indicia of impairment.

[ 22 ] First, defence counsel invited me to draw the inference from the whole of the testimony of Constable Warnar that Mr. Elik did not swerve his vehicle. Defence counsel comes to this conclusion for two reasons. First, defence counsel contends that as Constable Warnar did not explain to Mr. Elik at the roadside that he observed him swerving or reaffirm this observation, the officer was not reasonable in relying on this as an indicator of impairment. This argument has no merit as there is no duty on a police officer to debate his or her observations with a suspect at the roadside.

Second, defence counsel points to the fact that the initial dispatch information was for an impaired in progress, when all that was known was that there was open alcohol in the vehicle. From this, defence counsel invites this Court to conclude that Constable Warnar’s investigation was tainted from the outset. However, I see no reason to draw such a conclusion. I find Constable Warnar’s testimony that Mr. Elik swerved his vehicle to be credible. [ 23 ] Second, defence counsel argued that as Mr. Elik failed to recite the alphabet in Court, it is logical for this Court to draw the inference that Mr.

Elik failing to recite the alphabet at the roadside is not a reliable indicator of impairment. As the Court in Gunn , supra , has stated, however, indicia of impairment need not turn out to be true or accurate. It must only have been reasonable to rely on the particular indicator in the case at hand. The failure to recite the alphabet in Court is therefore unimportant as Constable Warnar was not aware of Mr. Elik’s inability to recite the alphabet at the scene. Indeed, Constable Warnar asked the accused if he would have any difficulty reciting the alphabet to which Mr. Elik responded in the negative.

A comparable circumstance is where an individual later claims to have had slurred sounding speech due to a speech impediment. Applying a similar rationale to that in Gunn , this argument has been rejected: see R. v. Cantlon , 2008 ONCJ 500 at para. 97 , [2008] O.J. No. 4071. [ 24 ] Third, defence counsel argued that Mr. Elik’s failure to follow instructions is not a reliable indicator of impairment because the other passengers were distracting him. However, the accused did not testify that he communicated this problem to Constable Warnar.

Moreover, Constable Warnar was not asked about the level of noise created by the passengers. Therefore, I find Constable Warnar’s reliance on this indicator of impairment to be reasonable in the circumstances. [ 25 ] With the above findings in mind, I turn to the case law submitted by defence counsel. Counsel for Mr. Elik relies on a number of authorities to support his position that the above indicia of impairment do not constitute reasonable grounds. As the following analysis will show, however, these authorities are readily distinguishable.

Moreover, it is noteworthy that these cases all precede the Saskatchewan Court of Appeal’s decision in Gunn , supra , which served to clarify the law in this area. [ 26 ] In R. v. Wiebe , 2011 SKPC 70 , [2011] S.J. No. 282, the accused testified that he had consumed between five and six beer during the course of the night, and after getting into a heated argument with his girlfriend, had decided to spend the night in his car. His car was parked in his condominium’s parking lot. At 3:50 a.m., a police officer observed the accused slumped over the steering wheel of his car.

Being afraid the accused may have been injured, the officer woke the accused and requested the accused roll down his window. When the accused rolled down the window, the officer smelt alcohol coming from his vehicle and noticed a bottle of beer between his legs. The accused was told to turn off the vehicle and put the keys on the dashboard, but he put the keys on the roof instead. The accused had no trouble exiting the vehicle, but as he did so the officer smelt alcohol coming from his breath. Based on these observations, the officer made a breath demand.

These indicia were found to fall short of reasonable and probable grounds, resulting in a finding that the accused’s rights under ss. 8 and 9 of the Charter had been breached. As a result, the Certificate of Analyses was excluded. [ 27 ] In R. v. Ward , 2012 SKPC 176 , [2012] S.J. No. 719, dispatch received a complaint about a possible impaired driver. The complaint did not substantiate the basis for the belief that the driver was impaired, and only described the model of vehicle and the direction it was headed. The arresting officer located a similar vehicle parked outside a bar.

While the accused was exiting the vehicle, the officer observed that he was swaying when walking, and that he lacked focus in his eyes. The officer also noted that the accused had bloodshot eyes, a red face, slow movements, slightly slurred speech, and was being generally uncooperative. Based on these observations, the officer made a breath demand. Judge Labach held that the officer ’ s belief that the accused was swaying while walking, had slow movements, had difficulty focusing, and was uncooperative, were all unreliable indicators of impairment.

The remaining factors were held not to be sufficient to make a breath demand and resulted in the Certificate of Analyses being excluded. [ 28 ] In R. v. Ukrainetz , 2006 SKPC 102 , [2006] S.J. No. 770, the accused was observed failing to stop at a stop sign. Moreover, the accused made a wide right turn when turning at the stop sign. The police officer followed the accused without activating their lights, eventually stopping behind the accused while he was in a parking lot. At this point, all the parties had exited their respective vehicles.

The officer noted a strong smell of beverage alcohol on the accused’s breath upon approaching him. The officer also noted that the accused’s eyes were glassy and bloodshot. Further, the officer testified that the accused was unsteady on his feet while standing outside the vehicle as the accused was “weaving back and forth a little”. However, the accused was found not to have been unsteady when walking towards the police cruiser. In cross-examination, the officer said the accused showed no lack of comprehension or understanding of the circumstances.

The accused also did not exhibit other signs of impairment such as a flushed face, slurred speech, or

fumbling for his wallet. Based on the above evidence, Judge Green held that the officer did not have reasonable grounds to make a breath demand. In the result, the evidence was excluded. [ 29 ] In R. v. Powers (unreported, October 7, 2011), Yorkton P.C. No. 24369358, the accused was pulled over by two police officers. The first officer had claimed to see the accused stumble. The other officer, however, did not witness the accused stumble. Moreover, two other people, as well as the accused, testified that the accused did not stumble. In light of this testimony, it was concluded that the accused did not stumble.

The only other indicia of impairment that were present were a smell of alcohol coming from the accused and the fact that the accused had red eyes. As a result, Judge Koskie concluded that there were insufficient grounds to make a breath demand and excluded the Certificate of Analyses. [ 30 ] Although concerning similar indicia of impairment to the instant case, Judge Labach’s decision in Wiebe , supra , is distinguishable due to two additional indicia of impairment being present in this case. First, there was significant evidence of Mr. Elik’s driving being impaired in this case. Second, Mr.

Elik failed to recite the alphabet on two occasions in this case. Both of these factors, in my view, serve as strong indicia of impairment. [ 31 ] Judge Labach’s decision in Ward , supra , followed only because the officer’s testimony was not believed. As I have concluded above, that is not the case here. [ 32 ] Judge Green’s decision in Ukrainetz , supra , is also of little precedential value as there was no failure to recite the alphabet, nor was there a failure to follow simple directions.

Although other similar indicia of impairment to the case at hand are present, I find that these two additional indicia distinguish the case significantly. [ 33 ] Finally, Judge Koskie’s decision in Powers , supra , was based on the fact that the only reliable indicia of impairment were a smell of alcohol coming from the accused and the accused having red eyes. Clearly, there are a significant amount of further indicia in the instant case. [ 34 ] As these decisions are not persuasive, I have sought further guidance.

I have found the following decisions of the Saskatchewan Court of Queen’s Bench to be instructive: R. v. Churko , 2013 SKQB 235 , 2013 S.J. No. 436 and R. v. Shaw , 2011 SKQB 425 , [2011] S.J. No. 745. [ 35 ] In Churko , supra , the arresting officer noticed a vehicle enter a parking lot at a higher rate of speed than expected and then come to an abrupt stop. The passenger in the vehicle was also seen to be holding what appeared to be a beer bottle. Upon pulling the accused over, the officer smelt alcohol coming from his breath and noted that he had glossy and bloodshot eyes.

The officer asked the accused to exit the vehicle, and upon his exiting the vehicle noticed that the accused held onto the door for balance. As a result of these observations, the officer made a breath demand. Judge Green of the Provincial Court of Saskatchewan held that the officer lacked reasonable grounds to make a breath demand. However, Justice Chicoine overturned this decision, finding that the officer did have reasonable grounds to make a breath demand. [ 36 ] In Shaw , supra , the arresting officer noticed the accused driving 40 kmph in a 110 kmph zone.

The accused did not immediately stop when the officer activated the siren. Further, the accused stopped erratically when she finally came to a stop. Upon talking to the accused the officer detected a strong smell of alcohol coming from the accused’s breath. The officer made a breath demand at this point. Justice Gabrielson held that the officer had reasonable and probable grounds to make a breath demand. [ 37 ] In Churko , supra , the accused had difficulty with balance, had the smell of alcohol coming from his breath, and was driving in a manner that was suspect.

Although there was also glassy or bloodshot eyes and a difficulty in maintaining balance in Churko , other significant indicia of impairment were not present in that case that are present in this case. Notably, in this case the accused was unable to recite the alphabet on two occasions and failed to follow simple instructions. Moreover, there was dispatch information identifying the accused’s vehicle as possibly containing impaired drivers and the accused’s vehicle contained open alcohol.

In Shaw , supra , although there was more driving evidence than in the instant case, the breath demand was found to be reasonable with the only additional evidence being the smell of alcohol coming from the accused’s breath. On the balance, I find that the list of indicia of impairment in this case provides as much if not more significant indicia than in either the Churko or Shaw cases. Following the reasoning in these

decisions, I find the officer had reasonable grounds to make a breath demand. V. Conclusion [ 38 ] After hearing all the evidence, I conclude that the arresting officer had reasonable grounds to issue a breath demand. As a result, Mr. Elik’s Charter rights were not violated. The Certificate of Analyses will therefore be entered as evidence on the trial proper. K. Lang, J