Her Majesty the Queen - v. -, 2013 SKPC 171

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 171 Date: October 17, 2013 Information: 24471650 Location: Meadow Lake, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Shawn Albert Laliberte Appearing: Michelle E. Baldwin For the Crown Ronald P. Piché For the Accused ______________________________________________________________________________ DECISION W. R. CAMPBELL, J ____________________________________________________________________________ I. Introduction [ 1 ] The accused is charged with impaired operation of a motor vehicle at Meadow Lake, Saskatchewan.

[ 2 ] The evidence consisted of testimony from two R.C.M.P. officers, Cst. Paul Carey and Cst. Kyle Fehr. Both testified for the Crown, and the accused elected to call no evidence. At the outset of the trial, the accused indicated that there were no issues anticipated under the Canadian Charter of Rights and Freedoms , and so no voir dire was held. Partway through the officers' testimony, however, the accused decided that admissibility of some of the evidence ought to be challenged based on an alleged violation of the accused's Charter rights. Counsel agreed that all of the evidence would be considered to allow a determination of the Charter issue. [ 3 ] The evidence showed, in

summary, that the accused was dealt with by police in Meadow Lake shortly after 2:00 a.m. on April 14, 2012. The officers observed the accused driving a vehicle, then stop the vehicle in the parking lot of a lounge. The officers observed the driving, and the accused and his actions following the stop, and it is based on those observations that the Crown says it has proven the charge. The accused asserts that only some of those observations are admissible as evidence. The accused relies on the fact that because some observations were made prior to the accused having been informed of his rights pursuant to s. 10(

b) of the Charter , those observations should be rendered inadmissible. The accused further says that the charge has not been proven, whether based upon what he says is the admissible portion of the officers' observations, or even if all of the observations of the officers are admissible. II. Issues [ 4 ] Two issues must be determined in order to decide whether the Crown has proven the offence charged beyond a reasonable doubt. The first is whether all or only some of the evidence of the officers is admissible. The second is whether, based on all admissible evidence, the Crown has proven the offence charged.

Issue 1: Is all of the evidence of the officers admissible to prove impairment? [ 5 ] The accused argues that some of the officers' observations of him are inadmissible in evidence because they were observations made prior to the accused having been informed of his rights to retain and instruct counsel without delay, and to be informed of that right, pursuant to s. 10(

b) of the Charter . Although the s. 10(

b) rights to counsel are triggered when a motorist is detained, some limits on those rights have been recognized as being justified under s. 1 of the Charter . One of the limits on those rights is the authority of police to take measures to ensure the roads are safe by dealing with drivers who may be under the influence of intoxicants. It is against that general background that the accused's situation must be considered. Facts [ 6 ] Cst. Carey and Cst. Fehr testified they were together in a police vehicle on the offence date. Highway 4 enters and passes through Meadow Lake.

While the two officers were westbound on a road a short distance from Highway 4, they saw a vehicle proceeding northbound on that highway. The accused was later found to be driving that vehicle. Both officers testified that the vehicle was travelling at a very high speed. Cst. Carey added that the speed was well in excess of 60 kilometres per hour, which is the posted speed limit on that portion of the highway. The police vehicle accelerated to pursue the vehicle the accused was driving, and reached the vehicle the accused was driving as that vehicle entered the parking lot of a lounge.

There was no evidence about the duration of the pursuit or the distance covered during it. Cst. Carey testified that the vehicle entered the parking lot at a normal rate of speed while Cst. Fehr testified that the vehicle quickly entered the parking lot. By this time, the police vehicle's emergency lights had been activated. The vehicle the accused was in came to a stop and the police vehicle stopped behind it. [ 7 ] Cst. Carey testified that he went to the driver's door of the vehicle and shone his flashlight inside.

The accused was in the driver's seat, and another male (later learned to be the accused's brother) was in the front passenger seat. The accused was looking straight ahead as he put the window down on the driver's side front door. Cst. Carey asked the accused for his driver's licence and registration. The accused searched through his effects, and produced these items after about two minutes. In cross-examination, Cst. Carey testified that he did not see the accused fumbling as he searched for these documents. Cst. Carey began speaking to the accused and noticed his eyes were bloodshot.

In answer to a question from Cst. Carey about where the accused was travelling from, the accused responded that he had been at a particular bar, then Cst. Carey asked where the accused was going to, and the accused responded that he was going to a different bar. Cst. Carey asked the accused what he had been up to that night, and the accused replied that he was "partying". Cst. Carey then asked the accused to step out of the vehicle. The only evidence of Cst.

Carey's reason for making this request was given in answer to questions in cross-examination, when he said the request that the accused step out of the vehicle was in order to further his investigation into whether the accused had been driving the vehicle while impaired. Cst. Carey said the accused stumbled as he got out of the vehicle. Cst. Carey also testified that as the accused got closer to him, Cst. Carey smelled an odour of liquor on the accused's breath. On the way to the police vehicle, Cst. Carey testified that the accused was stumbling and swaying back and forth. On reaching

and entering the police vehicle, Cst. Carey arrested the accused for impaired operation of the vehicle and had him sit in the rear of the police vehicle. Cst. Carey testified that he was about to provide the accused his s. 10(

b) Charter rights when he saw that the accused appeared to be asleep and Cst. Carey smelled liquor again. After waking the accused, Cst. Carey provided the accused with his s. 10(

b) Charter rights. [ 8 ] Cst. Fehr testified that he concluded that the accused was intoxicated, but his notes made shortly after dealing with the accused contain none of his observations of the accused that led to this conclusion. Cst. Fehr testified that he recalled only that the accused stumbled en route from the accused's vehicle to the police vehicle and he had no recollection of his dealings with the accused after that. When asked whether there was a passenger in the accused's vehicle, Cst. Fehr testified that he did believe there was a passenger. In cross-examination, Cst.

Fehr agreed that if he made observations of the accused that he believed were important to an impaired driving investigation, he would have made notes of those observations shortly after dealing with the accused. [ 9 ] Cst. Carey's testimony was detailed with regard to his recollection of his dealings with the accused on the offence date. He appeared certain of the observations he testified about, and when uncertain he sought permission to refresh his memory from notes he made after his dealings with the accused.

After refreshing his memory, he was often able to provide further details about his dealings with the accused that were consistent with his recollections. Cst. Carey also testified that when he was unable to remember things he was questioned about he refused to guess at an answer. Cst. Fehr provided almost no detail about his dealings with the accused, and appeared to have almost no recollection of those dealings, despite the fact he would have been observing the very same things as Cst. Carey, albeit from a slightly different vantage point. Both Cst. Carey and Cst.

Fehr appeared to be trying to provide truthful testimony and I have no reason to think either deliberately attempted to give evidence that was untrue. Because of an inability to either observe what occurred as it was occurring or to recall what occurred on the offence date when he gave evidence or to accurately describe his recollections when he gave evidence or some combination of those things, I find Cst. Fehr's testimony unreliable and I do not accept it where it conflicts with that of Cst. Carey. I do accept the testimony of Cst. Carey.

Analysis [ 10 ] Turning to the accused's argument about the admissibility of evidence of the police observations of the accused, the decision of the Supreme Court of Canada in Orbanski [1] , which was referred to in argument by both the Crown and the accused, is an appropriate starting place. That case dealt with two situations where motorists were pulled over by police. Because the motorists were detained within the meaning of s. 10(

b) of the Charter , police would normally be required to provide appropriate rights to counsel. As in the present case, neither Mr. Orbanski nor Mr. Elias were provided with appropriate s. 10(

b) rights immediately. The court found that police had the power to both question the drivers about recent alcohol consumption and, in Mr. Orbanski's case, to require him to perform sobriety tests, and that both were "screening measures" that were reasonable and justified as a limit on the right to counsel within the meaning of s. 1 of the Charter . The measures were found to have been performed quickly at the site of the police stop of the motorists, with minimal interference with the motorists and posed no danger to their safety.

The court observed that though these types of screening measures may be used to confirm or deny an officer's suspicion that a driver may be impaired, the results could not be used as direct evidence to incriminate the driver [2] . Because the screening measures were found to be reasonable and a justified limit on the s. 10(

b) right, s. 10(

b) had not been violated and so no consideration of s. 24(2) of the Charter became necessary. [ 11 ] Though the court in Orbanski, supra , dealt with the appropriateness of questions by police to a motorist about alcohol consumption and police having the motorist perform a sobriety test before s. 10(

b) rights were provided [3] , it did not have to decide what other police observations of a motorist might be admissible in evidence to incriminate the motorist charged with driving under the influence of intoxicants. The court in Orbanski, supra, did, however, refer with approval to the Ontario Court of Appeal decision in Milne [4] . The court quoted from Milne , supra, with regard to examples of police observations of signs of a driver's impairment which are admissible in evidence to incriminate the driver, despite s. 10(

b) rights not yet having been provided. The examples provided were a strong odour of alcohol, bloodshot and glassy eyes, dilated pupils, slurred speech and an unsteady gait on exiting the vehicle. [ 12 ] In Milne, supra , the court was faced with a similar question to the question facing the court in Orbanski, supra ; it had to decide if coordination tests that the police had a driver perform prior to the driver receiving s. 10(

b) rights to counsel were appropriate on an analysis of s. 1 of the Charter . The court found that the coordination tests were appropriate, and in making this decision the court noted that the results of these tests were not admissible in evidence to incriminate the driver.

When the court in Milne, supra, provided the examples of police observations quoted in Orbanski, supra, which are admissible to incriminate the driver, it emphasized that these observations were not compelled from the driver, and it was that quality which rendered them admissible in evidence. [5] The court went on to indicate that coordination tests involved the driver being conscripted against himself or herself to participate in constructing

evidence for use by the Crown, and this was the reason for their inadmissibility in evidence against the driver. [ 13 ] In the instant case, there were questions from the officer to the accused about his activities that night (indirectly about the accused's alcohol consumption prior to driving), and the accused provided answers. These questions and answers occurred prior to the accused being afforded his s. 10(

b) Charter rights, and as with questions and answers directly on the topic of the accused's alcohol consumption, while that evidence would be admissible with regard to the officer's grounds for making a subsequent breath demand, I find that evidence inadmissible on the issue of the accused's impairment, based upon the reasoning in Orbanski, supra . There were no sobriety or coordination tests requested and so there is no issue about admissibility of the results of those tests.

A determination of the admissibility of the balance of the observations of the officers is less easily arrived at. [ 14 ] Courts have referred back to either or both of the Milne, supra, and Orbanski, supra, decisions when subsequently faced with various situations involving the question of admissibility of evidence gathered by police (aside from answers to questions about recent alcohol consumption and the results of sobriety or coordination tests) prior to the motorist being provided s. 10(

b) Charter rights. The following decisions are examples: a. Townsend [6] , in which the Alberta Court of Appeal decided that observations police made of a driver after a traffic stop for provincial driving infractions, specifically slurred speech and poor delivery of documents related to driving, were admissible in evidence against the driver on an impaired driving charge.

The court found that the police officer's rationale for stopping the vehicle, the nature of the questions he asked the driver, and the purpose of those questions were essential considerations in the determination of whether the evidence was admissible. In that case, the stop was for apparent infractions of the provincial driving legislation, the driver began asking questions of the officer before the officer could speak, and the officer's request for the driver to produce the documents was specifically allowed in the provincial driving legislation. b.

Brode [7] , which saw the Ontario Court of Appeal deal with observations of a driver suspected to be under the influence of intoxicants by border services officers. The officers were found to have authority to investigate suspected impaired drivers and gather evidence during those investigations. The driver argued that by asking him to step out of his vehicle, the officers were having him perform a sort of sobriety test, though they may not have called it that.

The relevant part of the testifying officer's evidence was: ..."we [the officer giving evidence and his partner] proceeded to ask [the driver] to step out of the vehicle and question him to gather indicators if there were going to be more indicators", and "[a third officer] gave us his indicators and it was [the officer's partner] and I who would've built more indicators on - upon asking [the driver] to step out of the vehicle." The court interpreted this evidence to mean that the officers had not intended to have the driver perform a sobriety test by having him exit his vehicle.

Instead, the court found that the evidence was more indicative of the intention of the officers to have the driver get out of the vehicle so that they might question him to gather indicators of a lack of sobriety. In the result, the court found evidence the officers observed of the driver (he stumbled upon getting out of the vehicle, had bloodshot eyes, smelled of alcohol and spoke loudly and aggressively) admissible on the issue of the driver's impairment. c.

Weintz [8] , in which the British Columbia Court of Appeal was faced with evidence which showed that an officer learned that the driver had an odour of alcohol on his breath, after the officer had directed the driver to blow air in the officer's face. The issue facing the court was whether the direction from the officer to blow air in his face was a permissible infringement of the Charter rights of the driver.

The court found that it was permissible, however, in doing so, the court commented that the observation by the officer of the odour of alcohol on the driver's breath would not be admissible in evidence to prove the driver's impairment. d. Rodgers [9] . From the Saskatchewan Queen's Bench decision in Rodgers , it is apparent that the driver argued that evidence of his slurred speech, observed by an officer who conversed with the driver at a location where the vehicle had stopped in a lot, should not be evidence admissible to prove his impairment.

The court decided the slurred speech was an observation which was admissible to prove the driver's impairment. The Saskatchewan Court of Appeal in its decision in Rodgers found this issue was correctly decided by the Queen's Bench, and that the finding of slurred speech was not "as a result of conscripted or compelled evidence from the [driver]. The indicia of impairment was available as evidence because of observations of the police officer and not because the [driver] was compelled to do anything” [10] . e. Quenneville [11] . In this case, a driver was stopped by an officer after driving abnormally slowly.

On the officer approaching the

e. Quenneville[11]. In this case, a driver was stopped by an officer after driving abnormally slowly. On the officer approaching thedriver’s door, the driver opened the door. After making observations of the driver and asking him where he’d been, the officer asked thedriver to exit the vehicle. In doing so, the driver stumbled and showed signs of an inability to walk unassisted and poor balance. Theofficer had testified he stopped the driver in order to check the driver’s sobriety.

In the first paragraph of a two paragraph decisionfinding the evidence admissible, the Ontario Court of Appeal stated: The line drawn in R. v. Milne (1996), (ON CA), 107 C.C.C. (3d) 118 (Ont. C.A.) as to the limitation on the use ofevidence acquired at the roadside, is evidence obtained through the "compelled direct participation" in sobriety trials. The observationsmade as the respondent exited his vehicle, even in response to a direction from the officer, is not compelled direct participation in theroadside tests so as to attract the limitation on use. See R. v. Milne at para. 40 as approved in R. v.

Orbanski, 2005 SCC 37 ,[2005] 2 S.C.R. 3 (S.C.C.) at para. 58. f. Visser[12], a decision of the British Columbia Court of Appeal delivered about a month ago. Police had the driver of a vehicle pull thevehicle over after a complaint was received that the driver was driving erratically and may be impaired. As an officer spoke to the driverthrough the driver's window in the vehicle, he detected an odour of alcohol from inside the vehicle though he was unsure if it wascoming from the driver. He directed the driver to exit the vehicle and go with the officer to the police vehicle.

As the driver did this, theofficer observed the driver drop his wallet and spill its contents on the road, the two spoke about recent alcohol consumption by thedriver, and the officer observed the smell of alcohol on the driver's breath, the fact that the driver's speech was slurred, he had a flushedface, bloodshot eyes and was swaying as he stood.

The court reviewed many previous decisions and observed that they illustrated thedifficulty in drawing a line between evidence that should be found to be compelled and, hence, inadmissible as evidence to prove thedriver's impairment, and that which should not be found to be compelled and, hence, admissible. The court ultimately concluded that itshould be the officer's purpose in removing the driver from the vehicle that should determine whether subsequent observations of thedriver should be found to be compelled or not.

If the officer removes the driver from the vehicle for safety reasons, the court said, thensubsequent observations of the driver should not be found to be compelled and should be admissible. If the officer removes the driverfrom the vehicle to determine if grounds exist for a breath sample demand, then subsequent observations of the driver should be found tobe compelled.

Based on the facts facing the court, it found all of the observations of the officer from the moment he had the driver exitthe vehicle to be compelled and inadmissible as evidence of the driver's impairment. [15] In addition to Orbanski, supra, the accused also relies on decisions in Demers[13] and Hult[14]. Demers, supra, was a

summaryconviction appeal decision where two issues were explored. One of the issues was whether the trial judge had properly considered thelaw relating to admissible evidence of the driver's impairment, and the

summary conviction appeal court determined she had. In the trial decision in Demers[15], the court made reference to Orbanski, supra, and the need to separate sobriety tests, and other compelledevidence obtained prior to s. 10(

b) Charter rights being given, from officers' observations and other non-compelled evidence in decidingwhat may be admissible as evidence against the driver. The trial judge then carefully analyzed each part of the fact situation presented inevidence, from the time of the officer's first dealings with the driver until the driver was given his s. 10(

b) rights. The trial judge decidedthat admissible evidence on the issue of whether the driver was impaired consisted of what occurred when the officer requested thedriver's licence and registration, and evidence of what occurred when the officer had the driver step out of the vehicle. She decided thatevidence that was not admissible consisted of what occurred after the officer told the driver to move from the driver's door to the front ofthe vehicle, move away from the vehicle, and walk a marked line.

The trial judge found these latter pieces of evidence to be compelled,based on a determination that the officer's sole purpose in having the driver do those three things was in order to gather evidence aboutthe driver's sobriety. She commented that while the officer did not refer to the three things as "sobriety tests", this is what they were, in essence[16]. [16] In Hult, supra, the

summary conviction appeal judge allowed an appeal where the evidence at issue was gathered by an officerwho asked the driver to get out of the vehicle and provide his driver's licence and registration. The

summary conviction appeal judgefound that these requests of the driver were made for the purpose of further investigation of the driver by an officer who did not, to thatpoint, have reasonable and probable grounds to make a demand for breath samples. The

summary conviction appeal judge concludedthat because there were no other reasons for the requests, such as isolating the source of the smell of liquor or for officer safety reasons,the evidence was compelled. As such, this evidence was not admissible on the issue of whether the driver was impaired and was onlyadmissible to assist the officer in establishing grounds for a demand. [17] In addition to Orbanski, supra, and Rogers, supra, the Crown has referred to the decision in Sundquist[17]. In Sundquist, supra,the Saskatchewan Court of Appeal confirmed that sobriety tests are conducted lawfully by peace officers, and their use is justified unders. 1 of the Charter, despite no s. 10(

b) Charter rights having first been provided to the detained driver. The court decided that their useis limited to allowing the officer to determine if reasonable and probable grounds exist for suspending the driver's licence under theprovincial legislation and for making a demand for a breath test, and that the results of the tests are not admissible in evidence to prove

impairment of the driver. The police officer in that case had been approached by the driver, who exited his vehicle without a request or direction from the officer. It was at that point that the officer directed the driver to perform specific sobriety tests, including reciting the alphabet and standing on one foot for a period of time. [ 18 ] In Kangas [18] , the Alberta Court of Queen's Bench approached the issue in a slightly different way. There, officers stopped a driver for speeding.

After approaching the vehicle, the officers observed the driver's flushed face, delayed responses to questions asked by an officer, the slurring of words, a delay in producing a driver's licence and registration, and fumbling with the licence. The driver was asked to step out of the vehicle and, when he did, the officers noted he was unsteady on his feet, had problems with his balance, had a smell of alcohol coming from his breath, and his eyes were glossy. The driver nearly fell and had to be assisted by the officers in order to stand up.

The officers indicated the driver was asked to step out of the vehicle because the investigation was changing from a speeding to an impaired driving investigation. It was at some point following the driver stepping out of the vehicle that he was arrested and provided with his s. 10(

b) Charter rights. [ 19 ] The Alberta Court of Queen's Bench, sitting as a

summary conviction appeal court, dealt with an argument that some or all of the observations by the officers were inadmissible as evidence on the impaired driving charge, and only admissible to go to the grounds for making a demand. The court ultimately decided that when dealing with this issue, a court might differentiate between observations made of the driver while the driver remains in the vehicle, and those observations made of the driver after the police request or demand the driver exit the vehicle.

The court noted that observations made of the driver while the driver remains in the vehicle, often such things as slurred speech, a flushed face or difficulties in producing documents, should be admissible in evidence because those observations would not change whether or not the driver was given s. 10(

b) Charter rights. The court concluded that in contrast, responses made by the driver to requests or demands by a police officer while the driver is out of the vehicle might change if the driver was first afforded s. 10(

b) Charter rights. As a result, those observations made of the driver after the driver exits the vehicle in response to a request or demand would require further scrutiny. In those situations, a court would look for the presence or absence of evidence of a "conscriptive motive" in the method the police officer chooses to deal with the driver suspected of driving under the influence. The court concluded that if the officer requests or demands the driver get out of the vehicle to pursue an impaired driving investigation then the evidence should be admissible.

Only if the driver provides answers to questions about alcohol consumption or is requested or demanded to perform sobriety tests or roadside screening is the evidence deemed compelled and thus inadmissible except for the officer's use in forming grounds for a demand. [ 20 ] To consider an officer's observations of the driver and the driver's actions before the driver is directed by police to leave his or her vehicle in a different way from observations after the driver is so directed, as suggested in Kangas, supra, appears to be a prudent approach to begin to determine which observations should be found to be compelled and which should not.

Taking this approach also assists in reconciling previous jurisprudence on the issue of what evidence is admissible against the driver on the issue of the driver's impairment. [ 21 ] Using that approach, I would deal with the issue in the following way. Observations by a police officer of a driver who is still behind the steering wheel or who is out of the vehicle of his own accord (as in Townsend , supra, and Rogers, supra ) should not be found to be conscripted or compelled. Those observations would be admissible in evidence against the driver on the issue of impairment.

To repeat the example from Milne , supra, the driver at that point is not being asked or required to participate in constructing evidence for use by the Crown. All responses by the driver to questions by the officer are, on the other hand, compelled, and not admissible in evidence (as in Orbanski , supra, and others). As well, a response by a driver to a request or direction by a police officer to produce evidence, such as blowing air into the officer's face in order for the officer to determine if alcohol is on the driver's breath, is compelled and not admissible in evidence (as in Weintz , supra ).

These compelled responses that are not admissible might occur when the driver is still behind the steering wheel or might occur when the driver is out of the vehicle. [ 22 ] As and after a driver leaves the vehicle because of a request or direction by a police officer, the circumstances must be examined further in order to determine whether the driver's actions thereafter are compelled or not. [ 23 ] Orbanski, supra, and Milne, supra, speak only of obvious sobriety or coordination tests, and determine that the results are not admissible in evidence.

In those cases, the driver was clearly being asked or required to participate in constructing evidence for use by the Crown. Likewise, in Sundquist , supra, the driver exited the vehicle without a request or direction by police, and was then requested or directed by an officer to perform several obvious tests of balance, coordination and recitation. The results of the tests were not admissible. [ 24 ] Brode, supra, Quenneville, supra, Visser, supra, Demers, supra, Hult , supra , and Kangas, supra, each dealt with drivers being requested or directed to step out of their vehicles by police officers.

In Demers, supra, the court found that the officer had the driver

perform what was, in effect, a sobriety test on exiting the vehicle. As in Orbanski , supra , Milne, supra, and Sundquist , supra, the results of the tests were found to not be admissible in evidence. In none of Brode, supra, Quenneville, supra, Visser, supra, Hult, supra, or Kangas, supra, was there a sobriety or coordination test such as walking a straight line, balancing on one foot, or reciting the alphabet. Instead, in each case an officer had the driver exit the vehicle, and then made observations of the driver.

In each of Brode, supra, and Quenneville , supra, the Ontario Court of Appeal determined that the observations of the officers were admissible in evidence because the evidence was not compelled and the drivers were not directed or requested to participate in constructing evidence for the Crown. In Kangas , supra, the Alberta Court of Queen's Bench used similar reasoning, and the evidence was found to be admissible.

In Visser , supra, and Hult , supra, the British Columbia Court of Appeal and Saskatchewan Court of Queen's Bench, respectively, determined that the observations were inadmissible, because the purposes of the officers in having the drivers exit the vehicles was to determine if grounds existed for breath sample demands. Both courts indicated that if there were valid reasons for the officers to have the drivers exit the vehicles, the courts would have found differently. The courts said safety would be a valid reason to have the drivers exit.

In Hult , supra, the court said another valid reason would be for the officer to isolate whether the smell of alcohol was coming from the breath of the driver. [ 25 ] To simply exclude evidence of answers to police questions, results of sobriety or coordination tests or results of demands for breath samples from a consideration of whether the Crown has proven the offence of impaired driving is a relatively simple exercise. It also follows that this evidence would not have existed but for the officer's request or demand for a response. Had the driver been provided s. 10(

b) Charter rights and exercised them, the driver may have received advice to not answer questions or perform tests and followed that advice. In contrast, to have the question of the admissibility of the officer's observations of the driver determined based on the officer's reasons for a request or direction that the driver exit the vehicle is a more difficult exercise. If the reasoning in Visser , supra, and Hult, supra, was followed, this would be the necessary exercise.

This may, however, lead to a court deciding on the evidence's admissibility depending entirely on how the officer articulated the reason for the request. For example, if the evidence is that the officer requested that the driver exit the vehicle only so that the officer could observe the driver and the driver's coordination and movements, those observations by the officer might be found inadmissible. If, on the other hand, the evidence was that the officer requested that the driver exit the vehicle for a safety reason, those same observations of the driver might be found admissible.

If the reasoning in Quenneville , supra, Brode, supra, and Kangas, supra, was followed, rather than attempt to determine why the officer requested the driver exit the vehicle, a court would only need to consider whether the officer was having the driver construct evidence for use by the Crown, or was observing the driver's already existing condition as the officer continued with an investigation into whether the driver may be impaired.

That determination could be made based on whether the officer had the driver perform what was, either nominally or effectively, a coordination or sobriety test. [ 26 ] Despite the relative difficulty in determining the admissibility of evidence of an officer's observations based on the officer's reasons for the direction or request that leads to the observations, I feel bound to make that determination, because it is the approach suggested in Hult , supra . It is necessary to use that approach as a result of the doctrine of stare decisis , recently re-examined in S.F.L. v. Saskatchewan [19] .

As a result, I will deal with the issue the following way. Any observations by a police officer of a driver who is still behind the steering wheel or who has exited a vehicle without a request or demand by the officer will not be found to be conscripted or compelled. Those observations will be admissible in evidence against the driver on the issue of impairment.

As and after the driver leaves the vehicle because of a request or direction by the police officer, I must consider the reason for the officer's request, and if I find that reason to be solely for the purpose of gathering evidence of the driver's impairment and not for some other valid reason, such as safety of the officer or driver or to isolate the source of a smell of liquor, I must find that evidence to be conscripted or compelled and those observations inadmissible in evidence against the driver on the issue of impairment.

Conclusion [ 27 ] Applying the law to the facts that I have found, I find the following evidence admissible. The accused was observed driving on the date in question at a very high speed, well in excess of the 60 kilometres per hour posted speed limit on the road on which he travelled. After the accused entered the parking lot and stopped his vehicle, Cst. Carey came to his window and the accused put the window down while looking straight ahead. About two minutes after Cst.

Carey requested them, the accused produced his driver's licence and vehicle registration, though there was no fumbling for these documents by the accused. Cst. Carey noted the accused's eyes were bloodshot as he spoke to the accused. I also find the evidence of the accused's actions following the provision of s. 10(

b) Charter rights admissible, and those will be spoken about further below. [ 28 ] The officer's other observations of the accused, made after the direction that the accused exit the vehicle and prior to the provision of the s. 10(

b) rights, will be found to be inadmissible. This is because the only evidence of Cst. Carey's purpose in having the accused exit the vehicle was to investigate whether the accused was impaired or, in other words, to gather evidence about the accused's condition in relation to alcohol. There was no evidence that Cst. Carey had the accused exit the vehicle for safety reasons or to isolate a smell of alcohol that he had already observed. In addition to the answers the accused provided to Cst.

Carey's questions, those other observations of the accused's stumbling as he got out of the vehicle, the odour of alcohol on the accused's breath as the accused approached Cst. Carey and again in the rear of the police vehicle, the accused stumbling and swaying back and forth as he walked from his vehicle to the police vehicle, and the accused having fallen asleep shortly after being placed into the police vehicle are inadmissible as evidence of the accused's impairment.

Issue 2: Based on all admissible evidence, has the Crown proven the offence charged? Facts [ 29 ] Besides the admissible evidence of Cst. Carey's observations of the accused detailed in paragraph 27, above, there was evidence of further observations of the accused thereafter. At the Meadow Lake R.C.M.P. detachment, the police vehicle was parked in a secure bay. Cst. Carey testified that as he got out of the police vehicle, the accused nearly struck his head on a wall. Then, during the walk from the secure bay to a chair inside the detachment, which Cst.

Carey estimated to be a walk of about 40 to 50 feet, he testified that the accused was again stumbling and weaving and was moving left and right toward the walls. [ 30 ] An exhibit was entered which showed portions of what occurred with the accused inside the detachment. Portions were played during the trial, and I have watched them again several times. The quality of this video recording requires some comment. Though the recording is in colour, it does not capture and replay movement as one would see it occurring in real time.

The best the video recording appears capable of doing is approximating what a series of photographs might also capture of an activity if one were to look at each photograph in sequence. In addition, the angle or angles from which the video was captured is often a difficult angle from which to observe the movement.

From the video recording it is difficult or impossible to know how the movement appeared at the time it was actually occurring, and the video recording is capable of corroborating or contradicting other evidence in only a limited way. [ 31 ] During the accused's exit from the police vehicle and his walk from the police vehicle in the secure bay into the detachment and to a chair where the accused then sat in a hallway, the video recording appears to show the accused moving rather close to one of the walls several times as he walked down the hall, but it otherwise neither corroborates nor contradicts what Cst.

Carey said occurred as the accused exited the police vehicle, then walked from the secure bay to the chair in the hallway. [ 32 ] Once inside the detachment, the accused was allowed the use of a telephone and spoke to counsel from Legal Aid, according to Cst. Carey. He testified that the accused had threatened to urinate on the floor inside the detachment. Then Cst. Carey took the accused into a washroom to allow the accused to urinate. Cst.

Carey testified that in the washroom, the accused urinated on the toilet seat and on the floor beside the toilet, that the accused had his eyes closed during part of this and appeared to have trouble focussing during part of this. [ 33 ] The same video recording from inside the detachment washroom shows the accused standing at a toilet apparently urinating, but the angle from which the video recording is captured and the quality of the video recording makes it impossible to see whether the accused urinated on the toilet seat or floor as Cst. Carey testified to.

Accordingly, the video recording does not corroborate or contradict this testimony. [ 34 ] After being in the washroom, the accused was taken for breath tests, according to Cst. Carey. Following this, he was lodged in a cell because he refused to provide names of sober adults to whom he might be released. Cst. Fehr's evidence about what occurred after the accused's arrest added nothing.

He testified he had no recollection of any dealings with the accused after the accused got into the police vehicle at the scene of the stop, and he had nothing in his notes about signs of impairment noted about the accused at the detachment. For the reasons referred to above, I accept the evidence of Cst. Carey and I do not accept the evidence of Cst. Fehr where it conflicts with that of Cst. Carey. Analysis [ 35 ] The standard to be applied to determine whether the Crown has proven the accused operated a motor vehicle while impaired is provided in the Stellato [20] decision.

That decision provides that the trial judge must be satisfied beyond a reasonable doubt that an accused's ability to operate a motor vehicle has been impaired by alcohol or a drug, and the impairment may be to any degree from slight to great. In determining how to approach the evidence, Landes [21] is also of assistance. There, the court urged that a trial judge consider all of the evidence together in relation to whether that evidence supports or negates the inference that an accused's mental and physical capabilities were impaired by alcohol or a drug.

Conclusion [36] Considering all of the admissible evidence together, some of the evidence neither supports nor negates the inference that theaccused's ability to drive was impaired by alcohol. The following admissible evidence: - the accused was driving at a very high speed, and well in excess of the speed limit, - the accused's eyes were bloodshot as he spoke to Cst.

Carey from inside his vehicle, - as he got out of the police vehicle at the detachment, he nearly struck his head on a wall, - as he walked from the secure bay in the detachment to a chair in the detachment hallway, he was stumbling and weaving, andmoving toward the hallway walls, - he threatened to urinate in the detachment hallway, and - he urinated on the toilet seat and floor in the washroom supports the inference that the accused drove while his ability to drive was impaired.

There is, however, no admissible evidence whichwould support the inference that his impairment was caused by alcohol as alleged in the charge on which he was tried. The onlyevidence to support the inference that the accused had consumed alcohol (the accused's answers to Cst. Carey's questions, and theobservations of Cst. Carey about the smell of liquor coming from the accused's breath that were made before the accused was given hiss. 10(

b) Charter rights) was evidence I found inadmissible for the reasons indicated above. III. Disposition [37] As a result of the conclusions reached above, the accused is found not guilty of the offence charged. ____________________________________ W. R. Campbell J. [1] R. v. Orbanski; R. v. Elias, 2005 SCC 37 , [2005] 2 S.C.R. 3 [2] Supra, at para. 58. [3] The test involved having Mr. Orbanski recite the alphabet, walk a straight line while counting, and look at the officer’s finger whilethe officer moved it, and this testing occurred after Mr.

Orbanski was given the opportunity to decline to do the testing, though Mr.Orbanski was not told of the availability of free legal assistance. [4]R. v. Milne (1996), (ON CA), 107 C.C.C. (3d) 118, leave to appeal refused [1996] 3 S.C.R. xiii. [5] R. v. Milne (1996), (ON CA), 107 C.C.C. (3d) 118, para. 39. [6] R. v. Townsend, 2008 ABCA 44. [7]R. v. Brode (2012), 2012 ONCA 140 , 286 C.C.C. (3d) 347. [8]R. v. Weintz (2008), 2008 BCCA 233 , 233 C.C.C. (3d) 365, leave to appeal refused [2008] S.C.C.A. [9]Rodgers v. R., 2013 SKCA 16; Rodgers v. R., 2011 SKQB 244. [10]Rodgers v. R., 2013 SKCA 16 at para. 9.

[11]R. v. Quenneville, 2009 ONCA 325. [12]R. v. Visser, 2013 BCCA 393 , [2013] B.C.J. No. 1980. [13]R. v. Demers, 2007 SKQB 348. [14]Hult v. R., 2008 SKQB 52. [15] R. v. Demers, 2005 SKPC 65. [16] Supra, paras 40 to 43. [17]Sundquist v. R., 2000 SKCA 50 , [2000] 7 W.W.R. 411. [18]R. v. Kangas, [2013] A.J. No. 749. [19]S.F.L. v. Saskatchewan, 2013 SKCA 43 , [2013] 6 W.W.R. 453, at paras. 29 to 32. [20]R. v. Stellato, (SCC), [1994] 2 S.C.R. 478. [21]R. v. Landes (1997), (SK KB), 161 Sask. R. 305.