Her Majesty the Queen - v. -, 2014 SKPC 116

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 116 Date: June 5, 2014 Information: 24380925 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lorraine Joy Parada Appearing: Mr. Harold Johnson For the Crown Mr. Ron Piché For the Accused JUDGMENT R.J. LANE , J [ 1 ] Lorraine Joy Parada is charged on Information #24380925 that on or about the 25 th day of August, 2012 at Air Ronge, Saskatchewan, did operate a motor vehicle while her ability to do so was impaired by alcohol contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code . As well, at the same time and place she is alleged to have operated a motor vehicle while her blood alcohol level exceeded .08, contrary to s. 253(1)(

b) of the Criminal Code . [ 2 ] The Crown was represented by Mr. Harold Johnson and the accused was represented by Mr. Ron Piché. The Crown proceeded summarily on both counts.

[ 3 ] Mr. Piché, on behalf of the accused, filed Notice of Charter Application for the following relief: 1. We intend upon arguing that the applicant/accused’s s. 10(

b) rights were breached in the circumstances as they should have been provided before the Standard Field Sobriety Tests (SFST) was administered. The delay at roadside in administering this test triggered the obligation to provide rights to counsel. We intend on seeking exclusion of the SFST results pursuant to s. 24(2) of the Charter of Rights . We will rely on R. v. Winfield , 2010 BCPC 301 and R. v. Davis , 2011 NBPC 9 (N.B. Prov. Ct.), in support. Mr.

Piché also gave Notice that the procedure that he wished to follow was a voir dire during the trial with decision to be given prior to the Defence case. [ 4 ] The only witness was Constable Blair De Bruin. Constable De Bruin is a member of the La Ronge RCMP. He indicated he has been in La Ronge for two and a half years and has had dealings with intoxicated people on a daily basis since he arrived in La Ronge. He has been involved in over 150 impaired driving investigations. He testified he was on duty August 25, 2012 and he was in uniform.

He was operating an RCMP fully marked cruiser and was patrolling alone that night. [ 5 ] Mr. Johnson then proceeded to question Constable De Bruin about training he had, particularly with regards to Standard Field Sobriety Tests (SFST). Cst. De Bruin testified that he had taken a course on SFST in November and December 2012. He also indicated he was a qualified breath technician and had been since October 2011.

He further testified that he had just recently completed a drug recognition course in Jacksonville, Florida. [ 6 ] He indicated that with respect to the SFST course that he took there were 40 hours of classes, alcohol workshops, etc. He then described the various tests that are applied to people on roadside stops when the demand is made pursuant to s. 254(2) of the Criminal Code .

The tests he described are indeed the very tests prescribed in the Regulations passed pursuant to s. 254(2) of the Criminal Code as well as the Regulations for driver licencing and suspension, 2006, passed pursuant to The Traffic Safety Act . [ 7 ] He then proceeded to describe in general terms the nature of the various tests.

In essence, the horizontal nystagmus test involves the police officer observing the pupils of the eyes of a person who is taking the test as a pen or some other such instrument is moved left to right or right to left across in front of them to see whether or not the eyes are moving in a smooth fashion or if they are rather jerky. Next, in general, is the walk and turn test. He described that there is both an instructional stage and a walking stage. The instructional stage apparently divides the attention of the person taking the test much like the act of driving.

The walk and turn stage is where the individual does nine heel to toe tests forward and backward, counting out loud, and arms to the side. The third test is called the one leg stand test. It also had an instructional stage as well as a balance and counting stage. The leg is lifted about six inches high and the toes point out and then the individual is instructed to count 1001, 1002, 1003 . . .

He indicated that you, as an officer coach the individual, advising them for example to keep their legs straight, asking if they understand instructions, etc. [ 8 ] The Crown filed as Exhibit P-1 in this case the Certificate of Course Completion showing that Constable De Bruin had completed the course for SFST. Constable De Bruin then continued to testify as to the night in question. He indicated that he was northbound in his police cruiser on Highway #2 in the municipal district of Air Ronge, Saskatchewan. The vehicle ahead of him hit the centre line and then went to the side and hit the shoulder line.

He indicated half the vehicle was over the shoulder line and then went back across the centre line. He engaged his emergency lights and indicated the vehicle did not stop initially however, it was on the Montreal River Bridge when that happened and the vehicle did stop once safely across the bridge which was at 12:30 a.m. Constable De Bruin indicated it was a red minivan and he believed it was a Dodge. [ 9 ] He indicated he approached the driver’s side and asked for driver’s licence and registration.

He asked the accused why she was swerving between lanes and he indicated she was having trouble extracting her driver’s licence. He indicated he could smell a strong odour of alcohol and asked her if she had been drinking. She indicated she had three beer. Based on that he formed the opinion she had alcohol in her body. At 12:32 a.m. he read the demand to her for her to perform the SFST and she indicated she would. He indicated that he started the horizontal gaze nystagmus test. He made many observations but ultimately concluded she scored 6 out of 6 on that test.

When asked what that meant he indicated that a score of 4 out of 6 would mean it’s highly likely the person has a blood alcohol level greater than 0.10; 6 out of 6 presumably is significantly higher. [ 10 ] Next she did the walk and turn test where she was required to put her left foot on the white line and her right foot touching her

left toes. He indicated the right heel is supposed to touch the left toe and she missed the heel to toe on each of the steps she took. She made a proper turn after 13 steps instead of 9 steps as instructed and returned 13 steps missing the heel to toe once again. She scored 7 out of 8. He indicated she was not able to keep her balance at the beginning, but in the walking stage, she only stepped off the white line once. However, she took the wrong number of steps, continually missed the heel to toe walking and was using her arms for balance.

In any event, her score was 7 out of 8 and he indicated a fail is 2 out 8. His conclusion was that she very badly failed that test. [ 11 ] The next test was the leg raise test. Initially she was given instructions to raise her leg and she raised the wrong one. She was using her arms to balance. She stopped the testing, her back was sore however, she was otherwise very cooperative. Constable De Bruin indicated she scored 4 out of 4 and that result was a bad fail on that test as well. He indicated that if a person fails one test out of three there is a 65% chance they are higher than 0.10 in blood alcohol level.

If they fail two tests there is a 80% chance they are higher than 0.10 in blood alcohol level. [ 12 ] Constable De Bruin indicated that based on that he formed the opinion that the accused had committed an offence under s. 253 of the Criminal Code as a result of alcohol consumption within the previous three hours and made a breath demand pursuant to s. 254(2) (b). The

section pursuant to which Constable De Bruin made the demand that she perform the physical coordination tests is s. 254(2) (a). [ 13 ] Constable De Bruin indicated that the grounds for his belief that she had committed an offence under s. 253 included the fact that while she was driving she hit the centre line, then the shoulder line and over beyond the shoulder line, and then veered into oncoming traffic, that there was a strong smell of alcohol and, had trouble finding her driver’s licence.

However, Constable De Bruin acknowledged in cross-examination that were it not for the SFST he would not have had sufficient evidence to give him reasonable grounds to believe that she had committed an offence under s. 253 of the Criminal Code and would not and could not have made a demand for a breath sample. [ 14 ] He placed her under arrest for impaired driving at 12:43 a.m. At 12:45 a.m. he gave her a breath demand and she indicated that she understood.

At 12:47 a.m. he provided her with her Charter rights and she indicated she understood and that she did not want to talk to a lawyer and at 12:48 a.m. he provided her with the police warning and she indicated she understood. Entered as Exhibit P-2 was a video recording of the driving of the accused where the vehicle crossed the centre line and the shoulder. It also indicates the SFST. [ 15 ] Constable De Bruin indicated they left the scene at 12:50 a.m. and went to the detachment and they arrived there at 12:57 a.m.

He advised that he was a breath technician and that he knew the Intoxilyzer had not been properly tested for more than two weeks and that a new test would have to be run. At that point he asked the accused if she wanted to speak to a lawyer again and she indicated “no”. He asked another breath technician to do the breath test so he could do the proper 15 minute observation of the accused. [ 16 ] At that point the case moved into a voir dire . Defence agreed that the evidence of the trial at that point could be applied to the voir dire . Constable De Bruin asked her what she had to eat and what she had to drink.

She indicated now that she had consumed five beer and that they were cans of Molson Canadian. She indicated she last ate nachos and wings at Costa’s Lounge and had a beer there. It was not clear to me whether that was an additional beer to the five she admitted having or one of the five beer that she had. That, however, doesn’t make much difference in the trial without the benefit of expert testimony to describe the effect of six beer vs. five beer.

In cross-examination Constable De Bruin admitted that he did not ask her when she started to drink. [ 17 ] Further in cross-examination, Constable De Bruin acknowledged that he first spotted the vehicle at 00:30 hours. He followed the vehicle for two and one-half to three blocks. Mr. Piché asked him if the road was dry where they were. Constable De Bruin admitted that he had no independent recollection of whether the road was wet or dry.

He did however, testify that the highway was in very good shape. [ 18 ] In watching the video filed as Exhibit P-3, said video taken by the camera from the police vehicle, the vehicle starts to pull to the right on the shoulder at 00:30:15. Mr. Piché asked if the road had cracks or potholes and Constable De Bruin indicated that it was a fairly good road. The video shows the police lights go on at 00:30:42 and at 00:31:02 the vehicle is stopped. Constable De Bruin acknowledged that the accused had no problem with the stop and that her parking was perfect.

He indicated that she had a strong odour of alcohol on her breath but acknowledged that odour of alcohol is not indicative of the degree of impairment. He was asked by Mr. Piché why he did not use an ASD. He answered that he was trained in SFST and while he is trained on the ASD as well he simply didn’t have one with him. He indicated that the detachment had four ASDs for ten vehicles and as a result, on many occasions he goes without an ASD. Constable De Bruin acknowledged that Ms. Parada’s eyes were fine, that is not bloodshot or glossy. He acknowledged she

talked very normally and showed no signs of slurred speech when she was in the motor vehicle. [ 19 ] He was cross-examined on the training he had to take for SFST. He indicated there were 40 hours of training, all in one week, at Regina. There is an instructor, and you must pass a test before you are certified. He acknowledged that without that certificate he could not have conducted SFST. He acknowledged that he is providing an opinion based on his training and his observations. He acknowledged that without the certificate his opinion may not be admissible in Court.

He indicated he is also a Drug Recognition Expert and that he does have a CV for that, but not for SFST. [ 20 ] He acknowledged that the accused was not provided rights to counsel before taking the tests and that she was detained. He very candidly acknowledged that but for the SFST he would not have had the grounds to arrest her or to make the demand. He acknowledged she showed complete comprehension of her rights to counsel. He acknowledged that she did not appear to have a problem walking from the police vehicle to the cell block.

Constable De Bruin testified that the first sample was not valid and the second one and the third (taken twice at 1:48 a.m.) were valid. He advised that he made no observations of her displaying any motor skill problems. He advised that she was very cooperative with him and that there was a 15 minute period when they arrived at the detachment that he did the mandatory observation of the accused to make sure that she had not burped up or coughed up any alcohol. [ 21 ] Mr.

Piché then cross-examined on the service of the Notice of Intention and nothing much came of that other than that Constable De Bruin complied with the requirements. He indicated that he released the accused however, indicated he released most impaired drivers that he arrests. He testified that he believed she completely understood the document when he served her. [ 22 ] Crown and Defence indicated that at the conclusion of the voir dire , no further evidence would be called, and the case should be decided on the evidence before the Court. The Issues 1. Was Ms. Parada ’s s. 10(

b) Charter rights infringed as a result of her not being informed of her right to counsel between the time her vehicle was stopped and the time she performed the Standard Field Sobriety Tests (SFST)? [ 23 ] It is clear from the evidence that Constable De Bruin did not provide rights to counsel to the accused prior to compelling her to perform the SFST. Mr. Piché argues that the analogous situation is the administration of the approved screening device and argues that rights to counsel are exempted because the detention is supposed to be brief. Mr. Piché refers to R. v. Husulak (2006), S.J. No. 480 (Sask.

Q.B.) , this was a decision of Mr. Justice Klebuc of the Saskatchewan Court of Appeal. In that case, the time lines ran as follows: a) 11:29 a.m. - Constable Pringle detected the odour of beverage alcohol on the appellant’s breath;

b) Shortly after 11:29 a.m. - Constable Pringle accessed a database in his computer and retrieved a photograph of the driver to confirm his identity; c) 11:34 a.m. - Constable Pringle sent Constable Jones to the Saskatoon Police Station to pick up an ASD machine as he did not have one with him; d) 11:43 a.m. - Constable Jones returns with the ASD; e) 11:47 a.m. - Constable Pringle demanded the sample of the appellant’s breath pursuant to s. 254(2) of the Criminal Code ; f) 11:48 a.m. - Administered the ASD test which registered a fail;

g) 11:48 a.m. - Constable Pringle demanded a sample of the appellant’s breath and immediately thereafter arrested the appellant and advised him of right to counsel; h) 11:54 a.m. - Constable Pringle departed from the police station with the appellant and arrived there at about 11:59 a.m.; i) 12:12 p.m. - The appellant spoke with legal counsel by phone; and j) 12:22 p.m. - The appellant provided a sample of his breath. Mr.

Justice Klebuc questioned, and I suggest quite properly, why Constable Pringle sent Constable Jones to the police station to pick up an ASD when Constable Pringle could easily have taken the accused directly to the police station and had him provide a sample there. It looks to me like the rationale behind this case was that there was time when nothing was being done with the accused such as, waiting for the ASD machine to be procured and delivered. [ 24 ] It is noteworthy, and even ironic, that Mr.

Justice Klebuc at para. 43 states as follows: The goal of getting impaired drivers off public thoroughfares must be weighed against the importance of the appellant’s Charter rights, which are not to be casually infringed. It is clear from the evidence that such goals could have been achieved in the incident case without infringing on the appellant’s Charter rights.

For example, Constable Pringle could have conducted a physical sobriety test or forthwith made an ASD demand and immediately transported the appellant to the police station where the ASD test could have been performed promptly . . . [ 25 ] In the case at bar, Constable De Bruin did exactly what Mr. Justice Klebuc recommended, which was physical sobriety tests.

In fact, from the time that Constable De Bruin pulled the accused over just north of the Montreal River Bridge near Air Ronge, Saskatchewan, until the time that he departed the scene after having completed the tests and forming the opinion that he had grounds to make a breath demand under s. 254(3) of the Criminal Code , Constable De Bruin could not possibly have had time to do anything else with the accused, because he was so busy conducting these tests. Therefore in the circumstances I do not believe that the accused’s s. 10(

b) Charter rights were infringed. For Constable De Bruin to complete the SFST as quickly as possible, he would not have had time to either find a cell phone or have a cell phone for the accused to exercise rights to counsel. 2. Was the sample of the accused ’s breath taken as soon as practicable as required under s. 258(1) (

c) of the Criminal Code ? [ 26 ] Mr. Piché referred to the decision of Provincial Court Judge H. Harradence of Big River, Saskatchewan in R. v. Dustin James Prosofsky , a trial conducted June 8, 2012. In that particular case, Judge Harradence was dealing with a situation where the accused was initially questioned at 12:20 a.m. and arrested at 12:25 a.m. The arrest took place in Big River, Saskatchewan and the closest breath technician was at his residence on Whitefish Reserve which is a distance from Big River, Saskatchewan.

The first breath sample ultimately was not taken until 1:22 a.m., almost an hour after the arrest. In that case, the breath technician, Corporal Johnston, did not testify or explain what time he received the call requesting him to come to the Big River Detachment to perform a breath test and what the delay was between when he received that call and when he arrived at the detachment. Judge Harradence in that case and in my opinion, quite properly, ruled that the tests were not taken as soon as practicable as required in s. 258(1) (

c) of the Criminal Code and ruled the test results were inadmissible. [ 27 ] We will examine the relevant time lines in this case: 1. SFST were completed at approximately 00:42 to 00:43, at which time Constable De Bruin arrested the accused for impaired driving; 2. At 00:45 Constable De Bruin read the breath demand to the accused;

3. At 00:47 a.m. Constable De Bruin provided the accused with her Charter rights and asked her if she wanted to call a lawyer and the accused indicated no; 4. At 00:48 Constable De Bruin gave the accused the police warning. He did those in the car; 5. At 00:50 Constable De Bruin with the accused in the police cruiser left for the detachment; and 6. At 00:57 Constable De Bruin and the accused arrived at the detachment and went to the cell block. [ 28 ] Once at the detachment Constable De Bruin again asked the accused if she wished to call a lawyer and she said no.

Constable De Bruin testified that between that moment and the first attempted breath sample there were things that he had to do. He said he is a breath technician and he knew that the Intoxilyzer’s standard solution needed to be changed because it was older than two weeks and as a result, he needed to do a validating test of some sort before the breath samples could be taken and analysed. He testified he asked another constable to perform the breath test on Ms.

Parada, so that he, Constable De Bruin, could do the proper 15 minute observation period of the accused. [ 29 ] The first test that was attempted was at 1:23 a.m. and it was not an acceptable test. The next test was at 1:27 a.m. with a resulting reading of .150 and the next test was at 1:48 a.m. and was not an acceptable test however, another test was done immediately at 1:48 a.m. resulting in a reading of .150. In this case there are no unexplained delays. Constable De Bruin testified that he realized that some work had to be done on the Intoxilyzer before it could accurately do a reading.

He also had to do a 15 minute observation period which he testified is performed in order to ensure that the accused does not burp up any alcohol or anything like that which might result in an unfair reading. I am satisfied in the circumstances that there is no unexplained or unreasonable delay in taking the breath samples. The Certificate of Analyses, a true copy of which was served upon the accused, was filed as Exhibit P-2. 3.

The next, and likely most interesting, issue in this case is whether or not Constable De Bruin ’s evidence on the Standard Field Sobriety Test is expert testimony requiring the Crown to serve proper notice under s. 657 of the Criminal Code that it intended to call an expert along with the curriculum vitae of the expert and a

summary of the expert ’s testimony? [ 30 ] This is a growing field of criminal litigation resulting in some polar opposites when it comes to decisions. Some of my brother and sister judges in Saskatchewan, for whom I have great respect, have found that it is indeed expert evidence that required more explanation than the peace officer who performed the tests could provide, before the Court would accept them as evidence to allow an officer to form grounds to make a breath demand.

I must confess that when I heard the evidence of Constable De Bruin, I was rather baffled by some of the expressions used, some of the words that I had never even heard before. Constable De Bruin explained what tests that he performed and explained how he had been trained and what the test results meant. At the end of the trial, I must say, I was inclined to conclude that it was indeed expert evidence that should require somebody to explain the scientific nature of these tests and further explain how Constable De Bruin could conclude whether or not the accused passed the tests.

It is important to note here that, as Mr. Johnson points out, the Crown is not and could not use the results of these tests as evidence to prove impairment for the count of impaired driving. These are only being tendered by the Crown for the purpose of Constable De Bruin explaining why he believed he had grounds to make a breath demand. As I understand the argument that Mr. Piché advances on his client’s behalf, the failure of the Crown to provide proper notice under s. 657 of the Criminal Code could be grounds upon which a Court could find the evidence inadmissible.

He further argues that the failure to disclose the curriculum vitae , if it existed, of Constable De Bruin and the nature of Constable De Bruin’s evidence amounted to failure to disclose resulting in a s. 10(

b) Charter breach. [ 31 ] The issue of whether or not the testimony of Constable De Bruin would constitute expert testimony was to me, initially, quite a complex issue. A fairly detailed analysis of s. 254 of the Criminal Code is necessary in order to determine this point. [ 32 ] Section 254(1) contains various

definitions, one of which I think is important to look at, that being, the definition of an “evaluating officer” which means an officer who is qualified under the Regulations to conduct the evaluations under s. 254(3.1). It is clear that section 254(3.1) is the

section designed to aid detection of motor vehicle operators who may be impaired by consumption of drugs or a combination of alcohol and drugs. There is no suggestion in this case that Ms. Parada had any impairment by drug however, this definition I would suggest is somewhat relevant.

[ 33 ] If one examines the evaluation of impaired operation (drugs and alcohol) Regulations , s. 1 defines an “evaluation officer” as: An evaluation officer must be a certified drug recognition expert accredited by the International Association of Chiefs of Police. [ 34 ]

Section 2 of the Regulations describes the physical coordination tests that are to be conducted pursuant to s. 254(2) (

a) of the Criminal Code - that is, the physical coordination tests to determine whether or not the police officer has grounds to make a breath demand for someone suspected of having alcohol in their system:

Section 2: the physical coordination tests to be conducted under para. 254(2) (

a) of the Criminal Code are the following standard field sobriety tests:

a) the horizontal gaze nystagmus test;

b) the walk and turn test; and

c) the one leg stand test. [ 35 ] The Regulations then go on to describe evaluation tests and procedures that are conducted pursuant to the authority of s. 254(3.1) which once again evaluates drivers suspected of being impaired by either drugs or a combination of drugs and alcohol. [ 36 ] Section 254(2) of the Criminal Code states as follows: If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of aircraft or railway equipment or had the care of control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it is in motion or not, the peace officer may, by demand, require the person to comply with paragraph a) in the sense of a drug or both paragraphs

a) and

b) in the case of alcohol:

a) to perform forthwith physical coordination tests prescribed by regulations to enable the peace officer to determine whether a demand may be made under subsection (3) or subsection (3.1) and, if necessary, to accompany the peace officer for that purpose; and

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany a peace officer for that purpose. [ 37 ] It is noteworthy in s. 254(2) that first of all, it is a “peace officer” that has the power to demand physical coordination tests as opposed to an “evaluating officer” as defined in s. 254(1) and in s. 1 of the Regulations . The expression “certified drug recognition expert” is significant. In that expression and definition in the Regulations , the very word “expert” is used.

Whereas in s. 254(2) it is simply a “peace officer” who has the power to make this demand. That

section doesn’t even require the peace officer to have special training, although it would appear that, certainly in the RCMP at least, according to Constable De Bruin, unless an officer has the training and has successfully completed the course, they are not allowed to do the physical coordination tests. [ 38 ] It is also important to note that in s. 254(2) , the peace officer, in a case of suspicion of alcohol impairment, may demand the suspect perform both physical coordination tests and an ASD or either of them. What that means, in my opinion, is that a peace officer can only demand the physical coordination tests as set out in s. 254(2) (

a) and if that individual has failed those tests, the peace officer can move directly to s. 254(3) because he would have had reasonable grounds at that point to believe that the person is committing or has committed an offence under s. 253 in the preceding three hours etc. Parliament had to have been aware when they created the wording in s. 254(2) that the usage of physical coordination tests would often be necessary to replace the lack of an ASD in a particular police cruiser and that was the case here. That is why a peace officer, in my opinion, under s. 254(2) is not required to both administer the

physical coordination tests and then demand an ASD. There would be no point. If an ASD is available, the legislation is clear that a peace officer can use that to form grounds to make a demand under s. 254(3). [ 39 ] So the issue raised by Mr. Piché on behalf of the accused is whether or not Constable De Bruin’s testimony about the conduct of the tests and what the results are and mean require an expert to explain.

It is clear in law, that when a peace officer suspects a person of having alcohol in their system and of having possibly committed an offence in the previous three hours that peace officer can make a demand for a breath sample on an ASD. Once the ASD results are made available, and assuming the accused has failed, the Crown is not required to call an expert to explain how the ASD works, what is the significance of a pass, warn or fail and how do they know that.

The bottom line in law is that if a person fails an ASD, that peace officer now has grounds to make a demand under s. 254(3) . [ 40 ] In my opinion, physical coordination tests are no different. The peace officer is empowered under s. 254(2) to demand the physical coordination tests as prescribed by the Regulations . The physical coordination tests as defined in the Regulations were the very tests that Constable De Bruin had Ms. Parada perform. Constable De Bruin analysed her performance and concluded that she had failed the tests.

At that point, in my opinion, Constable De Bruin had reasonable grounds to suspect that Ms. Parada is committing or within the previous three hours had committed an offence under s. 253 and could make a demand for a breath sample pursuant to s. 254(3) . [ 41 ] Physical coordination tests to determine if a person could be impaired by alcohol have existed for many, many decades. Once again, ironically, Mr. Justice Klebuc in Wayne Nicholas Husulak v.

R. , as previously referred to, wondered why the peace officer, rather than waiting for an ASD to be delivered, didn’t perform physical sobriety tests. [ 42 ] I agree with Mr. Johnson that some of these tests that were performed could be interpreted easily by even a civilian. Many decades ago physical sobriety tests that were applied prior to the use of breathalyzer machines, were such tests as walk and turn, walking a line, lifting one leg, etc. In my view, the only test that an ordinary citizen using common sense might not understand would be the horizontal gaze nystagmus test.

Section 254(2) however states that if physical coordination tests are going to be required of an individual, they must be the tests set out in the Regulations , and indeed, they must be all three (in other words, not one of them, or any two of them, but all three of them).

I am satisfied with the description of the tests and the results that Constable De Bruin testified to, that Constable De Bruin had reasonable grounds to make the demand for a breath test under s. 254(3) . [ 43 ] In my opinion, if Parliament had intended the physical coordination tests to be carried out by an expert, they would have done the same with physical coordination tests for impairment by alcohol as they did for impairment by drug or a combination of drug and alcohol in s. 254(3.1). They would call the individual an expert. Parliament did not.

Parliament called the individual a “peace officer”, very much unlike s. 254(3.1) where an evaluating officer actually has the title “Drug Evaluation Expert ” (the emphasis is mine). Had this been a drug case and subject to further legal research, it seems very likely to me that if this were a testing pursuant to s. 254(3.1), the evaluating officer is an expert and Notice of Expert etc. would have to be provided.

I do not feel it is the same under s. 254(2) where it is simply a peace officer conducting the standard field sobriety tests and then forming the opinion that he has grounds to make a demand under s. 254(3) . [ 44 ] In my opinion however, because the standard field sobriety tests were conducted before rights to counsel were provided, the results cannot be proved as evidence to prove Count #1, which is commonly known as impaired driving. [ 45 ] In conclusion, I find: (1) that there has been no breach of the accused’s

section 10(

b) Charter rights, (2) that Constable De Bruin’s evidence was not expert testimony (which would have triggered the proceedural obligations on the Crown as set out in

section 657 of the Criminal Code , as well as a failure by the Crown to provide disclosure), (3) the Certificate of Analyses filed in these proceedings as Exhibit P-2 is admissible, (4) that all technical steps, including service of a true copy of the Certificate of Analyses on the accused, were taken properly, and as a result, I find the accused guilty of Count #2 on Information #24380925.

[ 46 ] With respect to Count #1, while there is evidence of some driving difficulty, with Ms. Parada’s vehicle swerving a little bit to the left and then over the shoulder and then back into the lane, there is much evidence as well that Ms. Parada, in her performance of other tasks such as parking her vehicle, walking to the police vehicle, walking in the cell block, speaking, etc., was not impaired by alcohol. Accordingly, I have a reasonable doubt on that and I find the accused not guilty of Count #1. [ 47 ] I wish to thank both Mr. Piché and Mr. Johnson for their briefs of law that they filed.

The arguments of both counsel, whom I consider to be superior counsel in this province, were most helpful indeed. ________________________ R.J. Lane, J