Her Majesty the Queen - v. -, 2015 SKPC 112

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 112 Date: July 23, 2015 Information: 24507081 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Taylor A. Knoblauch Appearing: Ms. M. Landry For the Crown Ms. S. Fox For the Accused DECISION ON CHARTER VOIR DIRE & JUDGMENT M. HINDS , J INTRODUCTION [ 1 ] Taylor Knoblauch is charged that on or about the 12 th day of July A.D. 2014, at Regina, Beach, Saskatchewan, he operated a motor vehicle while (1) impaired by alcohol, and (2) over .08, contrary to sections 253(1) (a), 253(1)(

b) and 255(1) of the Criminal Code . [ 2 ] Prior to the commencement of the trial, the Defendant filed a Notice of Charter Application alleging that his

rights under

section 10(

b) of the Charter of Rights and Freedoms ( Charter ) had been violated. [ 3 ] At the onset of the trial, counsel agreed to enter into a voir dire with respect to the Charter issue. Counsel further agreed that all admissible evidence will be applied to the trial proper. Constable Todd Tyndall testified for the Crown. Beverly Anne Knoblauch testified for the defence. [ 4 ] The Defence made the following arguments: (1) the police officer did not perform the informational duty imposed upon him after arresting Mr. Knoblauch; and

(2) Mr. Knoblauch ’ s

section 10(

b) rights were not afforded “ without delay ” . As a result of these breaches the Defence seeks the remedy of exclusion of the Certificate of Analyses from the evidence pursuant to subsection 24(2) of the Charter . [ 5 ] The Crown contends that the accused’s Charter rights were not violated. Alternatively, should I find a breach of the accused’s Charter rights, the Crown maintains that the exclusion of the Certificate of Analyses is not warranted. [ 6 ] In this case I have determined that Mr. Knoblauch’s

section 10(

b) Charter rights were not breached. I found that the Certificate of Analyses should be admitted into evidence at the trial. I acquitted the accused on the impaired driving charge. I convicted the accused on the driving while over .08 charge. FACTS The testimony of Constable Todd Tyndall [ 7 ] Constable Todd Tyndall has been a member of the Royal Canadian Mounted Police for seventeen years. He works out of Saskatoon, Saskatchewan. On July 12, 2014, Constable Tyndall was seconded to work traffic enforcement in the area of Craven which was holding its annual country music event, the Craven Jamboree.

Around 9:20 p.m., Constable Tyndall was driving a marked patrol car eastbound on 5 th Avenue in Regina Beach, Saskatchewan when he observed a truck driven by Mr. Knoblauch drive past him in the opposite direction. There was a boat in the back of the truck. Constable Tyndall decided to effect a traffic stop of Mr. Knoblauch as he observed Mr. Knoblauch was not wearing a seat belt. Constable Tyndall subsequently went to the driver ’ s door and spoke to Mr. Knoblauch. The officer advised Mr. Knoblauch that he had not been wearing a seat belt. Mr. Knoblauch disagreed. Constable Tyndall noted Mr.

Knoblauch had a mouth full of sunflower seeds. Constable Tyndall also smelled the odour of beverage alcohol coming from the vehicle. Constable Tyndall asked Mr. Knoblauch if he had anything to drink. Initially Mr. Knoblauch said “ No ” . Constable Tyndall requested that Mr. Knoblauch accompany him to the police vehicle. He wanted to determine whether the odour of beverage alcohol was coming from the vehicle or from Mr. Knoblauch ’ s breath. Constable Tyndall asked Mr. Knoblauch to spit out the sunflower seeds, which he did. Mr. Knoblauch was searched prior to getting into the police vehicle.

Constable Tyndall once again asked Mr. Knoblauch if he had anything to drink. This time Mr. Knoblauch responded by saying “ a couple ” . Mr. Knoblauch indicated that a couple meant “ two or three beer ” which he consumed a couple of hours ago while in his fishing boat. Constable Tyndall also testified in-chief that he noticed that Mr. Knoblauch had a staggered walk and glassy and droopy eyes. [ 8 ] Mr. Knoblauch was placed in the back passenger seat of the police patrol car. Constable Tyndall proceeded to obtain some basic information from Mr. Knoblauch. Constable Tyndall once again asked Mr.

Knoblauch when his last drink was. Mr. Knoblauch said “an one hour ago maybe”. At 9:26 p.m., Constable Tyndall read an Approved Screening Device (ASD) demand to Mr. Knoblauch. When asked if he understood the demand, Mr. Knoblauch responded “ Yep, yes ” . At 9:28 p.m., Mr. Knoblauch provided a breath sample into the ASD which registered a “ Fail ” result. A “ Fail ” result means that the blood alcohol of the subject is above 99 milligrams percent. [ 9 ] At 9:30 p.m., Constable Tyndall advised Mr. Knoblauch he was under arrest for impaired driving. This occurred while Mr.

Knoblauch was in the back of the patrol car. Constable Tyndall then advised Mr. Knoblauch of his

section 10(

b) Charter right to counsel. When asked if he understood his right to counsel, Mr. Knoblauch said “Yep, yes”. Constable Tyndall did not go on to ask Mr. Knoblauch if he wanted to speak to a lawyer while he was in the back of the patrol car. The evidence reveals that Constable Tyndall was distracted by a number of police radio transmissions occurring at this time. At 9:32 p.m., Constable Tyndall made a breath test demand of Mr. Knoblauch and also provided a police warning to him. Mr. Knoblauch indicated that he understood the breath demand and the police warning.

[ 10 ] Mr. Knoblauch posed a number of questions to Constable Tyndall including “why he was doing this to him as he lives just up the road”, “where was he taking him?” and “are you taking me to jail?” Constable Tyndall indicated that he was going to be taken to the Lumsden Detachment for breath samples and encouraged Mr. Knoblauch to be cooperative, which he was. At 9:34, Mr. Knoblauch was removed from the back of the patrol car, searched again, handcuffed and subsequently placed back in the patrol car. [ 11 ] Constable Tyndall’s investigation revealed that Mr. Knoblauch was a suspended driver.

As a result he felt compelled to remain at the scene until another police officer arrived for the purpose of having Mr. Knoblauch’s vehicle towed from the scene. Constable Tyndall also was of the view that a police officer had to take care of Mr. Knoblauch’s passenger who had also been drinking. Constable Tyndall was in radio communication with other officers. At 9:37 p.m., Mr. Knoblauch asked Constable Tyndall what was going on.

Constable Tyndall told him that he was arrested for impaired driving, he had to wait as there was another impaired driver nearby and other police were on the way who were going to take care of his truck and his buddy. Constable Tyndall added that once the other police arrive he and Mr. Knoblauch were going back to the Lumsden Detachment and that Mr.

Knoblauch was going to get an opportunity to talk to a lawyer and provide some breath samples on an improved instrument and if he remained cooperative he would release him to a sober person. [ 12 ] While waiting at the scene, Constable Tyndall spoke to the passenger of the Knoblauch vehicle and obtained Mr. Knoblauch’s driver’s licence . At 9:39 p.m., Constable Tyndall called RCMP communications to arrange for a breath technician to meet him at the Lumsden Detachment. [ 13 ] Constable Tyndall remained at the scene of the traffic stop with Mr.

Knoblauch until after another police officer arrived on scene at 9:55 p.m. Constable Tyndall departed the scene at 9:58 p.m. and arrived at the Lumsden Detachment at 10:17 p.m. [ 14 ] After arriving at the Lumsden RCMP Detachment, Constable Tyndall took Mr. Knoblauch to the cell bay and booking station where prisoners are booked in. Constable Tyndall testified in-chief that at 10:28 p.m., “I then asked Mr. Knoblauch again, if he wanted to call a lawyer”. Mr. Knoblauch said “No”. A telephone was located near to the booking station. [ 15 ] Constable Tyndall then released Mr.

Knoblauch to a breath technician, Constable John Henry White. Constable White subsequently provided Constable Tyndall with a Certificate of Analyses 20954 pertaining to Mr. Knoblauch (Exhibit P-2). Constable Tyndall served the Certificate of Analyses 20954 , Notice of Intention to Produce Certificate and Promise to Appear on Mr. Knoblauch at 11:50 p.m. on July 12, 2014. There were a typographical error on this Certificate of Analyses. Constable White ’ s name appeared as John Henry Whit rather than John Henry White. A revised Certificate of Analyses 103733 (Exhibit P-1) pertaining to Mr.

Knoblauch was prepared by Constable White. It along with a Notice of Intention to Produce Certificate was served on Mr. Knoblauch on November 19, 2014 by Constable Andrew Green. [ 16 ] Mr. Knoblauch subsequently used a telephone at the detachment and called his mother. Mr. Knoblauch was released to his mother’s care at 11:57 a.m. [ 17 ] On cross-examination Constable Tyndall testified: - he never met Taylor Knoblauch prior to July 12, 2014 - he was not familiar with Mr. Knoblauch’s gait or speech - he could not recall if Mr.

Knoblauch was wearing shoes on his feet on July 12, 2014 - he agreed that it’s possible that there were tiny stones on the road surface on July 12, 2014 - he could not recall if Mr. Knoblauch engaged his turn signal that night or if he put on his flashers - he agreed that Mr. Knoblauch was not swerving or speeding while driving his truck - he agreed that Mr. Knoblauch had no difficulties getting out of his vehicle

- he agreed that Mr. Knoblauch knew where his driver’s licence was located - he agreed that Mr. Knoblauch was coherent and did not slur his speech - he understood Mr. Knoblauch was a suspended driver and as a result he had to have Mr. Knoblauch’s vehicle towed from the scene as it was impoundable - he understood that Mr. Knoblauch’s passenger lived two blocks away from the scene of the stop - he did not feel comfortable having the passenger driving Mr.

Knoblauch’s vehicle or walking to his home as he had been drinking - a person having a bunch of sunflower seeds in their mouth is not a normal practice, it is a sign of impairment - other signs of impairment included: staggered walk, smell of alcohol coming from his vehicle, admitted consumption of alcohol and droopy and glassy eyes - as a result of all of these signs of impairment, he made an ASD demand on Mr.

Knoblauch which produced a fail result - he agreed that his general report indicated that the accused was arrested, reason given, rights to counsel, breath test demand, police warning were all administered by the member to the accused from the card - he further agreed that the next sentence on his general report indicated that the accused understood all warnings and declined to call a lawyer - he agreed that the general report went on to indicate that the accused was handcuffed, searched and escorted back to the Lumsden RCMP Detachment - he eventually conceded that his notation in his general report that at 9:32 p.m., “the accused understood all warnings and declined to call a lawyer ” at roadside, was inaccurate - he also eventually conceded that his notation at 10:28 p.m. that he “asked Mr.

Knoblauch again , if he wanted to call a lawyer” at the Southey Detachment, was inaccurate . In particular he agreed that prior to attending the Southey RCMP Detachment he did not ask Mr. Knoblauch if he wanted to call a lawyer -his general report was written 10 days later on July 22, 2014. The testimony of Beverly Anne Knoblauch [ 18 ] Beverly Anne Knoblauch is Taylor Knoblauch’s mother. She testified that about 11:00 p.m. on July 12, 2014, she received a telephone call from an RCMP constable indicating her son, Taylor was being held at the Lumsden Detachment and he was ready to be picked up. Ms.

Knoblauch arrived at the detachment in Lumsden around 11:30 p.m. Taylor was released around midnight. Ms. Knoblauch thought her son seemed perfectly normal. She testified that her son did not appear to be drunk to her. She also testified that Taylor was in bare feet and that he does not wear shoes in the summer. VOIR DIRE ISSUES [ 19 ] The circumstances in this voir dire give rise to the following issues: 1. Was there a violation of the accused’s rights as guaranteed by

section 10(

b) of the Charter ? 2. If the accused’s rights under

section 10(

b) of the Charter were breached, is the remedy of the exclusion of the Certificate of Analyses evidence pursuant to section 24(2) of the Charter warranted? VOIR DIRE ANALYSIS Was there a violation of the accused ’ s rights as guaranteed by

section 10(

b) of the Charter ?

[20] In R v Luong, 2000 ABCA 301, 271 AR 368, the Alberta Court of Appeal set out 11 guiding principles to follow whendetermining whether there has been a violation of the right to counsel. These principles are as follows: 12. For the assistance of trial judges charged with the onerous task of adjudicating such issues, we offer the following guidance: 1. The onus is upon the person asserting a violation of his or her Charter right to establish that the right as guaranteed by the Charter hasbeen infringed or denied.

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence andavailability of Legal Aid and duty counsel. 4. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right to counsel. 5. The first implementational duty is "to provide the detainee with a reasonable opportunity to exercise the right (except in urgent anddangerous circumstances)". R. v.

Bartle (1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.) at 301. 6. The second implementational duty is "to refrain from eliciting evidence from the detainee until he or she has had that reasonableopportunity (again, except in cases of urgency or danger)". R. v. Bartle, supra, at 301. 7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonableopportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counselwas provided with reasonable opportunity to exercise the right. 8.

If the trial judge concludes that the first implementational duty was breached, an infringement is made out. 9. If the trial judge is persuaded that the first implementational duty has been satisfied, only then will the trial judge consider whether thedetainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden of establishingthat he was reasonably diligent in the exercise of his rights. R. v. Smith (1989), (SCC), 50 C.C.C. (3d) 308 (S.C.C.) at315-16 and 323. 10.

If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, theimplementational duties either do not arise in the first place or will be suspended. R. v. Tremblay (1987), (SCC), 37C.C.C. (3d) 565 (S.C.C.) at 568; R. v. Ross (1989), (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135; R. v. Black (1989), (SCC), 50 C.C.C. (3d) 1 (S.C.C.) at 13; R. v. Smith, supra, at 314; R. v. Bartle, supra at 301 and R. v. Prosper (1994), (SCC), 92 C.C.C. (3d) 353 (S.C.C.) at 375-381 and 400-401. In such circumstances, no infringement is made out. 11.

Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonable opportunityto exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, the Crown is requiredto prove a valid waiver of the right to counsel.

In such a case, state authorities have an additional informational obligation to "tell thedetainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this timenot to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had thatreasonable opportunity" (sometimes referred to as a "Prosper warning"). R. v. Prosper, supra, at 378-79. Absent such a warning, aninfringement is made out. [21] The onus is on Mr.

Knoblauch to convince the Court on a balance of probabilities that there has been a Charter breach. Mr.Knoblauch did not testify on the voir dire, so I am left with the officer’s evidence and the patrol car video evidence. [22] Throughout the course of his testimony it was evident Constable Tyndall relied heavily upon his notes and the general reportwhich he prepared several days after the incident. During the course of the trial it became quite apparent that some of ConstableTyndall’s notations were not accurate.

The first inaccuracy is set out in his general report which indicates that at 9:32 p.m., “the accusedunderstood all warnings and declined to call a lawyer” at roadside. The patrol car video, however, clearly shows that this did not takeplace. Mr. Knoblauch was not asked if he wanted to call a lawyer. Moreover, Mr. Knoblauch did not decline to call a lawyer atroadside. [23] A second inaccuracy builds upon the first inaccuracy. On cross-examination, Constable Tyndall admitted his notes reveal at10:28 that he again, asked Mr. Knoblauch if he wanted to call a lawyer.

This note is also inaccurate, as Constable Tyndall had notpreviously asked Mr. Knoblauch if he wanted to call a lawyer. [24] These two inaccuracies negatively affect the credibility and reliability of Constable Tyndall’s testimony. As a result I find

that at no time did Constable Tyndall ask Mr. Knoblauch if he wanted to call a lawyer. Nor do I accept his evidence that at any time(including 9:32 p.m. or 10:28 p.m.) Mr. Knoblauch declined to call a lawyer. [25] In this case the police car video (Exhibit P-3) reveals that at 9:30 p.m., Constable Tyndall arrested Mr. Knoblauch forimpaired driving and advised Mr. Knoblauch as follows: You have the right to retain and instruct counsel without delay and you may call any lawyer which you wish.

Legal Aid duty counsel isavailable to provide immediate legal advice free of charge and can explain the Legal Aid Plan to you. I can provide you with the numberyou can call free of charge. Do you understand? [26] Mr. Knoblauch indicated he understood his right to counsel. Constable Tyndall then proceeded to respond to aradio call from another officer who was asking for his assistance. At 9:32 p.m., after speaking to the other officer, Constable Tyndallmade a breath test demand of Mr. Knoblauch and also provided a police warning to him. Further discussions and interactions occurredbetween Constable Tyndall and Mr.

Knoblauch at roadside and at the detachment. [27] Defence counsel takes the position that Mr. Knoblauch’s

section 10(

b) Charter rights were breached at the roadside asConstable Tyndall did not ask Mr. Knoblauch “if he wanted to call a lawyer now”. Defence counsel submits this sentence is an essentialcomponent to the right to counsel in that it alerts the accused person to the point in time that their right to counsel has accrued. Defencecounsel further submits it triggers the implementational component and the corresponding duty on the accused to be diligent in pursuingthat right. I disagree. [28] In R v Papadopoulos, [2006] OJ No 5405, Justice F.

Dawson of the Ontario Superior Court of Justice dealt with a similarargument as follows at paragraphs 25 to 31: 25 Detective Woudstra provided the accused with his rights to counsel in substantial accordance with the standard format used inOntario. However, he left out two brief portions, which I have inserted and placed in square brackets in the quotation from the transcriptwhich follows. The rights to counsel, as they appear at page two of the transcript with the omitted portion interlineated, reads as follows: W - Okay, now, uh, I'm gonna say some things to you here okay, and I want you to listen carefully.

This is a caution to you: we'veconducted our investigation and uh we have reason to believe that uh you have knowledge of this uh homicide, and uh, possiblyinvolved. It is my duty to inform you that you have the right to retain an [and instruct] counsel without delay. You have the right totelephone any lawyer you wish, you also have the right to free advice from a legal aid lawyer. If you are charged with an offence youmay apply to the Ontario Legal Aid Plan for legal assistance.

There's a 1-800 number, 265-0451 and that's a toll-free number that will putyou in contact with a Legal Aid duty counsel for free legal advice right now. Do you understand that right to counsel? [Do you wish tocall a lawyer now?] So if you want to talk to a lawyer, I don't know if you have a lawyer or uh, whether you want one or not, but that'syour right. And also this is a caution to you that you may be charged with the offence of murder. 1W - ‘Kay 26 Counsel for the accused argues that leaving out the question: "Do you wish to call a lawyer now?", is fatal.

He submits thatwithout this question the informational component of s. 10(

b) suffers from the same flaw as the caution given by the police and found tobe defective in R. v. Bartle, (SCC), [1994] 3 S.C.R. 173.

I cannot accept this submission. 27 In Bartle, the accused was told the following, as can be seen at para. 2 of the judgment: [1] You have the right to retain and instruct counsel without delay. [2] You have the right to telephone any lawyer that you wish. [3] You also have the right to free advice from a Legal Aid lawyer. [4] If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for legal assistance. 28 In Bartle, there was no mention of the available duty counsel services or that there was a toll-free number for immediatelegal advice.

The officer in Bartle, as in this case, did not read the question printed on the caution card: "Do you want to call a lawyernow?"

29 In Bartle, the accused testified that he thought the caution he received meant he could call a lawyer when one was availableon Monday morning. He was arrested Friday evening. 30 Chief Justice Lamer wrote for the Court. He stressed the importance of the completeness of the informational component ofthe s. 10(

b) right to counsel. He referred to the decision of the Court in R. v. Brydges, (SCC), [1990] 1 S.C.R. 190. Henoted, at para. 23 of his judgment in Bartle, that Brydges had the effect of adding two new elements to the informational component ofthe s. 10(

b) caution in use at that time. The first was information about access to counsel free of charge, and the second was informationabout access to immediate legal advice from duty counsel, where available. Chief Justice Lamer found the rights to counsel cautionadministered to Bartle to be lacking in regard to these two factors.

He made it clear that a rights to counsel warning must indicate thatlegal advice is immediately and universally available without concern about financial matters. 31 While the rights to counsel advice given to the accused in the case at bar did not contain the question, "Do you wish to call alawyer now?", it did make it perfectly clear that the accused could contact any lawyer he wished and that free legal advice was available"now" by means of a toll-free telephone number.

In the circumstances of this case, where there is no evidence which even hints that theaccused did not understand he could call a lawyer immediately, I conclude the words used satisfied the informational component of s.10(

b) of the Charter as discussed in both Bartle and Brydges. [29] I adopt this reasoning. While the rights to counsel advice given to Mr. Knoblauch at roadside at 9:30 p.m. did not contain thespecific question, “Do you wish to call a lawyer now?”, it did make it clear that Mr. Knoblauch could contact any lawyer he wished andthat immediate legal advice free of charge was available to him by means of a telephone number he could call free of charge. Moreover,I find that at 9:37 p.m., Constable Tyndall responded to a general inquiry from Mr. Knoblauch which reinforced the informationalcomponent of s. 10(b).

The officer told Mr. Knoblauch that he was arrested for impaired driving and he was going to be taken to theLumsden RCMP Detachment where he was going to get an opportunity to talk to a lawyer and provide breath samples. Overall, Iconclude the words used by Constable Tyndall satisfied the informational component of s. 10(

b) of the Charter. [30] Lastly, I find Mr. Knoblauch understood his right to counsel and did not assert it. Mr. Knoblauch did not have any questionswith respect to contacting a lawyer, nor did he indicate that he wanted to contact a lawyer at roadside or at the detachment. Were the accused’s

section 10(

b) rights afforded “without delay”? [31] Defence counsel submits that Mr. Knoblauch’s

section 10(

b) Charter rights were breached when he was held at roadside for28 minutes (9:30 to 9:58 p.m.) while Constable Tyndall waited for another officer to arrive for the purpose of having Mr. Knoblauch’svehicle towed from the scene. In this case Constable Tyndall determined that Mr. Knoblauch was a suspended driver and decided toimpound Mr. Knoblauch’s vehicle. He remained at the scene until another officer arrived to deal with Mr. Knoblauch’s vehicle andpassenger. [32] In R v Straub, 2015 SKPC 84 , 2015 SKPC 084, Judge Kalmakoff (as he then was) stated as follows: [17] The mere fact that there is some delay in implementing the right to counsel does not automatically mean that

section 10(

b) isviolated. In R v Suberu, 2009 SCC 33, [2009] 2 SCR 460, the Supreme Court noted that while the phrase “without delay” in section10(

b) means “immediately”, it does not mean “instantaneous”. Practical considerations still play a role when determining whether thepolice have met their obligation to implement an arrested person’s contact with counsel. Courts must keep in mind that people are notalways arrested in locations or circumstances where it is possible for police to implement immediate access to counsel. [18] That said, where there is a delay in implementation, the burden is on the Crown to show that the delay was reasonable in thecircumstances.

This is a fact-specific determination. . . . [33] I am of the view that a 28 minute delay in departing the scene was reasonable in the circumstances. The Craven Jamboreewas being held nearby. Police were busy. Constable Tyndall was dealing with two individuals who were thought to be intoxicated. Hisattention was divided. Mr. Knoblauch was in the back seat of the patrol car. Mr. Knoblauch’s passenger was in Mr. Knoblauch’svehicle. I do not accept the suggestion that Constable Tyndall should have allowed the passenger to walk to his home. Responsible

police officers do not let intoxicated people walk home. Nor do I accept that Constable Tyndall should have retrieved Mr. Knoblauch’scell phone from his truck and provided him with privacy to make a call. In this case I have found that Mr. Knoblauch did not assert hisright to counsel. There was no need to provide Mr. Knoblauch with a cell phone. [34] In this case I am not satisfied, on a balance of probabilities, that there was a violation of Mr. Knoblauch’s rightsunder

section 10(

b) of the Charter, in that he was denied the opportunity to retain and instruct counsel without delay. VOIR DIRE CONCLUSION [35] I have found there was no breach of Mr. Knoblauch’s

section 10(

b) Charter rights. As a result, I find that theCertificate of Analyses [Exhibit P-1] will be admitted into evidence at trial. TRIAL ISSUES 1. Has the Crown proved the accused is guilty of the offence of operating a motor vehicle while over .08? 2. Has the Crown proved the accused is guilty of the offence of operating a motor vehicle while impaired by alcohol? TRIAL ANALYSIS Has the Crown proved the accused is guilty of the offence of operating a motor vehicle while over .08? [36] The Certificate of Analyses [Exhibit P-1] reveals at 10:37 p.m., Mr.

Knoblauch had 190 milligrams of alcohol in 100millilitres of his blood. At 11:27 p.m., Mr. Knoblauch had 180 milligrams of alcohol in 100 millilitres of his blood. Accordingly, I findthat the Crown has proved the accused is guilty of the offence of operating a motor vehicle while over .08. Has the Crown proved the accused is guilty of the offence of impaired driving? [37] R v Stellato, (ON CA), [1993] OJ No 18 (CA), affd (SCC), [1994] 2 SCR 478 (SCC),provides the test to be applied in determining whether the offence of impaired driving has been established.

If the Crown has provenbeyond a reasonable doubt that the ability of an accused to operate a motor vehicle is even slightly impaired by drug or alcohol, there issufficient proof of the offence. This does not mean that only slight evidence will be adequate. Rather, the evidence as a whole mustestablish that such an inference can reasonably be drawn from conduct which is a departure from the norm.

That departure may fall upona continuum from slight to great, but it must lead to no other reasonable conclusion but that the accused’s ability to operate a motorvehicle was impaired to some degree by the consumption of alcohol. [38] In this case Constable Tyndall testified that Mr. Knoblauch’s signs of impairment consisted of: (1) having a bunch of sunflower seeds in his mouth; (2) smell of alcohol coming from his vehicle; (3) staggered walk; (4) admitted consumption of alcohol; and (5) droopy and glassy eyes.

[ 39 ] A number of these observations respecting Mr. Knoblauch can be attributed to causes other than impairment from alcohol. For example, I find that Mr. Knoblauch was in bare feet that evening. It is possible his walk was affected by treading on tiny stones on the road surface on July 12, 2014. Likewise, having a bunch of sunflower seeds in one’s mouth is not in my view indicative of impairment. [ 40 ] There were other observations which cast doubt on Mr. Knoblauch’s impairment.

These include: (1) there was nothing unusual about his manner of driving; (2) he promptly pulled to the side of the road when signalled to do so; (3) he was responsive to the officer’s questions and directions; (4) he had no difficulties getting out of his vehicle or into the patrol car; and (5) he gave the officer directions on how to depart from Regina Beach to go to Lumsden. [ 41 ] After considering the evidence as a whole, I am not satisfied that the Crown has established that Mr. Knoblauch’s ability to drive a motor vehicle was impaired by the consumption of alcohol.

CONCLUSION [ 42 ] I find the accused is not guilty of the impaired driving charge. I hereby convict the accused on the driving while over .08 charge. M. Hinds, J