Her Majesty the Queen - v. -, 2013 SKPC 175

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 175 Date: November 21, 2013 Information: 24440547 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lyle Ehrmantraut Appearing: Ms. Lori O’Connor For the Crown Mr. Sheldon Pinx, Q.C. For the Accused DECISION I. CARDINAL , J INTRODUCTION [ 1 ] On March 31, 2012, Mr. Ehrmantraut was stopped by the RCMP in Tisdale, Saskatchewan. He was subsequently given a demand to provide a breath sample into an approved screening device, which resulted in a reading of a “fail”. Mr.

Ehrmantraut was then taken to the detachment and provided two samples of his breath, both of which exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[ 2 ] As a result, Mr. Ehrmantraut was charged with impaired operation of a motor vehicle and operating a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, both contrary to s. 253(1) and 255(1) of the Criminal Code . [ 3 ] The trial proceeded on July 16, 2013, with argument on October 11, 2013. During the course of the trial, defence counsel raised Charter issues alleging that Mr.

Ehrmantraut’s s. 8 and s. 9 Charter rights were violated and as a result the Court ought to exclude all of the evidence, notably the fail result obtained from the approved screening device test. If the fail result is admitted into evidence, the defence alleges that the officer did not have the necessary reasonable and probable grounds to make the breathalyzer demand and as a result, Mr. Ehrmantraut’s s. 8 and 9 Charter rights were violated and the Court should exclude the Certificate of Analyses. [ 4 ] The matter proceeded with all of the evidence being called in a voir dire . The Crown called one witness, Cst.

Hennigar to testify. The defence called no evidence. By agreement of both counsel, the evidence from the voir dire will be applied to the trial proper. ISSUES

(1) Did Cst. Hennigar have grounds to make the ASD demand?

(2) Did Cst. Hennigar have reasonable and probable grounds to make the breath demand?

(3) Was there a violation of Mr. Ehrmantraut’s s. 8 or 9 Charter right at either the approved screening device demand or the breathalyzer demand, and if so, should the result of either or both of those be excluded from evidence? FACTS [ 5 ] The facts are not in dispute. On March 31, 2012, Cst. Hennigar, a member of the RCMP, was on patrol in Tisdale, Saskatchewan. He was aware there had been a rodeo and other activities, including a beer garden at the Recplex that day. As he drove by the Recplex at approximately 1:30 a.m., he observed vehicles starting to leave that area as the beer garden was closing down.

He observed Mr. Ehrmantraut, driving a white 2011 Ford Edge, leave the Recplex parking lot and head south on Main Street in Tisdale, Saskatchewan. He testified that the vehicle was going “a little bit slow” and that is what initially caught his attention. However, he was clear this observation played no role in forming any belief of impairment. [ 6 ] He followed the vehicle for about 400 to 500 yards on Main Street. The vehicle approached a four-way intersection and the officer noted the driver signalled but did not make a complete stop at the stop sign. The vehicle turned onto Highway #3 and Cst.

Hennigar activated his emergency lights in order to pull the vehicle over to check for licence, registration and sobriety. Up to this point, Cst. Hennigar agreed that the driver’s manner of driving appeared normal with no swerving, lurching or weaving. [ 7 ] The officer followed the vehicle several hundred yards along Highway #3 with his emergency lights operating. However, Mr. Ehrmantraut did not pull over to the shoulder but continued to drive and turned into the parking lot of the Canalta Hotel. Mr. Ehrmantraut pulled into a parking stall.

The officer testified that the stall was a “decent sized parking spot” and the manner of parking appeared to be normal, but, before fully entering the parking stall, Mr. Ehrmantraut stopped, reversed, and drove to the back of the parking lot of the hotel. [ 8 ] Cst. Hennigar, still with emergency lights activated, followed the Ehrmantraut vehicle toward the back of the parking lot. He pulled up beside the Ehrmantraut vehicle and activated his air horn at which time Mr. Ehrmantraut came to a stop. The time of the stop was 1:34 a.m. The officer approached the vehicle and Mr.

Ehrmantraut, the sole occupant, rolled down his window without difficulty. [ 9 ] Cst. Hennigar observed the driver appeared to be tired, but identified himself as Mr. Ehrmantraut and told the officer that he had been a presenter at the rodeo and trade show earlier that day.

[ 10 ] At this time the constable noted an odour of alcohol coming from the interior of the vehicle, but was clear it was not coming from Mr. Ehrmantraut’s breath. [ 11 ] He asked Mr. Ehrmantraut if he had anything to drink “that day” and Mr. Ehrmantraut stated that “yes he had been drinking”. Cst. Hennigar did not ask Mr. Ehrmantraut any further questions but asked him to accompany him to the police cruiser at 1:37 a.m. There was nothing unusual about the accused’s manner of walking the short distance to the cruiser. [ 12 ] Cst.

Hennigar testified that when he asked the accused to accompany him to the cruiser, he had already decided he was going to make the approved screening device (ASD) demand based upon the driving he observed and the smell of alcohol. [ 13 ] The officer placed Mr. Ehrmantraut in the back of the police cruiser and the officer was in the front. He opened the silent patrolman to speak to the accused. While in the police vehicle the officer noted a strong smell of beverage alcohol coming from the back seat. At 1:40 a.m., Cst. Hennigar made the demand, from a card he carried, that Mr.

Ehrmantraut blow into the approved screening device. Mr. Ehrmantraut stated he understood and agreed to comply. The officer observed that Mr. Ehrmantraut was upset and appeared to be on the verge of crying at one point in the police cruiser. [ 14 ] At 1:43 a.m., a single breath sample was provided which registered a “fail” result on the ASD. Cst. Hennigar testified that this result meant to him that Mr. Ehrmantraut’s ability to operate a motor vehicle was impaired by alcohol. In relation to the breath sample he testified that the fail result means that it is over “a set limit of 100”.

The officer did not clarify what he meant by “a set limit of 100”. [ 15 ] As a result of Mr. Ehrmantraut providing a “fail” result, Cst. Hennigar formed the opinion that Mr. Ehrmantraut’s ability to operate a motor vehicle was impaired by alcohol. He arrested him for operating a motor vehicle while impaired by alcohol. At 1:47 a.m., he gave Mr. Ehrmantraut his rights to counsel to which he indicated he understood and wished to speak to a lawyer. He then read him the breath demand from his card, demanding that Mr. Ehrmantraut provide samples of his breath for analysis and accompany the officer for that purpose.

Mr. Ehrmantraut indicated he understood and they proceeded to the detachment. [ 16 ] At the detachment, Mr. Ehrmantraut walked from the cruiser into the cell block area, lost his balance and bumped into a wall. [ 17 ] After speaking with counsel between 2:04 a.m. and 2:42 a.m., Cst. Hennigar again read the breath demand and Mr. Ehrmantraut agreed to provide breath samples. Two samples of his breath were taken and a Certificate of Analyses entered into evidence as Exhibit P-1. The first sample was taken at 2:52 a.m. and the second at 3:13 a.m. [ 18 ] Mr.

Ehrmantraut was released from custody at approximately 3:45 a.m. ANALYSIS

(1) Did Cst. Hennigar have the grounds to make the ASD demand? [ 19 ] Section 254(2) of the Criminal Code states:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, ... whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a) , in the case of a drug, or with either or both of paragraphs (

a) and (b) , in the case of alcohol:

... (

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 anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [20] In R. v. Nahorniak, 2010 SKCA 68, involving an ASD demand, the Saskatchewan Court of Appeal observed at paragraph 23: [23] In deciding whether an officer had grounds to make the demand and administer the test, a court must consider all the circumstancesand evidence with respect thereto known to him when he made the demand. (See: R. v.

Shepherd, 2009 SCC 35 , 2009 SCC 35, 309 D.L.R. (4th) 139, appealed from 2007 SKCA 29 , 2007 SKCA 29.) [21] The threshold for “grounds to reasonably suspect” is low. A reasonable suspicion is something more than a mere suspicionand something less than a belief based on reasonable and probable grounds. (See R. v. Kang-Brown, 2008 SCC 18 , [2008] 1S.C.R. 456 at para. 75-78.) The officer must subjectively believe he has a suspicion and that suspicion must be supported on an objectiveanalysis. The Saskatchewan Court of Appeal considered the issue of reasonable suspicion in R. v. Butchko, 2004 SKCA 159 ,[2004] S.J.

No. 735 (Sask. C.A.). There the Court found that simply the smell of alcohol emanating from a person’s breath wassufficient to ground the ASD demand. The Court adopted the following words from the Ontario Court of Appeal in R. v. Lindsay, (ONCA): There need only be a reasonable suspicion and that reasonable suspicion need only relate to the existence of alcohol in the body. Theofficer does not have to believe that the accused has committed any crime. We see no need to put a gloss on the words of s. 254(2).

Thefact that there may be an explanation for the smell of alcohol does not take away from the fact that there exists a reasonable suspicionwithin the meaning of the section. [22] Most recently, in R. v. Mitchell, 2013 MBCA 44, the Manitoba Court of Appeal, after a lengthy review of cases concerning“reasonable grounds to suspect” involving the ASD demand adopted this test: The standard of “reasonable grounds to suspect” was well explained by Shelley J. in R. v.

Chipchar, 2009 ABQB 562 (QL) (at para. 20;see also para. 19): Thus, reasonable suspicion requires only that the belief be one of a number of possible conclusions based on the supporting facts, not aprobability. In R. v. Jacques, (SCC), [1996] 3 S.C.R. 312, Gonthier J., for the majority, held that the “suspicion onreasonable grounds” standard in the Customs Act requires only that there is a possibility that an offence is being committed. [23] Defence counsel argues that while Cst. Hennigar had subjective grounds to make the demand, on an objective analysis thegrounds do not exist.

He argues that the officer only had grounds to suspect that Mr. Ehrmantraut had consumed alcohol at some pointearlier in the day, and not that he currently had alcohol in his body. Counsel submits the police ought to make further inquiries to satisfythemselves as to quantity and timing of the drinking and relies upon this excerpt concerning “reasonable suspicion” from R. v. Beechinor,[2004] S.J.

No. 187 (SKPC) at para. 23: 23 Although the threshold is low, there nonetheless must be evidence capable of demonstrating that the officers have reasonablesuspicion that the driver has alcohol in his or her body in order to make the ASD demand. This does not mean simply that alcohol hasbeen consumed at some point that day or the officer could detect alcohol in the vehicle or even on the person. The suspicion must bethat the accused had alcohol in the body at that time and there must be objective evidence to support this conclusion. (My emphasis) [24] The argument of a temporal connection holds no sway.

There is no requirement for the police to inquire as to the drinkinghistory of the accused prior to making the ASD demand. Other case law suggests that this statement from Beechinor is not correct inlaw. In R. v. Bernshaw, (SCC), [1994] S.C.J. No. 87, no evidence was presented regarding the accused’s last drink nordid the officer inquire as to when the accused had last consumed alcohol. At para. 80 and 81, the Supreme Court of Canada observed: 80 In the present case, there is absolutely no evidence with respect to the timing of the respondent’s last drink. That is, it is unknown

whether any alcohol was consumed within a period of 15 minutes prior to the screening test. The police officer made no inquiryconcerning how long it was prior to administering the screening test that the respondent last consumed alcohol. Without ConstableMashford having this knowledge, it is too speculative to assert that the screening device was unreliable.

Where the particular screeningdevice used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidenceto the contrary. 81 It was suggested by the respondent that prior to demanding that a suspect submit a breath sample for the screening test, the policeofficer ought to inquire when the suspect last consumed alcohol in order to ensure an accurate test. However, in my view, there is noduty on the police to make any such inquiry.

A suspect is under no obligation to answer such a question and thus it would be improper toimpose such a duty on the police. That is not to say that the suspect may not volunteer such information, either spontaneously or inresponse to a query of the police. [25] In Butchko, infra, the Saskatchewan Court of Appeal found that the smell of alcohol from a person’s breath alone, withoutany other information, is sufficient to provide an officer with reasonable suspicion to make the ASD demand.

Other cases have held thata drinking history need not be elicited for there to be sufficient grounds to make the ASD demand. (See Mitchell, infra, at para. 37; R. v.Drysdale, 2013 SKQB 392, at para. 29 which references R. v.

Ishmael, 2012 ABCA 282, for further support of this position.) [26] Defence counsel also submitted that, given the officer’s evidence that the manner of operation of his vehicle by Mr.Ehrmantraut was consistent with a sober driver, that his speech was normal and he responded appropriately to questions asked, nor did hehave any difficulty with his fine motor skills or hand/eye coordination, there is nothing to support a reasonable suspicion that Mr.Ehrmantraut currently had alcohol in his body at the time he was stopped.

The fact that the speech of the accused is normal, or that hisfine motor skills appear to be intact is of no consequence for an approved screening device demand. Nor is it relevant that the officeragreed the manner of operation of the motor vehicle was consistent with a sober driver. The basis for making a screening device demandis one of “reasonable suspicion that a person has alcohol in their body”. [27] Cst. Hennigar testified that when first speaking to the accused, he believed the smell of alcohol was coming from the interiorof Mr. Ehrmantraut’s vehicle.

He was clear that he did not smell alcohol on the breath of Mr. Ehrmantraut at this stage. I agree withdefence counsel that I cannot consider the smell of alcohol noted by the officer while in the patrol vehicle as the officer had alreadydecided to make the ASD demand on the walk to the patrol car. [28] Counsel argues the failure of Cst. Hennigar to isolate Mr. Ehrmantraut to determine if the alcohol was emanating from hisbreath undermines his reasonable suspicion to make the ASD demand. With respect, I cannot agree. Unlike R. v. Yates, [2013] S.J. No432, the evidence established that Mr.

Ehrmantraut was the sole occupant of his vehicle. Cst. Hennigar was entitled to use the smell ofalcohol as part of the basis for his reasonable suspicion the accused had alcohol in his body at the time the screening demand was made. As noted in Nahorniak, supra, at paragraphs 26 and 27: [26] Mere failure to smell alcohol on a person’s breath is not fatal to forming reasonable suspicion. In this case, Nahorniak was in theback seat of a police cruiser.

Knowles was not obliged to sniff various parts of Nahorniak’s body or the cruiser to eliminate allspeculative scenarios such as the smell coming from the cruiser itself or only the clothes of Nahorniak before he could have reasonablesuspicion. (See: R. v. Lindsay, (ON CA), (1999), 134 C.C.C. (3d) 159 (Ont. C.A.), para. 2, R. v. Shepherd, supra.)Whether it is necessary to isolate the accused’s breath as the source of the alcohol smell will depend on whether the source of the alcoholsmell is unclear given the circumstances.

In this case it was obvious the smell was emanating from Nahorniak. [27] The smelling of alcohol on a person’s breath, although cogent evidence of alcohol in the body, is not always the sine qua non of“reasonable suspicion”. R. v. Butchko, 2004 SKCA 159 , 2004 SKCA 159, [2005] 11 W.W.R. 95 merely stands for theproposition that the smell of alcohol on the accused’s breath may be a sufficient condition of reasonable suspicion rather than a necessaryone. [29] In R. v.

Drysdale, 2013 SKQB 392, the Saskatchewan Court of Queen’s Bench again thoroughly reviewed the case law on theASD demand and agreed with the decision by the Manitoba Court of Appeal in Mitchell, infra. Mr. Drysdale was stopped by police ashe left the parking lot of a Motor Inn. There were four other people in the vehicle. In checking licence, registration and sobriety theofficer asked where they were coming from and they indicated a bar attached to the Inn. The officer asked Mr. Drysdale when his lastdrink was and he said he had a drink that evening, since supper.

The officer then asked him to accompany her to the police vehicle to doan ASD. The Court found that the reasonable suspicion of the officer was based upon: the time of night, location and time (ie. - justleaving the bar); and admission of one drink. The Court found that this was sufficient evidence to justify the ASD demand andoverturned the acquittal of Mr. Drysdale and found him guilty.

[30] In all the circumstances I find that on an objective analysis, Cst. Hennigar had reasonable grounds to suspect that Mr.Ehrmantraut had alcohol in his body at the time he made the ASD demand based on the manner of driving, the time of day and locationbeing the officer believed the beer gardens were closing, the admission of drinking, and the smell of alcohol from the interior of thevehicle with the sole occupant being Mr. Ehrmantraut. [31] Having found the officer did have reasonable grounds to suspect that Mr.

Ehrmantraut had alcohol in his body, it follows thatthere was no violation of his s. 8 or s. 9 Charter rights and therefore there is no need to conduct a Grant analysis. The resulting “fail” isadmissible into evidence.

(2) Did Cst. Hennigar have reasonable and probable grounds to make the breath demand? [32] Having observed the manner of driving of Mr. Ehrmantraut, and the resulting “fail” on the approved screening device, wasthis sufficient to give Cst. Hennigar reasonable and probable grounds to make the breath demand? [33] The Crown must prove, on a balance of probabilities, that the officer had reasonable and probable grounds to make thedemand.

As noted in Bernshaw, infra at para. 48: 48 The Criminal Code provides that where a police officer believes on reasonable and probable grounds that a person has committed anoffence pursuant to s. 253 of the Code, the police officer may demand a breathalyzer. The existence of reasonable and probable groundsentails both an objective and a subjective component. That is, s. 254(3) of the Code requires that the police officer subjectively have anhonest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief. (citationsomitted) [34] Cst.

Hennigar testified in-chief that the result of the ASD was “an F or a fail”. He was then asked by the Crown: “And inparticular in relation to the breath sample, what does the fail result indicate?” His response was: “It means that it’s over a set limit of100.” Cst. Hennigar did not elaborate upon this result being “over a set limit of 100”. He did outline the process he followed inexplaining to the accused what the ASD was and how to blow into the instrument. He testified the ASD had recently been calibrated andhe believed it was able to give an accurate reading.

He mentioned that the way the ASD works is from .50 to .99 if somebody blows inthat range you get an “A”. While it is preferable for the officer to explain the basis of the “fail” reading, in the circumstances here, I findhis explanation was sufficient. It was clear that the “F” result displayed on the ASD indicated that the blood alcohol content in theperson being tested was at least 100 milligrams percent.

He testified that the “fail” result on the ASD meant to him that Mr.Ehrmantraut’s ability to operate a motor vehicle was impaired by alcohol and as a result, he arrested him for “operating a motor vehiclewhile impaired by alcohol”. [35] Counsel for Mr. Ehrmantraut relies upon R. v. Ostberg, 2012 MBPC 30, for the proposition that a fail result on the ASD,alone without other evidence, does not give an officer reasonable and probable grounds to arrest for the offence of impaired driving. Thetrial judge in Ostberg, infra, relied upon this passage by Mr. Justice Sopinka, from R. v. Bernshaw, (SCC), [1994]S.C.J.

No 87; [1995] 1 S.C.R. 254, for support of the argument that a “fail” result alone on the ASD does not provide reasonable andprobable grounds to make the breath demand: [50] Nonetheless, as I stated at the outset, it cannot be said that a “fail” result per se provides reasonable and probable grounds. If thatwere the case, it was open to Parliament to indicate this intention in the Criminal Code. Yet, nowhere in s. 254 is it indicated that a “fail”result on an approved screening device is deemed to provide reasonable and probable grounds.

Thus, it is necessary to determine as aquestion of fact in each case whether or not the police officer had an honest belief based on reasonable and probable grounds that thesuspect had committed an offence under s. 253 of the Code. [36] I do not agree with the analysis and application of Bernshaw as outlined in Ostberg, infra. Rather, I prefer this analysis by mybrother Judge Morgan in R. v. Shynkaruk, 2013 SKPC 155, in reference to the above quote from Bernshaw: [40] That comment made by Mr.

Justice Sopinka was made in that portion of the judgment when he was dealing with the followingspecific issue, identified at para. 47:

[47] Did the Court of Appeal err in law by ruling that unless a peace officer either ascertains when a driver consumed his last drink of alcohol or waits at least fifteen minutes before administering an approved screening device test, one cannot rely on a “ fail ” reading on the approved screening device test in making a breathalyzer demand under s. 254(3) of the Criminal Code ? [41] In para. 50, Mr.

Justice Sopinka was referring specifically to the argument that a “ fail ” result per se would form sufficient grounds to make the breath demand under s. 254(3), even if the officer has reason to believe the approved screening device was not giving a proper reading. That was the position taken by some of the Supreme Court judges, who were of the view that even if the “ fail ” result is wrong, any errors due to recent consumption can be sorted out at the Intoxilyzer test stage. Thus, as I read that comment by Mr. Justice Sopinka, he is rejecting that particular view.

As he says in para. 49, “ normally, where a properly conducted roadside screening test yields a “ fail ” , this alone will be sufficient to furnish a police officer with such grounds ” . [ 37 ] In his reasoning, Justice Sopinka specifically stated at para. 79 that he was assuming “that absent the “fail” result on the screening test, there would not have been sufficient reasonable and probable grounds to demand a breathalyzer.

Therefore, it must be determined if Constable Mashford was entitled to rely on the “fail” result of the screening test.” [ 38 ] At paragraph 86, Justice Sopinka concluded that the police officer had the necessary reasonable and probable grounds to make a breathalyzer demand. To reiterate, this was on the basis of the “fail” result on the ASD only. [ 39 ] In this case, Cst.

Hennigar was entitled to rely on the “fail” result of the ASD to form the basis of his reasonable and probable grounds to make the breath demand, even if the accused appeared to be operating the vehicle as a sober driver would. [ 40 ] On the basis of Ostberg, infra , defence counsel argued that Cst. Hennigar, having arrested Mr. Ehrmantraut for the offence of impaired driving, had arrested him for the wrong offence as there was no evidence of impaired driving. As I understand the argument, the officer, having obtained a “fail” result on the ASD, could only arrest Mr.

Ehrmantraut for the offence of driving over 80 milligrams percent as the fail result indicates he was operating over the legal limit. The fail result cannot be used as evidence that Mr. Ehrmantraut was operating a vehicle while impaired - it can only be used to form the basis of reasonable and probable grounds to make the breath demand. Having arrested him for impaired operation of a motor vehicle, the arrest was unlawful and a violation of his Charter rights. [ 41 ] This argument is without merit. The approved screening device is but one tool to aid the police in detecting impaired drivers.

On the basis of the fail result, Cst. Hennigar was entitled to make the breath demand in s. 254(3) . He had “reasonable grounds to believe that a person is committing an offence under

section 253 as a result of the consumption of alcohol” as required by s. 254(3) .

Section 253 includes both impaired operation and over 80. It matters not whether he arrested him for impaired operation, or for operation of a motor vehicle over 80, or both, or simply told him he was arresting him for an offence under s. 253 without particularizing the offence, as the “fail” result on the ASD provided reasonable grounds for Cst. Hennigar to believe Mr. Ehrmantraut was committing an offence under s. 253. Thus, he was entitled to demand Mr.

Ehrmantraut accompany him for the purpose of providing breath samples. [ 42 ] In all of the circumstances I find the Crown has proven on a balance of probabilities that Cst. Hennigar had reasonable and probable grounds to make the breath demand. The driving evidence indicates a person who was apparently oblivious to or ignoring the police direction to pull over. Even if one ignores the driving evidence in its entirety, the officer had reasonable and probable grounds to make the breath demand upon obtaining the “fail” result on the approved screening device.

On this basis there is no violation of s. 8 or 9 of the accused’s Charter rights and no need to proceed with a Grant analysis. [ 43 ] The Certificate of Analyses (Exhibit P-1) is admitted into evidence as a full exhibit. CONCLUSION [ 44 ] Counsel have agreed that the evidence from the voir dire is to be applied to the trial proper. The Crown indicated it was calling no further evidence on the trial proper. Defence has indicated it is not calling any evidence on the trial proper. [ 45 ] Applying all of the evidence from the voir dire to the trial proper, I accept the evidence of the police officer.

He was credible and forthright in his evidence and it is uncontradicted. In all of the circumstances, I am convinced beyond a reasonable doubt that the

accused operated a motor vehicle while the alcohol content in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. The Certificate of Analyses indicates that at 2:52 a.m., Mr. Ehrmantraut’s first reading was 210 milligrams of alcohol in 100 millilitres ofblood and at 3:13 a.m., his second reading was 190 milligrams of alcohol in 100 millilitres of blood. Using the lower reading of 190milligrams of alcohol in 100 millilitres of blood it is clear that at the time of driving Mr.

Ehrmantraut was operating a motor vehicle wellover the legal limit of 80 milligrams of alcohol in 100 millilitres of blood. I find him guilty of Count 2. [46] I find in all of the circumstances I am also convinced beyond a reasonable doubt that his ability to operate a motor vehicle wasimpaired by alcohol. Any degree of impairment, from slight to great, will suffice to ground a conviction. (See R. v.

Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, aff’d (SCC), [1994] 2 S.C.R. 478n.) [47] The combined evidence of the driving from the time the police officer observed the incomplete stop at the stop sign, thefailure of the accused to acknowledge the emergency lights of the police vehicle over the course of some distance and pull over, the odddriving in the parking lot of the hotel and not stopping until the officer, with lights still flashing, used the siren; the strong smell ofalcohol emanating from the accused in the rear of the patrol car; and the accused bumping into the wall at the police station prove hisability to operate a motor vehicle was impaired by alcohol at the time the officer stopped him, and I find him guilty of Count 1.

However, I enter a conditional stay of proceedings on the impaired driving charge pending the outcome of any appeal. I. Cardinal, J