Her Majesty the Queen - v. -, 2011 SKPC 193

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 193 Date: December 22,2011 Information: 24404149 Ticket: 7262354 Location: North Battleford, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cody William Prior Appearing: Brenda. Korchinski For the Crown Shannon K. C. Prithipaul For the Accused JUDGMENT V. H. MEEKMA , J I. INTRODUCTION [ 1 ] The accused is charged that: On or about the 16 th day of April, A.

D. 2011, at North Battleford, in the Province of Saskatchewan, while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle contrary to section 255(1) and section 253(1) (

a) of the Criminal Code ;

Count #2: and further that on or about the 16 th day of April, A. D. 2011, at North Battleford, in the Province of Saskatchewan, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle contrary to section 255(1) and section 253(1) (

a) of the Criminal Code . As well, the accused is charged with driving at a speed that is greater than reasonable and safe, contrary to s. 199(3) of The Traffic Safety Act , prosecuted by

summary offence notice. Counsel agreed that the evidence called on the criminal charges would also apply to the ticket. [ 2 ] The Crown did not file a Certificate of Analyses, but put in the evidence of the readings through the breath technician. [ 3 ] There was a 56-minute delay between the first and second samples due to the accused coughing several times after the first sample, and the breath technician being under the mistaken belief that he had to wait 15 minutes after each cough in order to obtain a valid sample.

The accused argued that the samples were not taken as soon as practicable, therefore, the Crown could not rely on the presumption in s. 258(1)(c). No expert evidence was called to extrapolate the results back to the time of driving. II. FACTS [ 4 ] The arresting officer, Constable Evan MacDonald, testified that at approximately 12:42 a.m., he observed the accused driving a large welding truck down Railway Avenue in North Battleford at a high rate of speed.

Constable MacDonald followed the truck for six blocks before he caught up to him, then continued to follow at a constant speed of 100 kilometres per hour for at least two further blocks, in a 50 kilometre zone. The truck was weaving and crossed the white line dividing the two eastbound lanes. The vehicle took a long time to stop after the officer engaged his emergency equipment.

It drove into a cardlock parking lot on Battleford Road and then back out again before coming to a stop and parking properly. [ 5 ] At the driver’s door window, Constable MacDonald noted a “moderate odour of beverage alcohol” coming from the vehicle. He testified that the accused had “cotton mouth”, which he described as “sounding like his mouth was full of cotton”. When asked for his driver’s licence and registration, the accused pulled out his wallet and fumbled with it. He provided a Visa and business card for identification.

Constable MacDonald testified in evidence in chief that the accused never provided a registration or driver’s licence and that from CPIC he was able to determine that the accused had a British Columbia licence. On cross-examination, Constable MacDonald admitted, when confronted with his notes, that the accused may have provided a driver’s licence, and had a money clip, not a wallet.

He was relying on what people normally produce when testifying that the accused had a wallet. [ 6 ] Constable MacDonald had no note that the accused failed to produce a registration or had difficulty grasping documents, but had noted that he fumbled with his money clip and documents. [ 7 ] Constable MacDonald further observed at the vehicle that the accused was slow in turning his head and exhibited slow movements with his hands and arms. While the Constable was in the police vehicle, the accused stepped out of the welding truck and stumbled. [ 8 ] The accused was slurring words with the letter “S”.

His eyes were glossy. He was slow to respond to questions. [ 9 ] Admitted into evidence, only to establish grounds for the breath demand, was his admission to the officer that he had three beer, and that he had too much and probably should not be driving. The constable arrested him for impaired driving. He testified that he had reasonable and probable grounds based on the odour of alcohol, what the accused had told him, and the stumbling.

On cross- examination, he stated that his grounds were: the accused’s speech, odour of alcohol, how he stepped out of the vehicle, what he said, and “everything else” that Constable MacDonald had in his notes. He could not recall, and made no note of, whether or not he detected an odour of alcohol coming from the accused’s breath before he had made the arrest. He had no note of the accused having glossy eyes. The accused seemed to be walking upright and the accused was polite and cooperative.

[ 10 ] On searching the vehicle, the constable found a beer three-quarters full in the back centre console within reach of the driver. The accused was the only person in the vehicle. [ 11 ] The accused was arrested at 0053 hours and the breath demand was read at 0057 hours. At 0104 hours he contacted counsel at the detachment and spoke to counsel until 0129 hours. Constable MacDonald was present when the first sample of 150 milligrams of alcohol in 100 millilitres of blood was provided at 0140 hours. Between samples, Constable MacDonald fingerprinted the accused.

He observed an odour of beverage alcohol on the breath of the accused, and his balance was “not great”. He was unsteady, his movements were slow, and his speech was slurred. Constable MacDonald had twice noted that the accused was “stammering”. He had never met the accused before. [ 12 ] After he was fingerprinted, Constable MacDonald observed the accused cough, and Constable Hill, the breath technician, delayed taking the second sample. The second sample was taken at 2:36 a.m. and the third at 2:57 a.m. [ 13 ] After the third sample, the accused appeared tired.

According to Constable MacDonald, he was still a little unsteady on his feet, but his speech was improving. [ 14 ] A video of the accused in the hallway at the detachment was played in Court which showed the accused walking, and picking up a stool and walking with it.

To Constable MacDonald, the accused seemed to be walking upright. [ 15 ] Constable Frederick Keith Hill was recently trained and designated as a qualified technician on the Intox EC/IR II, the instrument used in this case, and since 2003 on the Intoxilyzer 5000C. [ 16 ] Constable Hill testified that he observed the accused “swaying” as he walked down the hallway. He was unsteady on his feet, walking close to the wall. He had a droopy, “stupor look” on his face, which he described as “the face droops, drags a bit”. The accused’s eyes were red, and the smell of beverage alcohol was coming from his mouth.

It was Constable Hill’s opinion in the breath test room that the accused was impaired by alcohol. Constable Hill did not make a note of the accused swaying or being unsteady on his feet, but did note “a slouched walk”, which he described as a little hunched forward. [ 17 ] The first attempt to give a breath sample was unsuccessful as the accused did not blow long enough for an adequate sample.

The second attempt was successful and the reading was 150 milligrams of alcohol in 100 millilitres of blood at 1:37 a.m., according to Constable Hill’s watch. [ 18 ] After the first sample, Constable Hill started a 15-minute observation period during which the accused was fingerprinted. The accused coughed before the second sample was taken at 1:58 a.m. Constable Hill asked him to suppress his coughing as coughing may provide a false reading from residual alcohol.

Constable Hill explained in his evidence that coughing may bring up excess alcohol and additional gases into the mouth, and the gases may cause a higher reading than the concentration in the bloodstream. [ 19 ] Constable Hill again started the 15-minute observation period after the cough at 1:58 a.m. The accused coughed again at 0201, at 0204, and again at 0212 hours. At 0233 hours by Constable Hill’s watch, and 0236 hours by Constable MacDonald’s watch, the accused gave a second breath sample. This time, the reading was 120 milligrams of alcohol in 100 millilitres of blood.

Because the results varied by 30 milligrams, a third sample was taken at 0257 hours and the result was again 120 milligrams. [ 20 ] Constable Hill was taught in his training as a breath technician that the average person eliminates alcohol at a rate of 15 percent per hour. The normal range is from 10 to 20 percent, and can be as high as 30 percent in alcoholics. [ 21 ] Constable Hill acknowledged that coughing does not affect the presence of mouth alcohol, but on the date that he administered these tests, he was operating under that assumption.

III. ISSUES A. Were the samples taken as soon as practicable, invoking the presumption of identity in s. 258(1)(

c) of the Criminal Code? B. Does the evidence prove impaired operation of a motor vehicle beyond a reasonable doubt? IV. ANALYSIS A. Were the samples taken as soon as practicable? [22] A requirement for the presumption of identity in s. 258(1)(

c) is that: (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case ofthe first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the sampleswere taken. It must be met before the breath test results are proof of the accused’s blood alcohol level at the time of driving. [23] It was noted in R. v. Vanderbruggen (2006), (ON CA), 206 C.C.C. (3d) 489 (Ont.

C.A.), that the tests areto be taken within a reasonably prompt time under the circumstances, and “the touchstone for determining whether the tests were takenas soon as practicable is whether the police acted reasonably” (Vanderbruggen para. 12). Reference is made to R. v. Van Der Veen(1988), 1988 ABCA 277 , 44 C.C.C. (3d) 38, (Alta.

C.A.), which held that whether breath samples had or had not been taken assoon as practicable is to be decided having regard to both subjective and objective factors (Van Der Veen, page 47). [24] Constable Hill honestly believed that coughing would affect the results and that was the reason for the lengthy delay beforetaking the second sample. However, his belief was not objectively reasonable. It was an error in the operation of the equipment.

Thedelay of 56 minutes was so lengthy that, without satisfactory, reasonable explanation, it must result in the loss of the presumption. [25] Without the presumption, expert evidence would be required to extrapolate the results back to the time of driving, in order toprove the blood alcohol concentration at the time of driving, which was not provided in this case. B.

Is the accused guilty of impaired driving? [26] The results testified to by Constable Hill are of limited value in the impaired charge, as they may be considered only toestablish that the accused consumed alcohol, not to support any finding as to the degree or level of impairment. (See R. v. Letford (2000), (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.), at para. 22; R. v. Tusiuk (2000), 1 M.V.R. (4th) 294, [2000] O.J. No. 802(Ont. Sup. Ct. of Justice) at para. 4; R v. Degrande, 2009 ONCJ 345, [2009] O.J. No. 3158 (Ont. Ct. of Justice); R. v. Hardy, 2010 SKPC80.) [27] In R. v.

Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, aff’d (SCC), [1994] 2 S.C.R. 478,the Crown’s evidence consisted of erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech andunsteadiness on his feet. Both the arresting officer and the breathalyzer technician concluded that the accused’s ability to operate a motorvehicle was impaired by alcohol (page 381). The test is stated as follows: In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can be

registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [ 28 ] The evidence of Constable MacDonald supporting impairment of the accused’s ability to operate a motor vehicle is as follows: • driving a welding truck at a speed of at least 100 kilometres per hour in a 50 kilometre zone within the city limits of North Battleford; • weaving and crossing the line dividing the eastbound driving lanes; • the odour of beverage alcohol on his breath; • “cotton mouth” while speaking; • slurring of words with the letter “S”; • stammering; • fumbling with his money clip and documents; • slow to turn his head and move his hands and arms; • stumbling when stepping out of the vehicle; • glossy eyes; • slow to respond to questions; • balance “not great”; • movements slow, unsteady; • he was a little unsteady on his feet after the third sample was taken. [ 29 ] I note that Constable MacDonald was in error, according to his notes, when he testified that the accused fumbled with his wallet and never did produce a driver’s licence.

His explanation, that he was relying on what people normally produce when stating that the accused produced a wallet, makes his evidence less reliable when it is not confirmed by his notes. However, he had noted that the accused fumbled with his money clip and documents. As he had no note of the glossy eyes, I am not relying on that particular symptom.

[ 30 ] The evidence of Constable Hill which supports impairment of the ability to operate a motor vehicle is: • the accused was unsteady on his feet and swayed as he walked down the hallway in the detachment, walking close to the wall; • his walk was “slouched”, a little hunched forward; • he had a droopy, stupor look on his face, where his “face droops, drags a bit”; • his eyes were red; • the smell of beverage alcohol was coming from his mouth; • Constable Hill formed the opinion in the breath test room that the accused was impaired by alcohol; • his hand and arm movements were slow and deliberate as he tried to grab onto the breath test tube, indicating to Constable Hill that he was trying to concentrate on his depth perception. [ 31 ] I would describe the video taken of the accused in the detachment as “jerky”.

It seems to consist of approximately one frame per second and is difficult to track movements with precision because of those gaps. It is of little assistance in determining whether or not the accused was swaying as he walked or was unsteady on his feet. [ 32 ] I found Constable Hill’s evidence to be honest and forthright, to a fault. Simply because he was in error in his understanding of one aspect of the operation of the breath test instrument, does not make his evidence less credible.

In fact, his frankness in acknowledging his error, and his apparent efforts to comply scrupulously with what he understood the requirements to be, if anything, enhances his credibility. I have no reason to doubt any of his evidence of indicia of impairment, nor that he honestly believed the accused to be impaired in the breath test room. [ 33 ] Constable MacDonald is a much less experienced officer and was not careful in giving his testimony, as borne out by the erroneous evidence he gave with respect to the wallet versus money clip, and the accused not producing his licence.

However, it does not make all of his evidence unworthy of belief. In many respects, it is consistent with the evidence of Constable Hill, and although I have to conclude that Constable Hill was the more reliable witness, in many aspects they were corroborative of each other.

I have no reason to doubt, and do believe, the evidence of Constable MacDonald on those points which he made note of at the time of the incident. [ 34 ] In addition, there is the evidence of Constable Hill of the breath test readings, which I consider only as evidence that the accused did consume beverage alcohol prior to the alleged offence, the evidence of the officers having satisfied me that the accused had no opportunity to consume beverage alcohol after he was stopped by Constable MacDonald. [ 35 ] Having considered all of this evidence as a whole, I conclude that I am satisfied beyond a reasonable doubt that the ability of the accused to operate a motor vehicle was impaired by alcohol. [ 36 ] Applying the evidence from the criminal trial, I am also satisfied that he is guilty of driving at a speed greater than reasonable and safe when he operated his welding truck at 100 kilometres per hour in a 50 kilometre per hour zone.

V. CONCLUSION

[ 37 ] The accused is not guilty of count two, .08; I find him guilty of count one, impaired operation of a motor vehicle, and guilty of the speeding charge. ____________________________________ V.H. Meekma, J