Her Majesty The Queen - v. -, 2011 SKPC 49

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 049 Date: March 16, 2011 Information: 24354322 Location: Swift Current, SK. _____________________________________________________________________________ Between: Her Majesty The Queen - and - Luke David Kratchmer S. Kritzer For the Crown J. Abrametz For the Accused _____________________________________________________________________________ DECISION ON THE ADMISSIBILITY OF EVIDENCE L.A. MATSALLA , J _____________________________________________________________________________ [ 1 ] Mr. Kratchmer is charged that he did:

a) operate a motor vehicle while his ability to do so was impaired by alcohol contrary to section 253(1)(

a) of the Code and;

b) that he did operate a motor vehicle when his blood alcohol level exceeded eighty milligrams of alcohol in one hundred millilitres

of blood contrary to section 253(1)(

b) of the Code. [ 2 ] There is no issue as to the time, date and place of the alleged offences or with the identity of the accused person. The Defence argues that the investigating officer did not have the requisite reasonable and probable grounds to demand that the accused provide samples of breath pursuant to section 254(3) of the Criminal Code and, therefore, his rights under sections 7, 8, 9 and 10(

b) of the Charter of Rights and Freedoms were infringed. Relief under section 24(2) is sought - in particular the exclusion of evidence obtained subsequent to the alleged breaches. At the commencement of the proceedings the accused abandoned his assertion that his

section 10(

b) right had been infringed. A voir dire proceeded to determine the admissibility of evidence. Facts [ 3 ] The investigating officer testified that she was working with the Traffic Services Unit of the R.C.M.P. As part of her responsibilities she is alert to the possibility that impaired drivers can be on the streets. On this day, the hour was late and since it was between 2:00 a.m. and 3:00 a.m., she was expecting to see patrons of the local drinking establishments operating motor vehicles in the city.

As she was operating her police vehicle southbound on 1 st Avenue N.W. (a one-way street having two lanes) she noticed a vehicle some distance to the south turn onto the street and proceed northbound in the wrong direction. She accelerated, met the vehicle and then she changed the direction of her vehicle in order to pursue the truck in question. After the vehicle had travelled about two blocks she activated her emergency lights and, after turning right on an intersecting street, the vehicle slowly rolled to a stop. It was 2:40 a.m.

As the officer made her way to the driver’s door of the vehicle, she observed that another police car had stopped behind her car. [ 4 ] The police car that she was operating is equipped with a camera that is directed to the front of the vehicle and another camera that can record persons in the back seat of the vehicle. She had a small microphone that she clipped to her jacket. The audio and video information obtained at a police stop is recorded by equipment kept in the trunk.

In this case, while the camera was pointed at the truck, it was difficult to see the driver on the video recording and since the diesel engine was running, most of what was said at the driver’s door could not be heard. [ 5 ] At the truck door she saw that the accused was the sole occupant. He had his foot on the brake. By the time she attended at Mr. Kratchmer’s door, he was attempting to retrieve his driver’s licence. He fumbled with his wallet as he attempted to do so. She told him that he had driven the wrong way on a one-way street and she then asked him whether he had alcohol in the vehicle.

The accused, who did not look at the officer, replied by saying that he did not have liquor in the truck. By this time, the policeman who had pulled up behind the officer, was at the passenger door and he made some observations about the inside of the truck. He stepped back from the passenger window and, after catching the attention of the officer, he passed on his observation that there was beer in the back of the seat. The officer asked for Mr. Kratchmer’s registration and he proceeded to look for the document in the glove box.

The policeman walked around the back of the vehicle to the driver’s window and he commenced a conversation with the accused by asking him how much he had to drink that night. Mr. Kratchmer said “Nothing”. The officer did not believe him and he asked Mr. Kratchmer where he had been drinking that night to which Mr. Kratchmer responded by saying “at a friend’s ”. The policeman then commented that he thought that Mr. Kratchmer said that he did not have anything to drink and then he said that he had been drinking at a friend’s. Evidently, the investigating officer was of the view that Mr.

Kratchmer had changed his story. During the conversation the investigating officer testified that she stuck her head in the cab and she detected a strong odour of liquor. She testified that during the conversation the driver’s speech was extremely slurred. [ 6 ] She made a comment to her colleague that she intended to make a “straight demand”. At 2:43 a.m., while Mr. Kratchmer was still seated in the truck she concluded that his ability to operate a motor vehicle was impaired by alcohol. She asked Mr.

Kratchmer to close the glove box, undo his seatbelt and leave the vehicle and she then placed him under arrest as soon as he exited the driver’s door. She noticed that he was slow to get out of the truck and that he was slightly off balance. As she handcuffed him, Mr. Kratchmer seemed confused in that he did not seem to understand why he was under arrest. She then placed him in the back of the police car. Once she took her place in the vehicle, she detected a strong odour of liquor coming from him. The accused continued to avoid looking at her. [ 7 ] She advised him of his right to counsel.

She provided him with a police warning and then she made a demand upon him for a sample of his breath for the purposes of analysis in an approved instrument. His lawyer’s phone number was obtained from a card in his possession. At this point the accused mentioned that he was on his way to Outlook and he, once again, asked why he had been handcuffed. He was advised that they would be going to the R.C.M.P. City Detachment. They left the scene at 2:55 a.m.

[ 8 ] When asked by Crown counsel why she formed the opinion that Mr. Kratchmer’s ability to operate a motor vehicle was impaired, she replied that she based her opinion on the following factors:

a) that he had driven the wrong way on a one-way street for a couple of blocks,

b) that he avoided looking at her,

c) his words were “grossly, extremely slurred ”,

d) he was fumbling with his wallet in an effort to obtain his driver’s licence,

e) he was not truthful when he said that he did not have any liquor in the vehicle,

f) he initially said that he had not consumed any alcohol, then he said that he was drinking at a friend’s place only to say that he was only visiting at a friend’s place, and

g) the odour of liquor was detected in the cab of the truck. She went on to say that some observations that she made subsequent to the arrest supported her opinion. His zipper was undone. He was slow to get out of the truck and he was slightly off balance. [ 9 ] The policeman who had subsequently arrived at the scene (who I will also refer to as the “second officer”) testified that he advised his colleague that he saw a case of beer behind the driver’s seat. He confirmed that he made his way to the driver’s door where he had a conversation with the accused.

He did not recall the precise words that were used by each of them but his recollection was that the conversation took the form of questions and answers and proceeded along the following line; Q. How are you doing? A. Good. You? Q. How much did you have to drink tonight? A. Nothing. The officer noticed a strong odour of alcohol coming from the driver. The officer testified that he told the accused that he did not believe that he was telling the truth and then the following conversation took place; Q. Where were you drinking? A. Drinking? At a friend’s place. Q.

You told me that you were not drinking now you say that you had been drinking. A. I was at a friend’s but I was not drinking. The officer testified that the words spoken by the accused were poorly enunciated and not explicit. [ 10 ] He recalled that just prior to the accused exiting the truck, he and the investigating officer had a very brief exchange. She said “straight demand or straight impaired”. He responded by saying “Absolutely”. The second officer testified that, in his view, Mr. Kratchmer was impaired. [ 11 ] After Mr.

Kratchmer was arrested, the second officer told the Court that he searched the accused who, during the process, asked why he was being searched. He seemed confused. The investigating officer once again advised him that he was under arrest for impaired driving. There was nothing remarkable about the way he walked to the police vehicle. The second officer searched the truck and he found a case of beer behind the driver’s seat that contained five sealed cans. He also found two empty bottles of beer in the box of the truck. The officer described Mr.

Kratchmer’s movements as slow and deliberate and his speech as slurred.

[ 12 ] It appears that Mr. Kratchmer was taken to the local R.C.M.P. Detachment, but the Crown did not lead any further evidence as to what transpired after the officers left the scene. It appears that samples of breath may have been provided by the accused. [ 13 ] The Defence did not call any evidence. Issue : Whether the investigating police officer had reasonable and probable grounds to demand a breath sample from the accused pursuant to section 254(3) of the Criminal Code . The Law [ 14 ] Sections 7, 8 and 9 of the Charter of Rights and Freedoms read as follows: 7.

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8. Everyone has the right to be secure against unreasonable search or seizure, and 9. Everyone has the right not to be arbitrarily detained or imprisoned. [ 15 ] Section 254(3) of the Code provides a peace officer with the authority to make a demand upon a person requiring that person to provide samples of breath. The

section states: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person;

a) to provide, as soon as practicable,

i) samples of breath that, in a qualified technician’s opinion will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and

b) if necessary, to accompany the peace officer for that purpose. [ 16 ] The Defence argues that the peace officer did not have the necessary “reasonable and probable grounds to believe that...an offence under

section 253” had been committed and therefore the samples that were provided were obtained in violation of Mr. Kratchmer’s sections 7, 8 and 9 rights under the Charter of Rights and Freedoms. Therefore, the argument goes, since the evidence was obtained by means of a warrantless search that was not reasonable due to the lack of the necessary grounds, the search or seizure was conducted in violation of the accused’s sections 8 and 9 Charter rights. [ 17 ] The Crown argues that the peace officer did indeed have the requisite reasonable and probable grounds and the search was authorized by law.

In the case of a warrantless search or seizure, the onus is on the Crown to show that the action was reasonable. [ 18 ] The Supreme Court of Canada in R. v. Shepard [1] at paragraph 17 and in the latter part of paragraph 23 said this about “reasonable and probable grounds”,

17 As this Court noted in Bernshaw, there is both a subjective and an objective component to establishing reasonable and probablegrounds; that is, the officer must have an honest belief that the suspect committed an offence under

section 253 of the Criminal Code,and there must be reasonable grounds for this belief (Bernshaw, at para. 48). Here, it is not disputed that the officer had a subjectivebelief that Mr. Shepherd was intoxicated. The courts below disagreed, however, on whether the officer’s subjective belief wasreasonable in the circumstances. 23 ...it is important to note that the officer need not have anything more than reasonable and probable grounds to believe that thedriver committed the offence of impaired driving or driving “over 80” before making the demand.

He need not demonstrate a primafacie case for conviction before pursuing his investigation. In our view, there was ample evidence to support the officer’s subjectivebelief that Mr. Shepherd had committed an offence under

section 253 of the Criminal Code. We therefore conclude that the officer hadreasonable and probable grounds to make the breath demand, and that Mr. Shepherd’s Charter claim must fail. At paragraph 21, the Court stated that it is necessary to examine the “totality of the circumstances” when considering the question. In an earlier case[2], Abella J. referred favourably to the trial judge’s comments that an officer must have “in his subjective awareness acombination of objective facts which together reasonably indicate the offence of impaired driving”.

In the same passage, she went on to refer to the comments ofMcFadyen J.A. who said that signs of alcohol consumption merely “suffice to contribute to reasonable grounds”. [19] The Ontario Court of Appeal in R. v. Bush[3] carefully reviewed the law in the area. Mr. Justice Durno referred to the“continuum of findings” that are to be made in drinking and driving cases so as to place reasonable and probable grounds in context.

Hesaid this at paragraphs 36 and 37: 36 Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcoholin his or her body, the standard for an Approved Screening Device (roadside) demand pursuant to section 254(2) of the Criminal Code.

At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator’s ability to operate amotor vehicle was impaired by the consumption of alcohol or that the driver’s blood alcohol concentration was over the legal limit. 37 Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds.

Section 254(3) of the CriminalCode authorizes peace officers to demand Intoxilyzer breath samples provided the officer “has reasonable and probable grounds tobelieve that a person is committing or at any time within the preceding three hours has committed” the offence of impaired operation ordriving ‘over 80.’ (Emphasis added) Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a primaface case: see Censoni at para. 31 and R. v. Shepherd, 2009 SCC 35 at para. 23.

He then described the objective requirement that must be met when he said, at paragraph 38: 38 Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires theofficer to have an honest belief the suspect committed the offence: R. v. Berlinski, (ON CA), [2001] O.J. No.377(C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able toconclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R.241 at p. 250.

Our Court of Appeal commented on the issue in a similar fashion in a decision handed down about nine months prior to Shepherd.[4] [20] It is clear that extreme intoxication need not necessarily be evident to permit a peace officer to lawfully arrest a person. Evenslight impairment in the operation of a motor vehicle can amount to impaired driving because the operation of a motor vehicle involves complex motor functions.[5] The Court in Bush set out the test at paragraph 48 as follows: 48 The test is whether, objectively, there were reasonable and probable grounds to believe the suspect’s ability to drive was even

slightly impaired by the consumption of alcohol: see R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.),aff’d (SCC), [1994] 2 S.C.R. 478; Moneno-Baches and Wang, at para.17. [21] A checklist of usual signs of impairment should not by utilized in conducting an examination of the grounds upon which an officer bases a demand in any particular case but rather the Court is to look at all of the circumstances.[6] Given the standard againstwhich reasonable and probable grounds are to be measured, it is important to note that an officer need not accept the explanationsprovided by an accused.

The facts as understood by the officer must be assessed. The officer can rely upon information provided byother persons or upon his or her own observations provided that it can be said that at the time of the arrest the officer’s belief is reasonable on an objective basis.[7] The information may not necessarily be accurate and the officer could be under a misapprehension.[8] [22] It is evident that any observations made by a peace officer after the officer has reached an opinion ought not to be considered inassessing the reasonableness of the officer’s belief.

I must now closely examine the reasons given by the officer for making the demandin this case. “...an honest belief...” [23] I have no doubt that she had an honestly held belief that Mr. Kratchmer’s driving ability was impaired by alcohol. She observeda peculiar manner of driving at a time when it can be expected that drivers who had consumed alcohol would be on the streets. Shecould smell alcohol in the vehicle. There appeared to be alcohol present in the truck despite his denial. She detected heavily slurredspeech.

It is unusual for a person to refrain from speaking directly to another unless speaking in that fashion is intended and there wereinconsistent answers provided by Mr. Kratchmer in response to questions from the officers about his alcohol consumption. The moredifficult question is whether it can be said that the officer’s belief was objectively reasonable.

In deciding the question, I will notconsider observations made by the officer after she arrested the accused. “...reasonable grounds for this belief.” [24] Defence counsel rightly points out that, taken independently, there can be an explanation for many of the officer’s observations,however regard must be had to all of the observations as a “combination” of indications that were relied upon by the R.C.M.P. officer.

The absence of what has been referred to as the usual indicia of impairment requires comment. [25] The officer was unable to detect the smell of alcohol from the accused’s breath or to observe his eyes because he spoke to herwithout turning to face her - an indication, in her view, that he was deliberately avoiding to do so to hide alcohol on his breath. She couldsmell a strong odour of liquor coming from inside the truck.

That observation coupled with information that there was a beer casebehind the seat as well as the inconsistent statements about whether he had been drinking that evening, satisfied her that the alcoholsmell likely came from the accused. These factors prompted the officer, by implication, to conclude that he had been drinking.

Caseshave said that it should not be concluded that a breath demand can never be made without evidence of the presence of alcohol on the breath of a subject.[9] It has been observed that it is possible for persons to mask the odour that can linger on the breath and so the lack ofthe smell of alcohol on the breath cannot in itself be sufficient to indicate a lack of reasonable and probable grounds.

I am inclined toagree with the comments of my colleague in Van Ulden at paragraph 24 where the Court said that the lack of evidence of consumption ofalcohol may make it more difficult for the Crown to establish reasonable grounds but, in any event, all of the circumstances must beexamined.

Madame Justice Abella in Shepard referred favourably to dictum from the Court of Appeal in which it was said thatindications of alcohol consumption merely contribute to reasonable and probable grounds. [26] Counsel for the Defence cited two cases in which an officer’s observations were reviewed to determine if reasonable and probable grounds were present. In R. v. Gunn[10], the driving evidence consisted of remaining at a stop sign for six to eight seconds thenmaking an awkward right-hand turn. Mr. Gunn’s eyes were glassy and bloodshot. His speech was slurred and he had alcohol on hisbreath.

There is some significance in the judge’s comment that the Court had difficulty accepting the investigating officer’s evidence.

In R. v. Kopperud[11], the accused made a right-hand turn and, in the process, his vehicle fishtailed. He drove on a bridge at a speedgreater than the posted speed and he backed up to an off-ramp. Slurred and groggy speech were noted by the officer but a videorecording prompted the judge to conclude that slurring was absent. Bloodshot eyes were noted but there was no concern about hiswalking ability.

I gather from the case that questions posed by the officer to the accused in which the accused was asked if he thoughtthat he was impaired, prompted the Court to say that the officer was seeking reassurance for his belief that he had reasonable andprobable grounds for the demand. The Court, in each case, concluded that the officer had nothing more than a suspicion that the driverhad committed the offence of impaired driving. The basis for the conclusion reached by the police officer in this case is not based onsimilar evidence. [27] In addition to her view that Mr.

Kratchmer had likely consumed alcohol she also made other observations. The officer sawunusual and potentially dangerous driving evidence that would point to poor judgment in the operation of the truck. Furthermore, theofficer’s conclusion that he deliberately avoided looking at her because he had alcohol on his breath is not unreasonable since suchconduct is unusual. She believed that his speech was significantly slurred. She said that he fumbled with his wallet to extract hisdriver’s licence although she did not observe this conduct over a lengthy period of time.

The discussions that the officers had with Mr.Kratchmer and the conclusions that she reached were significant to her. He falsely denied having any alcohol in his vehicle and then hedenied drinking alcohol only to apparently admit that he had been drinking with a friend and then he said that he was only visiting with afriend. While it may be possible that he misunderstood the latter question, it is very difficult to conclude that he misunderstood theformer question.

The Crown evidence indicated that the investigating officer and, shortly thereafter, the second officer asked theaccused the same question, i.e. whether he had alcohol in his vehicle and he responded in the negative to each officer.

This is not a caseof one observation or even a few observations made by the officer but rather this is a case of numerous observations - all of which mustbe considered. [28] The test to be applied, then, to satisfy the standard in Shepard is the test set out by our Court of Appeal in Restau and the OntarioCourt of Appeal in Bush, that is: - whether a reasonable person in the position of the officer would reasonably believe that Mr.

Kratchmer’s ability to operate a motorvehicle was impaired, even to a slight degree, on the proven facts of a combination of the observations set out above. [29] In the circumstances of this case I must conclude that the police officer’s opinion was honestly held and that it could be said that,from an objective point of view, she had reasonable and probable grounds to conclude that the accused’s ability to operate a motorvehicle was impaired by alcohol. [30] The evidence tendered by the Crown on the voir dire is admissible. _________________________ L.A. Matsalla, J [1]2009 SCC 35 , [2009] 2 S.C.R. 527, R. v.

Bernshaw, (SCC), [1995] 1 S.C.R. 254 at 284. [2] R. v. Rhyason, 2007 SCC 39 , [2007] S.C.J. No. 39 at para.17 [3]2010 ONCA 554 , [2010] O.J. No. 3453 [4] R. v. Restau (2008), 2008 SKCA 147 , 314 Sask. R. 224 at para. 17 [5]R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff’d (SCC), [1994] 2 S.C.R. 478 [6]Bush, supra at para. 56 [7]R. v. Nahorniak, 2010 SKCA 68 , [2010] S.J. No. 300 (Sask. C.A.) [8]Bush, supra at para. 66

[9] R. v. Hryniewicz, [2000] O.J. No. 436 (Ont. C.A.), R. v. Tran, 2010 CarswellOnt 8464 (Ont. Superior Court of Justice), R. v. Stafford, 2010 CarswellAlta 515, R. v. Van Ulden, 2010 CarswellAlta 1625 [10] 2010 SKPC 63 , 2010 SKPC 063 [11] 2010 SKPC 79 , 2010 SKPC 079