Her Majesty the Queen - v. -, 2014 SKPC 142

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 142 Date: August 26, 2014 Information: 90000274 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Andrea Rees Appearing: James G. Fitz-Gerald For the Crown Barry P. Nychuk For the Accused JUDGMENT K.A. LANG , J I. Introduction [ 1 ] Andrea Rees has been charged as follows:

a) On or about the 23 rd day of January in the year 2013, at or near Regina, Saskatchewan, did, while her ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code ; and

b) On or about the 23 rd day of January in the year 2013, at or near Regina, Saskatchewan did operate a motor vehicle, having consumed alcohol in such quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, contrary to section 255(1) and section 253(1) (

b) of the Criminal Code . [ 2 ] On January 29 of 2014, this Court entered into a voir dire . Counsel for the Accused argued that the approved screening device demand (the “ASD”) was not made forthwith, resulting in violations to the Accused’s s. 8 and 9 Charter rights. The Defence further argued that the Accused was not properly given her 10(

b) Charter rights. The Accused argues that these violations are serious enough to exclude the Certificate of Analyses pursuant to s. 24(2) of the Charter . II. Facts [ 3 ] On January 23, 2013, at approximately 10:45 p.m., Ms. Rees rear-ended a vehicle that had stopped at a traffic light at the intersection of Albert Street and 7 th Avenue in Regina, Saskatchewan. While it was winter and there was some ice on the road, witnesses testified that the weather was not particularly bad. [ 4 ] Very shortly after the collision, a bystander called the police. Approximately five minutes after the collision, Ms.

Rees got into the vehicle she rear-ended, driven by Mr. Watzke, and gave him her phone number. She stayed in the vehicle for approximately 10 minutes then left the vehicle and the scene, apparently to meet her boyfriend. [ 5 ] While Ms. Rees was in his vehicle, Mr. Watzke did not observe her being unsteady on her feet, that her eyes were glazed or bloodshot, or that she had any problems with her gait or coordination. Additionally, he didn’t smell any alcohol or drugs, did not notice any problems with her vocabulary, and did not think that her speech was slurred.

In short, he saw no evidence of the classic signs of impairment. [ 6 ] He did testify that he thought that she might be impaired as she seemed agitated, but having had no other contact with her, it would be difficult to place much weight on this. As well, it would not be unusual for someone to be agitated at an accident scene, regardless of impairment. [ 7 ] At 11:04 p.m., Cst. Warner was dispatched to Albert Street and 7 th Avenue to investigate this collision. He testified that one of the callers stated that they believed that one of the drivers was intoxicated. [ 8 ] At approximately 11:08 p.m., Cst.

Warner arrived on the scene. He had a brief conversation with some witnesses and was informed that Ms. Rees had left the scene, and which direction she went. Cst. Warner left the scene to search for Ms. Rees, and within minutes he located a woman walking south on McIntyre Street, who he then confirmed was Ms. Rees. [ 9 ] Shortly after locating Ms. Rees, Cst. Warner handcuffed her and put her into his police car. As soon as she was placed in the back seat of the vehicle, the audio video recordings in the police cruiser began recording. This began at 11:10:51. [ 10 ] There was no recording of the time between Cst.

Warner finding Ms. Rees and the time when she was put in the police cruiser. Cst. Warner testified that he detained her in order to investigate the potential impairment and whether or not she committed a “hit and run.” Cst. Warner did further testify that he advised Ms. Rees of the reason for her detention. [ 11 ] The Crown and Defence are in agreement that as soon as she was put in handcuffs and placed in the back of the cruiser, she had been detained. It is difficult to see how any other position could be argued. Before being placed in the cruiser, no 10(

b) rights were read to Ms. Rees.

[ 12 ] Cst. Warner testified that he suspected that Ms. Rees was intoxicated when he placed her into the cruiser. However, this suspicion was formed on the basis of the call to dispatch, and from speaking to other witnesses. He felt that this was not reasonable suspicion. [ 13 ] Cst. Warner drove from where he picked up Ms. Rees towards the scene of the collision. During this time, and for a period of time after they arrived, he asked her dozens of questions.

This included questions relating to whether she was intoxicated, how much she had had to drink, when she drank it, whether or not she had eaten, as well as questions relating to why she left the scene, whether she knew that leaving the scene is a crime, and where she was going. [ 14 ] It should be noted that the officer’s line of questioning was aggressive. Cst. Warner repeatedly scolded Ms. Rees for not being specific enough, countered her narrative, and was generally very sharp with Ms. Rees. [ 15 ] At 11:12:31, Ms. Rees said that she had two glasses of wine with dinner, which was at about 6:00 p.m.

It is unclear how large these glasses were, and Ms. Rees stated that she had them with a large meal (steak and seafood). [ 16 ] At 11:13:35, the cruiser arrived at the scene of the collision. Cst. Warner, in cross-examination, testified that it was around this point when he began to smell alcohol in the cruiser. [ 17 ] About one minute later, Cst. Warner asked for her basic information (name, address, date of birth) and twice said that if she refused to answer his questions, she would be charged with obstruction of justice. [ 18 ] At 11:18:30, Cst. Warner had Ms. Rees perform a divided attention test.

For this test, she was asked to recite the alphabet from H to Q. Cst. Warner did not specifically tell her to stop at Q. She was able to recite the alphabet without difficulty, but continued from Q to Z. Cst. Warner felt that this confirmed his suspicion, and that he then had reasonable grounds to make a breath demand for an ASD. [ 19 ] This demand was made at 11:22:15, and the ASD test was completed at 11:23:57. Cst. Warner advised Ms. Rees that she failed the test promptly, and advised her that she was under arrest and explained her 10(

b) rights at 11:25:25. III. Issues [ 20 ] There are four issues that must be dealt with. These are:

a) Did Cst. Warner make the ASD demand forthwith, or was the demand delayed resulting in a violation of the Accused’s s. 8, 9, and 10(

b) rights?

b) Were Ms. Rees’ 10(

b) rights violated by a concurrent investigation into leaving the scene?

c) If any of Ms. Rees’ Charter rights were violated, what is the proper remedy under s. 24(2)?

d) Regardless of the above questions, can Ms. Rees be found guilty of impaired driving? [ 21 ] I should note that while there was an issue as to whether or not the statement by the Accused was made voluntarily, the Accused has elected not to make representations on this issue. As there is no evidence suggesting the statement was not voluntary, I will admit it as evidence on the voir dire .

IV. Analysis Did Cst. Warner make the ASD demand forthwith, or was the demand delayed resulting in a violation of the Accused ’s s. 8, 9, and 10(

b) rights? [ 22 ] Section 254(2) requires that a police officer have reasonable grounds to suspect that the Accused has alcohol in their body before they make an ASD demand. [ 23 ] It is clear that an ASD demand cannot be made until this reasonable suspicion exists. As held by the Saskatchewan Court of Appeal in R. v.

Anderson , 2014 SKCA 32 : [31] The so-called “forthwith window,” being the time within which the police officer must require a driver to provide a breath sample, in my view, does not commence prior to the time when a police officer develops a reasonable suspicion that the accused had alcohol in his body, as the trial judge effectively held. Nor does it begin with the ASD demand, as the

summary conviction appeal judge held. Rather, it begins when the police officer develops a reasonable suspicion that the accused has alcohol in their body. [ 24 ] It is essential to determine when Cst. Warner formed a reasonable suspicion that the Accused had alcohol in her body. The Accused argues that the reasonable suspicion must have been formed shortly after she was picked up. If this is correct, then there was a gap of approximately 12 minutes between the formation of the reasonable suspicion and the ASD demand, with another 1.5 minutes until the test itself began.

There would be very little justification for this delay. While an accident had occurred, there was another officer on the scene who appeared to be taking the lead in that aspect of the investigation. Cst. Warner himself can be heard asking the other officer to investigate the MVA. [ 25 ] The Crown argues that the reasonable suspicion did not exist until Ms. Rees failed the divided attention test. If this is correct, then the gap between the formation of the reasonable suspicion and the ASD demand was approximately three minutes.

While there is limited justification for this delay, perfection is not required. [ 26 ] Cst. Warner has testified that he thought that Ms. Rees was potentially under the influence of alcohol by the time that he placed her in the back of the vehicle. However, he felt that he did not have a reasonable suspicion at this time. Given that Ms.

Rees was showing no signs of impairment, and that his only evidence of intoxication at this point would be that there had been a collision and that people who called 9-11 felt that she may have been intoxicated, it was reasonable for him to take a cautious approach in determining that he did have reasonable suspicion. [ 27 ] It is also clear that by the time he made the demand, he had formed a reasonable suspicion. At this point, in addition to the collision, he also smelled alcohol on her breath, knew that she had been drinking earlier in the day, and felt that she had failed the divided attention test.

While it is possible that the divided attention test did not add much to the officer’s reasonable suspicion, as he did not tell the Accused to stop at Q, I nonetheless find that the officer did have a reasonable suspicion when he made the ASD demand. [ 28 ] In cross-examination, counsel for the Accused suggested that Cst. Warner had a reasonable suspicion prior to the divided attention test. They argued that the confession that Ms.

Rees had drank a few glasses of wine and the smell of alcohol on her breath combined with the collision were sufficient for a reasonable suspicion, and the delay from that point to the ASD demand is unreasonable. [ 29 ] While it is possible that a reasonable suspicion could have been formed at this point, Cst. Warner’s testimony is that he felt that it was just a suspicion, which was later confirmed by the divided attention test.

Even if it were found that he could have had a reasonable suspicion prior to the divided attention test, I am not convinced that it would be appropriate to demand this level of perfection from police officers who are investigating potentially impaired drivers. In addition, the evidence cannot be considered in a vacuum. Cst. Warner would also have been very aware that Ms. Rees had not displayed any signs of impairment during his interaction with her. In addition, the drinking she admitted to would have happened several hours earlier and in conjunction with a significant meal.

[ 30 ] At paragraph 31, Anderson, supra , quotes Justice Whitmore in R. v. Quansah , 2012 ONCA 123 , 286 C.C.C. (3d) 307, as follows: [45] In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually.

Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights. [46] Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion. [47] Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible

interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2). [48] Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty.

Any delay not so justified exceeds the immediacy requirement. [49] Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(

b) rights before requiring the sample. If so, the "forthwith" criterion is not met. [ 31 ] Having found the facts as I have, I conclude that there was only a three minute delay between Cst. Warner forming a reasonable suspicion and him making an ASD demand. I therefore find that all of the requirements of a valid ASD demand were met. Were Ms. Rees ’ 10(

b) rights violated by a concurrent investigation into leaving the scene? [ 32 ] There is no doubt that the Accused was detained as soon as she was put in handcuffs and placed in the rear of the police cruiser. In the past, it was not clear whether 10(

b) rights were triggered upon an investigative detention. This question has been clearly answered in R. v. Suberu , 2009 SCC 33 , [2009] S.C.R. 460, which clearly states that: [2] It is our view that this question must be answered in the affirmative. The concerns regarding compelled self-incrimination and the interference with liberty that s. 10(

b) seeks to address are present as soon as a detention is effected. Therefore, from the moment an individual is detained, s. 10(

b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel “without delay”. [ 33 ] In an investigative detention, the detention “must be brief and the Accused has no duty to answer questions posed by the police” as per R. v. Mann , 2004 SCC 52 , [2004] 3 S.C.R. 59 at para. 45 . This Court cautioned, at para. 22, that this right cannot be used to “unduly and artificially” prolong an investigation. The Court in Suberu , supra , also stated that: [42] To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(

b) creates an ill-defined and unworkable test of the application of the s. 10(

b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words “without delay” mean “immediately” for the purposes of s. 10( b ). [ 34 ] While the right to counsel is extremely important, it is not without limits. In particular, it is clear that although roadside stops by police officers do constitute detention, there are no 10(

b) rights which arise from a simple stop. In the context of an impaired driving investigation, officers are permitted to ask individuals to perform sobriety tests and ask them questions which relate to intoxication. This is clear from the Supreme Court of Canada decision in Orbanski , 2005 SCC 37 , [2005] 2 S.C.R. 3, which holds that police have a common law power to investigate motorists for impairment, and that there is an implied limit on the right to counsel in these

investigations. Charron J. held that: [52] If a limit on the right to counsel is prescribed during compliance with a s. 254(2) demand for a sample for analysis in the roadside screening device, then the limit must necessarily be prescribed during the screening measures preceding the demand, conducted with the very objective of determining whether there is a reasonable suspicion for justifying the demand. [ 35 ] From this, it is clear that Cst. Warner had no obligation to inform Ms. Rees of her 10(

b) rights while he was investigating her for intoxication, as long as the investigation was as brief as possible. The issue raised by the Accused is whether or not this principle can be upheld where the officer is also conducting an investigation into other crimes. [ 36 ] As discussed, Ms. Rees was placed in the cruiser at approximately 11:10:54. At the outset, Cst. Warner and the Accused are arguing about why the Accused left the scene, and Cst. Warner is asking whether she exchanged information with other drivers and denying that she had any intention to stay on the scene.

He later asks, again, why she left the scene, and whether she knows that leaving the scene is a criminal offence. He also told her that he is investigating her for leaving the scene of an accident, as required by 10(a). [ 37 ] In examination, he also stated that he was investigating the hit and run, and the impaired driving. After being asked by Defence counsel why an ASD demand was not made after he smelled liquor, he stated that “I’m also investigating the hit and run, as well as doing the impaired, and just gathering as much information as I can.” [ 38 ] There can be no doubt that Cst.

Warner was investigating Ms. Rees for a hit and run as well as an investigation for impairment. [ 39 ] Orbanski is very clear that for 10(

b) rights to be suspended in the context of an investigative detention for intoxication, the officer must be searching for a reasonable suspicion. It may be that there are other situations in which 10(

b) rights need not be given immediately. If other such categories were to be created, one would think that it would be necessary to consider the purpose of providing the rights immediately, which is in part to avoid “an ill-defined and unworkable test” ( Suberu ). [ 40 ] I see no reason to suspend 10(

b) rights for an investigation into a hit and run. Allowing unnecessary concurrent investigations would contribute significantly to an unappealingly ill-defined test for 10(

b) rights. In this case, the officer could easily have suspended his investigation into a possible hit and run until he had properly dealt with the issue of impairment. [ 41 ] As such, I find that the Accused’s s. 10(

b) Charter rights were violated during the investigation into a potential hit and run. If any of Ms. Rees ’ Charter rights were violated, what is the proper remedy under s. 24(2)? [ 42 ] As I have found a breach in the Accused’s right to counsel under 10(

b) it is necessary to consider whether the evidence obtained in violation of the Accused’s Charter rights, namely the Certificate of Analyses, should be excluded under s. 24(2). The question is whether the evidence was obtained in a manner such that, if the evidence were admitted, it would bring the administration of justice into disrepute. [ 43 ] For the evidence to have been obtained in a manner which engages s. 24(2), there must be a connection between the Charter breach and the Certificate of Analyses.

As I have found that the breath demand was made forthwith, and it is the investigation for a hit and run which violated 10(b), it is not immediately clear whether there is a connection between the breach and the certificate. Put another way, the Charter- infringing conduct did not directly result in the creation of the Certificate of Analyses.

[44] The Supreme Court of Canada has dealt with this issue in R. v. Wittwer, 2008 SCC 33, [2008] S.C.R. 235. In the context of astatement, the Court held that: [21] The courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between thebreach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of thesame transaction or course of conduct: Strachan, at p. 1005.

The required connection between the breach and the subsequent statementmay be "temporal, contextual, causal or a combination of the three": R. v. Plaha (2004), (ON CA), 189 O.A.C. 376,at para. 45. A connection that is merely "remote" or "tenuous" will not suffice: R. v. Goldhart, (SCC), [1996] 2 S.C.R.463, at para. 40; Plaha, at para. 45. [45] In this case, the Charter-infringing conduct occurred while the officer was investigating the Accused for multiple offences,including the offence that resulted in the creation of the Certificate of Analyses.

I am satisfied that the officer’s conduct is sufficientlytemporal, contextual, and causal enough to taint the certificate. [46] The test for applying s. 24(2) is set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

The Court must “assess andbalance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of theCharter-infringing state conduct…(2) the impact of the breach on the Charter protected interests of the accused…and (3) society’sinterest in the adjudication of the case on its merits”: para. 71. [47] Turning first to the seriousness of the Charter-infringing state conduct, I find that the infringement was serious. First, thedelay between the detention and the right to counsel was approximately 15 minutes long.

Clearly, this does not even approach the“immediacy” requirement set by the Supreme Court in Suberu. [48] Second, during this time, the officer was actively investigating the Accused, not merely delaying the 10(

b) rights while theAccused sat silently. It is clearly contrary to the purpose of s. 10(

b) to allow an officer to “gather as much information as I can” withoutthe right to counsel being read. [49] Third, the fact that the Accused was in handcuffs during these events, and that at some point the handcuffs became painfullytight, increases the seriousness of the state conduct.

Although it is unnecessary and would be unwise for the Courts to interfere toodeeply with what police deem reasonable safety precautions, it is also clear that lengthening an investigation when the Accused is insome level of physical pain should be avoided as much as possible. [50] Fourth, I find that the conduct of the officer made the Charter-infringing state conduct more serious. The evidencedemonstrates that he was engaging in arguments with the Accused and raising his voice to her. Even in some instances where she wasanswering questions in apparent good faith, she was scolded for not being specific enough.

While it is true that the Accused wassometimes argumentative, it is expected that police will behave professionally. [51] It should also be noted that it was only after several minutes of aggressive questioning that the officer asked the Accused forher name, phone number, and address. After asking for the spelling of her name, and not receiving an immediate response, the officerthreatens to charge the Accused with obstruction of justice. [52] I have two concerns with this. The first is that the Accused had twice provided her name by that point, and had generally beenanswering his questions.

There was no reason to think she would be evasive when providing this basic information as required by law. Second, this occurred immediately after a line of questioning relating to the hit and run investigation, which they continued discussingwithin about 30 seconds.

Unnecessarily raising the possibility of charges for refusing to answer questions in this context couldreasonably make someone believe that they are required to answer all of the officer’s questions, seriously interfering with her right tosilence and the purpose of 10(b). [53] The second Grant factor is the impact of the breach on the Charter protected interests of the Accused. I find that the Charter-

infringement resulted in a moderately serious impact on the Accused, greater than a fleeting or technical breach. The Accused was heldin a police cruiser, handcuffed behind her back, for 15 minutes before receiving her rights. It was not necessary for 10(

b) rights to beprovided while the intoxication investigation was ongoing, but had the officer focused on the intoxication investigation instead ofconcurrently investigating her for leaving the scene, she should have received her rights far sooner. [54] While we will never know what would have happened if the officer had not breached 10(b), it is clear from the evidence thatthe mood in the vehicle had changed dramatically from the time she was first placed in the cruiser to the time when she was given her10(

b) rights. It seems very reasonable to think that had the Accused’s 10(

b) rights been given at the beginning of the investigation, orearlier that night, she may have demanded to speak to a lawyer. [55] Finally, the third factor in the Grant analysis is society’s interest in the adjudication of the case on its merits. The offence inthis case is serious. Clearly, the operation of a motor vehicle while intoxicated is a major social problem in Saskatchewan, one that oftenresults in significant injury and even death. It is fortunate that neither injury nor death occurred in this case.

In addition, the evidence iscrucial to the Crown’s case. [56] Based on a balance of these three factors it is my view that including this evidence would bring the administration of justiceinto disrepute. Consequently, the Certificate of Analyses will not be admitted. Regardless of the above questions, can Ms. Rees be found guilty of impaired driving? [57] The “classic” signs of impairment, as outlined in R. v. Stellato, (SCC), [1994] 2 S.C.R. 478 are erraticdriving, strong odour of alcoholic beverage, glossy and bloodshot eyes, slurred speech, and unsteadiness on one’s feet.

These signs havebeen upheld and interpreted in subsequent cases. [58] It is not necessary that the impairment be very significant. Evidence of very slight impairment is sufficient as a ground ofimpairment. However, the evidence of impairment itself must be beyond a reasonable doubt. Evidence of slight impairment is not to beconfused with slight evidence of impairment. [59] In the present case, the only evidence relating to whether or not Ms. Rees was impaired is as follows:

a) Mr. Watzke was in an enclosed vehicle for at least 10 minutes with Ms. Rees. He testified that in all that time, he did not observe Ms.Rees being unsteady on her feet, having problems with her gait, coordination or vocabulary. He did not smell alcohol or drugs, did notcharacterize her eyes as glassy or bloodshot, and does not remember her slurring her speech.

b) Mr. Watzke did testify that she was “agitated” and “apologetic.” However, he admitted on cross-examination that he had never mether before this incident, and so had no way to compare this behaviour to the way she normally acted.

c) Cst. Warner testified that he also did not observe any stumbling, staggering, problems with her balance, problems with her speech,slurring her words, or using inappropriate vocabulary. He also testified that she did not have bloodshot or glassy eyes, and did not appearto have a dry mouth. Additionally, he testified that at the police station, Ms. Rees had no difficulty with balance while completing formson a clipboard.

d) There was also no evidence of any of these “classic” symptoms in the video.

e) The evidence of intoxication is that she was initially difficult when dealing with Cst. Warner, though she became cooperative at thepolice station. While there was a collision, both Cst. Warner and Mr. Watzke agreed that there were winter conditions, includingblowing snow and icy patches. [60] Given this limited evidence, I am unable to conclude that Ms. Rees was impaired while operating a motor vehicle. As I amleft with a reasonable doubt, I find her to be not guilty of driving while impaired. V. Conclusion

[ 61 ] In

summary, as I have concluded that the Crown is not permitted to rely on the Certificate of Analyses, there is insufficient evidence to prove that Ms. Rees can be found guilty under s. 253(1) (b). Additionally, I have found that there is insufficient evidence to demonstrate that she was driving while intoxicated, so her charge under s. 253(1) (

a) must fail. Accordingly, I find Ms. Rees not guilty on both counts. K.A. Lang, J