Her Majesty the Queen - v. -, 2013 SKPC 148

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 148 Date: August 27, 2013 Information: 37241261 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Steven Dimitrov Appearing: Norma Quaroni For the Crown Steven Dribnenki For the Accused JUDGMENT K. LANG , J

(1) Introduction [ 1 ] Steven Dimitrov was charged as follows:

(1) On or about the 24 th day of March, A.D. 2012 at or near Regina, Saskatchewan did, without reasonable excuse, fail or refuse to

comply with a demand made to him by a peace officer pursuant to section 254(3) (

a) of the Criminal Code , to provide samples of his breath for analysis, contrary to section 254(5) of the Criminal Code .

(2) On or about the 24 th day of March, A.D. 2012 at or near Regina, Saskatchewan did, while his ability to operate a motor vehicle was impaired by alcohol or a drug, have the care or control of a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code . [ 2 ] Before trial proceeded, a stay of proceedings was entered on count number 1. Therefore, the only charge before me is charge number 2, that Mr. Dimitrov did have care and control of a vehicle while his ability to operate a motor vehicle was impaired by alcohol or drug. [ 3 ] Mr. Dimitrov asked this court to stay the proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms due to alleged violations under sections 7 , 8 , 9 , 10(b) , and 11(

d) of the Charter . In the alternative, Mr. Dimitrov contends that he was not in care and control of his vehicle, and even if he were to be found to have had care and control of his vehicle, that his care and control of the vehicle did not present a “realistic risk” of danger. [ 4 ] I conclude that Mr. Dimitrov’s rights pursuant to sections 7, 9, and 11(

d) were breached. However, I further conclude that the appropriate remedy for these breaches is not a stay of proceedings. Further, applying all of the evidence from the voir dire to the trial proper, which was agreed to by counsel, I conclude that Mr. Dimitrov did have care and control of his vehicle and that the conduct of Mr. Dimitrov did present a “realistic risk” of danger. As a result, I find Mr. Dimitrov guilty on count number 2. The Charter breaches will be considered in sentencing.

(2) Facts [ 5 ] At 2:13 a.m. on March 24, 2012, Regina Police Service received a complaint that a silver Mazda was stopped on the roadway near the 700 block of North Argyle Street with the driver passed out behind the wheel. The complainant had further stated that at the time of the complaint “a group of kids” were surrounding the vehicle. [ 6 ] Constable Martinson and Constable Muntain responded to the complaint at 2:19 a.m.

Upon arrival, they located a silver 2011 Mazda GX parked northbound in the driving lane. [ 7 ] Upon approaching the vehicle, Constable Martinson observed that the vehicle’s tail lights were illuminated and that the vehicle appeared to be running. Constable Martinson also noted that there was a footprint on the door and that the door had buckled in where the footprint was located.

In his report, Constable Martinson noted that it was possible that one of the individuals surrounding the vehicle had kicked the vehicle. [ 8 ] Steven Dimitrov, who was later identified as the accused, was the sole occupant of the vehicle. He was observed to be seated in the driver’s seat, slumped over with his head touching his chest and his arms on his lap in front of him. Constable Martinson also observed that Mr. Dimitrov’s eyes were closed and that he appeared to be breathing.

On the night in question, it was minus 12 degrees Celsius with the wind-chill. [ 9 ] Constable Martinson and Constable Muntain attempted to wake Mr. Dimitrov. The two Constables took various measures to wake him, including tapping on the vehicle’s window, yelling at him, and shining their flashlights into the vehicle. These efforts failed to wake Mr. Dimitrov. [ 10 ] In a further attempt to wake Mr. Dimitrov, Constable Martinson and Constable Muntain decided to rock the vehicle back and forth. Although Mr.

Dimitrov shifted back and forth in his seat due to the rocking, he did not wake up. [ 11 ] Constable Martinson and Constable Muntain then tried to enter the vehicle, but were unsuccessful as all the doors were

locked. After these failed attempts, Constable Martinson called his superior, Sergeant Culling, regarding a possible forced entry into the vehicle. Sergeant Culling agreed to attend the scene. [ 12 ] Before Sergeant Culling arrived on the scene, Constable Martinson and Constable Muntain again rocked the vehicle back and forth in a further attempt to wake Mr. Dimitrov. During this time the officers continued to yell and shine their flashlights in the vehicle. He did not wake up. The rocking did, however, cause Mr. Dimitrov to move his foot to the accelerator causing the vehicle’s engine to rev at a very high RPM.

The revving of the vehicle’s engine did not wake Mr. Dimitrov or cause the vehicle to be set in motion. [ 13 ] The vehicle was a manual transmission, as Constable Martinson had earlier noted. Constable Martinson had also previously noted that the vehicle was on level terrain. Constable Martinson had not, however, noted whether the emergency brake was engaged. [ 14 ] Constable Martinson and Constable Muntain nevertheless became concerned that the vehicle might be put into motion.

This concern arose despite knowledge on behalf of Constable Martinson that a manual transmission requires the additional step of engaging the vehicle’s clutch pedal to set the vehicle in motion and the vehicle being situated on level terrain. [ 15 ] As a result of their concern, the Constables decided that they needed to quickly gain entrance into the vehicle. As such, Constable Muntain smashed the vehicle’s passenger side window with his baton. Upon smashing the window, Mr. Dimitrov removed his foot from the accelerator.

Soon thereafter, Constable Martinson quickly entered the vehicle and pulled the keys out of the vehicle’s ignition. [ 16 ] After removing the keys from the ignition, Constable Martinson opened the driver’s side door and attempted to talk to Mr. Dimitrov. He again did not respond. [ 17 ] The two Constables continued their efforts to wake Mr. Dimitrov by nudging and shaking him for approximately 30 seconds. Mr. Dimitrov still did not respond. Upon coming into close proximity of Mr. Dimitrov, Constable Martinson could detect an odour of alcohol from Mr.

Dimitrov’s breath. [ 18 ] In total, Constable Martinson estimates that by this point in time he and Constable Muntain had spent at least 5 minutes attempting to rouse Mr. Dimitrov. [ 19 ] Constable Martinson next instructed Mr. Dimitrov to exit the vehicle. He did not respond. Constable Martinson then informed Mr. Dimitrov that he was under arrest for having care and control of a vehicle while impaired by alcohol. Mr. Dimitrov again did not respond. [ 20 ] Finally, Constable Martinson and Constable Muntain began to remove Mr. Dimitrov from the vehicle. Constable Martinson took Mr.

Dimitrov’s left arm, while Constable Muntain soon after took Mr. Dimitrov’s right arm. Constable Martinson stated in examination in chief that when grabbing Mr. Dimitrov, he had put Mr. Dimitrov in what is known as a “wrist lock”, though in cross- examination he stated he grabbed Mr. Dimitrov in a way that allowed for the “wrist lock” manoeuver to be utilized if necessary. [ 21 ] While lifting Mr. Dimitrov, he awoke. Upon awakening, Mr. Dimitrov briefly resisted by tensing his arms and pulling away from the Constables.

The Constables were nevertheless able to place handcuffs on the accused and walk him to the police cruiser. [ 22 ] While being walked to the police cruiser, Mr. Dimitrov was unsteady on his feet, had trouble putting one foot in front of the other, and was unable to walk in a straight line, even with the assistance of the Constables. In addition, Mr. Dimitrov would slouch when he was walking, requiring the Constables to hold him up to prevent him from falling. [ 23 ] During this time, Constable Martinson also noted that Mr. Dimitrov’s speech was slurred and appeared to be deliberately

slow, though he could not identify any of the words Mr. Dimitrov slurred. Constable Martinson also admitted that he was unfamiliar with the way Mr. Dimitrov spoke as he did not personally know Mr. Dimitrov. [ 24 ] Constable Martinson also observed Mr. Dimitrov’s eyes to be glazed over and bloodshot. At the same time, Constable Martinson stated that he was aware that Mr. Dimitrov had just awoken, and that these indicia may be linked to this factor. [ 25 ] Constable Martinson stated that he did not notice other indicia of impairment, such as Mr. Dimitrov smacking his lips, having dry lips, or a flushed face.

Moreover, Constable Martinson did not inquire as to whether Mr. Dimitrov had consumed any alcohol that day. Constable Martinson did, however, inquire as to whether Mr. Dimitrov had any medical conditions, to which Mr. Dimitrov indicated he did not. [ 26 ] Constable Martinson also noted that Mr. Dimitrov comprehended his instructions, was for the most

part cooperative, and engaged Constable Martinson in conversation. [ 27 ] At 2:40 a.m. Constable Martinson placed Mr. Dimitrov in the back of the police cruiser. Constable Martinson then made a breath demand. At that time Mr. Dimitrov was provided with all of his rights and warnings, all of which were read from standard police issued cards. Constable Martinson was satisfied by Mr. Dimitrov’s positive responses of “yup” and “mhmm” that he understood the instructions. [ 28 ] While in the back seat of the police cruiser at the roadside, Mr. Dimitrov continually demanded that he be allowed to speak to his girlfriend.

Mr. Dimitrov also advised the Constables while in the back of the police cruiser that he would like to speak with a lawyer, though it is unclear as to when this request was made. [ 29 ] Soon after detaining Mr. Dimitrov, Sergeant Culling, accompanied by Constable Davies and Constable Griffiths, attended the scene. They seized and impounded Mr. Dimitrov’s vehicle. [ 30 ] Constable Martinson and Constable Muntain then drove Mr. Dimitrov to the police station. During the drive, Mr. Dimitrov continuously demanded to speak with his girlfriend. [ 31 ] Upon arrival at the station, Constable Martinson noted that Mr.

Dimitrov’s walking had improved. He also noted that Mr. Dimitrov was cooperative upon arrival, and had no troubles emptying his pockets and taking off his shoes. [ 32 ] Soon after arrival, Mr. Dimitrov was taken to the phone room. The yellow pages for Regina Legal Counsel, as well as the legal aid number were provided to him. Mr. Dimitrov did not review the list. Instead, he provided Constable Martinson with two phone numbers. [ 33 ] Constable Martinson began dialling the numbers at 3:10 a.m.

He received no answer from either number, instead hearing a voicemail message that led him to believe the numbers were not for legal counsel. However, Constable Martinson did not stop there. Instead, he began to investigate the numbers by reviewing the yellow pages, searching the numbers on Google, and the online yellow pages. These searches did not lead Constable Martinson to believe the numbers were for legal counsel. Finally, he queried the numbers in the police records system. He found that one of the numbers was linked to a female that did not appear to be legal counsel.

The number belonged to an individual with whom Mr. Dimitrov had previously been involved in a domestic disturbance. Constable Martinson did not allow Mr. Dimitrov to phone the numbers as he believed the numbers were not for legal counsel. [ 34 ] During his time in the phone room, Mr. Dimitrov continually expressed to Constable Martinson his view that he could speak to anyone he wished. In particular, Mr. Dimitrov insisted that he be able to speak to his girlfriend. Constable Martinson again denied this request, reminding Mr. Dimitrov that at that point he only has the right to speak to a lawyer.

[ 35 ] During his time in the phone room, Mr. Dimitrov did not review the phone list or mention the name of a lawyer or a law firm. Moreover, Mr. Dimitrov did not indicate that he wished to call someone other than a lawyer so as to learn a particular lawyer or law firm’s name. Constable Martinson did not inquire as to whether this was Mr. Dimitrov’s purpose in phoning the numbers. [ 36 ] Due to Mr. Dimitrov appearing to not exercise his rights to counsel, Constable Martinson removed Mr. Dimitrov from the phone room. Shortly after this removal Mr.

Dimitrov was brought to Constable Powers, the breath technician on duty that night. It was 3:17 a.m. when Mr. Dimitrov was brought to Constable Powers. [ 37 ] During the next few minutes, Constable Martinson testified that he observed Constable Power filling out what he believed to be an Intoxilyzer check sheet. Constable Martinson testified that these sheets, which include observations of impairment made by the breath technician, are created for every impaired driving or care and control investigation.

Constable Power submitted statements indicating that he did in fact fill out an Intoxilyzer check sheet, and that the sheet had subsequently not been located. Constable Power was not called to testify at trial. [ 38 ] At 3:40 a.m., Mr. Dimitrov was taken into the breathalyzer room and provided an explanation of the breath test procedure. Mr. Dimitrov did not consent to a breathalyzer test. He stated three times that he would not consent until he was allowed to phone the numbers he had provided to Constable Martinson. As a result, Mr.

Dimitrov was charged with refusal to comply with a demand, pursuant to section 254(5) of the Criminal Code . [ 39 ] Constable Martinson again read Mr. Dimitrov his rights to counsel. Upon being asked if he understood, Mr. Dimitrov stated “no”. Mr. Dimitrov refused to explain what he didn’t understand, and proceeded to talk over Constable Martinson’s further attempts to explain, in simple language, Mr. Dimitrov’s rights to counsel. Mr. Dimitrov’s comments consisted of further claims that he could speak to whoever he desired. [ 40 ] Upon being asked again if he would like to speak to a lawyer, Mr.

Dimitrov responded “yes”, but did not desire to re-enter the phone room and did not provide a lawyer or law firm’s number to Constable Martinson. When Constable Martinson read a police warning to Mr. Dimitrov he responded “exactly”. [ 41 ] At 3:46 a.m., Mr. Dimitrov was taken to police cells. Constable Martinson stated he was concerned that Mr. Dimitrov may attempt to drive home if released. Although Mr. Dimitrov’s vehicle had been seized by police, Constable Martinson was concerned Mr. Dimitrov may have access to other vehicles. He was also concerned that Mr.

Dimitrov posed a risk to himself and others as he was not at that time sober. Constable Martinson also expressed concern that Mr. Dimitrov may return to his current girlfriend’s house, with whom he suspected he previously had a domestic incident. [ 42 ] Constable Martinson did not ask whether Mr. Dimitrov had friends or relatives who could pick him up, nor did he allow Mr. Dimitrov to call either of the numbers he had provided earlier to inquire about being picked up from the police station despite having knowledge that Mr. Dimitrov lived in Regina at that time. Instead, Mr.

Dimitrov was booked into cells at approximately 3:46 a.m. Constable Martinson advised the cell staff to release Mr. Dimitrov when he was sober. [ 43 ] A cell check log indicates that Mr. Dimitrov was sleeping at all check times from 4:20 a.m. to 5:40 a.m., awake at 5:40 a.m., and asleep at the check times of 6:10 a.m. to 6:41 a.m. He was awake at the check time of 7:00 a.m. until his release at 2:25 p.m. At 9:20 a.m., Mr. Dimitrov mentioned to the cell guard the name “Ian McKay”, though it is unclear as to why this name was mentioned. The cell check sheet contains no indications that Mr.

Dimitrov was aggressive, agitated, injured, or sick during his time in the cell.

(3) Issues [ 44 ] The issues raised by Mr. Dimitrov are as follows:

(1) Was Mr. Dimitrov deprived of his right not to be arbitrarily detained pursuant to

section 9 of the Charter and his right to be secureagainst unreasonable search and seizure pursuant to

section 8 of the Charter as the officer arresting him did not having reasonablegrounds to make the arrest?

(2) Was Mr. Dimitrov deprived of his right to retain and instruct counsel pursuant to

section 10(

b) of the Charter as the officer deniedhim the opportunity to determine which counsel he wanted to contact?

(3) Was Mr. Dimitrov deprived of his right to not be arbitrarily detained or imprisoned pursuant to

section 9 of the Charter as he wasdetained in cells after the investigation without grounds and without any opportunity to pursue alternatives to being held in cells,including being denied any opportunity to contact any individual who may have assisted him?

(4) Was Mr. Dimitrov deprived of his rights to a fair hearing pursuant to

section 11(

d) of the Charter and life, liberty, and security of theperson pursuant to

section 7 of the Charter, due to his ability to make full answer and defence being impeded by the Crown losingmaterial evidence, namely the Intoxilyzer check sheet completed by the breath technician?

(5) If any of the above Charter rights are found to be infringed, is a stay of proceedings the appropriate remedy pursuant to section 24(1)of the Charter?

(6) If the proceedings are not stayed, did the Crown prove beyond a reasonable doubt that Mr. Dimitrov’s care and control of a motorvehicle was impaired by alcohol?

(4) Reasonable Grounds to make the Arrest [45] Mr. Dimitrov alleges that Constable Martinson did not have reasonable grounds to make a breath demand pursuant to section254(3) of the Criminal Code. If Constable Martinson did not have reasonable grounds to detain Mr. Dimitrov, an arbitrary detention willhave been made out contrary to

section 9 of the Charter. Moreover, any subsequent search of Mr. Dimitrov will have been illegal,contrary to

section 8 of the Charter, if the detention is found to be arbitrary. [46] Section 254(3) of the Criminal Code states: If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, 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, ifany, 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 ofproviding a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of thequalified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood; and (

b) if necessary, to accompany the peace officer for that purpose. [47] For an officer to establish reasonable grounds, the officer must subjectively believe the individual has driven while impairedwithin the preceding three hours and that belief must be rationally sustainable on an objective basis (R. v. Bernshaw, (SCC), [1995] 1 SCR 254, at para. 48). This does not mean that the Crown has to demonstrate a prima facie case for conviction (R. v.Shepherd, 2009 SCC 35, [2009] 2 SCR 527, at para. 23) or prove its case beyond a reasonable doubt (R. v.

Bush, 2010 ONCA 554, 259CCC (3d) 127); rather, as stated by Justice Caldwell of the Saskatchewan Court of Appeal, “the standard of ‘reasonable grounds tobelieve’ is one of lesser probability which simply requires the reviewing court to determine whether the factors articulated by the officerwho made the breath-demand were reliable and were capable of supporting the officer's belief that the individual had driven whileimpaired or "over .08" within the preceding three hours” (R. v.

Gunn, 2012 SKCA 80 at para. 7). [48] When determining whether this standard has been met, an officer only needs to believe that the accused’s ability to drive isslightly impaired (R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, aff'd (SCC), [1994] 2 S.C.R.

478n). Thus, if an officer has, objectively speaking, reasonable grounds to believe an individual’s ability to drive is slightly impaired by alcohol or drug, their demand will be lawful ( Gunn , at para. 9 ). [ 49 ] Relying on Gunn , the Crown submits that the totality of the evidence at the time of arrest is capable of giving rise to reasonable grounds to believe Mr. Dimitrov was impaired. In support of this submission, the Crown cites the following indicia of impairment: (

a) his vehicle was stopped in a driving lane; (

b) he was found late at night shortly after bars close; (

c) he was asleep; (

d) slumped over in the driver’s seat with the vehicle started; (

e) he remained unresponsive for approximately 21 minutes despite the officer’s significant efforts to rouse him by talking and yelling at him, tapping on the windows, shining flashlights in his vehicle, rocking the vehicle, breaking a window, and tapping and shaking him; (

f) he applied the gas pedal causing it to rev at very high RPMs; and (

g) there was an odour of liquor on his breath. [ 50 ] In his submissions, Mr. Dimitrov relies on two authorities to support his position that the above do not constitute reasonable grounds. As will become apparent, both of these decisions are readily distinguishable. [ 51 ] The first decision is R. v. Sperle , 2004 SKQB 382 . In Sperle , a citizen found the accused asleep behind the wheel of his vehicle. Initially, he tried to wake the accused but was unsuccessful. As a result, he phoned the police. The vehicle was in a ditch in rural Saskatchewan but was still running when the officers arrived on scene.

When the police arrived, however, the accused was awake. He indicated to the police that his vehicle was stuck. The officer at this time noted a strong odour of liquor coming from the accused. The accused indicated that he had been drinking and seemed disoriented as to where he was located. The officer also noted the accused had glossy and bloodshot eyes. Finally, the officer noted that the accused had some difficulties with mathematical and language sobriety tests. [ 52 ] In addition, however, it was found that the accused was able to alight from his vehicle and walk to the police cruiser without difficulty.

This walk included navigating what was described as a “steep ditch” which one would expect to be difficult for an impaired person. Further, there was no slurring of speech. As well, the Officer did not notice any lack of motor skills or coordination at any time. Indeed, the court commented that the mathematical and language tests used were of the officer’s own making, and did not at all test the driver’s ability to drive. Finally, the accused was able to carry on a dialogue, provided detailed information, and was polite and cooperative throughout.

Weighing all the factors, the trial judge excluded the certificate of analysis. The appeal to the Saskatchewan Queen’s bench was dismissed. [ 53 ] After all the evidence at trial was tested the relevant facts supporting the reasonableness of the grounds in Sperle were as follows: the accused was in a ditch with his vehicle started, with a strong odour of alcohol coming from his breath, disoriented as to where he was, and had glassy and bloodshot eyes. [ 54 ] The case is distinguishable for two main reasons.

First, it is highly relevant that before the arrest was made, numerous factors highlighted above were observed that ran contrary to an inference of impairment. This is not so in the case at hand. Second, the case is especially distinguishable due to the driving evidence in Sperle —that the accused was in a ditch—was found to be a “not an altogether uncommon event in rural Saskatchewan”. Being in a driving lane unresponsive behind the wheel of a vehicle in the middle of Regina late at night is most certainly uncommon. [ 55 ] The second decision Mr. Dimitrov relies upon is R. v. Sedley , 2013 SKPC 59 .

In Sedley , the officer observed that the accused was unsteady on his feet, moving slow, had a tired and flushed face, a dry mouth, glassy eyes, an odour of alcohol coming from him (though not emanating from his breath), and had admitted that he had a “few drinks” that evening. These factors were not sufficient to establish reasonable grounds when balanced against the fact that the events occurred at 3:26 a.m., the lack of credible evidence

concerning what he was drinking, the fact that the accused had just driven into his own driveway without issue, and that the accused wasconversing with the officer without difficulty. [56] In the case at hand, three important factors distinguish Sedley. First, there is no significant driving evidence in Sedley, while inthe case at hand the accused is stopped in a driving lane, and unresponsive. Second, there was no smell of alcohol emanating from thebreath of the accused, only a general smell from him which could be explained by spilt alcohol, or some other reason.

Third, the accusedwas able to converse with the officer without difficulty which clearly was not so in the case at hand. [57] As these two decisions are of little assistance in resolving the case at hand, I turn to the evidence. On the whole, I am satisfiedthat Consable Martinson had reasonable grounds to believe Mr. Dimitrov was at least slightly impaired by alcohol. In so holding, I relyon all the observations made by the Crown, but place greatest weight on three factors: (1) the location of the vehicle (2) theunresponsiveness of Mr.

Dimitrov despite the Constables great efforts to rouse him; and (3) the smell of alcohol coming from Mr.Dimitrov’s breath. [58] Although the above is sufficient to dispose of this argument, Mr. Dimitrov made three further arguments which warrantcomment. First, he relied on the fact that an ASD demand was not made to support his position that reasonable grounds did not exist.However, this argument flies in the face of Justice Caldwell’s holding in Gunn that an officer who has objectively reasonable groundsneed not make a roadside screening device (para. 20). Second, Mr.

Dimitrov argued that the fact that his walking improved as the nightprogressed is a factor to consider in assessing impairment at the time of arrest. I also find this contention to be contrary to the authorities.In Gunn, it was held that officers are not under a legal obligation to proffer evidence to establish that the arresting officer continued toobserve signs of impairment (para. 20). Finally, Mr. Dimitrov argued that the absence of smacking or dry lips and a flush face cut againstthe finding of impairment.

In my view, the lack of these indicia of impairment are of no consequence given the signs of impairment thatdid exist.

(5) Right to Counsel [59]

Section 10(

b) of the Charter provides that “[e]veryone has the right on arrest or detention… to retain and instruct counselwithout delay and to be informed of that right”. As with all Charter challenges, the onus is upon the person asserting a violation of hisor her rights to establish on a balance of probabilities that the right has been denied or infringed (R. v. Luong, 2000 ABCA 301 at para.12). [60] Arising from

section 10(

b) are both informational and implementational duties. The informational duty requires the arrestingofficer to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of LegalAid and duty counsel (Luong, supra, at para. 12). [61] The implementational duties were described by the Supreme Court of Canada in R. v.

Bartle, (SCC), [1994] 3SCR 173 at para. 17, as follows: “if a detainee has indicated a desire to exercise [the] right [to counsel], to provide the detainee with areasonable opportunity to exercise the right (except in urgent and dangerous circumstances)”. The Crown bears the burden of provingthat they gave the accused a reasonable opportunity to contact counsel (Luong, supra, at para. 12). [62] If provided with an opportunity to contact counsel, the detainee must in turn prove that he or she was reasonably diligent inthe exercise of his or her rights (R. v.

Smith, (1989), (SCC), 50 CCC (3d) 308 (SCC) at 315-16 and 323). If the detainee,having invoked the right to counsel, is found to not have exercised the right diligently, the implementation duties either do not arise in thefirst place or will be suspended (R. v. Tremblay, (1987), (SCC), 37 CCC (3d) 565 (SCC) at 568). [63] Only the implementational duties are at issue in this case. Mr. Dimitrov contends that by not being allowed to speak with thetwo phone numbers he provided to the officers, he was not given an opportunity to exercise his right to counsel. In support of thiscontention, Mr. Dimitrov relies on R. v.

Menard, 2010 BCSC 1416; R. v. Pearce, 2003 SKQB 105; and R. v. Poletz, 2009 SKPC 121. [64] In Menard, the accused repeatedly requested to speak with his wife for the purpose of getting the name of a lawyer [emphasismine]. In Menard, the police knew that at least one of the purposes of phoning his wife was to assist him in finding legal advice (see

paras. 19, 23, 24, 30, 55 and 56). As the Crown readily points out, Mr. Dimitrov did not suggest that the numbers he gave Constable Martinson were for a lawyer. Moreover, Constable Martinson thoroughly investigated the numbers to see if they could be linked to a lawyer or law office, but was not able to do so. [ 65 ] In Pearce , after being allowed to phone his father for the purpose of contacting a lawyer, the accused was waiting to hear back from his father who had not answered the first phone call. A violation was found due to the police not waiting long enough for the father to call back.

Again, however, the purpose of the phone call in Pearce was to contact a lawyer (see para. 18). [ 66 ] The Poletz decision also involves a detainee not being permitted to call a third party for the purpose of facilitating contact with legal counsel (see paras. 62 and 68). As such, it also does not provide any authority for Mr. Dimitrov being deprived of his rights under

section 10(

b) of the Charter . [ 67 ] As no right to contact a third party other than for the purposes of speaking with a lawyer has been established, I find that Constable Martinson provided Mr. Dimitrov with a reasonable opportunity to contact counsel. [ 68 ] It must then be asked if Mr. Dimitrov’s right to counsel were suspended due to a failure to exercise the right diligently. I am of the opinion that Mr. Dimitrov did not act diligently in exercising his rights. In short, for a period of at least 7 minutes, he did not make an effort to contact legal counsel. He did not review the phone list.

He did not give the name of a lawyer or a law firm. And importantly, he did not state the reason for why he wanted to call the numbers he had provided the officer. All the while, he insisted that he be able to speak to his girlfriend. As such, I find Mr. Dimitrov was not diligent in exercising his rights to counsel and therefore those rights were waived.

(6) Arbitrary Detention [ 69 ] Mr. Dimitrov alleges that he was held at the Regina Police Station without reasonable grounds and was denied the opportunity to contact any individual who may have assisted him. Mr. Dimitrov also claims that he was held in his cell arbitrarily. As such, Mr. Dimitrov submits that his right against arbitrary detention pursuant to

section 9 of the Charter was breached. [ 70 ] As I understand Mr. Dimitrov’s position, he is making two distinct arguments: (

a) that it was not “necessary in the public interest” for Constable Martinson to detain him; and (

b) for some portion of time after being detained, he was arbitrarily held in his cell. [ 71 ] I will analyze each argument separately. (

a) Was it “necessary in the public interest ” to detain Mr. Dimitrov? [ 72 ] Sections 497 and 498 of the Criminal Code require that an individual be released as soon as practicable” unless one of the exceptions in subsection (1.1) is made out. Subsection (1.1) states:

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

(

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. [73] In R. v. Holbrook, 2008 SKPC 133, Harradence J., citing R. v. Janvier, 2007 SKCA 147, states that in determining whetherreasonable grounds exist under sections 497 and 498, the standard is one of “credibly based probability” (paras. 25-26). [74] Sections 497 and 498 do not impose a duty on police to make efforts to locate a sober person to whom to release the detainee(see R. v. Simms, 2009 ABCA 260, cited approvingly by Kalmakoff J. in R. v. Donald, 2010 SKPC 123 at para. 53).

As noted in Scott,supra at para. 21, however, such an inquiry is reasonable to make given the wording of sections 497 and 498. Absent reasonableinquiries and consideration of the available alternatives to detention, the argument that it is necessary in the public interest to detain theaccused until sober becomes less compelling (Donald, supra, at para. 53). As stated in Poletz, citing R. v.

Wilcox, unreported, at paras. 81and 104, “insobriety does not, in and of itself, make continued detention necessary”. [75] However, failing to inquire whether the accused can be picked up does not necessarily mean the detention was arbitrary. AsKalmakoff J. points out in Scott, “not every unlawful detention is arbitrary”. Citing R. v. Tugnum, 2002 BCSC 1572 and R. v.

Duguay(1985), (ON CA), 18 CCC (3d) 289; affirmed on other grounds (SCC), 46 CCC (3d) 1 (SCC), atpage 296, Kalmakoff J. states that in determining if an arbitrary detention occurred: [t]he Court must consider the particular facts of the case, the extent of the departure from reasonable and probable grounds, and thehonesty of the belief and the basis for the belief in the existence of reasonable and probable grounds on the part of the detaining officer.In circumstances where the grounds for justifying the detention fall just short of the "reasonable" standard, the detention, thoughsubsequently found to be unlawful, cannot be said to be capricious or arbitrary. [76] The Crown contends that Constable Martinson had reasonable grounds to believe that Mr.

Dimitrov’s detention was necessaryin the public interest to prevent the continuation of an offence or repetition of an offence and to protect Mr. Dimitrov and others.Although the latter is not specifically enumerated in

section 497 or 498 of the Criminal Code, it is implicit in the phrase “necessary inthe public interest” that such a reason can permit detention (R. v. Scott, 2010 SKPC 81 at para. 15). Mr. Dimitrov, who bears the burdenof proving the alleged Charter breach, contends that Constable Martinson did not have reasonable grounds to detain him for eitherreason. [77] Concerning the first reason, Constable Martinson was concerned Mr. Dimitrov may have access to other vehicles, andpresumably would drive those vehicles thereby committing (at least if we accept that Mr. Dimitrov was impaired) a crime.

ConstableMartinson did not have any evidence to support his suspicion, especially considering Mr. Dimitrov’s vehicle had been seized by police.In short, Constable Martinson was merely speculating as to whether Mr. Dimitrov would drive a vehicle. As was held under similarcircumstances in R. v. Fox, 2007 SKPC 61 at para. 20, mere speculation cannot support the assertion that one will continue an offence.While I am satisfied that Constable Martinson was legitimately concerned about the potential for Mr.

Dimitrov to seek out anothervehicle and drive it in his state, I am not satisfied that there was a sufficient evidentiary basis to bring this concern to the level of a"credibly based probability" required to elevate the suspicion to reasonable grounds. [78] As for the second reason, Constable Martinson was concerned that Mr. Dimitrov posed a risk to himself and others as he wasnot at that time sober. Constable Martinson maintained this position despite his noting that Mr. Dimitrov was largely cooperative at thestation and that his indicia of impairment appeared to improve by the time they arrived at the station.

At the same time, Mr. Dimitrovappeared to be significantly intoxicated at the side of the road. Moreover, Mr. Dimitrov did refuse to take a breathzlyzer test, and insistedthat he was able to phone his girlfriend despite being repeatedly told he did not have such a right. The latter behaviour included anincident where Mr. Dimitrov talked over Constable Martinson while he was attempting to explain to Mr. Dimitrov the meaning of hisrights. Further, when Constable Martinson explained his rights to Mr. Dimitrov after the refusal, Mr.

Dimitrov was confused as to thenature of his rights despite stating he understood these rights earlier in the evening. His response of “exactly” to Constable Martinsonreading a police warning also demonstrates his confused state at the police station.

[ 79 ] In the circumstances, I find that Constable Martinson was justified in detaining Mr. Dimitrov. Constable Martinson was faced with a difficult decision without concrete evidence of the extent of Mr. Dimitrov’s intoxication due to his refusal to comply with a breath demand. Constable Martinson could only rely on his observations that evening, and he was very upfront in his testimony. Given the confused state of Mr. Dimitrov, as well as the notable signs of impairment, and his unwillingness to fully cooperate with the Constables at the police station, I find Constable Martinson was justified in detaining Mr.

Dimitrov as in his state he could have been a danger to himself and others if allowed to leave the police station. This is especially so as it was minus 12 degrees Celsius with the wind-chill on the evening in question. [ 80 ] I also find Constable Martinson did not breach Mr. Dimitrov’s right against arbitrary detention by not making further efforts to arrange for someone to pick him up. The accused did not offer phone numbers for the purpose of obtaining a ride, as the numbers originally offered were not stated to be for this purpose.

However, the numbers that were provided were dialled, and both times no one answered. In the circumstances, I find that not inquiring further as to whether Mr. Dimitrov would be able to be picked up only falls minimally short of the applicable standard, and does not constitute an arbitrary detention. [ 81 ] In so concluding, I recognize that a past domestic disturbance involving Mr. Dimitrov influenced Constable Martinson’s decision. Any potential for reoccurrence of such an offence is mere speculation on behalf of Constable Martinson.

As such this factor does not influence my decision as to the reasonableness of Constable Martinson’s choice to hold Mr. Dimitrov in cells over night. (

b) was Mr. Dimitrov over held in his cell? [ 82 ] There is ample authority stating that the general policy of holding impaired accused “until sober” is not an arbitrary detention (see R. v. Herter , 2007 ABQB 756 at para. 35 , cited approvingly in R. v. Scott , 2010 SKPC 81 at para. 18 ). The definition of “sober” may vary, but in previous cases a policy of not allowing detainees to be released until their blood alcohol level was “safely below 50 mgs” was found to be reasonable (see R. v. Burns , [2000] OJ No 1743 at para. 11 ). [ 83 ] In R. v. McKelvey , 2008 ABQB 466 at para. 8 , cited approvingly in R. v.

Grondin , 2011 SKPC 32 at para. 27 , Justice Langston stated: Even if detention may have originally been necessary, the Accused was not released for over ten hours after his detention commenced. To paraphrase Maloney J. in R. v. Smith , [2005] A.J. No. 1161, 2005 ABPC 202 at para. 33 , the onus of proof to establish a Charter breach is borne by the accused, but there comes a point when the Crown must explain the accused's continued detention. There was no explanation put forward in this instance. [ 84 ] Mr. Dimitrov was held for a total of 10 hours and 39 minutes.

An extra 1 hour and 27 minutes had elapsed since Mr. Dimitrov was originally found unresponsive in his vehicle. This is a total time of 12 hours and 6 minutes. [ 85 ] Mr. Dimitrov had awoken at 7:00 a.m. and remained awake until his eventual release at 2:20 p.m. At no point during this time was Mr. Dimitrov noted as aggressive, agitated, sick, or injured. [ 86 ] At 9:20 a.m. the officer conducting the cell checks noted the name “Ian McKay” on the cell check sheet. The Court is not prepared to speculate as to why this name appeared on the cell check sheet. Mr.

Dimitrov did not testify at trial, and as he bears the burden of proving the Charter breach, the Court will not draw any inferences from this fact. However, given the duration of time that passed and the absence of indicators of impairment, I am satisfied that Mr. Dimitrov likely would have been sober some considerable time before his release. As such, I find Mr. Dimitrov to have been arbitrarily detained for some portion of time. [ 87 ] Mr. Dimitrov did not raise any evidence that he was put in poor conditions or not sufficiently fed during his time in his cell.

As such, I assume that he was treated humanely during his time in cells.

[88] Given the above, I find that Mr. Dimitrov’s detention was arbitrary for some undeterminable portion of time during his stay incells. I will return to the issue of remedy under the appropriate heading below.

(7) Right to a Fair Trial [89] Mr. Dimitrov further contends that the loss of the Intoxilyzer check sheet created by Constable Power breached his right tomake full answer and defence pursuant to sections 7 and 11(

d) of the Charter. Those sections state: 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 theprinciples of fundamental justice. […] 11. Any person charged with an offence has the right […] (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. [90] The Supreme Court of Canada's decision in R. v. Stinchcombe, (SCC), [1991] 3 SCR 326, established theCrown's duty to disclose all relevant information in its possession. Along with this duty comes the obligation to preserve evidence (R. v.Egger, (SCC), [1993] 2 SCR 451 at 472). [91] In R. v.

La, (SCC), [1997] SCJ No 30 at para. 20, the Supreme Court of Canada stated that if theprosecution has lost evidence that should have been disclosed, the Crown must prove that it did not lose the evidence due to unacceptablenegligence. If the explanation is not satisfactory, the loss of evidence may be sufficient to establish a breach of

section 7 and 11(

d) of theCharter. In assessing the sufficiency of the explanation, the main consideration is whether the Crown or the police took reasonable stepsin the circumstances to preserve the evidence for disclosure.

Although the police are not expected to preserve every piece of evidencethat comes into their hands on the “off-chance” it will become relevant in the future, the higher the relevancy of the evidence, the greaterthe degree of care that will be required to preserve the evidence (La, at para. 21). [92] In its submissions, the Crown argued that the Intoxilyzer check sheet was not relevant and therefore did not need to bedisclosed. [93] In R. v.

McQuaid, (SCC), [1998] 1 SCR 244 at para. 20, the Supreme Court of Canada stated that forevidence to be relevant “there must be a reasonable possibility that the information could be useful to the accused in making full answerand defence”. When questioning the Crown on the relevance of the Intoxilyzer sheet, it became clear that the evidence could be relevantto the proceedings. As Mr.

Dimitrov points out, the observations of Constable Power, who was at the time a significantly moreexperienced officer than Constable Martinson—an officer of just over a year at the time of the incident in question—could serve tocontradict the evidence used by the Crown in proving the reasonable grounds to make a breath demand or that Mr. Dimitrov wasimpaired while in care and control of his vehicle. [94] The Crown relied on R. v. Boutin, 2012 SKQB 291 in arguing that the Intoxilyzer check sheet was not relevant. However, thecase is distinguishable.

In Boutin, the evidence determined to be irrelevant was a video recording taken two hours after the arrest of theaccused for impaired driving. Justice Currie held that any signs of impairment two hours after the arrest would be irrelevant to thequestion of whether or not the accused was impaired at the time of arrest. Here there is a much smaller period of time. Though thetimeline is not as detailed as it could be, it is inferable from the facts that Constable Power’s observations were made between 37 and 53minutes after Mr. Dimitrov was arrested.

In my view, any observations of Constable Powers such a short time after the arrest would berelevant. [95] In determining that the amount of time passed in this case does not render the Intoxilyzer breath sheet irrelevant, I am alsoguided by the abundance of decisions that have found police surveillance video at the police station relevant: See for instance R. v.Banford, 2010 SKPC 110; R. v. Meile, [1999] SJ No 148; R. v. Prato, 2010 BCPC 102; and R. v. Tolofson, 2004 BCPC 33.

[96] Given my conclusion that the evidence was relevant, the Crown must prove that the evidence was not lost due to unacceptablenegligence. On the facts, the Crown does not allege that there is a satisfactory reason for losing the evidence. Nor did the Crown callConstable Power at trial to clear up the discrepancy. All that was submitted to the court was that the evidence was lost and no one knowswhy. As a result, I can only conclude that the evidence in question was lost due to the Crown’s unacceptable negligence. [97] Given the above, I hold that Mr. Dimitrov’s right to a fair trial pursuant to sections 7 and 11(

d) of the Charter has beenbreached.

(8) Is a Stay of Proceedings the Appropriate Remedy? [98] Section 24(1) of the Charter states: Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [99] In R. v.

O’Connor, (SCC), [1995] SCJ No 98 at para. 53, the Supreme Court of Canada held that “thediscretion to order a stay may be exercised only in the "clearest of cases", meaning that the trial judge must be convinced that, if allowedto continue, the proceedings would tarnish the integrity of the judicial process”.

In defining this standard the Court in O'Connor at para.75 states that a stay of proceedings will only be appropriate when two criteria are fulfilled: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by itsoutcome; and (2) no other remedy is reasonably capable of removing that prejudice. [100] In determining whether a stay of proceedings is warranted, I will analyze whether either of the two breaches warrant a stay ofproceedings in and of themselves.

I will also analyze whether or not the combination of the two breaches nevertheless requires that theproceedings be stayed. (

a) Is a stay of proceedings the appropriate remedy for over holding? [101] In R. v. Hall, 2012 SKQB 233 at para. 34, the court stated that in considering whether a stay of proceedings is appropriate, “theprimary factor for consideration is the connection, if any, between the breach and the police investigation of the offence. In the absenceof such a connection, a stay would be disproportionate to the breach”. For further authority on this proposition, see R. v. Salisbury, 2012SKCA 32 at para. 18 aff’d R. v.

Salisbury, 2011 SKQB 153 at para. 11. [102] In Hall, the accused’s right against arbitrary detention was held to be breached as he was over held in cells. In considering theremedy, the court concluded that due to there being no connection between the breach and the police investigation of the offence, theaccused’s ability to make full answer and defence was not affected. As such, a stay of proceedings was inappropriate. [103] Mr. Dimitrov’s circumstances are analogous. His being over held was in no way connected to the investigation of the impaireddriving offence. As such, standing alone, the breach of Mr.

Dimitrov’s right against arbitrary detention does not warrant a stay ofproceedings.

(

b) is a stay of proceedings the appropriate remedy for the lost evidence? [104] In La, supra at para. 24, the Supreme Court of Canada stated that “in extraordinary circumstances, the loss of a document maybe so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial. In suchcircumstances, a stay may be the appropriate remedy”. In R. v.

Grimes, 1998 ABCA 9 , [1998] AJ No 2 at paragraph 30, theAlberta Court of Appeal observed that in lost evidence cases, “it is important to recognize that the right of the accused is not to a perfecttrial but a fair trial”. [105] In La, a police officer recorded on video a 45 minute conversation of an interview with a sexual assault victim. In the recordingthe victim described some of the acts that were done to her at the motel in which the appellant allegedly sexually assaulted the victim.The interviewing officer recalled that during this interview, the victim had told a “few lies”. The tape was misplaced.

Further, almost nonotes were taken by the officer during the initial interview. The Court concluded that the tape may or may not have discloseddiscrepancies to support the defence’s argument. Although this level of relevance would be sufficient to meet the test for disclosure inStinchcombe, the loss of the evidence fell “far short of establishing a serious impairment of the right to make full answer and defence”. [106] In Grimes, the accused was charged with sexual assault of a high school student. The accused applied for a stay of proceedings,arguing that his right to make full answer and defence under

section 7 of the Charter had been infringed due to the loss of school recordswhich would have disclosed the dates on which the complainant worked for the accused, and bank records which allegedly would haveassisted him in attacking the credibility of the complainant. The Alberta Court of Appeal refused to order a stay of proceedings due to theminimal infringement of the right to make full answer and defence. [107] In contrast to the above two decisions is R. v. Carosella, (SCC), [1997] 1 SCR 80.

In Carosella, relevantdocuments subject to disclosure were deliberately destroyed by a social worker who knew the transcripts may be relevant to aninvestigation. The accused's right to have relevant documents produced under the Charter was therefore violated in a deliberate fashion.This amounted to a serious breach of the accused's constitutional rights and a stay was, in the particular circumstances, the onlyappropriate remedy. [108] The case at hand is closer to La and Grimes than it is to Carosella.

This is so due to there being no evidence that the Intoxilyzercheck sheet was intentionally destroyed, therefore allowing for the inference that the Intoxilyzer check sheet was misplaced. Moreover,this is not a case where police policy results in the premature destruction of evidence, such as in the many cases concerning destroyedvideo surveillance. [109] Further, as in La and Grimes, the evidence was by no means certain to be of use to the defence. The evidence could haveconfirmed the testimony of Constable Martinson or it could have contradicted it.

As the Supreme Court of Canada held in La, such ascenario does not constitute a serious infringement of the right to make full answer and defence. As such, the loss of the check sheet doesnot on its own require the drastic remedy of a stay of proceedings. [110] Before leaving this issue, I would like to note that Mr. Dimitrov could have chosen to call Constable Power to testify as to hisobservations that evening. As the defence has the burden of proving that a stay is warranted, this would have been a desirable course ofaction. By not calling Constable Power, it is inferable that Mr.

Dimitrov chose to rely on mere speculation as to why the Intoxilyzercheck sheet was lost. As seen in La and Grimes, speculation by itself is less likely to require that a breach of an individual’s right to fullanswer and defence result in the drastic remedy of a stay of proceedings. (

c) is a stay of proceedings the appropriate remedy for both of the breaches? [111] In R. v. Hirschboltz, 2004 SKQB 17 at paras. 38 and 49, the court held that even if a breach of an individual’s Charter rightsdoes not require a stay of proceedings, the combined effect of two or more breaches may require a stay of proceedings.

[112] On the unique facts of this case, Mr. Dimitrov has had two of his Charter rights breached. The breach of his right againstarbitrary detention or imprisonment was not connected to the offence he committed, and although his right to make full answer anddefence was breached, it was not a serious infringement. To find that the combination of a breach disconnected from the investigation ofthe offence elevates an otherwise non-serious breach of Mr. Dimitrov’s right to make fair answer and defence to the point of requiring astay of proceedings is illogical.

Moreover, no authority has been offered for such a proposition. As such, a stay of proceedings isdisproportionate to the combined effect of the breaches. [113] It is a most unfortunate occurrence that it is quite possible that no remedy is available for the above two breaches. By this I amreferring to the fact that section 255(1) of the Criminal Code provides for mandatory minimum sentences for impaired driving offences,and the court is not permitted to go below such minimum sentences (see R. v. Nasogaluak, 2010 SCC 6). Such a result may send tosociety the message that police misconduct goes unpunished.

That is not the intent of this judgment. [114] The violation of the rights of any individual is of serious concern to society. The police conduct in this case is certainlyquestionable. However, society balances its interest in prosecuting offences with its interest in upholding the rights of its citizens. It haslong been recognized that society has a great interest “in dealing with the carnage caused by those who commit offences involvingdrinking and driving” (R. v. Orbanski; R. v. Elias, 2005 SCC 37 at para. 1).

On the facts of this case, the interest society has inprosecuting drinking and driving offences has slightly outweighed the rights of the individual.

(9) Care and Control [115] In the alternative to a stay of proceedings, Mr. Dimitrov alleges that the Crown has not proven beyond a reasonable doubt thathe was in care and control of a vehicle while impaired. The legislation and case law contemplates a multi-step analysis in so determining. [116] Section 258(1)(

a) of the Criminal Code provides that if an accused occupied the seat normally occupied by a driver whileintoxicated, that person shall be presumed to have been in care and control of the vehicle. If the presumption is made out, the accusedmust prove on a balance of probabilities that he did not occupy the driver’s seat for the purpose of putting the vehicle in motion (R. v.Moosomin, 2012 SKQB 523 at paras. 6 and 7).

Failure to do so leaves the accused in care and control of the motor vehicle. [117] It is accepted as fact that the accused occupied the driver’s seat on the night in question. [118] It must then be determined whether the accused was impaired by alcohol or drug while in the driver’s seat. The Crown mustprove beyond a reasonable doubt that Mr. Dimitrov’s ability to drive was impaired by any degree from slight to great (R. v. Stellato, (SCC), [1994] 2 SCR 478, adopting R. v. Stellato, (ON CA), [1993] OJ No 18, at para. 14). The Crownidentifies the following factors as evidence that Mr.

Dimitrov’s ability to drive was impaired: (

a) his vehicle was stopped in a driving lane; (

b) he was found late at night shortly after bars close; (

c) he was asleep; (

d) he was slumped over in the driver’s seat with the vehicle started; (

e) he remained unresponsive for approximately 21 minutes despite the officer’s significant efforts to rouse him by talking and yelling athim, tapping on the windows, shining flashlights in his vehicle, rocking the vehicle, breaking a window, and tapping and shaking him; (

f) he applied the gas pedal causing it to rev at very high RPMs while the officers were attempting to gain entry into the vehicle; (

g) there was an odour of liquor on his breath; (

h) he had slurred, slow, and deliberate speech; (

i) he had red, bloodshot, and glazy eyes; (

j) he was stumbling, unable to walk without assistance, had difficulty placing one foot in front of the other, and was unable to walk in a

straight line even with the assistance of officers. [ 119 ] The Crown also reiterates its earlier point that Mr. Dimitrov’s previous argument concerning the lack of an ASD test does not support or diminish Constable Martinson’s observations. [ 120 ] The defence contends that Constable Martinson not observing Mr. Dimitrov smacking his lips, having dry lips, or a flushed face must be viewed in light of the above factors. [ 121 ] Mr.

Dimitrov further takes issue with the reliability of a number of the factors identified by the Crown, and as a result, suggests that the indicia of impairment do not prove beyond a reasonable doubt that Mr. Dimitrov’s ability to drive was impaired by alcohol. Namely, Mr. Dimitrov relies on the fact that he had just woken at the time many of the indicia were noted by Constable Martinson. Mr. Dimitrov suggests that eyes can be red and glossy upon waking, speaking may be more difficult upon first waking, and suggests that some individuals may have trouble walking when they first wake up. Moreover, Mr.

Dimitrov suggests that Constable Martinson not knowing Mr. Dimitrov personally would give him additional difficulty in identifying his slurred speech. [ 122 ] I first note that Constable Martinson asked Mr. Dimitrov if he had any special health concerns. Mr. Dimitrov stated that he did not. Also, there is no suggestion that Mr. Dimitrov was injured at the time of the incident. As such, I find it difficult to believe that any of the above contentions of Mr. Dimitrov—aside from the contention that individuals often have red eyes upon awakening— are tenable.

It is common experience that speaking is not significantly more difficult upon waking up absent some sort of medical condition. Concerning Constable Martinson not knowing how Mr. Dimitrov spoke, there was no evidence that Mr. Dimitrov spoke in an unusual manner. In the absence of such evidence, I am not able to find that Constable Martinson would have had any additional difficulty identifying slurred speech from Mr. Dimitrov than he would have of an average individual.

Finally, I am not convinced that walking is significantly more difficult upon waking in the absence of a medical condition. [ 123 ] As a result, I find that the indicia of impairment identified by the Crown are reliable. Therefore, in making my determination as to whether Mr. Dimitrov was impaired I must analyze the above list of indicia keeping in mind the absence of Constable Martinson observing certain indicators such as smacking of lips, dry lips, and a flushed face. [ 124 ] I do not give much weight to the absence of smacking of lips, dry lips, and a flushed face.

An individual may be impaired without exhibiting every indicia of impairment. I find Mr. Dimitrov’s slurred speech, inability to walk at the roadside, smell of alcohol on his breath, combined with the time at night and the location of the vehicle to be significant indicators of impairment. Add to this list that Mr. Dimitrov was unresponsive to the sustained efforts of the Constables to rouse him, and all the other indicia of impairment cited above, and I am left without a reasonable doubt as to Mr.

Dimitrov’s ability to drive being at least slightly impaired by alcohol. [ 125 ] Given my conclusion that the Crown has proven Mr. Dimitrov was impaired, Mr. Dimitrov is tasked with proving that he did not occupy the driver’s seat for the purpose of putting the vehicle in motion. Mr. Dimitrov did not make an argument on this point. Indeed, this would be a difficult argument to make considering Mr. Dimitrov was in a driving lane when arrested. Although there is no evidence suggesting that Mr. Dimitrov drove the vehicle to the driving lane, the burden of proof at this stage is on him.

He has not satisfied me on a balance of probabilities that his purpose was for anything other than setting the vehicle in motion. [ 126 ] Even if I am wrong concerning Mr. Dimitrov’s ability to rebut the presumption, I am nevertheless satisfied that Mr. Dimitrov posed a “realistic risk” of danger. As the Supreme Court of Canada recently stated in R. v. Boudreault , 2012 SCC 56 at para. 9 , if the presumption in section 258(1) (

a) of the Criminal Code is rebutted, conviction may nevertheless follow if the Crown can prove beyond a reasonable doubt that there was: (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk , as opposed to a remote possibility , of danger to persons or property.

[ 127 ] In defining “realistic risk”, the Court in Boudreault stated that the risk of danger must be realistic and not just theoretically possible. However, the risk need not be probable , or even serious or substantial ( Boudreault at para. 34 ). Thus, “realistic” is a relatively low threshold ( Boudreault at para. 48 ). [ 128 ] An intention to set the vehicle in motion is conclusive concerning a realistic risk of danger, though a lack of intention does not necessarily lead to the opposite conclusion ( Boudreault at para. 41 ).

This is so as the inebriated individual may later decide to set the vehicle in motion, may unintentionally set the vehicle in motion, or may negligently leave a vehicle that endangers person or property, amongst other possibilities ( Boudreault at para. 42 ). Establishing a realistic risk of such a possibility is sufficient for conviction. [ 129 ] I am convinced that Mr. Dimitrov’s behaviour established a realistic risk for three reasons. [ 130 ] The first reason is due to the location of Mr. Dimitrov’s vehicle presenting a realistic risk that he would drive upon waking u p. Mr.

Dimitrov could have awoken at any moment. Upon awakening and finding himself in a driving lane, there is a realistic risk that he would have chosen to drive as Mr. Dimitrov likely would have recognized the dangerous location of his vehicle and therefore may have chose to drive the vehicle to a safe location. [ 131 ] The second reason is due to the location of Mr. Dimitrov’s vehicle posing a danger to other vehicles on the road. In R. v. Ducharme , 2010 SKPC 31 , the location of the vehicle and the impairment of the accused were sufficient to pose a risk of danger (para. 23). Mr.

Dimitrov’s vehicle, like the vehicle in Ducharme , was in the middle of the road where it posed a danger due to the unexpected nature of the vehicle’s location. In addition, by choosing to sleep as opposed to call for help or watch for oncoming traffic, Mr. Dimitrov heightened this danger. [ 132 ] The final reason is due to Mr. Dimitrov applying the gas pedal of the vehicle and revving the engine to a very high RPM.

Although the vehicle is a manual transmission, therefore requiring the clutch to be engaged before the vehicle can be moved, as soon as the gas pedal was engaged, the vehicle was only two (or three if the emergency break was engaged) steps away from being set in motion. Had Mr. Dimitrov inadvertently pushed the clutch and knocked the vehicle into gear, the vehicle could have taken off. This is a realistic risk given that Mr. Dimitrov was already shifting in his seat and did not respond to the substantial attempts to wake him.

In so determining, I realize that such an occurrence was not likely to happen, but that is not the standard of proof to be applied. The threshold is low, and on the facts I find that Mr. Dimitrov posed a realistic risk of engaging the vehicle, despite it being a manual transmission.

(10) Conclusion [ 133 ] For the above reasons, I find that Mr. Dimitrov did, while his ability to operate a motor vehicle was impaired by alcohol, have the care and control of a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code . K. Lang, J