Her Majesty the Queen - v. -, 2011 SKPC 84

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 084 Date: June 7, 2011 Information: 31731537 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lee Ann Marlo Allan Appearing: Mr. Rob Parker For the Crown Mr. Merv Nidesh, Q.C. For the Accused JUDGMENT D.J. KOVATCH , J Background [ 1 ] The accused was charged with driving while her blood alcohol content exceeded .08 percent and with impaired driving.

The Crown stayed the charge for driving while over .08 percent and proceeded only on the impaired driving charge. All of the evidence was entered during the course of a Charter voir dire . At the conclusion of the voir dire , both counsel presented argument. The Crown advised that it had no further evidence to present in the trial, and the Defence advised it would not present any evidence at the trial. Accordingly, I reserved to determine the admissibility of the evidence presented at the voir dire and to determine whether the accused was guilty of the charge. The major issues for determination are:

1. An

interpretation of the Supreme Court of Canada decision in R. v. Orbanski : R. v. Elias, 2005 SCC 37 , together with related decisions, and the determination as to what evidence is admissible and what evidence is inadmissible within the bounds of these decisions; and 2. Whether the Crown must have significant evidence of bad driving, and whether there is sufficient evidence to prove the charge against the accused. The Evidence [ 2 ] The Crown called only one witness, retired Constable John Metz, formerly of the Moose Jaw City Police.

He testified that he was on duty on the night shift during the evening of March 11, 2007. At this time, he was dispatched to the Silo Lounge in the Heritage Inn to deal with an unruly patron. He was there speaking with the bar staff, when another individual, that he later learned was the accused, Ms. Lee Ann Allan, approached him. He spoke briefly to her. She was very drunk. He advised that her eyes were barely open. Further, that she was very unsteady on her feet. Her words were very slurred and she was difficult to understand.

He described her as “past impaired, very intoxicated”. [ 3 ] After the officer had quite brief dealings with the accused, an unknown male came and escorted her away. The accused had nothing to do with the incident for which the officer was called to this lounge. As a result, the male taking her away was of no concern. [ 4 ] The officer advised that 45 to 50 minutes later, he was travelling north on Main Street, near the Heritage Inn. At this time, he noticed a vehicle in the southbound lanes, in a stationary position. He turned around, and pulled up behind this vehicle in order to follow it.

At this time, he noticed that the driver was the same woman that he had dealt with slightly less than an hour prior to this. He followed the accused as she drove toward the downtown area. There was some straddling of the lanes and weaving. During this time, the accused’s vehicle is pictured on the police vehicle’s video system. The video was played for the Court. One can see that there is some weaving or moving about within the lane, sometimes straddling a lane. As the vehicle nears the intersection of Fairford and Main Street, the accused wanted to make a left-hand turn onto Fairford Street.

The turn can only be described as very wide and very odd. It is a slow, wide turn from Main Street to Fairford Street, without first going into the left-hand turning lane, and merely crossing over or through it. At this time, approximately 1:30 a.m., the officer pulled over the accused. [ 5 ] The officer testified that he asked the accused for her licence and registration. Her coordination was very poor, and she had difficulty producing it. He testified that she smelled strongly of alcohol, and that her speech was very slurred. He testified that she very quickly got emotional and started to cry.

He asked her to come back to the police car, and she did. In the video, she appears to slightly stagger or stumble on the way. [ 6 ] Once she is in the police vehicle, the officer’s voice and her voice can then be heard on the audio. She is instantly very emotional. She states on a number of occasions that she is very sorry. She says on more than one occasion “please don’t give me a ticket”. The officer asked how much she had to drink and she said she didn’t know. It is apparent during this time that her speech is very slurred. She is difficult to understand.

At this time, the officer advised her that she was under arrest, and advised her of her Charter rights. Shortly after being advised of her rights, the accused indicated that she wished to speak to a lawyer. Apparently, she never did speak to a lawyer. The officer testified that he did not give her “a Prosper warning”. The officer also testified that after making the breath demand, he did not give her the normal police warning, that she need not say anything but that anything she did say could be admitted in evidence against her.

He had no explanation for not giving the police warning. [ 7 ] The police officer had very few notes recorded in his notebook. Later on during the same shift, he completed three more detailed police reports. [ 8 ] The Defence presented no evidence on the voir dire.

Defence Argument [9] The Defence argues firstly that the officer had very limited notes, but much more detail in his evidence. The Defence arguesthat there has not been disclosure regarding the officer’s testimony. I believe Mr. Nidesh was suggesting that because the evidence wasmore detailed than the notes and the disclosure, there is a Charter violation and the evidence should not be admitted. I specificallyasked counsel if the officer was legally obligated to prepare more detailed notes and report, and supply them to the Defence. Counseldid not say that the officer was so required.

Counsel indicated that proper disclosure was not made. [10] Counsel also argued that according to the Supreme Court of Canada decisions of Orbanski and Elias, and related decisions,and in particular the case of R. v. Phipps, 2010 ABQB 661, all evidence from and after the time of the accused’s detention while still inher vehicle, and before even entering the police vehicle, must be excluded. Further, on the basis of R. v. Andrews (1996), 1996 ABCA23 , 104 C.C.C. (3d) 392, there was little evidence that the accused’s driving was impaired and accordingly, there was notsufficient evidence for the Court to convict.

Analysis Is there a problem with disclosure, and if so, what is the remedy? [11] I do not see that there is a problem with disclosure, and do not believe that any remedy is available. It seems to me that mostoften disclosure issues are dealt with prior to the commencement of trial. Defence counsel requests disclosure or further disclosure sothat the Defence knows the case it has to meet and can receive a fair trial. The Court will make orders regarding disclosure, and I believemay refuse to set a matter for trial unless and until full disclosure is made.

If evidence has been undisclosed and is presented duringtrial, the Defence may be entitled to an adjournment in order to obtain disclosure of the evidence and determine how it wishes toproceed. No such request was made here.

I know of no authority that allows me to exclude evidence during the course of the trial,because the Defence alleges it has not been disclosed or has been improperly disclosed. [12] Moreover, I would suggest that the very nature of giving evidence involves an embellishment, enhancement, or expansion ofthe evidence in Court, based upon the notes and the reports that were provided in the disclosure phase. Most often, the Defenceargument is to the effect that a note of some matter of evidence was not made, and as a result the Court should find that the witness wasnot credible on a particular point or points.

No such argument was made in this case. The officer’s evidence was relatively clear,contained no inherent contradictions, and no contradictory evidence was presented. As a result, for the most part, I am prepared toaccept that evidence as believable. The

interpretation and application of Orbanski and Elias, and related cases: [13] As mentioned above, Mr. Nidesh argues that everything from the point of detention and after should not be considered inevidence. I believe he places the point of detention at the point where the accused is still seated in the driver’s seat of her car. He reliesupon the Supreme Court of Canada decisions in Orbanski and Elias, and related cases. In my view, Orbanski and Elias and related casesdo not support such a broad based and all encompassing exclusion of the evidence. [14] In R. v. Milne (1996), (ON CA), 107 C.C.C. (3d) 118 (Ont.

C.A.), the accused was charged with impaireddriving and driving while over .08. When the police officer pulled over the accused, he noted a few indicia of impairment including thesmell of alcohol. The officer asked the accused to participate in a number of physical coordination tests, to determine if the accused wasintoxicated. When the accused was unsuccessful in these tests, the officer made the intoxilyzer demand. Two breath samples weresubsequently obtained, but the Certificate of Analyses could not be admitted because there was not a fifteen minute interval between thetwo samples.

The trial judge then proceeded to use the evidence of failed sobriety tests to determine that the accused was impaired andconvicted on the charge of impaired driving. On the basis of authorities such as R. v. Saunders (1988), (ON CA), 41C.C.C. (3d) 532 (Ont. C.A.) and R. v. Talbourdet (1984), (SK CA), 12 C.C.C. (3d) 173 (Sask. C.A.), the Courtdetermined that the police were not obligated to advise of Charter rights before requiring an accused to participate in sobriety tests orrequiring an accused to supply a sample of his breath in the approved screening device.

The requirement to participate in these tests,without advising of Charter rights, did not violate

section 10(

b) of the Charter. The Court went on to conclude however the use of thisevidence to convict of impaired driving rendered the trial unfair. The accused was legally compelled to participate in these tests and thus

was required to create or provide self-incriminating evidence. The Court stated: Applying the “fair trial” principle to this case, I am satisfied that the evidence resulting from the coordination tests was not obtained unfairly or unconstitutionally. However, its admission to prove impairment of the Appellants at trial would, in my opinion, render the trial unfair .... These tests were not meant to provide the police with a means of gathering evidence that could later be used to incriminate and convict the motorist of impaired driving at trial. Indeed, in my view, had that been their purpose, section 48(1) could not pass

section 1 Charter scrutiny. [ 15 ] In my view, quotes such as this one have led to a general statement that the results of sobriety tests or ASD test results can be submitted in evidence to establish that the police officer had reasonable grounds for the intoxilyzer demand. However, this evidence may not be used against an accused on a charge of impaired driving.

In my view, it is clear that the rationale for this approach is that the accused is legally compelled to participate in these tests, and if this evidence can be used against him, he is compelled to incriminate himself. [ 16 ] At paragraph 40, the Court stated as follows: I wish to make it clear that this conclusion applies only to evidence obtained from compelled direct participation by the motorist in roadside tests authorized by section 48(1) of The Highway Traffic Act , specifically designed to determine impairment or a blood alcohol level exceeding 80 milligrams.

I am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, bloodshot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment. Counsel for the Appellant took no issue with this differentiation.

Indeed, he conceded in argument that such evidence obtained indirectly through observation, would be admissible at trial. (emphasis added) [ 17 ] By this quote, the Court clearly indicated that there is not a general prohibition against evidence that may be admitted following the stopping of a driver. The general investigation of the matter by the police officer is still clearly permitted and the officer is entitled to lead evidence of observations made during that investigation.

It is clear that such evidence is admissible because the accused is not providing evidence against himself, rather, the police officer is investigating and testifying as to his personal observations. [ 18 ] In the cases of Orbanski and Elias , each accused driver was asked if they had been drinking, and admitted that he had been. Orbanski was asked to perform roadside sobriety tests which he failed. Elias failed an approved screening device test. Both were arrested and the intoxilyzer demand made. Both were then charged while driving over .08. The issue, broadly speaking, was whether the accused’s

section 10(

b) Charter rights had been infringed, and whether the police could require an individual to participate in sobriety tests or the ASD test, without first advising the accused of his Charter rights and allowing him to speak to counsel. [ 19 ] At paragraphs 44 and 45, the Court stated: Hence, it cannot be disputed that the police had the general power, indeed the duty, to check the sobriety of Orbanski and Elias , and that, logically, certain measures could lawfully be taken to fulfill this duty.

What is questioned in these cases is whether those measures included the right to ask the driver questions of prior alcohol consumption and request that he perform sobriety tests. The screening of drivers necessarily requires a certain degree of interaction between police officers and motorists at the roadside.

It is both impossible to predict all the aspects of such encounters and impractical to legislate exhaustive details as to how they must be conducted. [ 20 ] The Court concluded at paragraph 49 that the police were entitled to ask the accused if he had been drinking and that such questions were a minimal intrusion. The Court went on to hold that the police were not required to advise of

section 10(

b) Charter rights, or allow the accused to consult counsel prior to putting such questions to them. [ 21 ] At paragraph 58, the Court then stated as follows:

Finally, the limitation meets the proportionality test. As the Crown concedes, the evidence obtained as a result of the motorist’s participation without the right to counsel can only be used as an investigative tool to confirm or reject the officer’s suspicion that the driver might be impaired. It cannot be used as direct evidence to incriminate the driver: See R. v.

Milne ... [ 22 ] The Court went on to specifically quote and adopt the passage from Milne quoted in paragraph 16 above that the personal observations of the police officer would be admissible to prove impairment. [ 23 ] In my view, it is particularly important to note that the Supreme Court of Canada not only quoted and adopted the Milne decision, it has accepted the rationale that the accused cannot be compelled to incriminate himself.

It has also specifically stated that there is not a general exemption from all evidence obtained after the police stop and that the police officer is quite entitled to testify regarding his personal observations of indicia of impairment. [ 24 ] I turn now to the very recent decision of the Ontario Court of Appeal in R. v. Rivera, 2011 ONCA 225 . The accused was charged with refusing to comply with an ASD demand. During the course of making unsuccessful attempts at providing a suitable breath sample, the accused made statements like “I work for the O.P.P., I will lose my job, don’t do this to me.

I only had one beer. I was just taking myself home.” At trial, the accused led evidence to the effect that she was suffering a panic attack, and physically could not provide the breath sample. The trial judge took the above mentioned statements into account in determining that he did not believe the accused, and convicted her of the charge. In its decision, the Ontario Court of Appeal repeatedly referred to the “ Elias/Milne/Coutts line of authority”. It did not indicate or enunciate any amendment or broadening of the principle mentioned above.

The Court stated that if the statements were clearly statements that the accused was refusing to supply a sample, such statements would be evidence of the actus reus of the offence, and would be directly admissible. The Court concluded that the quoted statements could not be construed as direct refusals, and thus could not be admitted as evidence of the actus reus . The Court also concluded that there was no distinction between admission of conscripted statements in evidence against an individual and admission of those same statements to impeach the credibility of the accused at trial.

For this reason, the Court concluded that the trial judge had improperly admitted and utilized the accused’s statements and the Court of Appeal directed that a new trial be held. [ 25 ] On the basis of the Rivera decision, I conclude that in the view of the Ontario Court of Appeal, the principles stated above from Milne, Orbanski and Elias remain good law, and are fundamentally unaltered. As a result, there is no broad based rule against admission of evidence obtained after the police stop of a motor vehicle. Evidence of the police officer’s general observations are admissible.

Evidence statutorily conscripted from the accused is not admissible to prove the impairment of the driver. [ 26 ] In paragraph 10 of the decision, I indicated that Defence counsel relied on the case of R. v. Phipps . In that case, the Court concluded the trial judge could not admit or rely upon certain observations made by the police officer like the fact the accused had his shoes on the wrong feet. It seems to me this is a broadening or an extension of the “limitation on use” principles enunciated in R. v. Milne , supra , R. v. Orbanski and R. v. Elias .

Because the narrow limitation was specifically adopted by the Supreme Court of Canada in R. v. Orbanski and R. v. Elias , supra, I choose to use the narrow limitation, and will admit evidence of the police officer’s observations. [ 27 ] In this case, the police officer testified as to his dealings with the accused at the Silo Bar. He testified that she was very drunk. Her eyes were barely open, and that she was very unsteady on her feet.

In my view the Crown was entitled to lead such evidence and is entitled to ask the Court to infer that she was still impaired when the police officer again dealt with her less than an hour later. The police officer testified regarding the accused driving downtown and the turn onto Fairford Street. The video of that driving was placed in evidence before the Court. All of this evidence is clearly admissible. [ 28 ] Once stopped, the police officer approached the accused’s vehicle. He asked her for her licence and registration.

He testified that she had very poor coordination and had difficulty producing these documents. In addition, she smelled strongly of alcohol. Her speech was very slurred and she was difficult to understand. He testified that she quickly became emotional and started to cry. All of this happened prior to the police officer asking her to come back to his vehicle and prior to him placing her under arrest. These were all the police officer’s observations and are admissible on the basis of the decisions in Milne , Orbanski and Elias . [ 29 ] The police officer did not give her the police warning.

Had he done so, she might have been much more careful in terms of her statements. She might not have made some incriminating statements. As a result, and to be consistent with Orbanski and Elias , I concluded it would be unfair to admit in evidence statements made by the accused to the police officer after he advised her of Charter rights . Normally, at this point in time, he would also advise of the police warning. However, in my view the police officer is entitled to testify that the accused remained very emotional. He is also able to testify that she stumbled on her way back to the police car and

stumbled on occasion at the police station. We have a video in evidence that shows that. This is not evidence that was obtained bycompelling the accused to incriminate herself. Rather, it is documentary and video evidence that verifies or corroborates the policeofficer’s observations and testimony. Is there sufficient evidence to convict the accused of the charge: [30] In this case, Mr. Nidesh refers to the case of R. v. Andrews (1996), 1996 ABCA 23 , 104 C.C.C. (3d) 392. He saysthere is little evidence regarding the accused’s driving.

On the basis of the Andrews decision, he says the Crown must establish that theaccused’s ability to drive was impaired. The police officer’s evidence that the accused displayed indicia of impairment is of littleassistance to the Crown or to the Court because it does not establish that the accused’s ability to drive is impaired. He also says that theAndrews case has been recently adopted as the law in the Province of Saskatchewan by His Honour Judge Kalmakoff in the case of R. v.Carriere, 2010 SKPC 118. Mr. Nidesh made a similar argument before me in the case of R. v.

MacLowich (unreported decision) of thisCourt at Moose Jaw, dated September 12, 2006. In that case, I stated as follows: In my respectful view, Defence counsel misreads or misinterprets the Andrews decision. I do not read the Andrews decision as requiringproof of erratic driving. In my view, that decision is simply a caution to trial judges that they must be satisfied on all of the evidence ofthe impairment of the accused. Further, that the Crown will have greater difficulty meeting this onus if there is no evidence of erraticdriving.

In the Andrews decision, in addition to the above quoted passages, the Court also stated: Impairment is a question of fact which can be proven in different ways. On occasion, proof may consist of expert evidence, coupled withproof of the amount consumed. The driving pattern, or the deviation in conduct, may be unnecessary to prove impairment. Morefrequently, as suggested by Sissons C.J.D.C. in McKenzie, proof consists of observations of conduct.

Where the evidence indicates thatan accused’s ability to walk, talk, and perform basic tests of manual dexterity was impaired by alcohol, the logical inference may bedrawn that the accused’s ability to drive was also impaired. In most cases, if the conduct of the accused was a slight departure fromnormal conduct, it would be unsafe to conclude, beyond a reasonable doubt, that his or her ability to drive was impaired by alcohol.

Putanother way, as was done in Stellato, the conduct observed must satisfy the trier of fact beyond a reasonable doubt that the ability todrive was impaired to some degree by alcohol. (Emphasis added) As a result, I conclude that there need to not be abundant, or in fact any evidence of erratic driving. The issue is whether the Court issatisfied on the totality of evidence that the accused was operating a motor vehicle while impaired by alcohol. [31] It seems to me that His Honour Judge Kalmakoff reached a similar decision in Carriere.

It seems to me that at paragraph 62and following Judge Kalmakoff concludes that there is little conflict between the cases of Stellato and Andrews. He cites and refers toboth, and concludes the evidence is not sufficient to establish impairment. [32] In the case at bar, with the evidence that I have determined to be admissible, there is more than sufficient evidence to establishthe impairment of the accused, and to convict her of the charge of impaired driving. There is the evidence of the police officer regardinghis early dealings with the accused at the Silo Bar.

There is evidence that she was very significantly impaired at this time. Then there isthe evidence of her driving around town and the very wide turn from the wrong lane at Fairford Street. There is the evidence of all of theobservations of the police officer at the vehicle stop, together with the video evidence showing the accused to stumble on variousoccasions. On the basis of all of this evidence, I conclude that the accused did operate a motor vehicle while her ability to do so wasimpaired by alcohol and I convict her of the charge. Dated at Moose Jaw, Saskatchewan, this 7th day of June, 2011. D.J. Kovatch, J