Her Majesty the Queen - v. -, 2012 SKPC 125

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 125 Date: August 15, 2012 Information: 36652002 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ryan Palmer Appearing: Bryce Pashovitz For the Crown Jonathon Abrametz For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] On July 14, 2010, Mr. Palmer was charged with operating a motor vehicle while his ability to do so was impaired by alcohol or a drug contrary to ss. 255(1) and 253(1) (

a) of the Criminal Code , and also with operating a motor vehicle after consuming alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to ss. 255(1) and 253(1)(

b) of the Criminal Code .

[ 2 ] An application was made by the accused to exclude the Certificate of Analyses on the basis that the arresting officer did not have reasonable grounds within the meaning of s. 254(3) of the Criminal Code to make a demand for breath samples, nor did he have the grounds to effect an arrest for impaired driving. At the conclusion of a voir dire , this Court held that the arrest was lawful, the search reasonable and that the Charter rights of the accused had not been violated. The certificate was found to be admissible. Full reasons were reported at R. v. Palmer . [1] [ 3 ] Upon the rendering of this decision, the

summary conviction trial was completed in the absence of the accused. The Certificate of Analyses was marked as Exhibit P-1, the Crown evidence on the voir dire was applied to the trial proper and the case for the Crown was closed. Counsel for the accused elected to call no evidence and the matter was adjourned for decision to a date when the accused would be present. EVIDENCE Gordy Ouellette [ 4 ] In the early morning hours of July 14, 2010, Mr.

Ouellette was driving on 22 nd Street West in the City of Saskatoon when he noticed an oncoming vehicle make a wide turn onto Avenue W and over to the left side of the road. Mr. Ouellette had concerns and followed the vehicle as it turned left onto 20 th Street, again using both sides of the road. There were a number of other vehicles around the intersection of 20 th Street and Avenue W. The vehicle was swerving and almost came into collision with parked cars. This driving prompted Mr.

Ouellette to call 9-1-1. [ 5 ] He could not identify the driver of the vehicle and could not say whether the driver was male or female. He could say that the driver was the only occupant. The vehicle was a light coloured truck with the licence number 591 FRD. Jamie Scott Marushak [ 6 ] Mr. Marushak was with Mr. Ouellette at a local bingo parlour until about 12:05 a.m. At 22 nd Street and Avenue W, he too, saw a light coloured Chev half-ton approach from the opposite direction and turn right almost hitting some cars stopped at a red light. He and Mr.

Ouellette followed the vehicle and he noticed it swerving “at least a dozen times” as it proceeded down the street. He described the vehicle going into the oncoming lane, remaining there for 10 seconds then returning to the proper lane of travel. He and Mr. Ouellette never got within 60 feet of the truck. He saw only one silhouette in the truck and could not identify the operator. Constable Matthew Walz [ 7 ] Constable Walz has been a member of the Saskatoon Police Service since December 2004. On July 14, 2010 he was in uniform, in a marked police vehicle and on patrol with Constable Bradley.

Shortly after midnight, he was dispatched to investigate a complaint of a suspected impaired driver who was weaving on the roadway and up onto a sidewalk. A licence number for the offending vehicle was reported and Constable Walz went in search of it. At approximately 12:12 or 12:13 a.m. he saw a vehicle with that licence plate weaving in the right lane in a fashion that brought it very close to parked cars. He watched the vehicle as it continued to weave from the right to the left lane.

The vehicle suddenly braked and made a right turn from the left lane whereupon the officer activated the emergency lights of the patrol car. The vehicle pulled over quickly but as the officer walked toward the driver, the vehicle lurched forward then stopped very abruptly. The stop occurred at 12:15 or 12:16 a.m. [ 8 ] The accused was the operator and only occupant of the vehicle.

[ 9 ] Constable Walz made the following observations of the accused: glossy eyes, slurred speech in that words were blended together in a seeming lisp. The accused demonstrated poor muscular control, particularly in keeping his head still. He also had difficulty grasping his licence and when he reached to place it in the officer’s outstretched palm he missed by three or four inches, dropping the identification beneath the officer’s hand and onto the ground.

Constable Walz asked the accused to step out of his vehicle and noted that his balance was poor, that he stumbled and that when he walked, his upper body leaned forward. He watched the accused walk to the front of the patrol car and at that point felt that he had reasonable grounds to arrest the accused for impaired driving. When the accused was placed in handcuffs he stumbled and fell forward. [ 10 ] The arrest occurred at 12:19 and at 12:20 a.m. the accused was read his rights to counsel.

When asked whether he wished to call a lawyer he replied “yeah, when we get there to the police station.” This was followed by the standard police warning which he said he understood. When read the demand for breath samples and asked whether he understood, the accused indicated that he would not be saying anything and directed that he be taken to the police station. The officers promptly transported the accused to detention arriving at 12:33 a.m. Once the accused was booked, he was taken to a phone room.

Because the officer had not received a clear indication from the accused that he understood the demand the first time it was made, the officer read the demand again at 12:41 a.m. At 12:43 a.m. Mr. Palmer asked to speak to Legal Aid; duty counsel was reached about one minute later. The accused spoke to duty counsel for approximately three minutes. At the completion of that call the accused wanted to speak to a private lawyer, but received only a message manager. The accused did not wish to leave a message but rather called Legal Aid again.

At 12:50 he spoke to duty counsel and afterward decided that he would like to leave a message for his private counsel. He was permitted to do so and when asked if he was satisfied with this he said that he was and that he did not want to make any more calls. At 1:03 a.m. the lawyer responded to the message by calling the police station; the accused spoke to that lawyer until 1:06 a.m. [ 11 ] Shortly thereafter the technician arrived and spoke to the accused who confirmed that he was satisfied with his legal consultation. [ 12 ] The accused provided breath samples at 1:16 and 1:39 a.m.

Both resulted in readings of 200 milligrams of alcohol in 100 millilitres of blood. Consequently, he was arrested for driving while over .08 and again provided his rights to counsel. He asked to call the lawyer to whom he had spoken earlier but received only a message manager. The officer provided the Prosper [2] warning to which the accused advised that he might wish to speak to another lawyer later. The detention staff were instructed to allow him to do so. [ 13 ] Constable Walz also attempted to find a sober person to collect Mr. Palmer and keep him safe but Mr. Palmer could or would not name anyone.

As a result, instructions were given to hold Mr. Palmer until he was sober or until a competent person could take him into their care. [ 14 ] The accused was identified with a photo driver’s licence which the officer photocopied. The officer was also able to make an in- court identification. ISSUES [ 15 ] The only question left for this Court to determine is whether the Crown has proven, beyond a reasonable doubt, that the accused operated a motor vehicle while his ability to do so was impaired by alcohol and while his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood.

In light of the admission of the Certificate of Analyses, counsel for the accused presented no argument with respect to the offence of driving while over the legal limit. In relation to the offence of impaired driving, counsel argues that the certificate cannot be used as evidence of impairment and thus, the accused should be acquitted on that count. ANALYSIS [ 16 ] No issue was taken with respect to proof of the date, place or identity and I find that the evidence does establish, beyond a reasonable doubt, that the accused was operating a motor vehicle in Saskatoon, Saskatchewan on July 14, 2010 as alleged.

[17] R. v. Stellato[3] provides the test to be applied in determining whether the offence of impaired driving has been established; that is:if the Crown has proven beyond a reasonable doubt that the ability of an accused to operate a motor vehicle is even slightly impaired bydrug or alcohol, there is sufficient proof of the offence. This does not mean that only slight evidence will be adequate. Rather, theevidence as a whole must establish that such an inference can reasonably be drawn from conduct which is a departure from the norm.

That departure may fall upon a continuum from slight to great, but it must lead to no other reasonable conclusion but that the accused’sability to operate a motor vehicle was impaired to some degree by the consumption of alcohol and/or drugs. [18] This Court finds that the evidence does establish, beyond a reasonable doubt, that the ability of the accused to operate a motorvehicle was impaired by alcohol at the time he was driving.

Although the Court cannot draw an inference from a blood alcohol reading asto the degree of impairment without the assistance of an expert to establish a correlation between the result and a particular level of impairment, the certificate does provide evidence of the existence of alcohol in the accused’s body.[4] This fact can be considered incombination with any other evidence of impairment which has been proven. [19] In this case, the driving observed by the civilian witnesses and the police officers demonstrates a significant departure from thenorm; the vehicle was seen weaving down the street, nearly colliding with parked vehicles and encroaching on the oncoming lane.

Atleast one turn was made without signalling and one was made after braking abruptly. The accused demonstrated significant physicalsymptoms of impairment: glossy eyes, slurred speech, poor muscle control, poor balance and poor coordination. A consideration of thisevidence along with the proof that there was alcohol in his body, leaves this Court with no doubt whatsoever that the accused’s ability tooperate a motor vehicle was impaired by alcohol. [20] As the prerequisites set out in s. 258(1) of the Criminal Code for the admission of the Certificate of Analyses have beenestablished, the presumption of s. 258(1)(

c) applies. In the absence of evidence to the contrary, this constitutes proof beyond a reasonabledoubt that the blood alcohol level of the accused at the time of driving was 200 milligrams of alcohol in 100 millilitres of blood. [21] Accordingly, the accused is found guilty on both counts on the information; the impaired driving count will be conditionally stayedpending any appeal. _____________________ M.L. Gray, J [1] 2012 SKPC 43 , 2012 SKPC 043 [2] (SCC), 92 C.C.C. (3d) 353 [3] (ON CA), [1993] O.J. No. 18 (C.A.), affd. (SCC), [1994] 2 S.C.R. 478 (SCC) [4] Impaired Driving in Canada, 2012/2013 Edition, Justice Joseph Kenkel at p. 118