Her Majesty the Queen - v. -, 2014 SKPC 23

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 023 Date: April 15, 2014 Information: 24398995 Location: Moosomin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Leslie William Drummelsmith Appearing: Barrie Stricker For the Crown Gary Moore For the Accused DECISION R. GREEN , J I. INTRODUCTION [ 1 ] Mr. Drummelsmith is charged with having the care and control of a motor vehicle while impaired by alcohol and while over the legal limit of .08 on August 12, 2012 near Moosomin. [ 2 ] The defence makes two applications under section 24(2) of the Charter of Rights and Freedoms . The first alleges a breach of s. 10(

b) and seeks to exclude evidence of the manner in which Mr. Drummelsmith walked from his vehicle to the police vehicle as it

relates to the impaired driving charge. The second alleges a breach of s. 9, because the officer did not have the requisite grounds to demand a breath sample from Mr. Drummelsmith under s. 254(3), and seeks to exclude the Certificate of Analyses. [ 3 ] On the trial proper, the defence says there are two issues: whether the breath tests were taken as soon as practicable after the offence is alleged to have occurred and whether there is proof beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol. [ 4 ] As a result, the issues are:

(1) Regarding s. 10(

b) of the Charter , whether evidence of his manner of walking from his vehicle to the police vehicle can be used against him on the impaired driving charge;

(2) Regarding s. 9 of the Charter , whether the officer had lawful grounds to make the breath test demand under section 254(3);

(3) On the .08 charge, whether the Crown proved beyond a reasonable doubt that the breath tests were taken as soon as practicable after the offence was alleged to have occurred; and

(4) On the impaired driving charge, whether the Crown has proved beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol. [ 5 ] Evidence was heard on a Charter voir dire , with the only witnesses presented by the Crown: Cst. Jan Indenbosch and Cst. Maxime Cloutier. The evidence from the voir dire was applied to the trial. The defence called no evidence on the Charter voir dire or the trial. [ 6 ] The defence admits that Mr. Drummelsmith was in the care and control of his vehicle when found by the officers.

Given that admission, and the reality that “care and control”, as charged here, at the least encompasses “care or control” - the exact wording in ss. 253(1) of the Code - I see no legal significance to the discrepancy between the wording of these charges and the Code section. The defence further admits that Mr. Drummelsmith was given his rights to counsel and declined to speak to a lawyer. II. BACKGROUND: [ 7 ] Shortly after 2:00 a.m. this morning, Cst. Indenbosch and Cst. Cloutier were driving south on Highway 8, returning to Moosomin from Rocanville. They came upon Mr.

Drummelsmith’s vehicle on the shoulder of the road, running with the lights on but with no hazard lights on. Cst. Indenbosch stopped his vehicle behind Mr. Drummelsmith, and both officers got out on foot and approached the vehicle from either side. Cst. Indenbosch, on the driver’s side, looked in the window and saw that Mr. Drummelsmith was lying across the front seat of the pick-up truck, with his head on the passenger side and his feet on the driver’s side. He knocked on the window and woke up Mr. Drummelsmith, who sat up. The officer could see that Mr.

Drummelsmith had been lying on top of an open beer bottle which had spilled onto the seat and onto Mr. Drummelsmith’s shirt. [ 8 ] Cst. Indenbosch smelled alcohol coming from Mr. Drummelsmith, and asked him if he had been drinking. Mr. Drummelsmith responded that he was tired and pulled over to the side of the road to sleep and that he had consumed two beer. Cst. Indenbosch then asked Mr. Drummelsmith to come out of the vehicle, he said so that he could determine whether the smell of alcohol was coming from his breath or from the beer that had spilt on him and on the seat. He asked Mr.

Drummelsmith to come back to the police vehicle, and when Mr. Drummelsmith got out of the vehicle, he stumbled and almost fell over and had to catch himself on the tailgate of the pick-up truck by grabbing it. [ 9 ] The officer said, at that point – because of: (1) the smell of alcohol coming from him; (2) that, in his view, he had found Mr. Drummelsmith passed out on the front seat of his vehicle on top of an open beer bottle; and (3) his inability to stand up straight and walk properly – he arrested him for having the care or control of a vehicle while impaired by alcohol.

[10] Cst. Indenbosch said, once Mr. Drummelsmith was back in the police vehicle, and before he was formally read the breathdemand, his rights to counsel and the police warning, he could tell that the smell of alcohol was coming from Mr. Drummelsmith’sbreath as the vehicle soon filled up with the smell of alcohol. [11] Mr. Drummelsmith was arrested at 2:18 a.m. and the breath demand was given to him at 2:20 a.m. After Cst. Cloutierreturned to the vehicle and seized the bottle of Budweiser beer that Mr. Drummelsmith was lying on, the officers left the scene with himat 2:25 a.m. Although Cst.

Indenbosch said they arrived at the Moosomin RCMP Detachment at 2:48 a.m., I am satisfied he wasmistaken, as he had no notation of the time in his notes and Cst. Cloutier recorded in his notes that they arrived at 2:35 a.m. [12] Once back at the detachment, Cst. Indenbosch, a qualified technician, discovered that the solution in the Intoxilyzer breathinstrument needed to be changed. He said this took about 30 minutes, give or take five or ten minutes. Once the solution was changed,and the breath instrument was prepared, samples of 90 milligrams percent each were taken from Mr.

Drummelsmith at 3:29 a.m. and at3:52 a.m. [13] Cst. Cloutier, as well, said that he could smell alcohol coming out of the vehicle when Mr. Drummelsmith rolled down thewindow but was not sure whether it was coming from Mr. Drummelsmith’s breath or the partly full beer bottle lying on the seat, that helater seized (Exhibit P2). Regarding the manner of walking by Mr. Drummelsmith going from his vehicle to the police vehicle, Cst.Cloutier described him as not being able to stand still and swaying. III. DID THE OFFICER HAVE LAWFUL GROUNDS FOR THE BREATH DEMAND? [14] Mr. Moore argued that Cst.

Indenbosch did not have reasonable grounds to believe Mr. Drummelsmith had been driving whileimpaired by alcohol in the previous three hours when he demanded a breath sample from him under s. 254(3), and that as a result hisclient’s right to be free from arbitrary detention under s. 9 of the Charter was violated. For the reasons that follow, I disagree. [15] The legal framework for making this determination was succinctly stated by Justice Wilkinson in R. v. Stevens[1]: 4 In R. v.

Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, the Supreme Court of Canada confirmed that the test has both a subjective andan objective component and that in establishing reasonable and probable grounds, the officer must subjectively have an honest belief andobjectively there must exist reasonable grounds for this belief.

As stated in Shepherd, at para. 23, the peace officer "... need notdemonstrate a prima facie case for conviction before pursuing his investigation...." 5 Whether or not the officer's belief was reasonable is based on "... facts known by or available to the peace officer at the time heformed the requisite belief...." (R. v. McClelland (1995), 1995 ABCA 199 , 165 A.R. 332, 98 C.C.C. (3d) 509 (C.A.), at para.21). The question is whether the available body of information provides reasonable grounds, on an objective standard. [16] I accept, and find, that Cst. Indenbosch based his belief that Mr.

Drummelsmith had the care or control of a vehicle whileimpaired on the following information available to the officer:

(1) Mr. Drummelsmith was parked on the shoulder of the road, at 2:00a.m., with his vehicle running and headlights on but without his hazard lights on to warn other drivers; (2) the officer found him passedout on the front seat of the vehicle, lying on top of an open and half-full bottle of beer that had spilled both onto the seat and Mr.Drummelsmith’s clothes;

(3) Mr. Drummelsmith said he had consumed two beer and as well said he was tired and pulled over to sleep;(4) the officer smelled alcohol coming from him; and

(5) Mr. Drummelsmith was not able to stand up straight or walk properly when hegot out of his vehicle and had to grab the tailgate of his truck to prevent himself from falling when he stumbled. [17] Taken together, I am satisfied that Cst. Indenbosch’s honest belief that Mr. Drummelsmith was in the care or control of avehicle while impaired by alcohol was reasonable, given the dangerous fashion the car was parked, his condition and position whenfound and the open beer bottle he was passed out on, the smell of alcohol from him and his trouble walking when he got out of hisvehicle. As a result, I am not satisfied that there was a breach of Mr. Drummelsmith’s rights under s. 9.

IV. IS THE EVIDENCE OF HIM STUMBLING ON THE WAY TO THE POLICE VEHICLE ADMISSIBLE ON THEIMPAIRED DRIVING CHARGE? [18] Cst. Indenbosch testified that Mr. Drummelsmith was not able to stand up straight or walk properly when he got out of hisvehicle and that he had to grab the tailgate of his truck to prevent himself from falling when he stumbled. I find these observations weremade: (1) after Mr. Drummelsmith had been detained by the officer and compelled by him to get out of his vehicle and walk back to thepolice vehicle; and (2) before Mr.

Drummelsmith was given the right to contact a lawyer. [19] I am satisfied that these observations were, in effect, a form of sobriety testing by the officer, through which he was assessingwhether he had the lawful grounds to make a breath demand. As a result, while admissible on the question of whether the officer hadsuch lawful grounds, this compelled evidence is not admissible against Mr. Drummelsmith on the impaired driving charge, as in myview: (1) the taking of it constituted a violation of Mr. Drummelsmith’s rights under s. 10(

b) of the Charter; and (2) its admission would bring the administration of justice into disrepute.[2] V. WERE THE SAMPLES TAKEN AS SOON AS PRACTICABLE? [20] Mr. Moore submits that the time Cst. Indenbosch took to change the solution on the breath machine - in the officer’s evidencebetween twenty and forty minutes - meant that the tests were not taken as soon as practicable, and as a result the presumption of identityin s. 254(1)(c)(ii) of the Criminal Code does not apply in this case so as to prove his blood alcohol content at the time he was tested wasthe same as when he was in care or control of the vehicle.

For the reasons that follow, I disagree. [21] In R. v. Zemlak[3], Justice Laing considered a similar case where a required change of the Intoxilyzer solution resulted in adelay of twenty to twenty-five minutes. In deciding that this delay did not result in the tests not being taken as soon as practicable JusticeLaing stated: As I noted recently in the decision of R. v. Burwell, 2013 SKQB 20, perfection in the maintenance of a working Intoxilyzer machine isnot realistic. There can be various reasons why an Intoxilyzer machine will require attention in varying degrees which will consumevarying amounts of time.

In R. v. Finlayson (1974), (SK CA), 21 C.C.C. (2d) 511, [1974] S.J. No. 312 (QL) (Sask.C.A.), the Court found the one-hour time it took the technician to put the breathalyzer machine in proper working order still resulted inthe breath sample being taken as soon as practicable. [22] Based on the reasoning in Zemlak and Finlayson, I am satisfied that, even with the change of solution done by Cst.Indenbosch, the tests in this case were taken as soon as practicable. VI. WAS HIS ABILITY TO OPERATE A MOTOR VEHICLE IMPAIRED BY ALCOHOL? [23] Given my exclusion of the evidence of Mr.

Drummelsmith stumbling on the way to the police vehicle, that leaves thefollowing evidence of impairment at this trial: (1) the smell of alcohol coming from him; (2) the open bottle of beer he was lying on; and(3) that he had parked by the side of the road at 2:00 a.m. without his hazard lights on. [24] Applying the standard for impairment approved by the Supreme Court of Canada in R. v. Stellato[4], I have a reasonable doubtthat Mr. Drummelsmith’s ability to operate motor vehicle was impaired by alcohol when he was in care or control of this vehicle. VII. CONCLUSION

[25] As I have a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol, Mr. Drummelsmith is foundnot guilty on count one. As I am satisfied beyond a reasonable doubt that all requisite elements of the s. 253(1)(

b) charge, of having thecare and control of a vehicle over the legal limit, have been proven by the Crown beyond a reasonable doubt, he is found guilty on counttwo. R. Green, J [1] 2011 SKQB 342 at para. 4 and 5. [2] See R. v. Demers, 2007 SKQB 348 at para. 8 and 9 and R. v. Laliberte, 2013 SKPC 171at para. 21 - 23. [3] 2013 SKQB 34. [4] (SCC), [1994] 2 S.C.R. 478.