Her Majesty the Queen - v. -, 2013 SKPC 97

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 097 Date: June 17, 2013 Information: 24394630 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Steven Albert Chevalier Appearing: Ms. Codi Chudyk For the Crown Mr. Chris MacLeod For the Accused JUDGMENT D. KOVATCH , J [ 1 ] Steven Albert Chevalier is charged with impaired driving causing bodily harm and driving while over .08, causing bodily harm. Both charges arise out of a single incident that occurred in the very early morning hours of July 3, 2011.

These are indictable offences. The defence elected to be tried by a Provincial Court Judge. The trial began on December 11, 2012, and concluded on February 8, 2013. I reserved my decision. THE EVIDENCE

[ 2 ] The first witness called by the Crown was Ms. Samantha Fornwald. She is a young woman, who had concluded high school shortly prior to this event. She was still residing with her parents in the Town of Lampman, Saskatchewan. On the evening prior to the accident, she was visiting at the home of her boyfriend. Her boyfriend, Mr. Fleck, resided on a farm about 10 minutes outside of Lampman. [ 3 ] She testified that she had not been drinking that evening. At about 12:40 a.m. on July 3, she began driving back to her home at Lampman, Saskatchewan. She was travelling east on Saskatchewan Highway No. 361.

It was a clear night. The road conditions were good. Traffic on that highway was very light. [ 4 ] As she drove east, there was a westbound vehicle with its bright lights on, coming towards her. She said she attempted to dim her lights, hoping that the oncoming driver would do the same. However, the oncoming driver did not dim his lights. She testified that she moved further and further to the right side of the road. The oncoming vehicle came across the highway into her lane and the two vehicles collided. Her car ended up on its roof in the right-hand ditch.

She was able to get her cell phone out of her pocket, which she used to call her dad and her boyfriend. Within minutes help arrived. She was injured. Her boyfriend’s father, Mr. Fleck, helped her to his car. Later, she was taken to the hospital. [ 5 ] Russell Fleck and Samantha’s mother, Ms. Diane Fornwald, also testified. They testified about what they did that evening, about arriving at the accident scene, the position of the vehicles and rendering assistance to Samantha Fornwald. [ 6 ] The Crown also called Cst. Erin Beaulieu of the RCMP. She testified that she has been with the RCMP for just under four years.

For three and a half years she was at the Estevan Detachment, but has since been moved to Ottawa to the RCMP Musical Ride. [ 7 ] She testified that when she arrived, the Fornwald vehicle was on its roof in the ditch. Mr. Chevalier’s vehicle was still on the highway. The accused, Mr. Chevalier, was the lone occupant. He was trapped in his vehicle, and fire crews and EMS personnel were working at extricating Mr. Chevalier from the vehicle. She noted the smell of beer and a number of open beer in Mr. Chevalier’s vehicle. She spoke to her partner, Cst. Mehl, who advised her of Ms.

Samantha Fornwald’s description of how the accident occurred. More specifically, he advised that Mr. Chevalier’s vehicle came across the highway and struck Ms. Fornwald’s vehicle and then spun around and came to rest facing east on the highway. On the basis of this information, open liquor in Mr. Chevalier’s vehicle, and the smell of alcohol, Cst. Beaulieu determined that Mr. Chevalier may have been impaired at the time of the accident, and she began investigating that charge. However, there was little that she could immediately do to pursue the investigation. She did take some pictures.

She testified that she had to wait for the other emergency personnel to remove Mr. Chevalier from the vehicle, at which time she was able to get identifying information from him. She testified that upon removal from the vehicle, he was immediately strapped to an ambulance gurney or stretcher, and he was then taken to Estevan by ambulance. She got into her police vehicle and followed the ambulance to the Estevan hospital. [ 8 ] At the hospital, she spoke to Mr. Chevalier. She detected the smell of beverage alcohol coming from him.

She advised him of his rights, and assisted him in contacting Legal Aid duty counsel. After Mr. Chevalier consulted with counsel, the officer made the following demand: I have reasonable grounds to believe that your ability to operate a motor vehicle is impaired by alcohol and that you are - it would be impractical to obtain a sample of your breath. In accordance with the Criminal Code , I demand that you supply samples of your blood for analysis to determine the concentration, if any, of alcohol in your blood.

Such samples will be taken by or under the direction of a medical practitioner - qualified medical practitioner who is satisfied that the samples will enable the proper analysis to be made and the taking of samples will not endanger your life or health. Do you understand? [ 9 ] At first, Mr. Chevalier advised that he would not comply with the demand. Cst. Beaulieu then advised that he could be charged with refusal. Mr. Chevalier then agreed to provide the samples. It would appear that Cst. Beaulieu then witnessed a doctor or medical technician take the blood samples from the accused.

At page 94 of the transcript, she makes the following brief statement: He thought about it for a few minutes and then had agreed to allow the doctor to take the blood samples.

[ 10 ] At pages 132-133, the following exchange occurred: Q Are you aware what time the blood - the blood was taken from Mr. Chevalier? A Yea, I am, it was documented in my notes. Q Okay. Can the witness refer to her notes, your Honour? Court Yes. A The first sample was obtained at 3:35 in the morning and the second sample was obtained one minute after, 3:36. Q So 3:37? A 3:36, a few seconds after. Q Oh, one minute after? A One minute yea. [ 11 ] Cst. Beaulieu testified that she then took the two vials of blood with her to the Estevan Detachment.

She made contact with the RCMP forensic lab in Winnipeg, packaged the vials of blood and sent them to Winnipeg for analysis. A Certificate of the Analyst, James Douglas Mitchell, was entered as Exhibit P-3. That Certificate of Analyses states in part that Mr. Mitchell received a sample of blood “which was contained in a sealed approved container”. In the certificate, Mr. Mitchell certifies that he did an analysis of the blood “and the result of my analysis is 88 milligrams of alcohol in 100 millilitres of blood”. [ 12 ] Cst. Chad Mehl also testified for the Crown.

He testified that he attended at the accident scene with Cst. Beaulieu. He conducted a search of both vehicles. In Ms. Fornwald’s vehicle, there was no evidence of any kind of alcohol or drugs. However, in the accused’s vehicle, the officer located and seized a 12 pack of Budweiser beer. He testified that the package was open and there were four empty beer cans there. In addition there was another open beer can that was about one-third full of beer. [ 13 ] The Crown also called Ms. Tracy Cherlet to testify.

She was qualified as an expert to give evidence in the area of impairment and the effects of alcohol on the body. She used the blood sample which was collected at about 3:36 a.m. and the Certificate of Analyses showing the blood contained 88 milligrams of alcohol per 100 millilitres of blood, as a baseline. She assumed that there was a little consumption immediately prior to the accident, and estimated the accused’s blood alcohol level at approximately 12:45 a.m., approximately the time of the accident.

She estimated that at that time, the accused had a blood alcohol level of between 116 milligrams of alcohol per 100 millilitres of blood and 145 milligrams percent. [ 14 ] Mr. Chevalier also testified. He testified that on the prior evening he was at Kenosee where he and his girlfriend had a barbeque with some other people. Over the course of supper, he had one or two beer, but did not have anything to drink after that. He testified that at approximately midnight, he left there and was driving home to Estevan, as he had to work in the morning. He had no recollection of the accident.

He woke up in the hospital and was in the hospital in Regina for a number of days after that. ARGUMENT AND ISSUES [ 15 ] All of the evidence was admitted in a Charter voir dire . Counsel then made argument. It was agreed that I would in one ruling, rule upon the admissibility of evidence, and on the trial proper. [ 16 ] The issues are best set out by briefly summarising the argument made by defence counsel. Mr.

MacLeod has served a Charter notice on behalf of the accused, and argues that the blood samples seized from the accused were unlawfully seized in breach of the accused’s right to be free from unlawful search and seizure, under s. 8 of the Canadian Charter of Rights and Freedoms . As a result, he argues that the Certificate of Analyses and the evidence of Tracy Cherlet should be ruled inadmissible. Defence counsel makes this Charter argument on two different bases. Firstly, he argues that Cst. Beaulieu did not have reasonable grounds for making the blood demand under s. 254(3) of the Criminal Code .

As a result, the demand was unlawful.

[ 17 ] Secondly, he argues that the Crown has not established the necessary statutory preconditions for admissibility of blood evidence and for this reason the seizure of blood and evidence of its analysis is inadmissible.

In particular, he argues that there is no evidence that the blood samples were received directly into an approved container which was then properly sealed. [ 18 ] In addition, and related to the argument that the police officer had insufficient grounds for the blood demand, defence counsel argues that there is not sufficient evidence of impairment for the Court to convict of a charge of impaired driving causing bodily harm. ANALYSIS The Impaired Driving Charge [ 19 ] The evidence in support of the charge of impaired driving causing bodily harm is very slim.

There is only evidence that the officers smelled beverage alcohol on the breath of the accused. There is evidence of alcohol consumption in the vehicle. There is also evidence that the accused came across the highway into the lane of the oncoming traffic and collided with Ms. Fornwald’s vehicle. It is possible that this accident occurred as a result of the accused being impaired by alcohol. However, there are also many other possible reasons for the collision. Perhaps the accused fell asleep and was not impaired by alcohol. Perhaps, it was simply a situation of driver error, or perhaps Ms.

Fornwald is mistaken as to how the accident occurred. Because I cannot exclude these as reasonable possibilities, I have a reasonable doubt as to whether the accident was caused by the accused driving while impaired by alcohol. Accordingly, this charge must be dismissed. The Charge Of Driving While Over .08 Causing Bodily Harm [ 20 ] I begin by referring to the following sections of the Criminal Code which are significant to this decision. Section 254(1) contains the following definition of approved container: “approved container” means (

b) in respect of blood samples, a container of a kind that is designed to receive a sample of the blood of a person for analysis and is approved as suitable for the purposes of

section 258 by order of the Attorney General of Canada ... [ 21 ] Under this section, in the Martin ’s Criminal Code is the regulation approving blood sample containers. It reads as follows: Approved Containers 1. The following containers, being containers of a kind that is designed to receive a sample of blood of a person for analysis, are hereby approved as suitable, in respect of blood samples, for the purposes of

section 258 of the Criminal Code : (

a) Vacutainer ® XF 947; (

b) BD Vacutainer TM 367001; (

c) Vacutainer ® 367001; (

d) Tri-Tech Inc. TUG 10; (

e) BD Vacutainer ® REF 367001; and (

f) TRITECHFORENSICS TUG 10. [ 22 ] Section 254(3) reads as follows:

254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

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

b) if necessary, to accompany the peace officer for that purpose. [ 23 ] Section 258(1) states: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2), ... (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if (i) [Repealed before coming into force, 2008, c. 20, s. 3 ] (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’ s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused ’ s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused ’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; (

d) if a sample of the accused’ s blood has been taken under subsection 254(3) or

section 256 or with the accused ’s consent and if (

i) at the time the sample was taken, the person taking the sample took an additional sample of the blood of the accused and one of the samples was retained to permit an analysis of it to be made by or on behalf of the accused and, in the case where the accused makes a request within six months from the taking of the samples, one of the samples was ordered to be released under subsection (4), (ii) both samples referred to in subparagraph (

i) were taken as soon as practicable and in any event not later than two hours after the time when the offence was alleged to have been committed, (iii) both samples referred to in subparagraph (

i) were taken by a qualified medical practitioner or a qualified technician under the direction of a qualified medical practitioner, (iv) both samples referred to in subparagraph (

i) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed, and (

v) an analysis was made by an analyst of at least one of the samples, evidence of the result of the analysis is conclusive proof that the concentration of alcohol in the accused’ s blood both at the time when the samples were taken and at the time when the offence was alleged to have been committed was the concentration determined by the analysis or, if more than one sample was analyzed and the results of the analyses are the same, the concentration determined by the

analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the analysis was performed improperly, that the improper performance resulted in the determination that the concentration of alcohol in the accused ’ s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused ’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; ... (

h) if a sample of the accused ’ s blood has been taken under subsection 254(3) or (3.4) or

section 256 or with the accused ’s consent, (

i) a certificate of a qualified medical practitioner stating that (

A) they took the sample and before the sample was taken they were of the opinion that taking it would not endanger the accused’s life or health and, in the case of a demand made under

section 256, that by reason of any physical or mental condition of the accused that resulted from the consumption of alcohol or a drug, the accident or any other occurrence related to or resulting from the accident, the accused was unable to consent to the taking of the sample, (

B) at the time the sample was taken, an additional sample of the blood of the accused was taken to permit analysis of one of the samples to be made by or on behalf of the accused, (

C) the time when and place where both samples referred to in clause (

B) were taken, and (

D) both samples referred to in clause (

B) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed and that are identified in the certificate, (ii) a certificate of a qualified medical practitioner stating that the medical practitioner caused the sample to be taken by a qualified technician under his direction and that before the sample was taken the qualified medical practitioner was of the opinion referred to in clause (i)(A), or (iii) a certificate of a qualified technician stating that the technician took the sample and the facts referred to in clauses (i)(

B) to (

D) is evidence of the facts alleged in the certificate without proof of the signature or official character of the person appearing to have signed the certificate; and (

i) a certificate of an analyst stating that the analyst has made an analysis of a sample of the blood of the accused that was contained in a sealed approved container identified in the certificate, the date on which and place where the sample was analyzed and the result of that analysis is evidence of the facts alleged in the certificate without proof of the signature or official character of the person appearing to have signed it. Did The Officer Have Reasonable Grounds For The Blood Demand? [ 24 ] Under s. 254(3), Cst.

Beaulieu had to have reasonable grounds to believe that the accused committed an offence under s. 253 of the Criminal Code . It is clear that the police officer must subjectively believe this, and the decision must be reasonably supported by the evidence. In short, was the officer’s decision a reasonable one? As shown above by my brief look at the charge of impaired driving, counsel has convinced me that there are other reasonably possible scenarios, and that a trial court might come to a different conclusion. However, in my view, this does not mean that the officer did not have reasonable grounds for the demand.

In my view, the Court of Appeal decision in R. v. Gunn , 2012 SKCA 80 , was designed to deal with precisely this situation. At paragraph 10 of that decision, the Court stated: Given the standard to be met, any inference useful to a police officer when attempting to satisfy it must logically tend to support either (

a) a belief that the individual has driven within the preceding three hours, or (

b) a belief that the individual’ s ability to operate a vehicle is impaired or that the individual is “ over .08 ” . The fact an individual has operated a motor vehicle is, usually, readily established on the evidence without recourse to inferences of fact. However, an impairment assessment necessarily calls for the officer to draw one or more inferences from his or her own observations and the surrounding circumstances.

Where the reasonableness of the officer ’ s belief is challenged in court, the officer must be in a position to clearly articulate sufficient observations and to point to other evidence which would rationally and reliably sustain the officer ’ s belief of impairment on an objective basis. (emphasis added) [ 25 ] In this case, the officer observed the position of the vehicles and learned of Ms. Fornwald’s version as to how the accident had occurred. Her belief that the accused had crossed the road and caused the collision was reasonably supportable.

She smelled alcohol on the accused and there was evidence that the accused had been consuming alcohol in his vehicle at or very shortly prior to the collision. In my view, the officer could reasonably come to the conclusion, as she did, that the accused may have been impaired at the time of the collision. The accused was injured and was strapped to a stretcher. He may not have been capable of providing a breath sample, or obtaining a breath sample may have been impractical. In my view, in all of the circumstances, the demand for a blood sample was

reasonable and proper. Were The Necessary Preconditions For Admissibility Of Blood Evidence Established? [26] For a number of reasons, I conclude that there are a number of legislated preconditions that must be met for the admission ofblood evidence. Firstly, in quoting the sections above, I quoted s. 258(1)(c), which deals with samples of breath and (1)(

d) which dealswith samples of blood. The two subsections are drafted in similar terms. There is of course much more case law with respect tosubsection (

c) and breath samples. The argument has been frequently made and accepted that subsection (

c) sets forth statutorypreconditions for admission of breath evidence. For example, if the breath samples are not obtained within two hours or as soon aspracticable, the breath evidence will not be admitted or the certificate will not be admitted. Because of the similarities betweensubsections (

c) and (d), in comparison of those two subsections, I would conclude that subsection (

d) sets forth statutory preconditionsfor the admission of blood evidence. Looking at subsection (d), two samples of blood must be taken, and one must be made available tothe accused for analysis. The samples must be taken as soon as practicable and not later than two hours after when the offence is allegedto have been committed (if the presumption is to be relied upon). The samples must be obtained by a qualified medical practitioner orqualified technician under the direction of a practitioner and the samples must be obtained directly into approved containers.

The takingof the blood samples must not endanger the life or health of the accused. [27] In the Supreme Court of Canada decisions in R. v. Green, (SCC), [1992] 1 S.C.R. 614 and R. v. Knox, (SCC), [1996] 3 S.C.R. 199, the Court established that as part of the demand for a blood sample, the officer must provideassurances to the accused that the sample will be taken by a qualified medical practitioner and that the accused’s life will not beendangered by providing a blood sample. If this does not occur, the collection of the blood may be unlawful and infringe Charter rights.

In my view, the Supreme Court of Canada interpreted the legislation and found these requirements in the legislation. It determined that itmakes no sense to have these requirements in the legislation, and then to not enforce the requirements by allowing admission of bloodevidence if there is not compliance with these requirements. Applying a similar reasoning in the case at bar, I would conclude that thesestatutory provisions create requirements for the admission of the blood evidence. [28] Lastly, I refer to s. 258(1)(

h) and (

i) of the Code. Firstly I would note that clearly these two subsections refer to two differentkinds of certificates. Subsection (

i) refers to the Certificate of the Analyst, which is exactly what we have as Exhibit P-3. Subsection (h)allows for a different certificate from the medical practitioner. This subsection allows for proof that the samples were taken by aqualified medical practitioner or under the direction of the practitioner; proof of a medical opinion that the taking of the samples wouldnot endanger the accused’s life or health; proof of the taking of an additional sample; and proof that the samples were both taken directlyinto approved containers that were subsequently sealed and identified in the certificate.

It seems to me that in enacting this subsection,parliament clearly contemplated that evidence on these specific points must be adduced during the course of a trial and parliamentallowed for such evidence to be simply or easily adduced via a certificate. [29] In the case at bar, there is no certificate from the medical person that drew the blood from the accused. The medical personthat drew the blood from the accused was not called as a witness. We do not know who the medical person is that drew the blood. Wedo not know the medical qualifications of that person.

We do not know if that person was competent to reach a conclusion that thetaking of blood samples would not endanger the life or health of the accused or if the medical person even reached that conclusion. Wedo not know if the person who drew the blood put that blood directly into an approved container and we certainly don’t know what kindof an approved container it was. We know only, from the Certificate of the Analyst, that he opened a sealed and approved container, andthen analysed the blood that was contained within that container.

In my view, that is not sufficient. [30] Simply and briefly stated, in my view there are a number of statutory conditions which must be met in order to admit bloodevidence. There is no evidence before the Court that these statutory conditions were met or complied with. As a result, I cannot admitthe blood evidence. Without the admission of that evidence, there is no evidence upon which I can conclude that the accused is guilty ona charge of driving while over .08 and causing bodily harm. The charge is dismissed. [31] Dated at the City of Moose Jaw, in the Province of Saskatchewan this 17th day of June, 2013.

D. Kovatch, J