Her Majesty the Queen - v. -, 2014 SKPC 111

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 111 Date: May 22, 2014 Information: 24298395 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Finnson Appearing: Maura Landry For the Crown Merv Nidesh, Q.C. For the Accused DECISION K. BAZIN, J [1] On May 13, 2014, I rendered an oral decision advising that written reasons would follow. These are those reasons. [2] The Crown’s argument is founded in R. v. Gunn, 2012 SKCA 80 and R. v.

Butchko, 2004 SKCA 159 ,Saskatchewan Court of Appeal decisions. [3] Gunn involves a breath demand and the officer’s belief as to impairment, but the same law applies to the lower standard ofan officer’s suspicion as to alcohol in a person’s body for an Approved Screening Device, ASD demand.

[4] The issue in this case is the officer’s grounds to suspect that Mr. Finnson had alcohol in his body, as it relates to section254(2) of the Criminal Code. [5] Butchko holds that all an officer needs to satisfy a reasonable suspicion of alcohol in a person’s body is the smell of alcoholon the person’s breath. [6] The Crown argues that, based on Butchko, that the test is very low.

They argue that if reasonable suspicion can be satisfiedsimply with the smell of alcohol on a person’s breath they argue that other indicia of alcohol impairment, even though minimal, couldstill lead to an objectively reasonable suspicion of alcohol in one’s body, even without an admission of alcohol consumption or the smellof alcohol on a person’s breath. [7] The approach is set out in R. v. Sokulski, 2012 SKPC 141, which refers to R. v.

Donald (2), 2010 SKPC 123, in particular,and states that the officer is not required to smell alcohol on the driver’s breath or obtain evidence of consumption of alcohol in order tohave a reasonable suspicion, but that the absence of such evidence may negate the existence of reasonable suspicion. [8] The Court in Donald is following the Ontario Court of Appeal in R. v. Zoravkovic, (ONCA), (1998), 112O.A.C. 119 (Ont. C.A.). [9] The grounds outlined for the officer’s reasonable suspicion of alcohol in Mr. Finnson by the officer is that there was:

a) significant slurring of speech;

b) travelling 72 kilometres in a 50 kilometre zone;

c) going past the officer who was in a marked police car, at a time of no other traffic near the two vehicles and Mr. Finnson not slowingdown;

d) Mr. Finnson making a hard sharp left turn at a high-speed, with the momentum shifting the truck body to the passenger side due tovehicle speed;

e) the officer believing that Mr. Finnson is evading him, as he stopped for 5 to 10 seconds at a stop sign, and does not pull over when theofficer says there was room to pull over, not pull over for the officer who has his lights on behind him, and then Mr. Finnson turns downa connecting street;

f) officer had the emergency lights on for one block;

g) the officer describes that Mr. Finnson’s face as being very relaxed, no expression, kind of lifeless;

h) the officer asked Mr. Finnson if he had consumed alcohol and he stated “no”, but the officer testified that he did not believe Mr.Finnson was telling him the truth. He stated the denial increased his suspicion that he had been drinking; and

i) the demand is made shortly after midnight. [10] As to the issue of the Crown being able to ask any questions or put any evidence in after the demand, the defence argued thatthe Crown was not able to pursue any questioning of the officer as to any observations or evidence post ASD demand. The defenceposition was that post demand evidence was irrelevant to the issue to be determined. [11] The effect of post demand evidence of impairment is discussed in R. v. Gunn, para. 20, indicating that it is proper evidence tobe produced in relation to the assessment of reliability of the officer’s belief. [12] Post demand evidence however is not to be considered as grounds for the demand.

[13] The Crown was allowed to ask the officer questions as to his observations of Mr. Finnson after the demand is made. This wasallowed, as the evidence would have relevance to assessing the reliability of the officer’s suspicion as to his observations prior to theASD demand. By way of example, when the issue is that the officer testified that Mr. Finnson was significantly slurring his words,evidence of Mr. Finnson continuing to slur his words after the demand, is evidence that assists the assessment of the reliability of theofficer’s observations that he was slurring his words prior to the demand.

This supports his testimony, and the reliability of hisobservation, that Mr. Finnson was significantly slurring his words prior to the ASD demand. [14] In Mr. Finnson’s case, the post demand evidence involves continuous significantly slurred speech, at the police stationwalking slowly, slight stagger each step when approaching the steps, pressing down firmly on each step, which the officer interpreted asMr.

Finnson focusing on each step, missing the grab bar for the door and going off balance momentarily without falling, and Mr.Finnson moving to sit in the blue chair when advised to sit in the pink chair. [15] The officer testified that from his observations, pre ASD demand, he had a suspicion that Mr. Finnson was impaired possiblyby alcohol. [16] I find that the officer had a subjective reasonable suspicion that Mr. Finnson had alcohol in his body, based on hisobservations that he put forth as his grounds to suspect Mr.

Finnson was impaired by alcohol, meaning he had alcohol in his body. [17] The post demand signs of impairment support the reliability of the officer’s suspicion. This is particularly so as to theofficer’s testimony that Mr. Finnson displayed continuous significant slurring of speech when speaking to and being observed by theofficer. [18] The determination of whether or not the officer’s suspicion was objectively reasonable, is simply a question of whether areasonable person, observing the same set of circumstances that the officer did, could hold the same suspicion, that Mr.

Finnson hadalcohol in his body. [19] The defence put forward a number of cases, where on the facts of those cases the Court found that the facts did not satisfy theobjective suspicion standard. [20] Of note in all the cases, there is a lack of evidence as to the smell of alcohol coming from the person’s breath or an admissionof alcohol consumption. This is the case with Mr. Finnson, there was no acknowledgement of alcohol consumption and no smell ofalcohol on his breath, or any smell of beverage alcohol at all. [21] R. v.

Sokulski, 2012 SKPC 141 - Grounds for this demand were two unopened cans of beer in the vehicle, smell ofalcohol from the vehicle, slight swaying while walking and a 911 complaint. The Court was not satisfied that the officer’s belief wasobjectively reasonable. The 911 complaint did not come into play as the officer was unable to recall the reason for the complaint. [22] R. v. Lytle, 2008 SKPC 156 - The grounds were the accused had a droopy eye and he admitted to having consumed afew drinks at suppertime, with the breath demand being made at 10:49 p.m.

No smell of alcohol is detected and there were no otherindicators that he had been consuming alcohol. The Court found the basis for the demand was not objectively reasonable. [23] R. v. B.G.H., 2009 SKPC 54 - Accused stopped for speeding, 95 kilometres in a 60 kilometre zone, did not make eyecontact, had glassy eyes and larger pupils, other minor indications of alcohol being, stuttered speech, being a little bit slower, deliberatesteps and he was weaving on the spot a little bit, and sidestepping. Open liquor in the vehicle. No odour of alcohol or liquor comingfrom the accused’s breath.

The Court concluded that there were not objectively reasonable grounds to suspect the accused had alcohol inhis body.

[24] R. v. Luider-Grebnev, 2013 SKPC 22 - Police pull up beside the accused at a stoplight, to tell him he does not havehis lights on. It took some time for the accused to reply and turn on the lights. Was asked if drinking, and after a moment said no. There was an odour of alcohol in the vehicle, and on his person, and low comprehension. His movements were slow and deliberate andhe could not recite the alphabet. He did however tell the officer he was Russian and had difficulty with the English language. The Courtwas not satisfied that the officer’s belief was objectively reasonable.

The Court found that at no point was the officer able to satisfyhimself that there was a smell of alcohol coming from the accused’s breath or that he had recently consumed alcohol. [25] R. v. Sword, 2013 SKPC 43 - In Sword, the Court found that the grounds for the suspicion of alcohol in the accusedwas a rapid exit from a parking lot, a small amount of swerving of the vehicle, and an odour of alcohol from the vehicle. The Courtfound that it could not conclude that the accused’s statement that he had consumed alcohol was stated to the officer prior to the ASDdemand so it is not included in the officer’s grounds.

Again the Court found that the officer’s suspicion was not objectively reasonable. [26] I find that in this matter there are more indicators of impairment, than the aforementioned cases, which one can reasonablyinfer could be impairment by alcohol. It is the signs of impairment as attested to by the officer that one can reasonably suspect that Mr.Finnson has alcohol in his body, whether or not Mr. Finnson denied having consumed alcohol or that the officer did not smell any on hisbreath, or at all. [27] There may be other reasonable suspicions that arise as to why Mr.

Finnson exhibited the behaviour and signs that wereobserved by the officer, such as drug impairment, or a medical condition, but this does not diminish the fact that there could also be areasonable suspicion of alcohol in Mr. Finnson to account for the observed evidence. [28] Based on all the circumstances as testified to by the officer prior to the demand, in this case, even without an admission ofalcohol or the smell of alcohol on Mr. Finnson’s breath, I am satisfied that on an objective basis, a reasonable person could hold thesame suspicion of alcohol being in Mr.

Finnson’s body as did the officer. [29] There of course will always be other

interpretations of the actions and evidence observed by the officer, however it was notunreasonable to suspect that the signs of impairment are related to alcohol being in the body of Mr. Finnson. This holds true whether ornot there was a smell of beverage alcohol from Mr. Finnson’s breath, an admission of alcohol consumption, or the smell of beveragealcohol at all. [30] The trial of this matter took place on April 22, 2014, and was argued on that date. This is prior in time to the SaskatchewanCourt of Appeal’s recent decision in R. v.

Yates, 2014 SKCA 52, which was rendered on May 1, 2014. [31] On May 13, 2014, I rendered an oral judgment advising that written reasons would follow. Subsequent to my oraljudgment, and in finalizing these written reasons, the case of R. v. Yates came to my attention. [32] I find that this herein decision is not inconsistent with R. v.

Yates, particularly as summarized in paragraph 38: [38] In my respectful view, the requirement that an investigating officer must have direct proof of a driver having alcohol in his or herbody in order to found a reasonable suspicion that the driver has alcohol in his or her body is inconsistent with the prescribed standardand the requirements of s. 254(2)(b). As previously discussed, the applicable evidentiary standard only requires the investigating officerto have a reasonable suspicion that a driver has alcohol in his or her body, based on a constellation of objective events.

The constellationof necessity may include factors capable of an innocent or innocuous explanation. As noted by Karakatsanis J. in Chehil at para. 32,“factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonablesuspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so [emphasis added]” (italicemphasis in original). [33] Using the terminology of Yates, I find that the constellation of objective events, supports the officer’s suspicion of alcohol inMr.

Finnson, on both a subjective and objective basis.

[ 34 ] As such I find that the Crown has proven beyond a reasonable doubt that the officer had the required grounds to suspect that Mr. Finnson had alcohol in his body when the demand was made, and as such Mr. Finnson was required to comply with the ASD demand. [ 35 ] Mr. Finnson’s direct refusal makes out the offence and I find him guilty of the charge of refusal. K. Bazin, J