Her Majesty the Queen - v. -, 2015 SKPC 50

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 050 Date: March 31, 2015 Information: 44665066 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Scott Stanley Dunn Appearing: R. Wempe For the Crown B. Pfefferle For the Accused JUDGMENT D.A. LAVOIE , J [ 1 ] The accused stands charged as follows: (1) on or about the 17 th day of May, 2014, at or near Saskatoon, Saskatchewan did while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code ; (2) on or about the 17 th day of May, 2014, at or near Saskatoon, Saskatchewan having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle,

contrary to section 255(1) and section 253(1) (

b) of the Criminal Code . [ 2 ] Defence had given notice of Charter issues. It was agreed that we would first proceed by entering into a voir dire on the Charter issues. The final process unfolded as follows: 1. The Crown called all its evidence on the voir dire ; 2. Defence called no evidence on the voir dire ; 3. All the evidence from the voir dire was applied by consent to the trial proper; 4.

Defence elected to call no evidence on the trial proper. [ 3 ] Given this procedure the Court will make rulings and a final decision in this judgment. [ 4 ] Defence raised the following issues in the context of the voir dire . 1. Defence put forth that during the process of giving a suitable sample on an alcohol screening device (ASD) the accused commented that he “burped slightly.” The police officer did not wait the required 15 minutes to ensure that any possible “mouth alcohol residue had dissipated”, thus the ASD fail reading did not meet the objective standard of being a suitable sample.

Defence argued if it was not a suitable sample, the reading should be excluded pursuant to s. 24(2) of the Charter . Without said reading the investigating officer would not have reasonable or probable grounds to make the s. 254(3) Intoxilyzer demand, and the Certificate of Analyses should be excluded pursuant to s. 24(2); and 2. Defence argued that the Crown failed to prove beyond a reasonable doubt that the instrument used in this case, was “an approved screening device”, which was a condition precedent to being able to rely on the fail reading to form “reasonable and probable grounds”. [ 5 ] The following is a

summary of the evidence forthcoming from the witnesses. Officers Gelowitz and Senger were on routine patrol in a marked police car when at 21:42 hours the accused made a right hand turn from a side street with his half -ton truck and drove off in front of the police vehicle. Within seconds he drove through a stop sign, failed to signal and displayed other questionable driving such that at 21:43:22 the police officers stopped his vehicle.

Officer Gelowitz made a number of observations including slurred speech, strong smell of alcohol on the accused’s breath, glazed over shiny eyes, talking very fast, and a guarded walking pattern as he walked from his vehicle to the police car. [ 6 ] The accused was advised and detained for an ASD demand. At 21:45:41 the officers retrieved the ASD instrument from the trunk of the police car and then Officer Senger took over as the primary investigator.

The in-car audio and video recording disclosed what transpired. [ 7 ] At 21:47:38 Officer Senger makes a formal s. 254(2) ASD demand by reading the same from a card wherein he asks the accused to provide a sample into “an approved screening device” and throughout his testimony at trial he interchanges terminology between “an approved screening device” and an “ASD”. [ 8 ] Immediately thereafter he advises the accused that he heard or observed him to “burp” and just to be fair, to ensure there is no residual mouth alcohol he will wait 15 minutes before proceeding to obtain a sample.

The accused responds “I will be over .04 for sure.” The accused also states he has had previous experience blowing into an ASD. [ 9 ] The evidence shows the first attempt was discontinued by Officer Senger almost immediately as it was obvious the accused was not making a valid attempt to blow. Then on the second attempt at 22:02:03 the accused stops blowing after a few seconds. The ASD was removed from his mouth and he uttered some words to the effect “I just burped a bit”.

[ 10 ] The peace officer replies immediately “I didn’t hear you burp.” There was no further response from the accused. Officer Senger then further explains how to give a proper sample and the consequences of the accused’s failure to provide a proper sample. There is then another failed attempt.

Officer Senger then changes the mouthpiece and at 22:04:50 obtains a suitable sample with a failed reading. [ 11 ] Officer Senger then makes a s. 254(3) Intoxilyzer demand with readings subsequently obtained at the police station at 23:04 of 140 milligrams per cent. [ 12 ] As stated above defence raised two issues in relation to Count #2. Analysis and Conclusions 1.

Did the investigating officer wait the suitable time period after being aware of residual mouth alcohol such that he obtained a reliable reading giving him the necessary reasonable and probable grounds to make the s. 254(3) Intoxilyzer demand? [ 13 ] The evidence discloses that Officer Senger was acutely aware of any possible burping and its possible effects on a suitable reading. In fact he was satisfied the accused burped initially and waited 15 minutes before administering the test. [ 14 ] As to a possible second burp, the officer was alert and being very observant.

He was only one to two feet away from the accused and stated “I never heard you burp.” This was a self -serving momentary utterance by the accused and both police officers stated they never heard or observed any burp. In addition, the accused gave false information throughout the investigation, which the Court interprets was an attempt to protect himself from the investigation proceeding in an orderly fashion. [ 15 ] That together with the accused obviously being under the influence of alcohol put his reliability and credibility during the investigation in question.

There was no additional evidence put forth by the defence during the trial. [ 16 ] In that regard the Court accepts the evidence and observations of the two police officers over the self-serving utterance of the accused. [ 17 ] The Court finds the evidence does not establish that at any time was there a second burp from the mouth of the accused.

In addition, the evidence of the police officers, supported by video evidence does not raise any concerns of reliability whatsoever. [ 18 ] The Court is satisfied beyond a reasonable doubt that Officer Senger has the necessary subjective belief based on sound objective criteria that he had followed proper procedure such that he had obtained an accurate, reliable fail reading from a suitable sample into the alcohol screening device.

It follows that based on his observations and information obtained of indicia impairment together with a “failed” ASD reading, that he had ample reasonable and probable grounds to make a s. 254(3) Intoxilyzer demand. [ 19 ] Given the above finding it follows that there was no breach of the accused’s Charter rights and the Court need not enter any “ Grant analysis” in relation to a s. 24(2) remedy. [ 20 ] In addition to the above finding the Court is satisfied that the decision of R v Udell So [2014] ABCA 451 (Alta CA) would have explained and clarified the evidence that must be forthcoming in order to create a reasonable doubt as to the accuracy and reliability of the “failed reading” from the ASD in question.

Though that decision dealt with Intoxilyzer readings, it sets forth the parameters of the burden of proof to be applied when the Court stated:

[15] The standard of proof for “evidence tending to show”, as that phrase is used in section 258(1)(c), is reasonable doubt: St-Onge Lamoureux at para. 16. Later in its decision the Court said further in that regard: [78] Although Parliament now requires evidence tending to establish a deficiency in the functioning or operation of the instrument, this does not mean that there are limits on the evidence that can reasonably be used by the accused to raise a doubt in this regard.

The accused can request the disclosure of any relevant evidence that is reasonably available in order to be able to present a real defence . . . .

In short, the accused might . . . argue that health problems had affected the functioning of the instrument. . . . [79] It should be noted that the defence created by Parliament is not illusory simply because accused persons will rarely succeed in raising a reasonable doubt that the instrument was . . . operated properly. [16] The “evidence tending to show” need not come from an expert; it can come from a Crown witness. [33] For an accused to rebut the presumptions, evidence relating directly to some deficiency in operation (or to some malfunction) must raise a reasonable doubt on the reliability of the breath test results. [36] The defence was required to make such a connection to demonstrate a reasonable doubt sufficient to rebut the presumptions in s. 258(1) (

c) of the Criminal Code . [44] . . . To rebut the presumption the accused must raise a reasonable doubt about proper operation, not as to its effects. . . .” [ 21 ] Following the guidelines set forth in R v So (supra) the Court finds the evidence in this case does not raise a reasonable doubt as to the procedure followed by Officer Senger in obtaining a fail reading. [ 22 ] The Court will now deal with the second issue raised by the defence. 2.

Does the evidence prove beyond a reasonable doubt that Officer Senger indeed used “an approved screening device” as required by the Criminal Code ? [ 23 ] The decision of R v Bradley Helm , [2011] SKQB 32 (Popescul, J as he then was) is exactly on point. At para. 2 the appeal judge set out the facts as follows: [2] On November 15, 2008, a member of the Royal Canadian Mounted Police came upon the defendant on a rural road near Shellbrook, Saskatchewan. The defendant had been operating a motor vehicle and displayed signs of being impaired by alcohol. The defendant had an odour of liquor on his breath.

His eyes were bloodshot and watery and his speech was slow and deliberate. The officer formed the opinion that the defendant had been driving a motor vehicle while having alcohol in his body. The officer then placed the defendant in the back of her police vehicle and “read the ASD demand”, which she testified was as follows: I have reasonable and probable grounds to re - - to suspect that you have alcohol or a drug in your body.

In accordance with the Criminal Code , I demand that you provide a sample of your breath suitable for analysis in an approved screening device and that you accompany me for the purpose of pro - - providing such sample. Do you understand? [Emphasis added]

Counsel for the defendant argued before me that the abbreviation “ASD” does not necessarily mean “approved screening device” butcould mean “alcohol screening device”. However, such an assertion is unsupported conjecture. Although it is true that the officer did notspecifically state in her testimony that the abbreviation “ASD” means “approved screening device”, when the evidence is reviewed incontext it is absolutely clear that “ASD” was used and intended as a short form for the term “approved screening device”.

In particularafter testifying that the officer read the “ASD demand”, she recited the precise wording of the demand which contained the full term“approved roadside device”. [24] At para. 27 Popescul, J quoted with approval the decision of R v Gundy, 2008 ONCA 284 as follows: [27] This precise point has been considered and decided by the Ontario Court of Appeal in R. v. Gundy, 2008 ONCA 284 , 57C.R. (6th) 369. I adopt the approach and conclusions reached by that court at paras. 44-50, as follows:

(4) Identification of the Approved Screening Device 44 In determining whether the particular device was approved, the court must consider all the evidence, including any circumstantialevidence. The court is entitled to draw reasonable inferences from the evidence.

Thus, in my view, if the officer in his or her testimonyrefers to the device as an “approved screening device”, the trial judge is entitled to infer that the device was indeed an approved device.As such, the officer is entitled to rely upon the “fail” recorded by the device to find that there were reasonable and probable grounds tomake the breath demand. 45 The officer is not required to refer to the device by its particular brand and number such as “Alcotest 7410 GLC”.

Further, referencesto a part only of the identification such as “Alcotest” or “Alcotest GLC” do not rebut the reasonable inference from the officer’s referenceto the device as approved that it is indeed an approved screening device. The addition of the manufacturer’s name, for example “DragerAlcotest 7410 GLC”, is likewise not fatal: see R. v. Neziol (2001), 22 M.V.R. (4th) 299 (Ont. S.C.J.). Further, in my view, the context inwhich the officer refers to the device as approved is of no particular moment.

Thus, if the officer testifies that he or she used an approvedscreening device, or agrees with the suggestion that it is an approved screening device, such testimony is direct evidence upon which thetrial judge can rely: see e.g. R. v. Latulippe (2005), 26 M.V.R. (5th) 97 (Ont. S.C.J.). 46 Where, as here, the officer states that she made a demand that the motorist provide a sample for analysis by the approved screeningdevice, surely the trier of fact can reasonably infer that the officer used an approved device. That was the holding of the trial judge in thiscase and I agree with that decision.

As Langdon J. said in R. v. James, [1995] O.J. No. 190 (Gen.

Div.) at para. 5, “what is the likelihoodthat the O.P.P. would supply its constables with an unapproved device with which to enforce the R.I.D.E. programme?” [25] In R v Zapski [2011] SKQB 67 Acton, J at paras. 14 and 15 stated: [14] Although Constable Hallett only used the words approved screening device when he read from the card setting out the approvedscreening device demand, he did on numerous other occasions use the acronym ASD in the same manner as used by the court andcounsel. [15] It is noted that the term ASD is also used in numerous other written decision of courts at various levels.

The acronym ASD forapproved screening device has become so commonplace throughout the judicial system that the court does not accept that it is an“obvious error”, but is so commonplace in its use even by the judiciary that its meaning is clear and the acronym ASD is an acceptableuse for the term “approved screening device” when providing evidence of its use to the court. See also: R v Shynkaruk [2013] SJ No 604, 430 Sask R 286 (B.G. Morgan, PCJ)

[26] In this case Officer Senger in reading from a prepared card clearly used the term “approved screening device”. In followingthe above-noted cases the Court is satisfied beyond a reasonable doubt that the officer indeed used an “approved screening device”. Theevidence does not raise a reasonable doubt to any contrary inference. [27] Given the above findings the Court rules that the Certificate of a Qualified Technician, Exhibit P-2, shall be admitted as a fullexhibit on the trial proper. [28] The readings therein are 140 milligrams in 100 millilitres of blood. The Court finds the accused guilty of Count #2, contraryto s. 255(1) and s. 253(1)(

b) of the Criminal Code. [29] In regard to the issue of impaired driving, count #1 in the decision of R. v. Arevalo (2001) 2004 SKQB 439 , 255Sask. R. 315 (Sask. Prov. Ct.) starting at para. 8 Kolenick, J wrote: [8] Therefore, the evidence of impairment which is alleged by the Crown must be considered in the context of the principles contained in R v.

Stellato (1994) (SCC), 31 CR (4th) 60, in which the Supreme Court of Canada approved the following, from the Ontario Court of Appeal reasons, 18 CR (4th) 127, at paragraph 14: In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [9] In the process of making this analysis, the Ontario Court of Appeal judgment made reference to the so-called “classic” signs ofimpairment, namely: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness onone’s feet.

Obviously this was not intended to be an all-encompassing list, and also, its application will very much depend on thecircumstances in the case. Further, in R. v. Landes (1997), (SK KB), 161 Sask. R. 305 (Sask. Q.B., Klebuc, J.), the Court referred to Stellato(supra) and made te following observations, commencing at para. 16: [16] An opinion as to impairment, be it by the trial judge or a nonexpert, must meet an objective standard of “an ordinary citizen” or a“reasonable person” in order to avoid the uncertainties associated with subjective standards, particularly when based inferences.

To thatend a list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’s mentalfaculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive a motor vehicle.

Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot or wateryeyes; (3) presence of a flushed face; (4) odour of alcohol beverage; (5) slurred speech; (6) lack of coordination and inability to performphysical tests; (7) lack of comprehension; and (8) inappropriate behaviour. [17] In my view, a trial judge must carefully review all of the reported tests and observations which inferentially support or negate anyimpairment of the accused’s mental and physical capabilities, and then be satisfied beyond a reasonable doubt that the reasonableinferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by ss. 253 and 255 of theCriminal Code.

A piecemeal approach supporting or negating impairment is not permissible. See: R. v. Hall at p. 66 (R. v. Hall (1994), (SK CA), 125 Sask. R. 62) See also: R. v. Schurman (2003), SK. PCJ 168 (White, PCJ) R. v. Huot (No. 3)(2001), (SK PC), 209 Sask. R. 171(Kolenick, PCJ) R. v. Hopkie (1994), (SK KB), 126 Sask. R. 44 (Sask. Q.B.) (MacPherson, CJQB) R. v. Holman(1998), S.J. No. 711 (Sask. Q.B.) (Smith, J as she then was) R. v. Edwards (2006), Sask. P.C. 23 (Kolenick, PCJ) R. v. Debusshere(2003), Sask. P.C. 53 (Kolenick, PCJ)

[ 30 ] The evidence of indicia of impairment is primarily the observations of both officers at the roadside. Both officers admitted in cross-examination that absent an ASD failure they probably would not have made a s. 254(3) Intoxilyzer demand, nor arrested the accused for impaired driving. Clearly the evidence from the witnesses falls short of proving Count #1 beyond a reasonable doubt as set forth in the above case law. The Court finds the accused not guilty of Count #1. ________________________ D.A. Lavoie, J