Her Majesty the Queen - v. -, 2013 SKPC 196

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 196 Date: November 27, 2013 Information: 36653557 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Shane Joseph Watson Appearing: J. L. MacLean For the Crown R. P. Piché For the Accused JUDGMENT Q.D. AGNEW , J [ 1 ] Shane Joseph Watson stands accused that he did, on November 3, 2011 at Saskatoon: (

i) operate a motor vehicle when his ability to do so was impaired by alcohol; (ii) refuse to comply with a demand for a sample of his breath; and (iii) breach his probation order by failing to keep the peace and be of good behaviour.

Facts [ 2 ] This

section comprises the facts as I have found them from the evidence presented at trial. [ 3 ] On November 3, 2011 at approximately 1:50 a.m., Constables Martin and Smith of the Saskatoon Police Service were dispatched on a complaint of an impaired driver. This complaint was slightly unusual in that the car in question had apparently already been pulled over by Military Police, who had requested Saskatoon Police assistance.

The constables arrived at the location, namely the parking lot of the Best Western Motel in the 1700 block of Idylwyld Drive, Saskatoon, and found there a person who identified himself as Corporal Crookshanks (who I will hereafter call “Corporal Crookshanks”, although I make no finding as to his actual name or rank. He did not testify at the trial), his partner, and a vehicle with four occupants. The accused was in the driver’s seat, and there were three other occupants. The car was also occupied by a number of beer bottles, some of them open. [ 4 ] Constable Martin spoke with Corporal Crookshanks.

This person indicated that he and his partner had followed the subject vehicle down Idylwyld Drive, from approximately 22 nd Street, a distance of a number of blocks. Corporal Crookshanks described the driving which he observed, which was certainly problematic. Constable Martin then went to the driver’s side of the vehicle and asked the person sitting in the driver’s seat for his licence and registration. That person, who turned out to be the accused, had neither. He did, however, have red, glossy or bloodshot eyes.

There was also a noticeable smell of alcohol coming from within the vehicle, which contained open bottles of beer. At this point, Constable Martin arrested the accused for impaired driving, based on the condition of his eyes, the smell of alcohol from the vehicle and the information about driving which he had received from Corporal Crookshanks. He had the accused go to the police cruiser, and observed that the accused had some difficulties walking. He walked in a “slow, meticulous” manner, swaying slightly side to side.

Once in the police vehicle, Constable Martin again advised the accused that he was under arrest for impaired driving, and gave him the various rights and warnings which are typically given in this situation, and read him the breath test demand. At this point, the grounds for demand were information from Constable Crookshanks about the driving, the smell of alcohol from the person and vehicle, the condition of the accused’s eyes, and the accused’s walking. According to the police computer, Mr. Watson’s vehicle was to be impounded, so the two constables and Mr.

Watson waited until a tow truck arrived. [ 5 ] Constable Smith, in the meantime, was dealing with the other occupants of the vehicle. There was open alcohol in the vehicle to be dealt with, and presumably the occupants had to be advised that they had to find another mode of transport. Once he had finished dealing with the other people in the vehicle, and a tow truck arrived, the accused and the two constables left for the police station. I note that Constable Martin indicates the accused was arrested at 2:05 a.m. Which arrest this was, is unclear.

However, there was a minimal amount of time between the two purported arrests, and I do not consider the difference to be significant. They departed for the police station at 2:25 a.m. I do not consider this to be an excessive length of time for these steps to be taken, nor do I consider these steps to be untoward. I mention this as the accused raised an issue of “as soon as practicable”, which I do not find to be made out on the facts. [ 6 ] During the ride to the police station, the accused mumbled, sometimes incoherently.

He sometimes spoke oddly or inappropriately, such as asking the officers to stop at McDonald’s for him. There was no suggestion in the evidence that this was intended by the accused as a joke. [ 7 ] They arrived at the police station at 2:30 a.m. Further observations were made of the accused, including problems balancing, problems standing, swaying left and right, and similar difficulties. Once the accused was booked into detention, he was asked if he wanted to call a lawyer (he had been asked at the time of his arrest if he wanted to call a lawyer and he said that he did not).

This time, he said that he wanted to call a lawyer and gave the name of Tracy Buffalo. Constable Martin telephoned the law office, and got a voicemail message. He advised the accused of this, and said that they could leave a message, the accused could look in the phone book for another lawyer, or the accused could speak with Legal Aid. The accused chose to have a message left for Ms. Buffalo and ask for a call back, saying “a voicemail would suffice for right now”. He did not indicate he wanted to call another lawyer or Legal Aid.

During this process, the officers continued to observe the accused, noting further signs of alcohol, including odour and slack facial expression.

[ 8 ] The voicemail message was left at 2:49 a.m. Thereafter the accused informed the officers, at least four times, that he was not going to perform the breath test, even after he was informed that he would be charged with a criminal offence if he did not do so. His response was unequivocal: “I ain’t doing no tests.” At 2:56 a.m., he was charged with refusal. [ 9 ] As is apparent from the time line, Constable Martin gave Ms. Buffalo very little time to call back before demanding that the accused perform the breath test.

There is no suggestion that there was any reason not to wait for a reasonable length of time for Ms. Buffalo to call back. On the other hand, there is also no indication that Ms. Buffalo ever did call back, so there is no evidence that if the police had waited, the accused would have in fact been able to speak with his lawyer. [ 10 ] It may be that if they had waited, the accused would have decided to call another lawyer. However, this is simply speculative, as the accused did not testify. Refusal [ 11 ] I am satisfied beyond a reasonable doubt that the accused refused. However, as pointed out recently by Mr.

Justice Danyliuk in R. v. Rezansoff , 2013 SKQB 384 [1] , if at the time of the demand the officer did not have both subjective and objective grounds to believe the accused was impaired, then the breath demand was invalid and the accused was not legally required to give a breath sample. [ 12 ] In the present case, the arresting officer’s evidence is very clear. He arrested the accused for impaired driving before he got out of the car, but made the breath demand once in the police car.

At the time of the arrest, the information he had was threefold: (1) the condition of the accused’s eyes; (2) the smell of alcohol from the accused and the vehicle; and (3) the information about driving which he had received from Corporal Crookshanks. At the time of the demand, he had additional information, based on the accused’s walk from his vehicle to the police car, which the officer said was slow and careful, with slight swaying from side to side. [ 13 ] In assessing the reasonableness of the officer’s belief, I discount the information regarding driving.

There was no evidence, nor even any hearsay, about whether or not the accused had been the driver while the vehicle was being followed by the Military Police. There was no evidence, or even hearsay, about whether the occupants of the vehicle had or had not changed positions after being stopped by the Military Police. [ 14 ] The smell of alcohol is also troubling as a ground, as the officer specifically referred to the smell of alcohol from the vehicle and the accused as his ground. At no point, however, did he suggest as a ground that the smell of alcohol was coming from the accused’s breath.

As stated, there was open beer in the vehicle. I do not recall the arresting officer ever testifying that there was an odour of alcohol from the accused’s breath, but it certainly was not stated as one of his grounds. [ 15 ] I cannot conclude that the officer’s demand was based on reasonable grounds. That being the case, I must find the accused not guilty of count two. Impaired [ 16 ] With respect to the “impaired operation” charge, defence argues that there is no evidence of operation before me.

The Military Police were not witnesses at the trial, so anything reported by them to the police who did testify is inadmissible hearsay. The accused was found behind the wheel of the vehicle. That is the totality of the evidence regarding “operation”. The arresting officer could not even say if the vehicle was running. [ 17 ] It is clear that the evidence does not show that the accused was operating the vehicle at any time relevant to the charge.

[18] Defence argued strongly that “care and control” is not an included offence in “operation”. With respect, I believe that thisquestion was squarely answered by the Supreme Court of Canada in R. v. Drolet, (SCC), [1990] 2 S.C.R. 1107,accepting the reasons of the majority of the Quebec Court of Appeal. That Court held that the essential elements of the offence of “careand control” are contained within the offence of “operation” (I am using “operation” in the place of “driving”, which is the term used bythe Quebec Court of Appeal. For present purposes, I consider them to be interchangeable).

The Quebec Court of Appeal, and theSupreme Court of Canada, therefore concluded that someone charged with impaired operation could be convicted of impaired care andcontrol. [19] I am satisfied on the evidence that the accused was found in the driver’s seat of the vehicle by the police witnesses and thatthe vehicle was not running. The only evidence regarding the car’s keys came from the officer who dealt with the passengers, not withthe driver.

He stated his belief that the keys were in the ignition, but the evidence is less than compelling, particularly considering thathis responsibility was the passengers, not the investigation into the driver and his possible impaired operation of the vehicle. The lack ofconfirming evidence from the officer with that task is troubling on this point, as that officer is the one who, one would think, would beresponsible for checking that, and therefore most likely to make specific note of the presence or absence of the keys.

The vehicle was inthe parking lot of a hotel, blocked in place by the Military Police vehicle. [20] That is the sum total of the evidence on care and control. The accused was behind the wheel, of a vehicle blocked in place byanother vehicle, with very dubious evidence of whether or not the keys were present. His actual ability to set the vehicle in motion isvery much in doubt, on the evidence provided to me.

However, as I have found that the accused was in the driver’s seat of the vehicle,and as he did not testify and there is no other evidence that he did not intend to set the vehicle in motion, the presumption in s. 258(1)(a)of the Criminal Code applies. [21] What, then, is the evidence regarding impairment? In addition to the information which the officer had at the time of arrest(not including hearsay), there was evidence from both officers as to the accused’s speech in the police car, which was mumbled, slurred,sometimes incoherent, and sometimes inappropriate.

At the police station, the accused demonstrated difficulty standing and walking,had a slack, “drunken”, facial expression and an odour of alcohol about him. He had various problems with his speech at the policestation. [22] The only concern I have with this evidence is that both officers mentioned the smell of beverage alcohol coming from theaccused’s person, or from the back of the patrol car when the accused was in it, or otherwise emanating from the accused, but neitherspecified that such a smell was coming directly from the accused’s breath.

Obviously, such a smell could come from the accusedwithout him having consumed alcohol - by having some of the open alcohol which was present in the vehicle spilled on him, forexample. I have therefore not considered the smell of alcohol as being a particularly strong indicator of intoxication. I have alsoconcluded, however, that the indicia which I do accept are sufficient to convince me that the accused’s ability to operate a motor vehiclewas impaired by alcohol. [23] The degree of impairment which the Crown must prove is only slight, although I must still be convinced beyond a reasonabledoubt: R. v.

Stellato, (SCC), [1994] 2 SCR 478. I am satisfied that the evidence here meets this test. Subject to mydecision regarding Charter issues, therefore, I will convict the accused of impaired care and control. Charter issues - arbitrary detention [24] The accused argues that he was arrested without reasonable grounds. In fact, the officer purported to arrest him twice forimpaired driving - the first time while the accused was still in his vehicle, and again when the accused reached the rear of the policecruiser.

The knowledge of the arresting officer is set out above, in the analysis of the refusal charge, and I do not propose to repeat ithere. Suffice to say, the only difference in the officer’s knowledge between the two “arrests” was the addition of his observation of theaccused’s walking. As indicated above, I find the evidence even with that addition to be insufficient, and accordingly I find a Charterbreach. - offence not taking place within the preceding three hours

[25] Although defence raised this issue in its brief under the heading of “Charter issues”, it is not clear to me how this relates to theCharter. In any event, given my decision above with respect to care and control, it is obvious that such offence was being committed inthe presence of the arresting officer. - right to counsel [26] The essence of this objection is that the police did not wait to give Ms. Buffalo a chance to return the accused’s call beforeinsisting that he comply with the breath demand. The accused wanted to leave a message asking for Ms.

Buffalo to call back, yet therewas virtually no opportunity for any call back to occur before the police proceeded. This is a substantially different issue than wasoutlined by the accused in his Charter notice of November 15, 2012, which referred to Corporal Crookshanks not having provided theaccused with his right to counsel, and raised a Prosper issue, neither of which issues were pursued by the accused at trial. No remedyregarding the alleged breach regarding Ms. Buffalo was requested in the notice; no remedy was requested with respect to the allegedbreach in the defendant’s brief.

The only request for a remedy was made verbally, at the commencement of trial, when the remedy wasspecified to be the exclusion of evidence obtained from the arrival of the Saskatoon police at the scene with the accused and the MPs,until the breath demand was made at the police car at the same scene. It is not clear to me how the events at the police station regardingMs. Buffalo are logically connected to evidence obtained at the vehicle some time previously. [27] In any event, before discussing remedies, I need to decide if there was in fact a breach.

I accept that there was a breach as itwould relate to the refusal charge: that is, the police should have waited a reasonable amount of time to see if Ms. Buffalo called back,before insisting that the accused provide a breath sample. It is not clear that there was a breach with respect to the impaired charge. Noevidence with respect to that charge was conscripted from the accused after the call to Ms. Buffalo’s office. [28] To put this into perspective, let us suppose that the accused was never given a breath demand at all - perhaps there was notechnician available, or the instrument was inoperable.

Let us suppose that the accused was simply arrested for impaired driving (or careand control, as the case may be) and transported to the police station, where he was given his right to counsel, the call was made andmessage left as above, and he was then held for several hours before being released, all without Ms. Buffalo or anyone else calling back. It would seem that there would be no breach in such a case.

By analogy, I am not prepared to find a breach here. - remedy - Grant analysis [29] As I have found a Charter breach regarding arbitrary detention, and the defence is asking for exclusion of evidence, I mustconsider the remedy in light of the Supreme Court of Canada’s decision in R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353. That analysis involves three steps.

The first is to review the seriousness of the Charter-infringing state conduct, the second is to look atthe impact of the breach on the accused’s Charter-protected interest, and the third is to consider society’s interest in an adjudication ofthe case on its merits. [30] With respect to the first, it is a serious matter when the police detain or arrest someone without proper grounds. Having saidthat, the officer here did not act maliciously or with deliberate disregard for the accused’s Charter rights.

Although they erred, I wouldconsider it to be an inadvertent or at worst negligent breach; I do not find it to be a serious breach. [31] Regarding the second step, the impact of the breach on the accused’s interests, I consider it to be minimal. From the evidenceI heard regarding indicia of impairment, it seems likely that a bit more investigation, or even a brief further period of waiting andobserving, by the officers would have prevented a breach.

Thus, although it is always troubling when an officer leaps to arrest ratherthan properly gathering grounds, if it is clear that such grounds would likely have been found shortly in any event, it must diminish theimpact of the breach. [32] The third step, society’s interest in adjudication on the merits, typically would favour inclusion of evidence, although this maychange in various cases.

[ 33 ] In the present matter, weighing all three together, I have concluded that the administration of justice would not be brought into disrepute by admitting the evidence; indeed, I think exactly the opposite. Accordingly, I am not granting a remedy pursuant to s. 24(2) of the Charter arising from the breach identified above. In addition, had I found a breach with respect to the right to counsel, my analysis would not have changed, given that Ms. Buffalo did not in fact call and there is no evidence that the accused would eventually have sought other legal advice.

Accordingly, I still would not have excluded any of the evidence. [ 34 ] As a result, the accused’s applications regarding the Charter are dismissed. Breach of Probation [ 35 ] As I have found the accused guilty of impaired care and control, I also find him guilty of count four on the Information, breach of his probation order. Conclusion [ 36 ] I therefore acquit the accused of the charge of refusal. I convict him of having care and control of a motor vehicle when his ability to operate the same was impaired by alcohol, contrary to ss. 255(1) and 253(1) (

a) of the Criminal Code , and convict him as well of breach of probation contrary to s. 733.1(1) of the Code . __________________ Q. D. Agnew, J [1] I note that this case has recently been appealed by the Crown.