Her Majesty the Queen - v. -, 2016 SKPC 169

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 169 Date: December 14, 2016 Information: 24525520 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Quentin Salmond Appearing: Ms. T. Olenchuk For the Crown Mr. M. Owens For the Accused JUDGMENT I.J. CARDINAL , J INTRODUCTION [ 1 ] Mr. Salmond is charged with operating a motor vehicle while his ability to do so was impaired by alcohol contrary to section 253(1) (

a) of the Criminal Code . [ 2 ] There is no dispute that when Cpl. Knodel pulled the vehicle over it was being operated by Mr. Salmond. The only issue is whether Mr. Salmond ’ s ability to operate the motor vehicle was impaired by alcohol. The Crown called Cpl. Knodel to

testify. Mr. Salmond testified on his own behalf and Ms. Joy Preston also testified for the defence. [ 3 ] For the following reasons, I find Mr. Salmond not guilty. EVIDENCE Crown [ 4 ] Cpl. Knodel is an officer with some experience, having been with the RCMP since 2005. However, he has not been involved specifically in patrolling for impaired drivers since about 2009 as he moved into other areas of policing. On April 10, 2016 at approximately 12:30 a.m., he was patrolling the town of Nipawin during the RCMP Regimental Ball as the local members were attending it.

He was specifically looking for impaired drivers and was travelling west on Nipawin Road when he observed Mr. Salmond ’ s vehicle cross the highway in front of him, and continue north on 5 th Street in Nipawin. The officer followed and observed the Salmond vehicle travelling at approximately 50 to 60 kilometres per hour, weaving in and out of its lane. From the driving lane it veered to the right one or two feet, then to the left one or two feet, then to the right quite a ways into what would be considered the parking lane.

It moved back into the driving lane and then veered to the left such that it was almost completely in the driving lane, with the passenger wheels being in the centre of the roadway. It then corrected itself and returned to the proper driving lane. He agreed in cross- examination that there are no lines on the roadway, there was fresh snow, there was no other traffic, and that vehicles do park along the sides of travel in each direction as it is a residential area, although he did not recall if there were vehicles so parked. [ 5 ] The officer followed Mr.

Salmond for about three blocks, which took about 20 to 30 seconds, before activating his emergency lights. He agrees Mr. Salmond pulled over immediately and appropriately. He walked up to the drivers side and noticed Mr. Salmond was having difficulty rolling down the window. It appeared to the officer it was frozen so he banged on it with his flashlight to chip the ice away. [ 6 ] As soon as the window was down the officer said he smelled a strong odour of beverage alcohol. Once he began speaking with Mr.

Salmond, he noticed his eyes were red and shiny and he could smell the odour of alcohol coming from his breath. (Transcript, Page T5) [ 7 ] As he spoke to the accused, it appeared to him that Mr. Salmond seemed confused. He asked him where he was going to and, after hesitating for several seconds, he said “ home ” . He then asked Mr. Salmond where he was coming from, and again he paused for a long time but did not respond. [ 8 ] The officer asked for his driver ’ s license and registration. He testified Mr. Salmond paused, started looking in the vehicle but did not produce a driver ’ s license.

He told the officer he did not have it with him. He then asked if he had the registration, but Mr. Salmond advised he did not, but that it was a dealer plate registered to his business in Nipawin. He then provided his name and date of birth at the request of the officer. (Transcript, Page T6) [ 9 ] The officer testified that although he did not ask Mr. Salmond anything else, he blurted out that he was at the RCMP ball and that he is a supporter of the RCMP. This seemed an odd thing to say, and left him with the assumption that Mr. Salmond was coming from the ball. The officer felt Mr.

Salmond was not making sense and he thus formed the opinion that his ability to operate a motor vehicle was impaired by alcohol. [ 10 ] The officer went on to testify that he formed this opinion based upon the following reasons: the entire time he was speaking to the accused his speech was slurred; his eyes were red and shiny; there was an odour of alcohol coming from his breath; the continual swerving in and out of the driving lane; his inability to form any thoughts; and he seemed confused all the time. [ 11 ] The officer elaborated that when Mr.

Salmond said he was at the RCMP ball, they started talking more and Mr.

[ 11 ] The officer elaborated that when Mr. Salmond said he was at the RCMP ball, they started talking more and Mr. Salmond told him he had actually gone home and was driving from home. The officer asked him how many drinks he had and he replied: “ I don ’ t know. Probably too many. ” The officer said “ you probably shouldn ’ t be driving then , should you ” . And he replied “ No ” . He testified that based on all of this, he formed his grounds and arrested him for impaired driving. (Transcript, Page T7) [ 12 ] Mr. Salmond was sitting in his vehicle when the officer arrested him.

He asked him to step out, he did so, and the officer took the ignition keys from Mr. Salmond, searched him, and walked him back to the patrol vehicle. He testified Mr. Salmond was unsteady on his feet as he was walking, did not stagger or fall, but he could tell he was not walking like he normally would. [ 13 ] Once in the police vehicle, at 12:43 a.m., the officer again advised him of the reason for the arrest, gave him rights to counsel, police warning and the breath demand. Although the officer did not have his information card, he referred to his notes, and I am satisfied he made a valid demand.

The accused indicated he understood each and did not wish to contact a lawyer. [ 14 ] After locking up the accused ’ s vehicle, they proceeded to the Nipawin detachment arriving at 12:53 a.m. The officer testified he did not have access to the secure bay, so he parked outside, left Mr. Salmond in the vehicle for about 45 seconds, unlocked the detachment door, went back to the vehicle, let Mr. Salmond out, and escorted him into the detachment. [ 15 ] Inside he again asked Mr. Salmond if he wanted to speak to a lawyer, to which he indicated he did. They went to the lawyer room in the detachment.

He asked to speak to Ron Saretzky, but the officer could not understand as he was slurring the last name and could not spell it for the officer. After the officer tried a couple of numbers, the accused told the officer he changed his mind and wanted to speak to Darcy Neufield. The officer then attempted to contact her, with no success. The accused insisted he only would speak to Ms. Neufield and after the lack of success, the officer told Mr. Salmond he had certain options and then turned Mr. Salmond over to the breathalyzer technician at 1:35 a.m. [ 16 ] The breathalyzer technician, Cst. Dale, took Mr.

Salmond to use the facilities in one of the cells, which took two or three minutes, then turned him back over to Cpl. Knodel in the prisoner area. Cpl. Knodel testified that he observed the accused closely, other than for that short time in the washroom. [ 17 ] As the officer was walking with Mr.

Salmond to the breathalyzer room he observed “ on two occasions he actually stumbled or staggered, once was in the hallway and he just staggered to his right and then caught himself again and kept on walking, and then moments later he did the same thing again, he staggered to the right but actually had to put his hand on the bench – like there ’ s a counter there, he had to put his hand on that counter in order to secure himself ” . (Transcript, Page T18) [ 18 ] In cross-examination Cpl. Knodel acknowledged that he watched Mr. Salmond “ like a hawk ” while he was in his custody.

However, after playing the video of the officer ’ s dealings with Mr. Salmond at the detachment, it is clear his recollection about what happened at the detachment and what actually happened are very different. [ 19 ] In cross-examination, the officer testified he came in and opened the door and brought Mr. Salmond in through a side door about 30 seconds later. According to the video, the officer pulled up to the side of the detachment, walked in, came back out, and brought Mr. Salmond around and in through the front door of the detachment about two minutes later.

He agreed with defence counsel that he was clearly wrong when he testified in-chief about this issue. (Transcript, Page T51) [ 20 ] Further, the video shows no stumbling or staggering by Mr. Salmond as he is lead from the prisoner area to the breathalyzer room. The officer testified he made a note in his notebook that the accused did stagger twice, but did not mention in his notes that he put his hand on the counter. The officer testified he only touched the counter for a couple of seconds. (Transcript, Page T55) [ 21 ] The video is not a live recording.

While there was no evidence as to how the equipment at the detachment records, it appears to be a series of still photos that run at approximately two seconds per frame. No doubt some action is lost. However, I find that having reviewed the video, the officer is mistaken as to Mr. Salmond staggering or stumbling or touching the counter for balance while in the detachment. To his credit, the officer agreed with that assessment in cross-examination and accepts that the video does not

show any such actions. (Transcript, Page T72) [ 22 ] The officer ’ s confusion continues in cross-examination as he initially testified he took the accused into the public area of the detachment after taking the accused to the breath room. However, the video shows they went into the public area and were not there very long before they came back though to the counter area. The officer could not explain what they were doing there at that point or why they came back to that area.

He agreed the video provided a different recollection than his recollection. (Transcript, Page T68) [ 23 ] The video was played for some length of time, and even accepting that the video time is about nine minutes faster than the officer ’ s watch and the times he recorded, nothing could be found in the video show the stumbling, staggering or counter touching. (Transcript, Page T75) [ 24 ] The officer could not provide any information as to what words Mr. Salmond was slurring other than he was slurring Mr. Saretzky ’ s name. He did testify that Mr.

Salmond said “ Good morning ” to him on the first day of the trial, and based on his response, he testified that Mr. Salmond does not speak the same today as he did that night as he was not slurring his words today. [ 25 ] He agreed that Mr. Salmond displayed no problems with balance or dexterity at the roadside, nor did he have Mr. Salmond perform any tests at the detachment such as walking a straight line. [ 26 ] Once Mr. Salmond was ready to be released, the officer testified that Mr. Salmond asked to walk home and started walking down the hallway to leave the detachment.

The officer spoke to others present and said they could not let him leave on his own as it was not safe, so he called Mr. Salmond back. He denied that Mr. Salmond left the detachment and that he followed him out and grabbed him by the front of his shirt in the parking lot to get his attention and prevent him from leaving on his own. He did agree that while he did not remember that happening, he was not saying it did not happen. Defence [ 27 ] Mr.

Salmond testified that before he had been stopped, he was at the RCMP Regimental Ball from about 5:30 p.m. until approximately 11:30 p.m. when he left and walked home alone. Before the ball he had not consumed any alcohol. During the ball, he consumed six glasses of white wine, at the rate of about one glass per hour. He estimated the glasses were four or five oz in size. He walked home and laid down for about an hour, then decided to get up and locate his wife as she had not yet come home. He did not consume any alcohol at home. He went outside to his truck when his friend, Joy Preston, drove into the driveway.

They had a brief conversation where he told her he was going to locate his wife. He then left in his vehicle. [ 28 ] He drove along his street, stopped at the stop sign, saw a vehicle at the top of the hill, then crossed Highway 55 and continued along 5 th Street. There was fresh snow but no tracks on the street. He observed the police lights and pulled over immediately. The officer pulled up right behind him. He testified he was moved over twice on the roadway, but it was in an effort to stay away from vehicles that were parked on the side of the road.

He testified his ability to properly operate the vehicle was not affected by any alcohol he consumed. [ 29 ] Mr. Salmond testified the window does not work well, and was not frozen, but the officer appeared to think it was as he was banging on the window in an effort to help open it. [ 30 ] When the officer asked for licence and registration he realized his licence was not in the console where it usually was stored. He then checked the visor for the registration, but realized that the truck has a dealer licence and there is no registration for a dealer licence. The officer did ask for his name and he provided it.

He told the officer there was no registration for the truck as it was a dealer plate. [ 31 ] The officer asked him where he was coming from and he said home. The officer then asked where he was going and

he said home. This did not seem to make sense to the officer. Mr. Salmond testified that he was not planning to go in anywhere, just make a quick look for his wife and go home, but he did not tell this to the officer. The officer asked him to step out of the vehicle, and he did, then the officer asked for his keys and he gave them to him and they got in the police vehicle. [ 32 ] In the truck he told the officer he had been at the RCMP ball, and that he hadn ’ t been to one before. He did not tell the officer he was a supporter of the RCMP.

The officer told him he was under arrest and they went to the police station. [ 33 ] He agrees the video was accurate as to their attendance at the detachment. [ 34 ] When he was being released the officer told him he was free to go but then asked him to sign papers. He signed them and was told to sit again and wait for his copies. He did. He was given his copies about five minutes later, walked down the hall, and went outside to the parking lot to walk home. [ 35 ] In the parking lot the officer caught up to him, telling him they would give him a ride home.

The accused said it was not far and he was happy to walk, but the officer said no, we will give you a ride home, the accused again said he would walk, but the officer insisted and then grabbed him by both of his arms from the front and said they have to give him a ride home. Once the officer put it that way Mr.

Salmond agreed. [ 36 ] He does not recall the conversation with the officer about the number of drinks he had, nor does he recall the conversation about whether he should be driving. [ 37 ] In cross-examination he agreed he drank an estimated 24 to 30 ounces of white wine, consuming wine that was on the table and what others purchased as he did not approach the bar. He drank no other alcohol. He said he had six glasses as he was counting, and timing his drinks, as it is his habit to do so.

He was conscious of it and did not want to get intoxicated at that function as he was planning to do things with his children in the morning. [ 38 ] He walked home as it was nice to be away from the crowd and he was by himself. Before he left the event, his last drink was between 10:30 p.m. and 11:30 p.m. and immediately after finishing it he left. He consumed no alcohol at home. He laid down in his bed and slept but woke up. He decided to go out as he was a little worried about his wife and she did not have her phone.

The children were at home but they could contact him on his cell phone. [ 39 ] He did not try to contact anyone as two other couples they were with said they were leaving shortly after he did. [ 40 ] When he spoke to Ms. Preston in the driveway, she said his wife was at still at the ball. He was on his way to the Evergreen where the ball was being held, when the police stopped him. [ 41 ] Joy Preston testified that she and Mr. Salmond and others were at the RCMP ball in Nipawin and were sitting at the same table. She was the designated driver for anyone who wanted a ride home.

She has known the accused and his wife about 10 years. They arrived at the RCMP ball around 5:30 p.m. or 5:45 p.m. She observed him consuming alcohol, but only wine, and did not see him go up to the bar. [ 42 ] She saw him take a glass of red wine before supper, and one at supper and she thinks someone filled it up again. She thought he had about four or five restaurant glasses of wine, which hold about three to four ounces maximum. She spent “ 3/4 of her time with him ” at the ball. He was quiet and just looking around, and she felt he was a bit uncomfortable and felt he might leave.

She did not see him leave but she noticed at some point he was gone. [ 43 ] She next saw him as he came out of the garage door as she pulled into his driveway. He appeared to walk fine.

They spoke, first while she was in the vehicle, then she got out as she wanted to talk to him, and have a cigarette. They spoke about twoor three minutes, and she testified he was standing there normally and she was not concerned that he was under the influence of alcohol. She noticed nothing in his pronunciation of words or any weaving while he was standing. Nothing she observed made her think heshould not get behind the wheel of a motor vehicle.

If she had detected that he was under the influence of alcohol she would not have lefthis side. [44] In cross-examination she agreed that he drank about 12 to 20 ounces of wine. She believed it was only red wine hewas drinking. She did not consume any alcohol that night. ANALYSIS [45] Given that Mr. Salmond called evidence, I am mindful I must apply the test enunciated by the Supreme Court ofCanada in R v W. (D.) (SCC): First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [46] As well, I am mindful the onus is on the Crown to satisfy me beyond a reasonable doubt the ability of the accused tooperate a motor vehicle was impaired by alcohol.

Any degree of impairment, from slight to great, will suffice to ground a conviction.(See R v Stellato (1993), (ON CA), 78 CCC (3d) 380, aff’d (SCC), [1994] 2 SCR 478) [47] In R v Landes, (SK KB), [1997] SJ No 785 (QL), Justice Klebuc (as he then was) stated at paragraph 16: An opinion as to impairment, be it by the trial judge or a non-expert, 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 on inferences.

Tothat end a list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’smental faculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive a motorvehicle.

Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot orwatery eyes; (3) presence of a flushed face; (4) odour of an alcohol beverage; (5) slurred speech; (6) lack of coordination and inability toperform physical tests; (7) lack of comprehension; and (8) inappropriate behaviour. [48] And further at paragraph 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. ... [49] Having heard the evidence of Mr. Salmond and observing him as he testified, I find that the evidence of Mr.Salmond leaves me with a reasonable doubt.

[ 50 ] There are stark differences between the officer ’ s evidence and that of Mr. Salmond. There are a few differences between the evidence of Mr. Salmond and Ms. Preston. I accept that Ms. Preston may want to help her friend and thus erred on the low end when it came to his consumption that night. I find nothing turns on whether he was drinking white wine as he testified or red as she testified. Either of them could be mistaken, although I am more inclined to accept Mr. Salmond ’ s evidence as he was the one consuming it.

I accept his evidence that he consumed six glasses of wine and that it was about four ounces a glass, or about 24 ounces, at a rate of one class per hour. I accept that he went home about 11:30 p.m., slept and got up about an hour later. [ 51 ] He displayed no outward signs of impairment when Ms. Preston spoke to him in the driveway. I have no doubt that if she felt he should not be driving she would not have let him get into his vehicle.

She did not observe any swaying or slurring of his speech, nor did anything he say or do cause her concern. [ 52 ] I accept that as he left his residence, driving his truck, there was nothing untoward in his driving. I accept his evidence that he was driving more to the middle of the street as there were cars parked on the side and that he moved over a couple times so as to not to be too close to the cars. [ 53 ] He had not gone far before the officer stopped him.

I accept they had a conversation that did not make any sense to the officer, as frankly it did not make much sense to me why someone would tell a police officer that he was coming from home and going home. Mr. Salmond struck me as a nervous person, and I accept the officer had a better recollection of the conversation than did Mr. Salmond.

However, the officer ’ s observations concerning the driving and at the roadside are overshadowed by his evidence as to what transpired at the detachment. [ 54 ] The officer was candid in cross-examination that he was mistaken as to his evidence in-chief about their arrival at the detachment and where he and Mr. Salmond went once they arrived. He did not realize the Nipawin detachment had video cameras and he watched closely as counsel directed him to various parts in the video.

He admitted that he was mistaken upon their arrival at the detachment, that they went through a side door, as the video showed they went around to the front door. He agreed the video did not show Mr. Salmond stagger or use the counter for balance at any point. He also agreed that it did not show them going to certain locations in the detachment that he believed they had gone. [ 55 ] This leads me to question the accuracy and reliability of his evidence as he followed Mr. Salmond the short distance on the street, and while he had him stopped at roadside. I accept he saw Mr.

Salmond weave in his lane, but I am not satisfied it was as pronounced as the officer testified. I also accept he smelled alcohol on Mr. Salmond ’ s breath, and would have, given that Mr. Salmond admits he had recently consumed alcohol. However, while this may have been sufficient for the officer to make a demand for the accused to provide a sample of his breath into an approved screening device, it is insufficient to convince me beyond a reasonable doubt that Mr.

Salmond ’ s ability to operate a motor vehicle was impaired by alcohol. [ 56 ] On all of the evidence, I find him not guilty of the charge. ______________________ I. J. Cardinal, J