Her Majesty the Queen - v. -, 2012 SKPC 129

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 129 Date: August 3, 2012 Information: 24090222 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - David John Lundrigan Appearing: A. Wyatt For the Crown D. J. Lundrigan For the Accused JUDGMENT B. M. KLAUSE, J I. INTRODUCTION [ 1 ] Mr. Lundrigan is charged on April 16, 2005, with having the care or control of a motor vehicle while his blood alcohol exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253 (

b) of the Criminal Code of Canada .

[ 2 ] The facts of the case are unremarkable. It’s tortured progress through the Canadian criminal justice system makes it much more remarkable than the facts. [ 3 ] The accused first appeared in court on May 18, 2005, and after numerous failed trial dates, ultimately had his first trial on August 6, 2006. Among other defences, the accused argued at that trial that the roadside demand had not been made forthwith and that the demanding officer should have waited 15 minutes before administering the roadside test. The learned trial judge at the time accepted that argument and acquitted the accused.

The Crown appealed that matter to the Court of Queen’s Bench; the learned appellate judge granted the Crown appeal and found that in the circumstances of the case, that the demand was made forthwith and that whether or not the accused had consumed beer within fifteen minutes of taking the roadside test was pure speculation. The appeal was granted and a new trial ordered. [ 4 ] The second trial involved two Provincial Court Judges. Judge Andrychuk heard a pretrial motion in regard to the application of the amendments to s. 258 (

d) of the Criminal Code . Prior to that amendment of the Criminal Code , an accused was able to establish evidence to the contrary by testifying as to consumption just prior to the time of the demand and with the assistance of an expert witness in regard to the absorption of alcohol and if believed by the trier of fact, could put his blood alcohol limit below the proscribed minimum at the time of the driving or care or control.

The amendments to s. 258 of the Criminal Code made it much more difficult to establish that defence.: 258(c)(iv) 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 offence was alleged to have been committed was, if the results of the analysis are the same, the concentration determined by the analysis and if the results 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 millilitres 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 millilitres of blood at the time when the offence was alleged to have been committed. [ 5 ] These three things would have to be established by the defendant in addition to his evidence of consumption being accepted as true by the trier of fact.

Judge Andrychuk, who heard the application, ruled that the amendments were substantive in effect, therefore not retrospective and that Mr. Lundrigan could in fact lead the standard evidence of his consumption and if believed, his expert would then be able to place the accused’s blood alcohol below the prescribed limit at the time of the driving or care or control. Judge Andrychuk retired during that trial and pursuant to sections 669.2(1) and (3) of the Criminal Code , Judge Green was assigned to hear that trial. [ 6 ] The matter proceeded to trial before His Honour Judge Green on that basis.

Both counsel at that trial submitted that the changes to s. 258 of the Criminal Code regarding evidence to the contrary, effective July 2, 2008, not apply retrospectively to that trial. He found that the accused had rebutted the presumption contained in the

section on care or control but that the accused was in actual care or control. He further believed the accused, or at least had a reasonable doubt as to his consumption of only one or two beer, despite his relatively high readings and based on his expert’s evidence, he dismissed the charge. [ 7 ] The Crown again appealed on the basis that Judge Green had found that he could not consider the accused’s high readings in regard to the accused’s credibility. That appeal was dismissed without written reasons by the learned

summary conviction appeal judge and the Crown again appealed. This appeal was heard in the absence of the accused even though he had been served with the Notice of Appeal and Notice of the date of the hearing. Ultimately the Court of Appeal allowed the appeal from the bench, the acquittal was set aside, a new trial ordered and that trial was heard before me at Moosomin, Saskatchewan, on March 22, 2012. [ 8 ] The majority of the evidence was admitted via a transcript from the second trial. In addition, the Crown tendered both of its principal witnesses, for the purpose of cross-examination, and Mr.

Lundrigan, now self represented, testified viva voce . II. THE EVIDENCE [9] The facts are unremarkable. On the date in question the accused had left Saskatoon and was returning to Winnipeg via his personal automobile. He stopped at Davidson for refreshments and purchased a six pack of beer. He continued on his route, but finding

himself incredibly tired and a possible danger on the road, he decided to head off the #1 Highway south of Grenfell and find a quiet back road to have a short nap. As he headed off southbound he observed two police cars heading northbound. He continued on and found a relatively deserted gravel road, parked his car and left his car momentarily to relieve himself, grabbing a beer on the way out. He consumed the beer, and then observed the police cars returning. He entered his car and was seated in the seat normally occupied by the driver with the vehicle running.

He observed the police stop at the entrance to the grid road, and shortly thereafter they approached his vehicle. [10] Cpl. Roussel attended to the driver’s side of the vehicle and spoke to the accused at approximately 8:20 p.m. She noted a strong smell of beverage alcohol emanating form the accused’s breath and told her partner, Cpl Guider that they might have a code 68 here, i.e. an impaired driver. She decided to make a demand for a roadside test and did so at 8:28 p.m. and asked the accused to accompany her back to the patrol car where she subsequently administered the test.

Meanwhile her partner searched the accused’s car and came across four full cans of beer. One empty beer can was found in the ditch near the car. He did not share this information with Cpl. Roussel who had asked the accused when his last drink was, to which he responded “sometime earlier this evening.” [11] She administered the roadside test which resulted in a fail. The accused was then Chartered and taken to the Broadview Detachment of the RCMP where his Intoxylzer tests were completed with readings of 180 and 170 at 9:14 p.m. and 9:39 p.m. respectively.

He was kept overnight as there was no one available in the area to provide him with a secure place in which to stay and until his readings were low enough for him to continue on his way. In the morning, the RCMP gave him a ride back to his car which had been locked the night before, where he had been found behind the wheel. [12] Both police officers testified that there were no other strong signs of impairment, but neither of them felt that this was anything unusual - different people process alcohol differently.

They were confident in the results of the roadside test which is set to fail at .10 and this was further bolstered by the high readings on the Intoxilyzer. [13] The accused also testified. He did not disagree substantially with the evidence as proffered by the Crown. He indicated he had left Saskatoon earlier that day and driven as far as Davidson, where he stopped at the Davidson Inn and had something to eat and purchased a six pack of beer, which he thought he might take to his mother’s residence in Brandon.

It was later on, close to the scene of the police stop, that he felt overwhelmingly fatigued and a danger on the highway and decided to pull over and take a nap. He did not feel comfortable parking at a truck stop or in a small town and curiously decided that the safest place to be would be several kilometres off on a dirt road in the middle of nowhere. He indicated he saw the police car approach when he was travelling the opposite direction.

He continued on his way finding an appropriate quiet spot and parked, got out to urinate, grabbed a can of beer on the way out and consumed it while relieving himself and finished it before the police came back. He agrees he was sitting in the driver’s seat of the car with the engine running. It was his evidence that the only alcohol he consumed that day was two cans of beer out of the six pack he had purchased at Davidson. He indicated that he drank the beer to relax and thought nothing of it, that he is not a heavy drinker and just felt the need to have a beer before he nodded off.

He agreed that his vehicle was running but that to cause it to move you would have to move the gear shift lever to drive, depress the brake and release the emergency brake. He agreed that this could all be accomplished in a matter of seconds. He was adamant that he was so fatigued that it was dangerous for him to be on the highway and he was not going to move his vehicle until he felt safe to do so. III. THE ISSUES 1. Was the roadside demand made forthwith? 2. Should Cpl. Roussel have waited 15 minutes for the accused’s mouth alcohol to dissipate? 3.

If the answers to the above two points are “no” and “yes”, was the accused arbitrarily detained? 4. Was the accused in care or control of his motor vehicle? 5. Were the tests completed as soon as practicable?

6. Was the accused over held? 7. Was expert evidence admissible to permit the accused to argue that at the time he was apprehended at the scene his blood alcoholwould not have been over the legal limit? 8. Does this trial being the third attempt by the Crown at a trial, constitute an abuse of process? IV. ANALYSIS 1. Was the roadside demand made forthwith? [14] In regard to Issue # 1 this matter does not seem to be specifically addressed in the decision of Madam Justice Pritchard.

It washowever dealt with in the decision of Judge Green in the accused’s subsequent trial with that decision rendered July 22, 2009, andreported at R. v. Lundrigan, 2009 SKPC 73, and while not bound by a decision of my brother Judge Green, I find his reasoning to besound and endorse it entirely: [19] Section 254(2) has been interpreted to impose two obligations on a peace officer. The first obligation, as per the wording of thesection, is to take the ASD samples “forthwith” following the ASD demand. The second obligation - relevant in this case, and despite noliteral reference to this in the

section - is to make the ASD demand “forthwith” after the officer forms a belief that the person has alcoholin their body (see R. v. Bilette, 2001 SKQB 150 , (2001), 205 Sask. R. 79 (Sask. Q.B.) at paragraphs 10 - 14). TheSaskatchewan Court of Appeal has defined “forthwith” to mean without an unreasonable or unjustified delay (R. v. Jansen, 2006 SKCA111 , (2006), 285 Sask. R. 296 at paragraph 4). [20] Mr. Lundrigan bears the onus of proving this alleged Charter breach on the balance of probabilities. On the evidence presented,I am not satisfied there was an unreasonable or unjustified delay by Cpl. Roussel in making the ASD demand. That is because:

(1) Mr. Lundrigan was uncertain about the time between when he had first contact with the police and when he blew into the ASD. He admitted that at his first trial he said it was five minutes, but at this trial said it was as much as fifteen minutes;

(2) Mr. Lundrigan further acknowledged that his dealings with the officers at the roadside were done with some expediency;

(3) Although Cpl. Roussel said on cross-examination that she had been in Mr. Lundrigan’s company for about eight minutes prior tomaking the ASD demand, I am not satisfied that the period of time was nearly this long. Her further evidence was that she arrived at thescene at 8:20 p.m., following Cpl. Guider, and that time was required for her to park, to call her dispatch, and to get up on foot to Mr.Lundrigan’s car, which she surveyed before speaking to him. Taken together, and considering she did not recall any delays in Mr.Lundrigan attending to her police vehicle, I am satisfied that any delay between when Cpl.

Roussel formed the belief Mr. Lundrigan hadalcohol in his body and the ASD demand was at most a few minutes; and

(4) I accept that Mr. Lundrigan was arguing with the officer as he emerged from his vehicle, and given this charged environment itwas not in my view unreasonable for the officer to bring Mr. Lundrigan back to the police vehicle before making the ASD demand. [21] This Charter application is dismissed. 2. Should Cpl. Roussel have waited 15 minutes for the accused’s mouth alcohol to dissipate?

[15] In regard to Issue # 2, and for the aforementioned reasons, I consider myself bound by the decision of Madam JusticePritchard in R v. Lundrigan, 2007 SKQB 388. She found that the test conducted by Cpl. Roussel without waiting fifteen minutes wasappropriate in all of the circumstances. At paragraph 15: [15] In this case, Mr. Lundrigan told the officer that he had been drinking in the car “earlier”. Even if the officer had been told ofher partner’s discovery of an empty beer can at the scene it would not constitute “credible evidence” that Mr.

Lundrigan had consumedalcohol within 15 minutes prior to the roadside test. It is possible that Mr. Lundrigan consumed alcohol within that 15 minute time frame,but that is not what he told to the officer. Having seen the two patrol cars pass him on the highway some five minutes earlier, it is alsopossible that Mr. Lundrigan drove onto the grid road to dispose of an open can. Whether or not Mr. Lundrigan had consumed beerwithin 15 minutes of taking the test on the ASD is pure speculation.

Likewise, whether the wet ground near the driver’s side of thevehicle was just urine is also speculation. [16] I find that the trial judge erred in determining that in the totality of the circumstances it was not objectively reasonable for theofficer to have relied on the accuracy of the ASD test. In so concluding I have also considered and relied upon R. v. Novakoski, 2004SKPC 121 , 2004 SKPC 121 and R. v.

Claypool, 2003 SKPC 116 , 2003 SKPC 116. [17] Given my finding on the primary issue it is unnecessary to deal with the trial judge’s conclusion that under s. 24(2) of theCharter the certificate of analysis should be excluded from evidence. I simply note that in arriving at this conclusion, the trial judgefailed to articulate the analysis required for such a finding. (See: R. v. Janzen, 2006 SKCA 111 , 2006 SKCA 111 at paragraph7) 3.

If the answers to the above two points are “no” and “yes”, was the accused arbitrarily detained? [16] As a result of my decision on the above two issues, it is my finding that there was no arbitrary detention and therefore theaccused is not successful in his Charter application to have this evidence excluded. 4. Was the accused in care or control of his motor vehicle? [17] Was the accused in care or control of his motor vehicle at the time he was apprehended? [18] The Crown can establish care or control in one of two methods:

(1) By relying on the presumption contained in the Criminal Code which states that if the accused is found in the seat ordinarilyoccupied by the driver, the law presumes he is in care or control; and

(2) If the accused rebuts that presumption, the Crown can still rely on actual care or control of the accused in his motor vehicle. [19] Judge Green addressed this issue in his judgment and found as follows: [6] Cpl. Guider and Cpl. Roussel found Mr. Lundrigan seated in the driver’s seat with the motor of his vehicle running. Section258(1)(

a) of the Criminal Code provides where the accused occupied the driver’s seat of his vehicle, he shall be deemed to have had thecare or control of that vehicle unless he establishes that he did not occupy that seat for the purpose of setting the vehicle in motion. [7] In this case, I accept that:

(1) Mr. Lundrigan was reclining in the driver’s seat when the police drove up, (2) he had returned tohis vehicle after urinating in the ditch and started up his vehicle to keep warm, and (3) that he was planning on resting or sleeping for a

number of hours before driving on to Manitoba. As a result, I am satisfied on a balance of probabilities that he did not occupy the driversseat for the purpose of setting his vehicle in motion. The presumption is rebutted. [8] The Crown can then prove Mr. Lundrigan was in de facto care or control. Acts of care or control, short of driving, are acts whichinvolve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve arisk of putting the vehicle in motion so that it could become dangerous (as stated by McIntyre J. in R. v.

Toews, (SCC),[1985] 2 S.C.R. 119 at paragraph 10). Some twenty-three years after this standard was set in Toews, the New Brunswick Court ofAppeal, in R. v. Mallery, 2008 NBCA 18 , (2008), 231 C.C.C. (3d) 203, provided an excellent

summary of what is required toprove de facto care or control. In care or control cases, the ultimate task of the trial judge is to decide whether the Crown has met the burden of establishing beyond areasonable doubt that the accused's interaction with his or her vehicle presented a danger or, as it is sometimes phrased, a "risk of danger"or a "risk to public safety".

If the facts establish beyond a reasonable doubt a risk of the accused putting the vehicle in motion, eitherintentionally or unintentionally, or if the facts otherwise support a finding of danger (such as from parking one's car in the middle of apublic thoroughfare), then care or control will have been established. (paragraph 52) [9] As Cpl. Guider pulled up, he saw the brake lights of this vehicle flash as though Mr. Lundrigan had stepped on the brakes. Cpl.Guider said Mr. Lundrigan’s vehicle was parked in the driving lane of the grid road with the grassy ditch area to the right of the vehicle.

It was an area where there were no signs of life or farmhouses visible. The officer further denied that there was a sharp drop off at theside of the road, saying it was possible to pull a vehicle down into the ditch. [10] Mr. Lundrigan said he felt cold, and started up his vehicle to warm up. It was cool outside, and he was still wearing a t-shirt andshorts, as it had been warm earlier in the day. His vehicle had an automatic transmission, with a column shift which required the brake tobe depressed before it was put into gear. [11] Mr.

Lundrigan thought this was the most obscure location he could find, and said he planned eventually to get into the backseat,as he had brought with him a bag with sweats and a sweatshirt. Regarding Cpl. Guider’s evidence about seeing brake lights, he said hethought this was when he pushed the seat back and stretched out. He denied wearing his seatbelt, and said he was at the vehicle locationapproximately ten minutes before the police showed up.

He exited the vehicle only once, to urinate. [12] Regarding why he pulled off onto the side road, as opposed to a smaller approach to a field, he said the ground was muddy andsoft and this is why he chose to stop on the road. He didn’t pull his vehicle farther toward the ditch because the snow was still melting,and he did not want to get stuck in the middle of nowhere. He said the road was deserted, and he parked in the right-hand driving lane,leaving room for another vehicle to pass without difficulty on the other side of the road. [13] In considering the location Mr.

Lundrigan parked his vehicle - in the right-hand lane of a deserted side road with room foranother vehicle to pass by in the left hand lane - I am not satisfied he created any risk to the general public based on that location. [14] However, I have reached a different conclusion about whether the Crown proved a risk that Mr. Lundrigan could put his vehicleinto motion, intentionally or unintentionally. In R. v. Brahniuk, [2002] S.J. No. 533, the Saskatchewan Court of Appeal found Mr.Brahniuk to be in care or control of his vehicle after starting the engine and locking the doors.

While each case depends on its uniquecircumstances, here, I accept that Mr. Lundrigan started his vehicle, adjusted his heater and inadvertently stepped on the brake as heleaned back in the driver’s seat. Given his own testimony, depression of the brake would allow his vehicle to be put into gear. Takentogether, I am satisfied that, at the point the officer found Mr. Lundrigan, there was a risk of him putting his vehicle into motion.

As aresult, I am satisfied he was in care or control of his vehicle at that point. [20] Once again, I find myself in agreement with this reasoning and suffice it to say I would have reached the same conclusion asreached by Judge Green and therefore, in my opinion, while the accused has rebutted the presumption, just barely in my opinion, he wasdefinitely in actual care or control. The only thing the accused added to his viva voce evidence before me was the addition of theemergency brake, which would have to be released prior to the vehicle moving.

This in my opinion, does not alter the fact that his vehiclewas capable of almost immediate movement and as such, created the risk the

section is designed to prevent. I will leave aside for themoment the obvious question of what condition the accused was in when he drove the vehicle to the spot where it was subsequently

discovered by the police and whether that, in and of itself, would constitute care or control. In my opinion, it would, but for the purposes of this case it is sufficient that I conclude he was in actual care or control at the time the police officers arrived on the scene. 5. Were the tests completed as soon as practicable? [21] In my opinion, the tests were completed as soon as practicable.

The time line is negligible in this case with the first contact with the police at 8:20 p.m., followed by a demand for roadside tests and a subsequent fail at 8:28 and then the accused was taken to the nearest detachment where an Intoxilyzer was available and the tests completed with readings of 180 and 170 at 9:14 p.m. and 9:39 p.m. respectively. Given the rural nature of the investigation, and the travel time to the detachment office, I am satisfied that the tests were completed as soon as practicable. 6.

Was the accused over held? [22] The accused was held overnight, released promptly the next morning and returned to the scene of the incident by a member of the RCMP. Cpl. Guider testified that he would have released him, if he had a responsible person to take charge of him, as simply releasing him on his own, given his blood alcohol readings, was not in the cards, as the police would not be able to ensure that he would not simply head back to his car and resume driving with a spare set of keys.

It must be noted that the accused had embarked on a journey of substantial length by himself, had no family or other contacts in the immediate area, chose to consume alcohol in the context of that lengthy journey, had failed the roadside test which was calibrated at .10 and provided substantially high blood alcohol readings in excess of twice the legal limit. [23] I have previously ruled on this issue in R. v. Chambers , 2010 SKPC 70 , and found the over holding argument in very similar circumstances to be without merit. More recently the Saskatchewan Court of Appeal has dealt with the same issue in R.. v.

Salisbury , 2012 SKCA 32 , on appeal from the Court of Queen’s Bench. The appellate courts have concluded that since the over holding occurs after the principal offence has been completed, that it bears no relation to the offence and that it is inappropriate to stay proceedings, or to otherwise sanction the police for the alleged over holding. Therefore in regard to this Issue, I am not satisfied that there was an over holding and in any event, a judicial stay would not be forthcoming on this ground. 7.

Was expert evidence admissible to permit the accused to argue that at the time he was apprehended at the scene his blood alcohol would not have been over the legal limit? [24] In a pre-trial conference held before myself, it was agreed that the transcripts of the two experts previously called at the last trial could be admitted without the necessity of calling them to the stand. The Crown pointed out that in their opinion because of the amendments to s. 258 that the so called “two beer defence” was no longer available to this accused, in the absence of proof of all three elements, as described in that section.

The defence felt that this defence should still be available as this offence occurred in 2005, well before the alleged amendments. At the start of the trial, Crown counsel offered the cases of R. v. Dineley (2009), 248 C.C.C.489 (Ont. C.A.), and R. v. Denesiuk, Shambel and Sheach , 2009 SKQB 431 , all decisions of Mr. Justice Whitmore from the Saskatchewan Court of Queen ’ s Bench, all of which support the Crown ’ s position that the changes to s. 258 are not substantive, in which case they would not be retrospective, but rather the changes are procedural in nature and are therefore retrospective.

I advised the accused that I was bound by these decisions of the Saskatchewan Court of Queen ’ s Bench and that the decision of the Ontario Court of Appeal while not necessarily binding, was extremely persuasive. The end result of those cases is that Mr.

Lundrigan cannot avail himself of this particular defence as he was unable to challenge the accuracy or performance of the instrument nor was he able to rationalize the readings achieved given his declared consumption of alcohol. [25] Therefore in regard to Issue #7, I cannot consider the evidence of the defence expert in regard to his blood alcohol reading at the time of the care or control as the defendant is unable to provide challenges to all three of the pre-requisites contained in s. 258(1) (c) (iv). [26] If in fact I am incorrect in that assessment, the Saskatchewan Court of Appeal in R. v Lundrigan, 2010 SKCA 122 , overturned the acquittal of Judge Green , which was also supported by Mr.

Justice Chicoine, on the issue of credibility and evidence to the contrary. Our Court of Appeal has specifically found as follows: [7] In R. v. Fox , this Court held that, once an accused charged with a .08 offence was found to have proffered "evidence to the

contrary" sufficient to rebut the presumption of the accuracy of the Intoxilyzer readings, the trial judge must go on to consider whether,nonetheless, on the whole of the evidence, including the Intoxilyzer readings and the result of a roadside screening assessment, the Courtwas left with a reasonable doubt as to the accused's guilt.

In effect, this Court in Fox held that the Intoxilyzer results continued to haveevidential value even though the presumption of accuracy had been rebutted. [8] Although the Fox decision pre-dated the decision of the Supreme Court in Boucher, this Court held in Doell that Boucher had notoverruled Fox in relation to the relevance of the Intoxilyzer results in assessing the accused's credibility as to the extent of his alcoholconsumption, once the presumption of accuracy had been rebutted, on the whole of the evidence, for the Boucher decision did notaddress that issue.

Accordingly, it was held, the decision in Fox continued to be binding on this Court and on trial courts in this Province.In effect, while the Intoxilyzer results cannot be considered in determining whether an accused has proffered "evidence to the contrary"sufficient to rebut the presumption of accuracy, even if the presumption of accuracy is rebutted, they can and should be used (withoutany presumption of accuracy, where this has been rebutted) in determining, on the whole of the evidence, the guilt of the accused. [9] The trial judge therefore erred in law in holding that he must not consider the Intoxilyzer results in considering on the whole ofthe evidence whether he was left with a reasonable doubt as to the respondent's guilt.

I note that this Court's decision in Doell was notbrought to the attention of the trial judge. The

summary conviction appeal judge similarly erred in failing to allow the appeal below. [27] In applying the above precepts of law, I do not accept the accused’s evidence that at most, his consumption of beer were the twobeers at the scene. This evidence has no air of credibility. He had driven for several hours, had stopped at the Davidson Bar forsomething to eat and inexplicably picked up a six pack of beer to travel with. He then testified that he was so incredibly tired that he felthe was a danger on the road and had to pull off to have a sleep.

The first thing he does once he pulls off and finds a quiet spot in themiddle of nowhere is to find a can or two of beer and start drinking. This makes no sense to me and I reject it as being what reallyhappened. The readings achieved on both the roadside instrument and the subsequent Intoxilyzer readings simply could have not beenobtained by the consumption of one or two beer while stopped at the roadside in the manner the accused described.

Furthermore theevidence of the Crown expert at the trial before Judge Green established that in his opinion both the roadside instrument and theIntoxilyzer instruments were functioning properly on the date in question and that the only real variable was the self reporting drinkingof accused, which he generally finds to be notoriously unreliable. [28] Therefore on the whole of the evidence, including the Intoxilyzer results and the results of the roadside testing, I am not left withany reasonable doubt as to the guilt of the accused. [29] In my opinion, he is simply mistaken as to the amount of alcohol he consumed that day, or is deliberately misleading the Court inan attempt to defeat this charge.

For these reasons I do not accept his evidence as to his consumption and I do not find it to be capable ofevidence to the contrary. 8. Does this trial being the third attempt by the Crown at a trial, constitute an abuse of process? [30] The accused contends that because of the sheer number of trials and appeals launched by the Crown that he has encountered inthe context of his case, that I should consider entering a judicial stay of proceedings on the grounds that to allow this matter to continuewould be an abuse of process.

He does not allege or suggest any improper behaviour on the part of the Crown or any prosecutorial misconduct. [31] There is no doubt that a trial court can entertain an application for an abuse of process. In R. v. Jewitt, (SCC),[1985] 2 S.C.R. 128, the Supreme Court of Canada adopted the reasoning of the Ontario Court of Appeal in R. v. Young (1984), (ON CA), 40 C.R. (3d) 289, at paragraph 25: 25 I would adopt the conclusion of the Ontario Court of Appeal in R. v.

Young, supra, and affirm that "there is a residual discretionin a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justicewhich underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive orvexatious proceedings". I would also adopt the caveat added by the Court in Young that this is a power which can be exercised only inthe "clearest of cases". [32] In R. v. Keyowski, , the Saskatchewan Court of Appeal adopted the reasoning of the Supreme Court in Jewitt.

Keyowski was somewhat different from the case at bar as in Keyowski the concern was that this would be a third jury trial and a verdict

had never been reached. In the case at bar, a decision had been reached at least twice after trials and the matter then proceeded to appeal,both in the Saskatchewan Court of Queens Bench and the Saskatchewan Court of Appeal. However, in my opinion, the majority opinionin Keyowski is still the binding authority in this province for what constitutes an abuse of process. As per Mr. Justice Vancise: The onus of establishing that there has been an abuse of process rests with the respondent. He must discharge that onus on the balance ofprobabilities. See Amato v. R., (SCC), [1982] 2 S.C.R. 418, 29 C.R. (3d) 1.

The respondent must establish that theCrown by proceeding with a third trial is acting in an oppressive or vexatious manner or that the prosecution inoffensive to the principlesof justice and fair play. This residual power to stay proceedings is to be used sparingly and only in the clearest of cases. The respondent must provide persuasive and cogent evidence that the Crown officers in initiating or continuing the proceedings a thirdtime have misconducted themselves or have done something improper.

Because the residual power is to be used sparingly and only withclearest of cases, the degree of probability required to prove that there has been an abuse of the Court's process is very highcommensurate with the occasion. (See Bater v. Bater, [1950] 2 All E.R. 458 (C.A.).) [33] The decision of the Saskatchewan Court of Appeal was affirmed by the Supreme Court of Canada, in Keyowski, (SCC), [1988] 1 S.C.R. 657: 3.

The legal issue on the appeal is a very narrow one, namely whether a series of trials could per se constitute an abuse of process orwhether it is necessary for the accused to show prosecutorial misconduct. The majority of the Court of Appeal expressed the view thatthe accused had to establish prosecutorial misconduct.

Vancise J.A., writing for the majority, stated at p. 68: In the absence of evidence that the legal officers of the Crown were guilty of prosecutorial misconduct or proceeded for [sic] someulterior motive, in short that the proceedings were oppressive, the continuation of the trial on the indictment is not an abuse of process. [34] To define "oppressive" as requiring misconduct or an improper motive would, in my view, unduly restrict the operation of thedoctrine.

In this case, for example, where there is no suggestion of misconduct, such a definition would prevent any limit being placed onthe number of trials that could take place. Prosecutorial misconduct and improper motivation are but two of many factors to be taken intoaccount when a Court is called upon to consider whether or not in a particular case the Crown's exercise of its discretion to re-lay theindictment amounts to an abuse of process: 4.

While I disagree with the majority of the Court of Appeal that prosecutorial misconduct must be demonstrated in order to giverise to an abuse of process, I nevertheless agree with their conclusion that a new trial was properly ordered in this case. The appellant has,in my view, failed to demonstrate that this is one of those "clearest of cases" which would justify a stay. The charge is a serious one. Theproceedings have not occupied an undue amount of time.

The accused has not been held in custody, and, while he has undoubtedlysuffered substantial trauma and stigma from the proceedings and the attendant publicity, he is probably not distinguishable in this respectfrom the vast majority of accuseds. A third trial may, indeed, stretch the limits of the community's sense of fair play but does not of itselfexceed them.

In these circumstances, and having regard to the seriousness of the charge, I think that the administration of justice is bestserved by allowing the Crown to proceed with the new trial. [35] I can only echo what both the Saskatchewan Court of Appeal and the Supreme Court of Canada have stated. While a third trial inMr. Lundrigan’s case may stretch the limits of the community’s sense of fair play, it does not exceed them.

Impaired drivers continue tooccupy the public mind in terms of road safety and the unnecessary death and injury that continues to result from individuals whocontinue to drink and drive despite the draconian increase in financial penalties and loss of driving privileges. This accused has notsuffered negative publicity and the proceedings while lengthy have been as a result of properly brought and prosecuted appeals which dotake time to wend their way through the legal system. [36] In my opinion, the Defendant has not established the relevant factors on a balance of probabilities.

In fact he concedes at page 8of his argument at subparagraph 5 that there is no alleged misconduct on the part of the Crown. [37] This issue would have been appreciated by the Court of Appeal which nevertheless ordered a new trial, despite the fact that theabuse of process argument was not argued before them. [38] It is my respectful view that the accused has not established an abuse of process and that this is not one of those clearest of cases

where the court should direct a judicial stay. V. CONCLUSION [39] I therefore find that the Crown has proven its case beyond any reasonable doubt and I convict the accused. [40] Dated at the City of Yorkton, in the Province of Saskatchewan, this 3 rd day of August, A.D. 2012. ___________________________________ B. M. KLAUSE, J