Her Majesty the Queen - v. -, 2014 SKPC 90

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 090 Date: April 25, 2014 Information: 24461412 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyler Joe Crone Appearing: Mr. D. Howarth For the Crown Mr. R. Piché For the Accused DECISION ON VOIR DIRE /JUDGMENT B.G. MORGAN , J Introduction [ 1 ] Mr.

Crone is charged with offences that are commonly known as impaired driving and driving while over .08, based on events that occurred at approximately 2:30 a.m. on September 2, 2012, at Humboldt, Saskatchewan. [ 2 ] Prior to evidence being called, it was noted that no Charter notice had been filed, Mr. Piché indicating that he did not think

[ 2 ] Prior to evidence being called, it was noted that no Charter notice had been filed, Mr. Piché indicating that he did not think the issue he was going to raise necessarily required it. However, as the evidence unfolded, two issues that Mr. Piché felt probably did require Charter notice arose, and the matter was adjourned after hearing the bulk of the arresting officer’s evidence to allow time for Mr. Piché to provide his notice, and to allow Mr. Howarth to prepare his case to respond to that notice.

Effectively, then, the evidence of the one Crown witness, the arresting officer Constable Olsen, came about in two parts. By agreement, evidence from the trial was applied to the voir dire heard on the second day of the trial, and the majority of the Crown evidence from that voir dire was applied to the trial. Mr. Crone testified on the voir dire , and that evidence was not applied to the trial. The end result is that I will first decide the Charter issues on the voir dire , and depending on that result, then move to consider the trial evidence.

The burden of proof on the voir dire rests on the defence on a balance of probabilities; the burden of proof on the trial rests on the Crown on the basis of proof beyond a reasonable doubt. All the evidence is in on both the trial and the voir dire , and all matters have been fully argued. At the outset, I want to thank counsel for their usual cooperative attitude in dealing with the procedural complexities that developed, and for the briefs each filed, which were very helpful to me in deciding the issues before the Court.

For ease of reference, I may at times refer to the evidence as it unfolded on either the first or second day of the trial, without distinguishing at all times between the trial, and the voir dire . [ 3 ] The Charter issues Mr. Piché raises are as follows, parsed from his notice, provided in order of the sequence of events: 1. The officer did not have articulable cause, on an objective basis, to stop the motor vehicle, as the officer testified that she initiated the stop due to the manner of driving, not to check for licence, registration, or sobriety of the driver.

He argues that this is a breach of the Charter right contained in s. 9 of the Charter protecting against arbitrary detention, seeking the remedy of exclusion of any evidence obtained from that point forward; 2. The “fail” result obtained on the approved screening device could not, on an objective basis, be relied upon due to the officer’s failure to allow for the potential of undissipated mouth alcohol influencing the results. In these circumstances, including the anticipated evidence of the accused as to when he last consumed alcohol, the officer ought to have made inquiries as to the timing of the last drink.

This lack of grounds would pollute the basis for the subsequent s. 254(3) breath demand, resulting in a breach of s. 9 of the Charter protecting against arbitrary detention, seeking the remedy of exclusion of evidence from the point of this alleged breach. [ 4 ] If either of these arguments is successful, and a subsequent examination results in the desired remedy, there would of course be no evidence as to whether or not the concentration of alcohol in Mr. Crone’s blood exceeded the amount referred to in s. 253 (

b) of the Criminal Code . [ 5 ] I will deal with these issues in order firstly by way of decision on the voir dire . 1. The grounds for the stop [ 6 ] Constable Olsen testified that she was in a marked police vehicle heading westbound out of Humboldt when she “happened to notice a vehicle start up” in a parking lot to the right of her. She continued westward, when she received what she referred to as an alarm code dispatch, causing her to pull a U-turn to head back eastward into Humboldt.

That call was immediately cancelled, putting her now in the direction heading back towards Humboldt. [ 7 ] The vehicle that had previously caught her eye had pulled out of the parking lot and turned left to go in front of her, apparently making an appropriate stop at a stop sign to do so.

This put her a couple of blocks behind the vehicle she had earlier noticed (which was, there is no doubt, the Crone vehicle) with both vehicles now heading east into Humboldt. [ 8 ] She testified that she “noticed...”, paused for a moment, and then stated that she followed it probably two or three blocks, and said she noticed it swerve to “the left a little”. [ 9 ] When asked why she followed it for two blocks, she stated “because that was the direction I was headed already.

It was the vehicle in front of me.” She said she was watching it, and then activated her lights to do a traffic stop. [ 10 ] When the prosecutor then asked her to describe the driving in greater detail, she said that when it caught her eye, it was not a

smooth path down the lane, she stated it was swerving to the left, would cut back, and was swerving side to side within the lane, and then crossed the centre line. [ 11 ] When asked road and traffic conditions, the officer testified the road was dry, conditions were good, and there was not much traffic, as this was approximately 2:30 a.m. [ 12 ] She activated the lights, the vehicle pulled over “in as much time as expected”, and she approached the driver’s side of the truck, the window being at this point rolled down. Mr. Crone was driving, and there was one passenger with him.

She indicated that there was a smell of liquor coming from the vehicle, and she asked Mr. Crone if he had been drinking, to which he replied “a beer or two”. On a video of the stop, D-1 on the voir dire , at the point preceding the formal approved screening device (ASD) demand, Mr. Crone clearly states “I was at B.V. and had a beer or two”.

The evidence established that the parking lot referred to earlier by the officer was of that particular drinking establishment. [ 13 ] The officer explained that when she activated the lights, the camera mounted on the dashboard that produces the video activates, but it “backs up” to record the 30 seconds prior to the turning on of the emergency lights and of course continues to record from that point forward until it is turned off. This video was entered as D-1 on the voir dire , Mr.

Piché specifically limiting his use of it to the point immediately preceding the demand. [ 14 ] Turning to the cross-examination, the officer testified that she prepared her Occurrence Report on September 7, five days later, and that this report was based on her memory, and her notes.

She testified that she “used notes for things she wouldn’t remember”, citing as examples what type of alcohol might have been consumed by the detainee, or specific names or dates, and she insisted that she recalled a number of particulars that went into her report, even if such particulars were not in her notes. [ 15 ] When being queried on the stop itself, her evidence was that she decided to stop the vehicle “when I saw it swerve”, prompting a lengthy and detailed review of the videotape during cross-examination on a number of occasions to see if the witness could identify when that swerving occurred.

The officer remained adamant that it was difficult to see it on the video, as, among other things, the glare from oncoming vehicles made clear observation difficult. She finally did identify one point that she thought may have been a swerve, but quickly said “I can’t say that for sure, no”, stating at another point “I’m sure it was back further”. The reference to “back further” seems to me an indication that there were things the officer observed in person that night that were not clearly discernible on the portion of the video reviewed in Court. Position of the Parties [ 16 ] Mr.

Piché argues on behalf of the defence that Cst. Olsen was very clear that she decided to stop the vehicle when she saw it swerve, noting that a review of the video does not show that swerve. Thus, he argues, there is nothing to support the officer’s stated reason for the stop; it certainly was not to check for licence and registration, or she would have said so. That would therefore make this a case in which the stop was for a “pet peeve”, as in R. v. Haugen , an unreported decision of Judge White (November 24, 2009, Rosetown, Saskatchewan, Information 241183116), or R. v.

Waskewitch , 2001 SKQB 249 , in which the Court held that there was “no lawful right established....to stop that vehicle”. [ 17 ] Mr. Howarth argues, on behalf of the Crown, that Cst. Olsen did in fact stop the vehicle for legitimate reasons of checking the sobriety of the driver, and for licence and registration. She did not specifically say so on the first day of the trial as that was not an issue on that day; she clearly gave that as her reason on the second day of the trial.

He argues that there exists plenty of corroborating evidence to allow the Court to conclude that she had a legitimate purpose for the stop, and he argues that the video is not as sacrosanct as Mr. Piché seems to feel. In his view, the guiding authorities are R. v. Orbanski , 2005 SCC 37 , and R. v. Houben , 2006 SKCA 129 . Decision respecting the grounds for the stop

[ 18 ] It is a fact that when the officer testified on the second day of the proceedings, that being during the voir dire , as the proceedings had been adjourned to allow time for preparation and service of the Charter notice, she provided a reason for the stop that she had not spoken of the first day. In response to a question from Mr. Howarth as to why she stopped the vehicle, the officer stated that she did so to check for licence and registration and also sobriety, noting that she had seen the vehicle leave the area of a bar earlier (this being in addition to the swerve referred to earlier).

I do not question that the officer certainly had the authority under The Traffic Safety Act to stop Mr. Crone for precisely those reasons; the troubling aspect of things, from Mr. Piché’s view, is why she did not say that on the first day of the trial. [ 19 ] In deciding this first issue, I am satisfied that the officer could not specifically identify a swerve at any particular point on the video, although she appeared to feel obligated to try to do so. This, I am convinced, came about due to the intense questioning that she was subjected to on that minute, albeit important, detail.

However, she remained firm that not everything that she observed could be observed on the video. On this particular point, I believe her; the initial portion of the “pursuit”, such as it was, is not visible on the video. The point from which a vehicle is initially even visible until the stop actually occurs is one minute, and it is a very brief period of that time, perhaps fifteen seconds, that the camera is close enough to record any detail at all. That brief portion, I would agree, does not disclose any aberrant or even mildly poor driving, but the quality of the picture would not necessarily show such detail.

It was clear on the first day of the officer’s evidence that it was a swerve that triggered the stop, and I find that the swerve referred to was observed by the officer, even if not recorded on the video. [ 20 ] A second point that bears mention is that, until the Charter notice is provided, there is no need for the Crown to lead evidence on things that may not be in issue at all. Thus, on the first day of evidence, there was no need for Mr. Howarth to go into those details. On the voir dire , held the second day, it was an issue. [ 21 ] I found the officer to be a credible, reliable, and truthful person.

I note that when she pulled the vehicle over, the first thing she did upon approaching Mr. Crone was to ask him for his driver’s licence and registration, followed promptly by a query as to how much he had to drink, clearly referring to alcohol, all against a background in which she had observed him leaving a drinking establishment mere moments before.

All of this assists me in concluding that whereas she did not specifically refer to her desire to check for sobriety of the driver, and for his licence and registration, on the first day of the trial, that was her legitimate intention. [ 22 ] I am satisfied that the stop was for the purpose of checking for licence, registration, and sobriety, all as authorized by, and in furtherance of, her statutory authority to do so pursuant to s. 209.1 of The Traffic Safety Act . The applicant has not met the burden of establishing a breach on this ground. 2. The ASD issues [ 23 ] The officer’s observations of Mr.

Crone when she was at the window of his now-stopped vehicle were that his eyes were red and bloodshot, although she noted it was 2:30 a.m., and she told him that he would have to step out of the vehicle and come with her, that being also because she could smell alcohol from inside the vehicle. That, coupled with his acknowledgement that he had been drinking, caused her to suspect he had alcohol in his body.

She made the ASD demand from a card at 2:40 a.m., a fail was registered at 2:45 a.m., and at 2:46 a.m. she arrested him for, in her words, “driving while impaired”, as heard on the video. [ 24 ] There is no issue respecting the taking of the samples, nor is there any issue respecting rights to counsel; they were read to Mr. Crone, and it was very clear that he did not want to speak to a lawyer. He provided samples of breath in due course, both which were above the statutory limit.

I will deal further with that evidence at the trial if the Charter application is dismissed; at this point, dealing with the voir dire , I will focus on the evidence germane to the issue raised by Mr. Piché. I note at this point that a number of different answers were provided, at various times, respecting specific details. This is not to suggest that the officer was being untruthful, and is to be expected when the same point is re-visited at various times.

This arose partly due to the bifurcated nature of the proceedings arising out of the late Charter notice. [ 25 ] The officer’s evidence remained consistent that she did not recall if she asked Mr. Crone when he last consumed a drink, not in any way being evasive on that point; she simply legitimately did not recall. [ 26 ] As to the specific exchange that led to the ASD demand, when an audio recording the events of the stop was played, the

following exchange clearly occurred: Constable: How much have you had to drink? Mr. Crone: I was at the B.V. and had a beer or two. Constable: Okay . . . a beer or two . . . I’ll ask you to shut it off and step out and I’ll do a roadside test to see how you are. Her evidence was that she had made up her mind at that time that she was going to administer an approved screening device test. [27] When the ASD recorded a fail, she testified that “she believed he was operating a motor vehicle while he was impaired . . .over .08 . . .” and arrested him for “impaired”.

She believed he was “operating while over .08 milligrams percent”. [28] On the issue of whether or not she specifically asked when the last drink of alcohol had been consumed, she remainedadamant that it was her practice to ask if alcohol had been consumed in the last 15 minutes, stating that she just could not say in thisparticular case if she did ask. She agreed it would be wise to ask, as she generally does. [29] In cross-examination, Mr.

Piché asked the witness to read in a portion of the training manual for the ASD used (Exhibit D-2),which confirmed that, for precautionary reasons respecting mouth alcohol, one should try to establish the time of the last drink. [30] Mr. Crone testified on the voir dire, and indicated that he had in fact been drinking at the B.V. bar, had parked in front of thatbar, arrived there at approximate 9:00 p.m., and had his last drink as he was leaving, stating that he knew that “just from memory”.

Hestated that he went “directly to the vehicle from the bar” and stated that when he was stopped, he didn’t recall being asked when his lastdrink had been consumed, although he did recall being asked if he had been drinking, to which he replied that he had a few beer. [31] When asked how long prior to the stop that he had consumed his last drink, he stated that it was around one-half hour orperhaps twenty minutes. Position of the Parties [32] Mr.

Piché notes that the officer saw the Crone vehicle leave a parking lot adjacent to a bar, pursued it immediately thereafter,and pulled it over, the stop and the ASD “fail” result being within what appears to be no more than eight or nine minutes from Mr. Cronefirst being observed. Against this background, as she never made any inquiries as to when Mr. Crone consumed his last drink, therecannot possibly be an objective basis upon which it could be said the results are accurate, even if the officer subjectively believed theresults would be accurate. He relies on R. v.

Smith, 2010 SKPC 127, (a re-trial of the Smith decision referred to below) and points outthe case of R. v. Mastromartino, (ONSC), which sets out a number of relevant factors for consideration. [33] Mr. Howarth argues that the critical question is whether or not the officer had an honest belief based on reasonable andprobable grounds that the Mr. Crone had committed an offence under s. 253 when she made the breath demand. In the absence of actualknowledge as to when the last drink was, he argues, it is speculative to argue that Cst. Olsen could not rely on the “Fail” result. Further,he argues that Mr.

Crone’s own evidence on when he last consumed alcohol is suspect at best. He relies primarily on R. v. Bernshaw, (SCC), and also R. v. Smith, 2009 SKQB 277, 2009 SKCA 139. Decision respecting the ASD issues [34] In light of Mr. Crone’s response as to when he last consumed alcohol, the factual basis for any argument based onundissipated mouth alcohol has to fail; I cannot find on the facts that there was any such alcohol that would skew the results. Mr.

Crone’s evidence was hesitant and unsure, and thus lacks reliability and credibility. I am satisfied that he does not have even a vagueidea as to when he consumed his last drink, and I have no reason to believe that he would quickly consume, or finish consuming, a beer,and then promptly bolt to his vehicle and leave the parking lot. Thus, it is pure speculation to suggest that there was any undissipatedmouth alcohol in the first place. [35] Even if it was a possibility, there is no requirement in law that an officer make inquiries as to when a detainee last consumedalcohol (see R. v.

Bernshaw, (SCC)). [36] Whereas the Alcotest manual (D-2) suggests that it is a good idea to try to establish the time of the last drink prior toadministering the ASD, in order to “minimize the possibility of a falsely high ASD test”, (page 7), that is not an absolute rule. It is infact not a requirement at all, as the manual does not have the force of a judicial pronouncement. The law is nicely encapsulated by ourCourt of Appeal in Smith, supra, at para. 7.

The Court stresses that ....“the mere possibility that a suspect may have drunk alcohol withinthe 15 minutes preceding the administration of the ASD test, does not preclude an officer from requiring a suspect to take the test and torely upon the result, where the officer acts bona fide: Bernshaw, paras. 82 and 83”. [37] It is always a fact driven inquiry, and in these circumstances, I cannot find any reason why it could be said that the officercould not rely on the result.

In the absence of a good reason to believe that the results were inaccurate, failure to make an inquiry as tothe timing of the last drink cannot mean that the officer’s subjective belief as to the accuracy is not justifiable on an objective basis. [38] Subjectively, I find that the officer believed that the result of the ASD demand was reliable. She testified that “I thought itwas reliable....I had no reason to think it wasn’t reliable”. She knew it had been recently calibrated, although she did not have particularsas to those details.

She agreed that she knew that the manual suggested waiting 10 to 15 minutes “in case someone just took adrink”.....as otherwise “it could give a false reading”, but on the facts of this case, there would be no reason for her to believe that Mr.Crone may have just quaffed a drink, bolted to his car, immediately driven away, and been stopped within that time frame. Thatcertainly makes sense in light of Mr.

Crone’s own evidence on that point: he could not say when his last drink was, relative to the time ofthe stop and the time of the ASD demand. [39] I am satisfied that it was the “fail” reading that informed the officer’s demand under s. 254(3). The argument that failing toinquire as to when the last drink was consumed does not impact the objective basis for that breath demand. The applicant has notestablished a Charter breach. [40] Having dismissed as I do both Charter arguments, there is no need to consider potential remedies. I then turn to the trialproper.

Trial Decision [41] Dealing firstly with count 1, the charge commonly referred to as impaired driving, the evidence on the driving itself isprimarily that there was a swerve. The other aspects of the driving referred to by Cst. Olsen are not, in my mind, indicative of much. They certainly did not appear to be of undue concern to her, as she was clearly most concerned by a specific swerve. [42] The constable noted that the vehicle pulled over “in as much time as expected”, and that she approached the driver’s side doorwhere the window was down. Mr.

Crone was driving, and there was a male passenger and the officer noted a liquor smell from thevehicle. She asked Mr. Crone for his licence and registration, which was provided, and when she asked him if he had anything to drinkthat night, his reply was “a beer or two”. She noted that his eyes were red and bloodshot, and she told him that he would have to step outand come with her, her evidence being that she could smell alcohol. Further, he had advised he had been drinking, so she suspected hehad alcohol in his body.

This is obviously the point in time at which she determined that she was going to make a formal ASD demand,which she did. [43] When asked what signs of impairment she may have noted while driving to the detachment, she noted she smelled liquor

“from him”, that his eyes were really bloodshot, he was blinking slowly, he had a really dry mouth, he wasn’t talking much, and “he was very unsteady on his feet” and almost tripped on the stairs walking into the detachment. She described his demeanour as being very quiet and cooperative, noting that he smiled a lot. [ 44 ] A point Mr. Piché made repeatedly is that a number of items that the officer had referred to in her evidence, which would have been gleaned either from a review of the Occurrence Report prior to testifying or her memory, were not in her notes. Notably, any indications of Mr.

Crone being “red in the eyes”, or having “bloodshot eyes”, or her detecting an “odour of alcohol” prior to the ASD demand, were missing. I accept that she felt that she remembered much of this, but in light of the passage of time between these events and the trial, and the notable absence in her notes of the very things that one would expect to see in the notes of an officer conducting an investigation into an apparently impaired driver, I have less faith in her memory than she does. Overall, I find the evidence on count 1 weak. [ 45 ] Mr.

Howarth is clearly of the same view, and is not pursuing a conviction on this count. I agree with his view, and I find that the evidence fails to convince me beyond a reasonable doubt of the guilt of Mr. Crone on count 1. I dismiss that count. [ 46 ] Count 2 is a different matter. As the Crown evidence on the voir dire was applied to the trial , and as the evidence on the trial from day one was applied to the voir dire on day two, the end result is that the Certificate of a Qualified Technician, Exhibit P-1, is in evidence.

That certificate clearly states that the result of the first breath sample was 150 milligrams of alcohol in 100 millilitres of blood, and the result of the second sample was 130 milligrams of alcohol in 100 millilitres of blood. Mr. Crone is given the benefit of the lower reading. That lower reading, coupled with the evidence that Mr. Crone was the operator of the vehicle, proves beyond a reasonable doubt that Mr. Crone had consumed alcohol to the point where the concentration of alcohol in his blood exceeded eighty milligrams of alcohol in 100 millilitres of blood.

He is guilty on count 2. _____________________ B.G. Morgan, J