Her Majesty the Queen - v. -, 2016 SKPC 48

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 048 Date: April 26, 2016 Information: 24468552 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sheldon Scott Kosar Appearing: C. Bliss For the Crown G. Bendig For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused stands charged with impaired driving, driving while over .08 and driving without due care and attention contrary to The Traffic Safety Act . [1] [ 2 ] The charges arose as a result of a single vehicle rollover of an all terrain vehicle (ATV) in an open field near Coleville, Saskatchewan on October 28, 2014.

[ 3 ] As Charter issues were involved, the case proceeded by voir dire with the consent of Defence to apply the admissible evidence therefrom to the trial proper. [ 4 ] The Crown called Kurtis Bahm, operator of an ATV accompanying the accused on the date in question, RCMP Constable Mitchell Gardipee, investigating officer, and Angela Filbert to provide expert opinion evidence regarding read back analysis and effects of alcohol impairment relating to the operation of a motor vehicle. [ 5 ] The Defence called no evidence on the voir dire nor on the trial proper. [ 6 ] The following were admitted into evidence on the voir dire by consent: Exhibit P-1 Certificate of Qualified Technician; Exhibit P-2 Certificate of a Qualified Medical Practitioner; and Exhibit P-3 Certificate of Analyst. [ 7 ] The issues to be adjudicated included:

a) Breach of ss. 8 and 9 of the Charter by failing to prove reasonable and probable grounds to make the blood demand;

b) Breach of the implementational component of s. 10(

b) of the Charter ;

c) If Charter breach (es) occurred whether the s. 24(2) threshold has been met to exclude the evidence of the blood analysis;

d) Whether the Crown has proven beyond a reasonable doubt that the accused’s ability to operate the ATV was impaired by alcohol; and

e) Whether the Crown has proven that the accused drove his ATV without due care and attention contrary to s. 253 of The Traffic Safety Act . II EVIDENCE OF THE CROWN Kurtis Bahm [ 8 ] Mr. Bahm is a 33 year old truck driver who is a friend and neighbour of the accused living in Coleville, Saskatchewan. On October 28, 2014 they left the accused’s residence around 4:30 p.m. to go “quadding” in nearby open fields. Mr. Bahm was operating a Honda ATV and the accused, a Yamaha. Neither wore helmets or goggles. [ 9 ] Prior to leaving, Mr. Bahm noticed four or five beer cans lying on the garage floor.

He did not see the accused consume any of these beer nor any other alcohol, either then, during, or subsequent, to their ATV driving. Mr. Bahm himself consumed no alcohol whatsoever at any time that day.

[ 10 ] The pair proceeded to drive about during the afternoon stopping a few times to warm up. Following the last stop at an abandoned farmhouse, the accused took off ahead of Mr. Bahm at a speed of 40 to 50 kilometres per hour. The time was approximately 6:30 p.m. and dusk was setting in. [ 11 ] In Mr. Bahm’s words he “. . . just followed him and the next thing you know he was cartwheeling through the air.” What had occurred is that within about 30 seconds, the accused had driven headlong into a drainage ditch cutting across the property approximately four feet deep and eight feet wide.

The ditch sat on the other side of a small hill running the width of the field. [ 12 ] Mr. Bahm quickly attended to the accused who had been visibly injured and was lying prone on the ground on the far side of the ditch. His ATV had been damaged and lay overturned some distance past the accused. [ 13 ] Mr. Bahm observed the accused to be groggy, disoriented and just coming back to consciousness. He also saw bleeding in the facial area. He then detected an alcohol odour on the accused’s breath as he bent over and spoke to him. Mr.

Bahm called the accused’s girlfriend and asked her to call 911 as he was having some trouble with his cell phone holding a charge. [ 14 ] In cross-examination, Mr. Bahm acknowledged he had never been quadding before with his friend in this particular field. Prior to the incident on that day, he recalled the accused to have no difficulty walking nor was he slurring his words or exhibiting any signs of alcohol impairment. [ 15 ] Mr. Bahm further stated that at no time was the accused operating his ATV in an aggressive or grandstanding manner - that he was in full control of his quad at all times. [ 16 ] Mr.

Bahm also stated that he almost hit the ditch as well and could have done so had the accused not been in front of him. Further, just before flying into the air he saw the ATV’s brake lights come on. RCMP Constable Gardipee [ 17 ] Constable Gardipee was dispatched at 6:55 p.m. from Kerrobert arriving at the accident scene at roughly 7:35 p.m., at which point it was dark. Chief Mokaruk from the Luseland Police Detachment also attended to assist. Upon arriving, Constable Gardipee encountered an individual, later identified as Mr.

Bahm, sitting on a damaged quad which he explained was the one involved in the incident. After photographing the damage to the ATV, Constable Gardipee travelled roughly 300 yards across the field with Chief Mokaruk in his truck. He then observed emergency personnel attending to an individual who was laying on the ground roughly 50 yards from a nearby ditch. [ 18 ] Constable Gardipee described the ditch as long, going all across the field, which could be seen from a long way. In his estimation it was roughly four feet deep and eight feet across.

There were tracks leading up to the ditch and nothing beyond it. [ 19 ] He could see a mark on the south wall of the ditch straight across from where the tracks entered and “. . . consistent with, you know, the quad having hit the ditch wall and then rolling. . .” [2] He didn’t see any signs of trying to slow down as in no skid or swerve marks. [ 20 ] Just north of the ditch was a hill which Constable Gardipee described as “. . . very small. It wasn’t like a - a huge hill that he came, you know, you would come racing down a huge hill.” [3] Further, “. . .

I almost don’t even want to call it a hill, but, like, I - we’re - we’re in Saskatchewan and it was a gradual slope on - in the field that you could, you know, term as a hill.” [4]

[ 21 ] Constable Gardipee then interviewed Mr. Bahm regarding what had happened. He learned from Mr. Bahm that Mr. Kosar was the operator of the quad involved in the rollover which occurred around 6:30 p.m. Mr. Bahm explained that Mr. Kosar left just ahead of him travelling “. . . you know, 40, 50 kilometres an hour, in that - in that range, and all of a sudden he could see his - Scott’s quad, the lights on it were tumbling, like, the quad was rolling through the field . . .” [5] Mr. Bahm also related that they had left Coleville around 4:30 p.m. and that he had seen beer cans in the garage and that Mr.

Kosar had a smell of alcohol coming from his breath. [ 22 ] After speaking to Mr. Bahm, Constable Gardipee had a brief interaction with the victim. At that point, he believed he had grounds to make a formal s. 254(3) breath demand and that an ASD was not required. These grounds were articulated as follows: Okay. In my - having spoken with Mr.

Bahm and seen the driving - the - the tracks in the ground and seeing the driving pattern and what had happened there and then speaking with Scott and seeing - and smelling that alcohol coming from his breath - and I described - I’ll describe that alcohol as - in my experience of having - putting - put many people in jail, they sit in the cell for a couple - a few hours, you go and talk to them, and it’s that, you know, that - that smell of alcohol mixed with, you know bad breath, like, that stale, putrid smell of alcohol, okay? That’s what I could smell coming from Scott’s breath. . . .

That, combined with that glossy film over his eye, consistent with the many, many impaired drivers that I’ve dealt with, that - that is a determining factor, or one of the determining factors, for me that that person is impaired.

You - that glossy look is consistent with impaired drivers. [6] Seeing how big Scott was on a stretcher board was, how big of a man he was, knowing that for him to have that smell of alcohol coming from a man his size gave me the reason to believe he was impaired; [7] The collision, for someone to hit that irrigation ditch or that drainage ditch at that speed I didn’t see any signs of trying to slow down, I didn’t see any skid marks, I didn’t see the quad, you know, turning sideways before it hit the ditch. It went straight in. Yeah, that - that’s what I seen [ sic ].

Well, that - that a sober person wouldn’t hit that ditch.

You know, if somebody was driving that fast, at a careless, reckless speed, with no regard for their safety, having been told that this person wasn’t wearing a helmet either, and they were still travelling at that speed, to make the quad roll that far and have their body be laying that far away from where they collided with the wall of the ditch, yeah, was - was just one more grounds [sic] for me to believe that Scott was driving while impaired. [8] [ 23 ] Prior to the accused being loaded into the ambulance, Constable Gardipee advised him that he had reasonable and probable grounds to believe his ability to operate a motor vehicle was impaired by alcohol and placed him under arrest accordingly.

Constable Gardipee then accompanied the accused to the hospital making observations en route. [ 24 ] Throughout the trip Constable Gardipee noted the accused to be in severe distress. The most significant cause of his discomfort appeared to come from a previously injured ankle. [ 25 ] Just prior to arriving at the Kerrobert hospital, Constable Gardipee gave rights to counsel prompting this exchange: “Do you understand?” “Yes”

“Do you wish to call a lawyer now?” “I don’t need one. I need you to grab my leg now. Jesus.” He was then asked if he understood, to which he replied: “Yes fine I want to give a blood test.” [9] [ 26 ] Constable Gardipee asked him again if he wanted to call a lawyer now to which the accused responded no and never subsequently raised the issue with Constable Gardipee again. [ 27 ] In view of the fact that the accused was being attended to, Constable Gardipee held off making a demand for breath samples.

When it appeared he was going to be kept in the hospital, he accordingly determined breath samples could not be taken and then he made a proper blood demand at 9:01 p.m. When asked if he understood, the accused replied “totally” while nodding his head in the affirmative. [ 28 ] On cross-examination, Constable Gardipee conceded he did not go to the top of the hill and “he did not go very far up the hill. . . maybe only 30 feet” (rather than 20 to 30 yards he testified to in chief). Further, he never thereafter returned to that spot at any time. [ 29 ] He stated also that he learned from Mr.

Bahm that the accused was not wearing any helmet or eye protection. He acknowledged as well that he didn’t query Mr. Bahm about anything concerning the state of the accused’s sobriety including staggering, slurred speech or driving recklessly.

He also conceded that the accused’s speech at all times was clear and concise and that he responded to all questions. [ 30 ] Regarding the ASD, Constable Gardipee could not recall if he had a device with him, nor did he inquire if Chief Mokaruk had one with him in his vehicle. [ 31 ] Finally, concerning the reasonable and probable grounds, he affirmed that they were based upon the accident, the glassy eye and the odour observed which he described as being stale. Angela Filbert [ 32 ] Ms. Filbert holds a Bachelor of Science in medical laboratory science and a Master of Science in toxicology.

The Crown sought to have her qualified to provide opinion evidence in the areas of analysis of exhibits and pharmacological and toxicological effects of alcohol, similar volatile compounds, drugs and alcohol in combination with drugs on humans; to present evidence on the effects of alcohol or drugs or alcohol in combination with drugs on the ability to safely operate a motor vehicle; and to provide retrograde and anterograde estimates of blood alcohol concentration. [ 33 ] The Defence did not take issue with Ms. Filbert’s qualifications or her ability to provide expert evidence as entered by consent.

Accordingly, she was qualified to do so. [ 34 ] Ms. Filbert’s curriculum vitae was subsequently tendered by consent as Exhibit P-4 and the Forensic Science Laboratory Report that she relied upon as Exhibit P-5.

[ 35 ] She then provided a retrograde calculation that the expected BAC would be between 189 milligrams per cent and 216 milligrams per cent predicated upon the assumptions that peak BAC was achieved at or near 6:30 p.m.; that the blood alcohol concentration at 21:15 hours was 161 milligrams per cent; and that the elimination rate of alcohol from the blood is 10 to 20 milligrams per cent per hour. Further, if the time of last driving was off by 15 minutes either direction this would affect her calculation no more than 5 milligrams per cent. [ 36 ] Ms. Filbert went on to state the following:

a) alcohol is a central nervous system depressant which progressively decreases the activity of all nerve cells in the brain and spinal cord;

b) the nerve cells are responsible for balance, coordination, movement, consciousness and memory;

c) the adverse affects of depressing the nerve cells include a decrease in attention and judgement, sensory and motor coordination, reaction time as well as an individual’s mental and sensory functions to the extent that they are ultimately not able to operate a motor vehicle safely; and

d) reduction in mental or sensory capability reduces the person’s ability to deal with any random or complex unpredictable driving demands that may occur. This includes causing disturbances to how persons process, interpret and react to any visual stimuli while they are operating a vehicle. [ 37 ] Intoxication, she explained, is the advanced stage of impairment. Once intoxicated, you are going to see gross physical symptoms such as slurred speech, loss of balance and staggering. This reflects in making mechanical errors in driving.

In the average drinker, you are going to see signs of intoxication at BAC of 150 milligrams per cent dependent upon the individual’s tolerance and experience. In her opinion, everyone’s ability to operate a motor vehicle is impaired at a level commencing at 100 milligrams per cent regardless of their tolerance to alcohol. [ 38 ] Further, operating any vehicle, including an ATV, is considered a complex divided attention task so even while operating an ATV you have to be aware of the surroundings, your speed, and so forth.

She noted one study to conclude that the likelihood of causing collisions following consumption of alcohol could be broken down as follows: 60 milligrams 2x 80 milligrams 3x 100 milligrams 5x 150 milligrams 22x [ 39 ] Ms. Filbert’s evidence concluded the Crown’s case and Defence then advised the Court that no evidence was being called on the voir dire nor on the trial proper.

III ANALYSIS Reasonable and Probable Grounds [ 40 ] Pursuant to s. 254(3) of the Criminal Code , to make a valid demand for breath samples (or blood as was the case here) the arresting officer must have reasonable grounds to believe that the accused either drove or had care or control of a motor vehicle within the preceding three hours while his or her ability to operate was impaired by alcohol.

[ 41 ] The Defence challenges the validity of the blood demand made at 9:01 p.m. on the basis that Constable Gardipee’s belief that the accused’s ability to operate a motor vehicle was impaired by alcohol, was not reasonable. [ 42 ] As stated in R v Bernshaw [10] , “reasonable grounds to believe” concerning determination of impairment must be subjectively held and rationally sustainable on an objective basis. [ 43 ] This does not mean proof of a prima facie case [11] nor that the accused was even actually impaired at the time.

Rather, based on the information available to the officer at the time the demand is made, are the indicia rationally capable of supporting the inference of impairment, slight to great? [12] [ 44 ] Put another way, would a reasonably cautious and prudent person standing in the shoes of the officer believe, on the whole of the evidence, that the individual’s ability to operate a motor vehicle was even slightly impaired by alcohol? [13] [ 45 ] No issue is taken with Constable Gardipee’s honest belief that the accused was impaired. A

summary of his grounds that led him to this conclusion are:

a) the manner in which the accident occurred - no skid marks or evidence of swerving - “went straight in”;

b) speed of 40 - 50 kph which he considered careless and reckless;

c) not wearing a helmet;

d) stale, putrid odour of alcohol on the accused’s breath;

e) glossy and bloodshot eye (the other being swollen shut);

f) proximity of the accused to the ditch after impact; and

g) size of the accused when equating this to the smell of alcohol emanating from him. [ 46 ] Based upon these observations and the whole of the evidence available to him at this point, can his conclusion of impairment by alcohol be objectively supported? [ 47 ] The accident occurred at or near dusk while travelling on an ATV over a bumpy field after cresting a hill in close proximity to the ditch. Further, the driver was not wearing a helmet, however, this logically would have had no bearing on the issue of impairment.

There was also no indication whatsoever that there was any driving in a reckless manner apart from striking the ditch, nor that 40 - 50 kph, in itself, was excessive. A stale smell of alcohol on the accused’s breath would indicate consumption had occurred, but nothing more. Since the accused was on a spine board, there would have been little or no opportunity to assess mobility or dexterity issues relating to the consumption of the alcohol and the condition of the eye easily explained given the severity of the facial injuries.

What also would have been apparent is that the victim was able to converse in a coherent fashion and with no apparent slurring of his words. [ 48 ] The Court also has to assess the reliability of Constable Gardipee’s testimony generally on critical parts of the evidence. He

testified that when he arrived on scene it was already dark. This would have made observations of fine detail such as skid or swerve marks leading into the ditch problematic at best. He also stated that he could see the ditch from a long way off however this was approaching from the other side, not obscured in any fashion by the hill. [ 49 ] As far as the hill itself is concerned, Constable Gardipee testified that he did not scale it to the top (nor to the other side) which would have greatly assisted his consideration of the degree to which it would have been a factor in the accident.

This is particularly germane in light of Mr. Bahm’s evidence that notwithstanding that he was completely sober, he believed he would have struck the ditch himself had the accused not done so just ahead of him. [ 50 ] Also, Constable Gardipee never returned to the scene at any time thereafter in daylight hours to photograph or make observations which would have greatly enhanced the reliability of this critical evidence.

Although photographs were taken that evening, none were entered into evidence. [ 51 ] In all respects, the Court is of the view, notwithstanding the dearth of impairment indices , the statement of Constable Gardipee “. . . a sober person wouldn’t hit that ditch” seemed to have set the tone for his investigation and conclusions. A similar circumstance occurred in R v Leach [14] , where the investigating officer upon stopping the accused noted liquid running down the inside of his pant leg.

With scant evidence otherwise to support a s. 254(3) demand, he proceeded to arrest the accused believing this to be urine and that a person who relieved himself in such fashion ought not to be driving.

Upon arriving at the detachment it was quickly discovered that the wet stain was attributed to an open beer that had been shoved down the front of his pants just prior to being stopped, thereby completely undermining his initial assessment. [ 52 ] As pointed out in Gunn at para 22 , the arresting officer does not have to dispel alternate innocent or innocuous explanations where objectively rational inferences can be drawn to support a conclusion of impairment.

The Court goes on to say at para 23 however “. . . this is not to say that the availability of other rational inferences is irrelevant; rather, the fact innocent or innocuous inferences may be rationally drawn from the circumstances may, depending on the soundness or cogency of those inferences, serve either to undermine or to reinforce the reliability of the inference of impairment drawn by the officer;”. [ 53 ] In the Court’s view, a dispassionate observer when viewing the soundness and cogency of the other mitigating factors as discussed, would have concluded that they undermined, rather than reinforced, the reliability of the inference of impairment in this particular case. [ 54 ] As stated in Leach , the Court must be cognizant not to elevate reasonable suspicion to believe alcohol in the body to reasonable suspicion of alcohol impairment, on tenuous grounds.

Police officers have the investigative tool of the ASD with a low threshold to administer. In this case, the smell of alcohol on the breath of the accused and the knowledge that Mr. Bahm had observed beer cans at the accused’s residence just prior to leaving at 4:30 p.m. would have more than satisfied the criteria for a s. 254(2) ASD demand. Constable Gardipee stated he gave no consideration to this however which, of course, he is not compelled to do where sufficient grounds for a s. 254(3) are otherwise present.

In this case, his conclusions in this regard do not rise, however, to the relatively low threshold as now articulated in Gunn . [ 55 ] Accordingly, the Court determines that Constable Gardipee did not have the reasonable and probable grounds to make the blood demand upon the accused. As Soon as Practicable [ 56 ] This issue was initially advanced by the Defence but subsequently abandoned in written argument, and sensibly so. The exigent circumstances dealing with the accused’s medical needs were more than sufficient to warrant any perceived delay in making the blood demand. [15]

Section 10(

b) Rights [ 57 ] The accused asserts that the implementational component of his s. 10(

b) rights were breached in two respects, namely, by delaying until 8:10 p.m. following his arrest at scene and by failing to administer rights to counsel just prior to the blood demand at 9:01 p.m. [ 58 ] The Court finds these submissions to be without merit. Although Constable Gardipee delayed in administering rights to counsel at scene, the circumstances warranted such truncated interaction owing to the accused’s obvious medical distress and the emergency intervention.

Even though Constable Gardipee had his cell phone with him, use by the accused at that juncture would have been highly impractical, if not impossible. Thereafter, Constable Gardipee merely rode with the accused and observed, being “a fly on the wall”, in the back of the ambulance. [ 59 ] Just prior to arriving at the Kerrobert Hospital, Constable Gardipee then provided rights to counsel which was a more appropriate time in the Court’s view than at the scene, as discussed.

If this amounted to an implementational breach, which the Court does not accept, it would nonetheless have been of a trifling and incidental nature in the circumstances. [ 60 ] Regarding the reassertion of rights prior to the blood demand, there was no s. 10(

b) obligation to do so. Mr. Kosar had fully comprehended his rights according to Constable Gardipee and unequivocally declined to exercise same, nor did he subsequently raise the issue thereafter. He did not testify on the voir dire and accordingly, Constable Gardipee’s evidence is uncontroverted in this regard. [ 61 ] On the evidence before the Court, no breach of the accused’s s. 10(

b) rights has been made out.

Section 24(2) Analysis [ 62 ] Section 24(2) of the Charter states: Where . . . a Court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 63 ] The test for exclusion of evidence pursuant to s. 24(2) has now been enshrined by the Supreme Court in R v Grant [16] as a tripartite analysis of the following, set out at para 71: 1. . . . the seriousness of the Charter -infringing state conduct; 2.

The impact . . . on Charter protected interests of the accused; and 3. Society’s interest in the adjudication of the case on its merits.

Seriousness of Charter -infringing State Conduct [ 64 ] The Court has determined that Constable Gardipee did not have reasonable and probable grounds to make the demand on the accused for blood samples, thereby breaching ss. 8 and 9 of the Charter . [ 65 ] As this Court stated in Leach , supra , it sometimes becomes necessary to restate the obvious to focus upon the broader principles upon which our laws are based and our rights protected.

We live in a free and democratic society, central pillars of which are our right to move about freely within the confines of the law without undue interference by governmental authority. [ 66 ] Permissible restrictions in this regard include drinking and driving investigations as is the case here, where police have the legislative continuum provided in s. 254 to assess whether offences surrounding impaired driving have been committed. [ 67 ] Parliament has sanctioned the use of the ASD screening tool to assist, requiring the very low threshold of suspicion of alcohol in the body, pursuant to s. 254(2).

A fail on the ASD can then elevate the officer’s belief to reasonable grounds to believe the driver is impaired by alcohol necessary for a s. 254(3) demand. Such ASD fail is not required where the officer can otherwise rely upon personal observations of the driver and the surrounding circumstances, including hearsay evidence. [ 68 ] The point is that society expects the investigative tools and criteria to be utilised properly and fairly when conducting impaired driving investigations.

As stated in R v Bush [17] at para 46 : In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test . . . it must not be inflated to the context of testing trial evidence. Neither must it be so diluted to threaten individual freedom. [ 69 ] In this case, Constable Gardipee made a precipitous leap in his determination on scene that the accused must have driven his ATV while impaired as evidenced by his comment “. . . a sober person wouldn’t hit that ditch”. In the Court’s view, this unduly restricted his objective fact gathering obligation.

As noted, this is very similar to the investigating officer in Leach , who instantly concluded that a person who relieved himself, as presented, ought not to be driving, where subsequent investigation revealed it was not urine at all. [ 70 ] In R v Mellors [18] the Court stated the police officer “shut his eyes to the obvious”, to which parallels could be drawn in the case here. Although the accused appeared to drive straight into the ditch, it was situated on the other side of a hill.

The officer took no steps to scale the hill and look down, or measure the distance to point of entry, or take into account the reaction time travelling at possibly 50 kph notwithstanding that he stated in cross-examination, he had training as an accident reconstructionist. [ 71 ] Nor did the officer appear to give any weight to the fact that the accused was travelling over bumpy terrain on an ATV, without goggles, at or near dusk. The significance of these factors is underscored by the evidence of Mr.

Bahm who testified he too, being completely sober, would likely have hit this ditch himself were it not for the accused being in the lead. [ 72 ] Further, Constable Gardipee knew after speaking to Mr. Bahm, that Mr. Kosar would have had nothing to drink for at least two hours prior to the accident and was exhibiting few indices of impairment. In fact, notwithstanding the added trauma of the accident, Mr.

Kosar was able to converse clearly and appropriately on scene and, thereafter, throughout the evening up until the blood demand was made. [ 73 ] Having regard to all of the circumstances, the Court is of the view that the reasonable and probable grounds to make the blood demand have been diluted to the point of threatening individual freedom. Accordingly, the Court finds the breach to be serious, favouring exclusion.

Impact of the Conduct on the Charter -protected Interests of the Accused [ 74 ] The Court has determined that the bodily evidence obtained by way of a blood sample was in violation of ss 8 and 9 of the Charter .

In Grant , the Court held that to determine the seriousness of the infringement from this perspective, one should look to the degree to which the breach would impact on the victim - “the more serious the incursion, the greater the case for exclusion.” The Court stated this was important from the public’s perspective to avoid perception that an individual’s Charter rights were not important. [19] [ 75 ] Although taking of breath samples has been held to be essentially non-intrusive [20] , the same cannot be said for blood samples which have a greater degree of intrusion concerning the privacy, bodily integrity and human dignity of an accused. [ 76 ] From a subjective perspective however, the Court is mindful of the response of the accused to whether he understood his rights to counsel “. . . yes fine I want to give a blood test”.

This non sequitur response is peculiar to say the least and as Crown counsel conceded, would not likely rise to the level of consent to actually take a blood sample, absent the proper safeguards surrounding same. Still, as far as this accused is concerned, his response could be seen as diminishing the overall impact upon him of the ultimate taking of the sample, to some degree. [ 77 ] On balance, considering all of the factors, the Court is of the view that this line of inquiry would neither favour exclusion, or inclusion, of the blood analysis.

Society ’s Interest in Adjudication on the Merits [ 78 ] As pointed out in Grant “. . . society generally expects that a criminal allegation will be adjudicated on its merits.” [21] The Court must then examine such factors as importance of the evidence to the Crown’s case, reliability of the evidence and society’s collective interest, as noted, in seeing alleged perpetrators dealt with according to law. [22] [ 79 ] Unquestionably, the evidence of the blood analysis is essential for the Crown’s case, both on the impaired driving and the driving while over .08 charge.

As the Crown graphically noted in its written submissions, without this evidence, its case is “gutted”. [ 80 ] Reliability of this evidence is not such a certainty as a breath sample obtained on the Intoxilyzer, in the Court’s view. In R v St.

Onge-Lamoureux [23] , the Supreme Court of Canada, when considering the legislative amendments to s. 258 of the Criminal Code , endorsed the scientific accuracy of these instruments and upheld the narrow grounds upon which test results could be assailed. [ 81 ] However, the taking and analysing of blood samples is a largely human endeavour completed by a different process entirely.

Although the Court cannot, and would not, wander into the realm of speculation in the absence of credible evidence that such process would not be reliable, it is not presumptively so, as with the Intoxilyzer. [ 82 ] What gives the Court some pause when considering the reliability of the blood analysis comes from the Crown expert, Ms. Filbert. Her retrograde calculation, working from the analysed BAC of the accused’s blood of 161 milligrams per cent, puts the range between 189 and 216 milligrams per cent at time of driving.

Her expert opinion was that the accused would be beyond impaired and into the intoxicated range which she stated would occur in most individuals around 150 milligrams per cent. At this stage, she related that gross physical symptoms would be evident such as slurred speech, loss of balance and staggering. [ 83 ] Granted, since the accused was immobilised on a spine board, mobility observations would be severely curtailed. However, there is a definite lack of exhibited symptoms otherwise.

In particular, notwithstanding the accident trauma, the accused had no difficulty comprehending, was not slurring his words, and appeared otherwise to answer appropriately throughout the course of his

dealings with Constable Gardipee. Further, Mr.

Bahm testified he observed no evidence that the accused was staggering, slurring words, driving recklessly or in any way acting anything other than normally in the time preceding the accident. [ 84 ] As far as society’s interest in having the matter heard on its merits is concerned, it is a given that these types of offences would rate high in the public eye on this scale. [24] Yet, the Supreme Court of Canada in Grant has mandated that trial courts must weigh each case individually on its merits and consider the long view overall of the effect on the administration of justice of admitting impugned evidence. [ 85 ] On the whole of its determination on this aspect of the inquiry, the Court again is of the view that the scale is not tipped either for inclusion or exclusion of the evidence.

Conclusion on Voir Dire [ 86 ] On balance, when considering all of the factors to be determined pursuant to s. 24(2), and having regard to the Grant tripartite analysis, the Court determines the evidence of the blood analysis should be excluded. Accordingly, exhibits P-1, P-2 and P-3 shall not form part of the trial evidence. Impaired Driving [ 87 ] Without the benefit of the blood analysis, there is little else of substance to warrant a conviction of impaired driving.

The physical signs of impairment, coupled with the driving evidence would be considered slight evidence of impairment rather than evidence of slight impairment. [25] [ 88 ] Accordingly, the Crown has not proven beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol. Drive Without Due Care and Attention [ 89 ] On this charge, the Court relies upon the Crown witness, Mr. Bahm, the travelling companion of the accused. His evidence was to the effect that the accused was not in any way driving in a careless or reckless manner, that he observed.

Also, the time of the accident was at or near dusk and the subject ditch was on the far side of a hill. [ 90 ] Further, and most telling, Mr. Bahm testified that he would have likely driven into the ditch himself had the accused not done so directly ahead of him. As noted previously, Mr. Bahm had not ingested any alcohol whatsoever on this day. He was candid and forthright and gave credible and reliable evidence. [ 91 ] Accordingly, the Crown has not proven this charge against the accused. IV CONCLUSION [ 92 ] The accused is found not guilty on all charges on the Information before the Court.

_________________________ R.D. Jackson, J [1] SS c.

T-18.1, s 253 [2] Transcript p 43, lines 40 - 41 [3] Transcript p 46, lines 38 - 39 [4] Transcript p 47, lines 32 - 34 [5] Transcript p 44, lines 23 - 26 [6] Transcript p 48, lines 6 - 19 [7] Transcript p 48, lines 40 - 41, transcript p 49, line 41 [8] Transcript p 49, lines 10 - 22 [9] Transcript p 55, lines 11 - 23 [10] (SCC), [1995] 1 SCR 254 at para 48 [11] R v Shephard 2009 SCC 35 [12] R v Gunn, 2012 SKCA 80; R v Stellato (1993), (ON CA), 78 CCC (3d) 380, affm’d [1994] 2 SCR 478 [13] R v Restau, 2008 SKCA 147 [14] 2011 SKPC 138 [15] See R v George Athanasopoulos, 2013 SKPC 79 , 2013 SKPC 079 [16] 2009 SCC 32, [2009] 2 SCR 353 [17] 2010 ONCA 554, 101 OR (3d) 641 (Ont CA) [18] 2010 BCPC 211, 224 CRR (2d) 337 [19] Grant at para 76 - 79. [20] See R v Bryce, [2009] OJ No 3640 (SCJ) at para 62 - 66. [21] Grant at para 79 [22] See R v Harrison 2009 SCC 34 , [2009] SCJ No 34 at para 33. [23] 2012 SCC 57 , [2012] 3 SCR 187, 294 CCC (3d) 42 (SCC) [24] See R v Bernshaw, supra, comments of Cory J at para 16 [25] See R v Stellato, supra