Her Majesty the Queen - v. -, 2015 SKPC 009

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 009 Date: January 23, 2015 Information: 90003416 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Garry Kelln Appearing: Christopher Davison For the Crown Brian Banilevic, Q.C. For the Accused DECISION ON VOIR DIRE B. Tomkins, J [ 1 ] Garry Kelln is charged with driving while his blood/alcohol content was over .08 and with impaired driving. Mr. Kelln argued that his Charter rights were breached in a number of respects.

At the request of counsel, therefore, all witnesses were sworn on both a voir dire and on the trial. After my decision on the voir dire , it is anticipated that the evidence on the voir dire will be applied and the trial will be concluded. This is my decision on the voir dire . [ 2 ] The following recites the evidence that is relevant to my reasons. Where necessary, findings as to credibility and inconsistencies will be discussed in the course of my analysis. EVIDENCE OF DIANE YUM [ 3 ] On August 29, 2013, at about 6:00 p.m., Diane Yum was watering plants in her front yard when she saw her neighbour's

truck coming down the street toward his home. It seemed to be travelling fast. As it passed in front of her house, the neighbour's truck sideswiped Ms. Yum's husband's vehicle that was parked on the street in front of her house. The impact was quite loud and hard enough that her husband's vehicle rocked and she thought might come up onto the curb. [ 4 ] She saw the truck drive into its driveway across the street and saw Garry Kelln exit the truck. He stood leaning on the hood of the truck. [ 5 ] Ms. Yum’s husband happens to be a Sergeant with the Regina Police Service.

He was not on duty that day and was working in the back yard. She called to him. She then went to look at the damage to his vehicle and he joined her there. She said it appeared to her that the vehicle had been struck at the back and it was scraped from the back to the front bumper. [ 6 ] The Yums went across the street together to talk to Mr. Kelln; Ms. Yum estimated that this would have been about five to seven minutes after the accident. Mr. Kelln's wife was outside and Ms. Yum spoke to her briefly about halfway down the Kelln driveway. Sgt. Yum and Mr. Kelln were talking near Mr. Kelln's truck. [ 7 ] Ms.

Yum went back to her house while Mr. Kelln and Sgt. Yum continued talking. Eventually, Mr. Kelln and her husband came to her house. On Sgt. Yum's request, she brought him the phone so that he could call the police. [ 8 ] Sgt. Yum went part way down the driveway and Mr. Kelln stayed on the step. Ms. Yum spoke to him there. She said Mr. Kelln was upset and quite quiet. He apologized to her and said he had gone to get a pizza and had a couple beers while waiting. She told Mr. Kelln that Sgt. Yum would have to call the police because there was quite a bit of damage to their vehicle. [ 9 ] When Sgt.

Yum returned to the step, he gave her the phone and she took it into the house. EVIDENCE OF ALEX YUM [ 10 ] Sgt. Yum said while he was working in the back yard, that he heard a loud crash and also heard his wife call to him. He went quickly to his wife in the front yard, in time to see Mr. Kelln pull his truck into his driveway. Mr. Kelln's truck was making a loud noise. [ 11 ] He saw Mr. Kelln leaning on the hood of his truck in his driveway and expected him to come over to talk. When Mr. Kelln didn't come, Sgt. Yum went across. [ 12 ] Mr. Kelln looked dazed and shocked. Sgt. Yum asked him if he was all right.

Mr. Kelln said he was very sorry and that he'd had a coughing spasm that caused him to lose control of his truck. He said he had gone to pick up a pizza and had a couple beers while he waited. Sgt. Yum then wondered if alcohol might have been a factor in the accident and asked Mr. Kelln how many drinks he'd had and whether he thought those drinks might have been a factor in the accident. Mr. Kelln said he thought they might. Sgt. Yum asked Mr. Kelln if he thought he'd had enough to drink that he shouldn't have been driving and Mr. Kelln said he probably shouldn't have driven. [ 13 ] Sgt.

Yum said that he has allergies and his sinuses were initially stuffed from working in the backyard. However, after a few minutes talking to Mr. Kelln, he smelled alcohol. [ 14 ] Sgt. Yum said the accident would have to be reported. He didn't have a phone with him so he told Mr. Kelln he'd call from his house and said words to the effect "Come with me" or "Come over." The two men went to Sgt. Yum's house where Sgt. Yum called the police. He said he advised them that he was a police sergeant, that a neighbour had struck his vehicle and that the neighbour had admitted drinking. [ 15 ] Cst.

Bowes attended on behalf of RPS. Sgt. Yum told Cst. Bowes that he had heard the bang from the back yard, heard his wife yell and that his wife told him that Mr. Kelln had struck his vehicle. He told Cst. Bowes that Mr. Kelln had admitted alcohol consumption. EVIDENCE OF CONSTABLE KEVIN BOWES [ 16 ] Cst. Kevin Bowes was dispatched to the scene and arrived at 6:30 p.m. At that time, he saw Sgt. and Mrs. Yum on the step with Mr. Kelln. Sgt. Yum came to him. Together they examined the damage to Sgt. Yum's vehicle and Mr. Kelln's truck. [ 17 ] While they were doing this, Sgt. Yum advised the officer that Mr.

Kelln was a neighbour, that his wife said she had seen Mr. Kelln hit Sgt. Yum's car and that he had gone over to Mr. Kelln's to talk to him. Sgt. Yum also told Cst. Bowes that Mr. Kelln said he had had a coughing fit and that this was the reason for the accident. [ 18 ] Cst. Bowes met Mr. Kelln on the step of the Yum home where Mr. Kelln was with Ms. Yum. Mr. Kelln was smoking a cigarette. At that point, Cst. Bowes observed that Mr. Kelln had glassy, bloodshot eyes. He asked him to come with him to the police vehicle; he said he wanted to talk to him about what had happened see if there were grounds for arrest.

As they went to the police vehicle, Cst. Bowes did not notice anything irregular in the way Mr. Kelln was walking. [ 19 ] Once in the police vehicle, Cst. Bowes asked Mr. Kelln what had happened. Mr. Kelln again said that he had gone to pick up a pizza. He said he was prone to coughing attacks and had one on the way home. He said this was the cause of sideswiping the Yum vehicle. Upon inquiry, Mr. Kelln also admitted to having consumed two beers while waiting for his pizza. [ 20 ] At 6:33 p.m., Cst. Bowes arrested Mr. Kelln for impaired driving.

His grounds were: • the accident happened during daylight hours on good roads;

• Mr. Kelln's glassy, bloodshot eyes; and • the admission of consumption. [ 21 ] Cst. Bowes gave rights to counsel and the police warning. Then, at 6:36 p.m., Cst. Bowes made a breathalyzer demand. He departed the scene with Mr. Kelln shortly afterward. It took them about 10 or 15 minutes to get to the police station. EVIDENCE OF GARRY KELLN [ 22 ] Mr. Kelln said that on August 23, 2013, he was up at 4:00 a.m., worked until 1:30 or 2:00 p.m., and was home by 2:10 p.m. He was with his wife, granddaughter and a friend in his backyard until about 4:30 p.m.

During that time he had some beer. [ 23 ] At about 4:30 p.m., he left to get a pizza at Tumblers restaurant. While waiting, he had one beer and played the VLT. On his way home and just after he rounded the corner on the street where he lives, he had a coughing fit. He said he has these from time to time and usually will slow and pull to the right when it happens. However, on this occasion, he saw his granddaughter waving and as he looked over at her, his vehicle slid down the side of Sgt. Yum's vehicle. [ 24 ] He got out of his truck and examined the damage.

He was going to go into his house and report the accident when Sgt. Yum came over. He told Sgt. Yum what happened and admitted to drinking beer at home and at the pizza place, in response to Sgt. Yum's inquiry. Mr. Kelln said he did not tell Sgt. Yum that the accident might have occurred because he'd been drinking. [ 25 ] Yum then said something to the effect of "Come to my place and we'll talk." [ 26 ] Mr. Kelln went with Sgt. Yum but said he did so because he thought, Sgt. Yum being a police officer, that he had no choice. [ 27 ] About ten minutes later, Cst. Bowes arrived. He asked Mr.

Kelln to accompany him to the police car. He did not know why Cst. Bowes wished him to go to the vehicle but went because he thought he had no choice. [ 28 ] Mr. Kelln said that he had four or five beer that day. He was fine and had no problem walking, driving or talking. If he thought he was impaired, he said, he would have asked his wife or her friend to go get the pizza. [ 29 ] Mr. Kelln knew that Sgt. Yum was a member of the Regina Police Service. ISSUES [ 30 ] On this evidence, the Defence has raised the following issues: In regard to Sgt. Yum: 1. Mr.

Kelln's statements were compelled under The Traffic Safety Act and he made them for that purpose only. These statements are therefore not admissible in these proceedings upon consideration of

section 7 of the Charter ; 2. Mr. Kelln was unlawfully detained, contrary to

section 9 of the Charter ; 3. Sgt. Yum did not advise Mr. Kelln of the reason for his detention, contrary to

section 10(

a) of the Charter : 4. Sgt. Yum did not afford Mr. Kelln his right to counsel contrary to

section 10(

b) of the Charter ; and 5. Sgt. Yum did not make a breathalyzer demand and therefore the demand was not made as soon as practicable. As such, the taking of samples constituted an unreasonable search, contrary to

section 8 of the Charter . In regard to Cst. Bowes: 6. Mr. Kelln's statements were compelled under The Traffic Safety Act and he made them for that purpose only. These statements are therefore not admissible in these proceedings upon consideration of

section 7 of the Charter ; 7. Cst. Bowes unlawfully detained Mr. Kelln, contrary to

section 9 of the Charter : 8. Cst. Bowes did not tell Mr. Kelln the reasons for his detention, contrary to

section 10(

a) of the Charter ; 9. Cst. Bowes did not make a breathalyzer demand as soon as practicable. The taking of the samples therefore constituted an unreasonable search, contrary to

section 8 of the Charter ; and 10. Cst. Bowes did not have grounds to make a section 254(3) demand and thereby breached Mr. Kelln's right against unlawful search and seizure under

section 8 of the Charter . Regarding Sgt. Yum - Issues 1 to 5 inclusive [ 31 ] Mr. Kelln argued that as Sgt. Yum is a member of the Regina Police Service, was known as such by Mr. Kelln and acted in the manner of a police officer, he carried all of the obligations of a police officer in his dealings with Mr. Kelln. Being a police officer, Sgt. Yum is always a police officer and that once this incident occurred, his words and actions ought to be assessed and analyzed on that basis.

[ 32 ] I do not agree with these submissions. [ 33 ] Sgt. Yum, in his civilian capacity, was working in his yard when his car was struck by a neighbour. As would any civilian, he looked at the damage to the vehicle and then spoke to the man who hit it. During that conversation, in describing his actions, Mr. Kelln volunteered that he had consumed alcohol within a brief time before the accident. This caused Sgt. Yum to wonder if alcohol might have been a factor in the accident. He asked, as would be anyone in such circumstances, how many drinks Mr. Kelln had consumed. Mr. Kelln answered. Sgt.

Yum said they'd have to report the accident and said, in effect, "We'll go to my house and I'll call the police." He did. [ 34 ] I accept Sgt. Yum's evidence that Mr. Kelln volunteered the fact that he had consumed two beers. At the point when the admission was made, Sgt. Yum had not observed anything in Mr. Kelln's demeanor that indicated alcohol might have been a factor in the accident. He said Mr. Kelln appeared dazed but did not testify to observing glossy, red or blood-shot eyes, slurred or otherwise compromised speech, difficulty walking or with gross or fine motor skills.

While he did eventually smell alcohol, this was not until he'd been talking to Mr. Kelln for a few minutes, whereas the admission was made very early in their conversation. [ 35 ] That being the case, Sgt. Yum would have no reason to ask Mr. Kelln whether or not he'd been drinking before the accident. It simply makes more sense that Mr. Kelln volunteered this information and Sgt. Yum then asked questions consequent on the admission. [ 36 ] Most telling, however, is that Sgt. Yum told Mr. Kelln that they would have to call the police.

If he intended to and thought he had to call the police, it is apparent to me and would have been apparent to Mr. Kelln that Sgt. Yum was not acting in his capacity as a police officer during their interaction. If he was the police, he would not need to call the police. [ 37 ] One cannot reasonably interpret Sgt. Yum's words, as recalled in evidence by Mr. Kelln, "Come to my place and we'll talk" as importing an element of compulsion.

Nor do I think that these are the words of a police officer acting in his official capacity in an impaired driving investigation. [ 38 ] In all of these matters, it is important to note that while Mr. Kelln knew that Sgt. Yum was a police officer, he also knew that Sgt. Yum was - in his personal capacity - a neighbour and the person whose vehicle had been damaged. He would know or anticipate that Sgt. Yum might want to check Mr. Kelln's welfare and learn what happened. Mr. Kelln must weigh this in his belief as to the role Sgt. Yum assumed during the incident.

In these circumstances, I am not satisfied that a reasonable person in Mr. Kelln's circumstances would believe he had no choice but to comply with Sgt. Yum's request or that he was detained by Sgt. Yum. [ 39 ] There being no detention, it follows that Sgt. Yum was under no obligation to advise Mr. Kelln of the reason for his detention or afford him his rights to counsel. [ 40 ] It also follows that Mr. Kelln's disclosures to Sgt. Yum were not made to a police officer acting under the authority of

section 253 of The Traffic Safety Act . [ 41 ] As to the submission that Sgt. Yum delayed in making a breathalyzer demand, I note that Sgt. Yum said that he suspected alcohol "may" have been a contributing factor in the accident. He did not observe any physical indicia of impairment, aside from an otherwise nonspecific smell of alcohol. In whatever capacity he was acting, he did not have grounds to make a breathalyzer demand. [ 42 ] This case is very different from R. v. Kahlon [1] where an off-duty officer, en route to a work assignment in a marked vehicle, observed a vehicle driving in a suspicious manner.

He activated the vehicle's lights and sirens and pulled the vehicle over. He checked licence and registration and asked questions about alcohol consumption pursuant to the Ontario equivalent of our Traffic Safety Act . Based on his interaction with Mr. Kahlon, he called for the delivery of an ASD. He continued to detain Mr. Kahlon while awaiting the ASD and did not make a demand. The demand was eventually made by the officer who delivered the device. [ 43 ] The Court found that the officer had detained Mr. Kahlon and had formed a suspicion that he had operated a motor vehicle while having alcohol in his system.

It fell to him then to make the ASD demand. [ 44 ] In the course of the Court's reasons, there was no discussion about the fact that the officer was off-duty at the time he stopped Mr. Kahlon. The judge's conclusions presume that the officer had the same obligations as an on-duty officer. [ 45 ] However, the officer in Kahlon , off-duty or not, was acting throughout as a police officer. He pulled a vehicle over, using the emergency equipment on his police vehicle. He conducted roadside inquiries and detained the individual after calling for delivery of an ASD. Such is not the case for Sgt. Yum. [ 46 ] All of Mr.

Kelln's arguments regarding Sgt. Yum's role and obligations in the situation allege breaches of certain of Mr. Kelln's Charter rights. As such, he carries the burden of proving the breaches on a balance of probabilities. As the premise underlying each of the arguments - that Sgt. Yum was acting as a police officer - has not been proven, none can succeed. Issue 6: Regarding Cst. Bowes - Statements Compelled under The Traffic Safety Act [ 47 ] Cst.

Bowes testified that investigating motor vehicle accidents was part of his regular duties and in the course of those investigations, he would obtain information for purposes of The Traffic Safety Act . At one point in his testimony, he said that his purpose was two-fold: to obtain a Traffic Safety Act report and to investigate the possibility of an impaired driving incident. But he later said that on this occasion, another officer came to deal with Mr. Kelln's vehicle and obtain information for the Traffic Safety Act report. His evidence on this point was at best equivocal. [ 48 ] Cst.

Bowes said clearly that the reason he asked Mr. Kelln to attend to the police vehicle was to conduct an investigation

respecting a possible impaired driving charge. He wanted to see if he had grounds to arrest Mr. Kelln. I accept that this was, in fact, the officer's purpose. [ 49 ] In this regard, I note that Cst. Bowes asked Mr. Kelln only one question: What happened? Mr. Kelln's explanation, coupled with his earlier observations of glassy, bloodshot eyes and the fact of the accident occurring on clear roads during the daytime, led Cst. Bowes to make the demand immediately after hearing Mr. Kelln's explanation.

The single question and the officer's response are consistent with his purpose in pursuing an impaired driving investigation; there were no questions or follow-up to better understand the way the accident happened. This suggests Cst. Bowes did not view his purpose as including a Traffic Safety Act report. [ 50 ] However, that does not end the matter. Mr. Kelln said he knew he had to report the accident to a police officer and he answered the officer's questions because he thought that was, at least in part, the officer's purpose. Cst. Bowes was the only on-duty officer he spoke to and there is no indication Mr.

Kelln was aware that another officer attended for purposes of preparing the Traffic Safety Act report. Mr. Kelln’s inference, therefore, was reasonable. [ 51 ] The leading authority on this is R. v. White , [2] where the Supreme Court of Canada held that statements made under parallel provisions of the British Columbia statute were inadmissible in criminal proceedings against the accused. Those statements were compelled by law and their admission would breach an accused's person's right against self-incrimination which is protected by

section 7 of the Charter . [ 52 ] However, the Court reasoned that not every statement given in the course of reporting an accident will be inadmissible; those statements will only be inadmissible if they are compelled. The test is whether the report was given by a person who honestly and reasonably believed that he was required by law to report the accident and, therefore, to provide the statement. [ 53 ] Cst. Bowes admitted that he did not advise Mr. Kelln of the reason he was detained.

Had he advised him that he was detained for purposes of a Traffic Safety Act report or for purposes of a criminal investigation, any ambiguity would be resolved and my conclusions might be affected. But he did not and so it fell to Mr. Kelln, in effect, to determine the officer's purpose. [ 54 ] I accept Mr. Kelln's evidence that he believed he was required by law to report an accident to the police and I think it is not surprising that he was not able to state why or how he knew this. It is common knowledge that accidents must be reported to the police in certain circumstances.

Whether or not this was one of those circumstances, what matters is that Mr. Kelln was involved in an accident and he thought it was an accident that must be reported. He reasonably believed that he was required to report the accident and to answer the officer's questions as to what had occurred. [ 55 ] Our Court of Queen's Bench considered this issue in R. v. Scharf . [3] In paragraph [40], Mr. Justice Danyliuk held that "If the court is satisfied he was reporting the accident while making self-incriminating statements, then the law requires the exclusion of those statements.

To do otherwise would constitute a violation of the Charter rights of the accused." [ 56 ] The Crown argued, in effect, that the decisions in White must be interpreted in light of the Supreme Court's decision in R. v. Orbanski; R. v. Elias . [4] In those cases, the Court was concerned with the effect of provincial legislation requiring or authorizing police officers to make inquiries as to sobriety when stopping a vehicle and without affording those stopped their right to counsel. The Court held that this was a breach of an accused's

section 10(

b) Charter right but one that was justified under

section 1 of the Charter . Some measure of balance was obtained in the Court's direction that information obtained through the exercise of these legislated police powers can only serve as part of an officer's grounds for a demand, and not to directly incriminate an accused person. [ 57 ] The Crown submitted that information gained from those who provide compelled information in reporting an accident should similarly be admissible for purposes of an officer's grounds only. [ 58 ] This view was rejected in Scharf at paragraph [45] .

Justice Danyliuk said: In Orbanski /Elias , the facts were distinct both from the case at bar and from White . White and Powers dealt very specifically with statements obtained through provincial highway traffic legislation. These are compelled statements from drivers involved in accidents. In Orbanski , the police stopped a car after actually seeing it swerve and go through a stop sign. In Elias , the accused was stopped at a roadside checkpoint. White and Powers are cases that are of direct and specific application to the facts of the case at bar.

In the instant case, the officer had absolutely no independent means of knowing the identity of the driver, nor the manner in which the vehicle was driven. Really, here, it is the accused's statement under provincial law that sends the officer on the course of his further investigation. [ 59 ] Thus, Scharf distinguishes the analysis in Orbanski /Elias from that necessary to an analysis of the circumstances in White . The case is binding on this Court and I am not satisfied that there is any basis to distinguish the circumstances in this case from those in Scharf .

I have not been provided any authority that would apply the conclusions in Orbanski /Elias to the circumstances of this case. [ 60 ] Thus Mr. Kelln's admissions to Cst. Bowes that he had driven the vehicle that caused the accident and that he had consumed alcohol are not admissible for any purpose. Issues 7 & 8 - Regarding Cst. Bowes - Unlawful Detention and Failure to Advise of Reason for Detention [ 61 ] I am satisfied - and it was not strenuously argued otherwise - that Cst. Bowes detained Mr. Kelln when he asked him to take a seat in the police vehicle.

While there is no evidence as to the time this occurred, there is evidence that Cst. Bowes arrived at the scene

at 6:30 p.m., spoke to Sgt. Yum and then asked Mr. Kelln to get in the police vehicle. He was arrested at 6:33 p.m. after answering Cst. Bowes’ single question. Thus, this investigatory detention lasted less than three minutes - probably significantly less - before Mr. Kelln was arrested. [ 62 ] In R. v. Mann , [5] the Supreme Court of Canada concluded that police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances.

In assessing whether an officer has reasonable grounds for an investigative detention, the officer must consider all of the circumstances, both inculpatory and exculpatory. While the officer is not required to investigate to learn whether exculpatory explanations obtain, he or she cannot base suspicion on only the inculpatory indications that are present. [ 63 ] Mr. Kelln argued that Cst. Bowes did not have grounds to detain Mr. Kelln for investigative purposes. At the time Cst. Bowes asked Mr. Kelln to attend to the police vehicle, Cst. Bowes had learned from Sgt. Yum the following: • that Ms.

Yum said she had seen Mr. Kelln strike the Yum vehicle; • that Mr. Kelln had told Sgt. Yum that he lost control due to a coughing fit; and • that Mr. Kelln had admitted to drinking two beer prior to the accident. By the time of the detention, Cst. Bowes had also observed that Mr. Kelln had glossy, blood shot eyes. [ 64 ] This, therefore, is the information that formed Cst. Bowe's suspicion that Mr. Kelln had committed a criminal offence and that purported to justify his detention. Mr. Kelln argued that the information known to Cst.

Bowes was inadequate to ground a detention that would comply with the criteria set out in Mann . [ 65 ] I do not accept this submission. Although the constellation of circumstances might lead an officer to a number of conclusions, the information available to Cst. Bowes at the time he detained Mr. Kelln was sufficient to ground a suspicion that he might have committed the offence of impaired driving.

The detention was for the very purpose of exploring the officer's suspicion and determining whether and how the investigation would proceed. [ 66 ] Therefore, I am not satisfied that this brief detention was arbitrary and contrary to

section 9 of the Charter . [ 67 ] However, I am satisfied that Cst. Bowes did not advise Mr. Kelln of the reason for this detention. He admitted in evidence that he did not. The Supreme Court in Mann [6] said, "At a minimum, individuals who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for the detention." Thus, Mr. Kelln's

section 10(

a) Charter right was breached. [ 68 ] In light of this finding, Mr. Kelln argued that all evidence obtained after the detention should be excluded as it was obtained pursuant to and consequent on the Charter breach. [ 69 ] On Grant analysis, I am satisfied that no evidence should be excluded as a consequence of this breach. [ 70 ] As to the first branch, the breach was serious. The detention of an individual is, by definition, a restriction of liberty. This is always serious. [ 71 ] As to the second branch, the impact in this case was very minimal.

First, the detention was of very short duration - probably only a minute or so. Second, Cst. Bowes did not obtain any useful information as a consequence. While Mr. Kelln gave information about the accident, including an admission of driving, that information has been ruled inadmissible as compelled under The Traffic Safety Act . As such, there were no significant consequences arising from the detention. [ 72 ] Finally, I must consider society's interest in the adjudication of cases on their merits.

In this respect, must consider not simply society's interest in adjudication on the merits per se but also adjudication that meaningfully protects the Charter rights of those before the courts. In this case, the exclusion of evidence would not be consistent with society's interest in the adjudication of cases on their merits. The breach in this case is technical and was of trivial impact. Exclusion of evidence in these circumstances would more likely bring the administration of justice into disrepute. [ 73 ] Overall, the analysis favours inclusion of the evidence. Issue 9 - Regarding Cst.

Bowes - Breathalyzer Demand Not Made As Soon As Practicable [ 74 ] Mr. Kelln's argument in this respect is primarily based in his submission that Sgt. Yum was acting as a police officer throughout the incident. Taking the actions of the police as an entity - that is, the actions of Sgt. Yum and Cst. Bowes together - Mr. Kelln says the demand should have been made by Sgt. Yum shortly after his initial contact with Mr. Kelln. By that point, I gather, Mr. Kelln suggests Sgt. Yum had opportunity to make observations and had information from his wife and from Mr. Kelln that would support a belief that Mr.

Kelln had been drinking and driving. [ 75 ] In light of my earlier conclusion that Sgt. Yum was not acting in his capacity as a police officer during his interaction with Mr. Kelln, the argument as framed above must and does fail. [ 76 ] In the alternative, Mr. Kelln argued that Cst. Bowes could and should have made the demand sooner than 6:36 p.m. By that time, Mr. Kelln had been detained for marginally more than three minutes and, in addition, Cst. Bowes had obtained information from Sgt. Yum and had an opportunity to observe Mr. Kelln.

[ 77 ] I do not accept this submission. Cst. Bowes arrived at the scene at 6:30 p.m. and was approached by Sgt. Yum, who was his complainant. It was entirely reasonable that he converse with Sgt. Yum, especially as Sgt. Yum was able to and did provide him useful information. While timing was not explored, it appears that Cst. Bowes went directly from his conversation with Cst. Yum to Mr. Kelln and asked him to enter the vehicle. There is no unreasonable or unexplained delay to that point. [ 78 ] Once in the vehicle, Cst. Bowes asked a single question, obtained an answer and, at 6:33 p.m. arrested Mr.

Kelln for impaired driving. He gave rights and warnings, satisfied himself that Mr. Kelln understood and then, at 6:36 p.m., made a breathalyzer demand. [ 79 ] Thus, the time between 6:33 p.m. and 6:36 p.m. is explained and the explanation is reasonable. [ 80 ] Mr. Kelln has not met the onus and I am not satisfied that the demand was not made as soon as practicable. Thus, no consequent Charter breach is established. Issue 10 - Regarding Cst. Bowes -Grounds for Demand and Breach of

Section 8 Charter Right [ 81 ] Finally, Mr. Kelln argued that Cst. Bowes did not have reasonable grounds to make a demand pursuant to section 254(3) of the Criminal Code . If he did not, the demand was not lawful and the subsequent taking of samples constituted an unreasonable search contrary to

section 8 of the Charter . [ 82 ] Although the onus lies on Mr. Kelln to establish a Charter breach, demanding breath samples constitutes a warrantless search which is prima facie unreasonable. Thus, despite the Accused's onus, it falls to the Crown to first establish that the search was authorized by law and that the law itself was reasonable. [ 83 ] The search in the case of breathalyzer demands is authorized by law pursuant to section 254(3) of the Criminal Code and will be lawful if made in accordance with the requirements of that section. That

section requires that the officer who makes the demand "has reasonable grounds to believe that a person is committing or at any time within the preceding three hours has committed an offence under

section 253 as a result of the consumption of alcohol." At issue in this case is whether Cst. Bowes had reasonable grounds to believe that Mr. Kelln had committed the offence of impaired driving. [ 84 ] In R. v. Shepherd , [7] the Supreme Court of Canada held that the assessment of the adequacy of an officer's grounds for making a breathalyzer demand involves both a subjective and an objective component. Neither party has challenged Cst. Bowes subjective belief and I find he honestly held that belief for purposes of these reasons. As to the objective component, the Saskatchewan Court of Appeal in R. v.

Gunn [8] wrote that the officer's subjective belief: . . . must be rationally sustainable on an objective basis.

This does not mean that the Crown has to demonstrate a prima facie case of conviction, let alone prove its case beyond a reasonable doubt; rather, the standard of "reasonable grounds to believe" is one of lesser probability which simply requires the reviewing court to determine whether the factors articulated by the officer who made the breath demand were reliable and were capable of supporting the officer's belief that the individual had driven while impaired or "over .08" within the preceding three hours.

Where an individual challenges the validity of a breath demand on the basis that the police officer's belief was not reasonable, the question for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officer would have believed the individual's ability to operate a motor vehicle was impaired. ( References and citations omitted .) [ 85 ] Cst. Bowes testified that his grounds for making a breathalyzer demand were the same as his grounds for arresting Mr. Kelln for impaired driving.

These were: • the fact that the accident happened during daylight hours on good roads; • Mr. Kelln's glassy, bloodshot eyes; and • the admission of consumption. [ 86 ] He also knew, through Sgt. Yum's report to him, that Mr. Kelln had said that he lost control of the vehicle when he had a coughing fit. While Sgt. Yum said that he smelled alcohol from Mr. Kelln, he did not say that he told Cst. Bowes this, nor did Cst. Bowes testify that he was so told. [ 87 ] Cst. Bowes did testify that he did not smell alcohol from Mr. Kelln. He said at the time he met him, Mr.

Kelln was smoking a cigarette and he thought this might mask any alcohol smell. Nor did he testify to smelling an odour of alcohol after he confined Mr. Kelln in his vehicle. Whether that might be because of the continued impact of the cigarette and whether or not a cigarette would in fact mask the odour of alcohol, the fact is that Cst. Bowes did not smell alcohol from Mr. Kelln. [ 88 ] The question is whether these grounds are adequate to support a demand under section 254(3) of the Criminal Code . [ 89 ] Despite my prior ruling that Mr. Kelln's admission in the police vehicle should be excluded, Cst.

Bowes obtained information independently from Sgt. Yum that Mr. Kelln had admitted to both driving and consuming alcohol. Cst. Bowes is entitled to rely on such

hearsay for the purposes of grounds. [ 90 ] I have some hesitation in accepting Cst. Bowes evidence that he observed glossy, blood shot eyes. In this regard, I note that Sgt. Yum, who is an experienced police officer and who was in close conversation with Mr. Kelln, did not make a similar observation. It is further troubling that Cst. Bowes relayed his observations sometimes as "glossy and watery", sometimes as "blood shot and watery" and, at other times, as "glossy and blood shot". These are not distinctions without a difference.

However, for reasons that follow, I do not have to make a determination on that matter. [ 91 ] I am not satisfied that Cst. Bowe's subjective belief is supported on an objective examination of all of the circumstances and evidence. While the fact that the accident occurred on a clear day on clear roads may be indicative of impairment, it is certainly capable of other innocent explanations, such as the one Mr. Kelln offered. [ 92 ] The officer's observations of Mr.

Kelln's eyes are also consistent with impairment and with other explanations. [ 93 ] Finally, the consumption of alcohol does not, in and of itself, indicate impairment of a person's ability to drive. While certainly it might be considered an indication of impairment, it is, like the factors discussed above, also equivocal. [ 94 ] In assessing the officer's grounds from an objective basis, one must consider all of the evidence, including that which mitigates against impairment. In this case, Cst.

Bowes testified that at the scene and prior to the demand, he did not smell alcohol from the accused, did not observe any difficulty with walking or standing and did not observe slurring or other compromise in Mr. Kelln's speech or comprehension. [ 95 ] Many common indicia of impairment were not observed by Cst. Bowes. This absence affects the reasonableness of the Constable’s grounds for belief. For example, while the officer does not have to accept or disprove Mr. Kelln's explanation as to why the accident occurred, he cannot simply discount it in the face of observations which suggest that Mr.

Kelln may not have been impaired. [ 96 ] In these circumstances, I am not satisfied that a reasonable person standing in the shoes of Cst. Bowes would have believed Mr. Kelln's ability to operate a motor vehicle was impaired by alcohol. That being the case, the demand was not made lawfully in accordance with section 254(3) and the subsequent taking of samples constitutes an unlawful search in breach of

section 8 of the Charter . [ 97 ] In regard to the first line of inquiry pursuant to Grant , I am satisfied that Cst. Bowes, being an experienced officer, would know or should know the nature of grounds required in order to support a section 254(3) demand. He must be aware of the difference between a reasonable suspicion and reasonable grounds. This is not a case where counsel or the Court is engaged in careful parsing of the officer's grounds. While perhaps and probably amounting to a suspicion for purposes of an ASD demand, Cst. Bowe's grounds were woefully inadequate to support a breathalyzer demand. As such, the officer was uninformed about or uninterested in the requirements of the

section under which he purported to act. This is serious. [ 98 ] The consequence of the unlawful search was the minimally intrusive taking of breath samples. Mr. Kelln was detained from shortly after 6:30 p.m. until he was released after the second test was taken at 7:26 p.m. But this must be balanced against the fact that Mr. Kelln was arrested, placed in a police vehicle and taken to the police station where, after being searched, he provided evidence against his interest.

These consequences cannot be considered non-intrusive and are serious, particularly in light of the fact that they could have been avoided or justified if Cst. Bowes had taken a different approach to the investigation. [ 99 ] Finally, society's interest in the adjudication of cases on their merits does not exclude society's interest in the enforcement and protection of Charter rights.

This branch of the Grant analysis, given the significant breach and the right breached, favours exclusion. [ 100 ] The admission of the certificate in this case would effectively sanction conduct that constituted a serious breach of Mr. Kelln's Charter rights in a serious manner and having serious impact for the purpose only of potentially securing a conviction. I am not convinced society is interested in or that it is in society's interests to endorse that approach. It would bring the administration of justice into disrepute. The Certificate of Qualified Technician will be excluded.

SUMMARY [ 101 ] In light of my conclusion that Mr. Kelln's statements to Cst. Bowes in the police car were made under compulsion of The Traffic Safety Act , his admissions of driving and of consumption to Cst. Bowes will not be admitted. [ 102 ] In light of my conclusion that Cst. Bowes did not have reasonable grounds to make a breathalyzer demand pursuant to section 254(3) of the Criminal Code and that the taking of breath samples therefore constituted an unreasonable search breaching

section 8 of the Charter , the Certificate of Qualified Technician will be excluded. __________________________________ B. Tomkins, J