Her Majesty the Queen - v. -, 2013 SKPC 220

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 220 Date: October 17, 2013 Information: 24480534 Location: Whitefish F.N. _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ivan James Smith Dreaver Appearing: Fran Atkinson For the Crown Garth Bendig For the Accused DECISION G. M. MORIN, J [ 1 ] Mr. Ivan James Smith Dreaver is charged that on or about the 21 st day of July, 2012 at Big River First Nation in the Province of Saskatchewan, did: While his ability to operate a motor vehicle was impaired by alcohol, did have the control of a motor vehicle, contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code . Did having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one

hundred millilitres of blood, did have the care or control of a motor vehicle, contrary to s. 253(1)(

b) and s. 255(1) of the Criminal Code. [2] In the early morning of July 21, 2012, around 5:00 a.m., Cst. Spafford and Cst. Plankenhorn were driving on grid road 793when they came across three vehicles parked in a row on the middle of the grid road in close proximity to each other. [3] The RCMP officers were suspicious so they embarked on an investigation. Cst. Plankenhorn approached the front vehicleand Cst. Spafford approached the second vehicle. While dealing with the driver of the second vehicle, Cst. Spafford’s attention wasdrawn to the occupants of the third vehicle.

She apparently did not find anything of any interest in the second vehicle so she approachedthe third vehicle. [4] Cst. Spafford immediately noticed a strong smell of alcohol coming from the third truck, she asked the driver to step outsideand he complied. She noted red and glossy eyes and a strong smell of alcohol coming from Mr. Dreaver’s breath when he exited thevehicle. [5] Based on these observations, Cst. Spafford concluded that Mr.

Dreaver was in care and control of the vehicle while hisability to operate it was impaired by alcohol. [6] She subsequently found out that his last consumption of alcohol was within two minutes of her encounter. [7] Defence argues that “at a minimum, two conditions must be met before an officer’s belief that an accused’s ability to operatea vehicle is impaired by alcohol is objectively reasonable. Firstly, the officer must have had available, at the time the breath demandwas made, some evidence that alcohol has been consumed by the accused.

Secondly, the officer must have had available again, at thetime the demand is made, some evidence that reasonably supports a conclusion that the consumption of alcohol impaired the accused’sability to operate a vehicle.” [8] Cst. Spafford did not make any observations of any driving or walking. [9] The Court certainly heard how quick the officer reached the conclusion that she had the requisite grounds for a demand. While it can be argued that an observer can reach a quick conclusion which can be upheld upon scrutiny, one must be vigilant that theyare not too hasty.

Here we have a strong smell of liquor coming from the accused along with red and glossy eyes as the only grounds. This officer reached this conclusion based on experience. There is no elaboration about the number of cases involving breath demands,just that she worked in Stanley Mission and La Ronge. [10] Were there any over-riding concerns that she had to reach a conclusion about Mr. Dreaver’s condition? Why couldn’t shehave asked for the so called sobriety tests that would have measured to some degree, no matter how slight, as contemplated by Stellato(1993), (ON CA), 78 CCC 380 (Ont. C.A.).

In paragraph 6 the Crown suggests the constable chose the mostreasonable course of action... given the number of individuals, vehicles and resources. There was no evidence whatsoever the peoplewere causing police to be suspicious. [11] As pointed out by the Crown in impaired driving cases, the test is whether there were objective reasons to believe thesuspect’s ability to drive was slightly impaired by the consumption of alcohol. Slight impairment to drive relates to a reduced ability toperform a complex motor function that may impact on perception, reaction time, judgment or regard for the rules of the road.

The sameholds true for cases involving care and control. [12] Here, there is no observation by the officer of any physical movement on the part of the accused to reach the conclusion – hewas having any problem walking or driving. [13] The call as to whether the police want to use an ASD (approved screening device) is the officer’s call and exercise ofdiscretion.

[ 14 ] The suggestion that this means police would be expected to use an ASD on each and every investigation is an over-reaction. Rather they should use it when there is a clear absence about motor skills problems and all they have is a strong odour of liquor emanating from the breath of an accused.

Should the Certificate of Analyses and evidence of the breath sample results be excluded under s. 24(2) of the Charter ? [ 15 ] The defence states that the absence of reasonable and probable grounds for making a demand seriously infringed and undermined the rights of the accused. [ 16 ] The Court, in reviewing the evidence, looks at the total situation. The police constables come upon a number of people in three (3) vehicles parked in the middle of the road. There is no evidence that the vehicles are parked in any position other than one behind the other.

There is no evidence of a vehicle parked out of place so to speak – or across the road – they were orderly but in the middle of the road out in the countryside, more specifically on the Big River First Nation. [ 17 ] There are no fights, arguments between the passengers, drivers or with the police. Nobody jumps out to run away. [ 18 ] There is no confrontation whatsoever with the two constables and the occupants of any of the vehicles.

Nobody is switching seats or causing any disturbance. [ 19 ] The police are left alone by the occupants to do their job – and hopefully satisfy their suspicion that anything was wrong or there was any criminal activity. [ 20 ] Nonetheless, Cst. Spafford upon checking the second vehicle, felt there was some activity in a third vehicle – nothing specific is observed – no switching of seats between the driver and occupants. [ 21 ] She continues and finishes with the second vehicle and then turns her attention to the occupants of the third vehicle.

She smells alcohol coming from the vehicle and asks the driver to exit the vehicle. She confirms to herself that there is a strong smell of liquor coming from the driver’s breath. She also observes red and glossy eyes. Nothing else.

She says that she forms the belief that he is impaired while in care and control of a motor vehicle. [ 22 ] The defence emphatically states that this six (6) year veteran made a serious error in judgment in circumventing an established standard required for a breath demand as set out in s. 254(3) of the Criminal Code . [ 23 ] The Crown argues that this was a reasonable course of action, there was no reasonable alternative given the number of individuals and vehicles found at the scene and the limited number of police personnel. This sounds like the police are nervous or scared about their situation.

Yet, there was absolutely no evidence of any threat perceived or otherwise on the two officers. No yelling, screaming, or swearing on the part of anyone at all. Being nervous about your situation for no apparent reason, doesn’t give you a reason to hurry up and reach a bad conclusion or rest on the concept of “good faith”. [ 24 ] There is merit to the argument that this amounted to a serious breach with very little foundation that could uphold the belief that there were reasonable and probable ground for a demand.

Quick decisions with this flaw amount to Charter infringed state conduct (admission may send the message the justice system condones serious state misconduct). This person would/could end up with no licence in an area that has no public transportation system that would be otherwise available in a city for instance. [ 25 ] The second part of the analysis looks to the impact of the breach on the Charter protected rights of the accused (admission may send the message that individual rights count for little). [ 26 ] The defence asserts “that the unlawful breath sample demand made by Cst. Spafford led to Mr.

Dreaver being arbitrarily detained for the purpose of providing conscriptive evidence to the further prosecution against himself.” To that end, the accused was

removed from the road, transported to the Big River Detachment, held in cells and detained for several hours. [27] The Crown argues that the courts and legislation have not made it an absolute requirement to administer sobriety tests andASD tests prior to demanding breath samples.

The Crown asserts there is no evidence of bad faith. [28] Defence counters that good faith doesn’t save the day. [29] The Court finds the impact on the accused’s rights is serious and they could breed public cynicism and bring theadministration of justice into disrepute. [30] The third line of inquiry is society’s interest in the adjudication on the merits. [31] Accordingly, Grant states the 24(2) analysis asks whether the truth seeking function of the criminal trial process would betterbe served by admission of the evidence or by its exclusion.

The inquiry reflects society’s collective interest in ensuring that those whotransgress the law are brought to trial and dealt with according to law. R. v.

Askov, (SCC), [1990] 2 S.C.R. 1199 atpages 12 and 19 to 20. [32] Grant further states: “Thus the Court suggested in Collins that a judge on a 24(2) application should consider not only thenegative impact of admission of the evidence in the repute of the administration of justice, but the impact of failing to admit theevidence.” [33] It is well understood that impaired driving has caused a litany of pain and suffering and knows no bounds in whichcommunity this horror manifests itself.

It is a huge problem. [34] At the same time there have been a number of decisions that point to the high rate of incarceration and conviction ofaboriginal people. This has been highlighted in both Supreme Court decisions such as Gladue and the Royal Commission on AboriginalPeople and also the Manitoba Inquiry in the 80’s and 90’s. The Court cannot condone evidence going in that does not have the properfoundation of reasonable and probable grounds. There must be good evidence based on fundamental principles and accepted standards ofreasonable and probable grounds with no short cuts.

Thus reliability comes to the forefront. There is something missing here – theobservations were vastly wanting – for additional indicia of impairment. [35] To convict people – you need reasonable and probable grounds to make a demand. Society gives police major investigativetools with some leeway to conduct their inquiries in order to combat this problem of impaired driving.

It is not too much to say – do itproperly, get the grounds, make the proper observations then arrest and detain, the courts will follow the proper conduct when they seeit – here it is missing. [36] Dated this 17th day of October, A.D. 2013, on the Whitefish First Nation, in the Province of Saskatchewan. ______________________ G. M. Morin, J