Her Majesty the Queen - v. -, 2014 SKPC 102

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 102 Date: May 14, 2014 Information: 90002364 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brandon Larocque Appearing: Colton Fehr (student-at-law) and Kelly Onyskevitch For the Crown Foster Weisgerber, Q.C. For the Accused DECISION J.D. KALMAKOFF , J INTRODUCTION: [ 1 ] Brandon Larocque is charged with impaired driving, and driving while over .08. The events which led to the charges occurred in Regina on July 6, 2013. Mr.

Larocque argues that the police arrested him and demanded samples of his breath without having reasonable grounds to believe his ability to drive was impaired by alcohol, thereby violating his rights under sections 8 and 9 of the Charter of Rights and Freedoms . Accordingly, he seeks the remedy of exclusion of evidence, namely the breath sample results, pursuant to section 24(2) of the Charter .

[ 2 ] In addition to that, Mr. Larocque argues that the evidence does not prove the charge of impaired driving beyond a reasonable doubt. FACTUAL BACKGROUND: [ 3 ] Shortly before 1:00 a.m. on July 6, 2013, Cst. Christine Harris of the Regina Police Service was patrolling Dewdney Avenue, between Broad Street and Albert Street. She had been tasked with traffic enforcement in that area. The area was of particular concern, because there are several nightclubs in close proximity to one another, and complaints of impaired driving are frequent. [ 4 ] While driving westbound on Dewdney Avenue, Cst.

Harris came to a red light at Albert Street. She intended to turn right and proceed north. As she waited to turn right, Cst. Harris observed two other westbound vehicles stopped at the same red light, in the left-turn lane. Just as she was about to turn onto Albert Street, Cst. Harris heard a bang from behind her and to her left. She looked back, and observed that a third vehicle had crashed into the back end of the vehicles that were waiting in the left-turn lane. [ 5 ] At 12:55 a.m., Cst. Harris called in the motor vehicle accident to her dispatcher, then turned her vehicle around to respond to the collision.

The accused, Brandon Larocque, was the driver and only occupant of the vehicle which had caused the collision. He was still in the driver’s seat of his vehicle. The air bags in Mr. Larocque’s vehicle had deployed, and there was significant damage to the front end of his car. [ 6 ] Cst. Harris approached Mr. Larocque and asked if he was alright. He said that he was. She asked Mr. Larocque to get out of his vehicle, which he did. She confirmed his identity, and asked if Mr. Larocque needed medical assistance. He said he did not. While speaking to Mr. Larocque, Cst.

Harris noticed that his eyes were glossy and slightly red. She could smell alcohol coming from Mr. Larocque’s breath as he spoke, and he admitted that he’d “had a couple of whiskeys”. Cst. Harris also noticed that, as they stood and talked, Mr. Larocque was stepping to the side, and from back to front, as though he was having difficulty maintaining his balance. [ 7 ] At 12:57 a.m., Cst. Harris placed Mr. Larocque under arrest for impaired driving, read his rights to counsel and the police warning to him. Mr. Larocque said he understood those things, and declined to call a lawyer. Immediately after that, Cst.

Harris read a breath test demand, which Mr. Larocque indicated that he understood. Cst. Harris then handcuffed Mr. Larocque, and placed him in the police car. After a brief wait while other officers attended the scene to deal with the aftermath of the accident, Mr. Larocque was transported to the police station. [ 8 ] At 1:27 a.m. and 1:48 a.m., Mr. Larocque provided samples of his breath into an approved instrument. Analysis of the samples showed that his blood alcohol concentration was over the legal limit. ISSUES: [ 9 ] The trial in this matter began as a voir dire with respect to the Charter issues.

However, the parties agreed that any admissible evidence would be applied to the trial, and both parties advised that no further evidence would be called. That being the case, there are three issues that I will deal with:

(1) Was evidence obtained in connection with a violation of Mr. Larocque’s rights under sections 8 and/or 9 of the Charter ;

(2) If so, should that evidence be excluded, pursuant to section 24(2) of the Charter ; and

(3) Has the Crown proven that Mr. Larocque operated a motor vehicle while his ability to do so was impaired by alcohol or drug?

ANALYSIS:

(1) Was evidence obtained in connection with a violation of Mr. Larocque’s rights under sections 8 and/or 9 of the Charter? [10]

Section 8 of the Charter protects individuals against unreasonable search and seizure, while

section 9 protects againstarbitrary detention. In this case, those sections of the Charter are engaged by Mr. Larocque’s arrest, and the demand for samples of hisbreath. [11]

Section 495 of the Criminal Code gives police officers the power to arrest anyone they find committing, or they havereasonable grounds to believe has committed, an indictable offence. In this case, if Cst. Harris had reasonable grounds to believe thatMr. Larocque had committed the offence of impaired driving, then the arrest was lawful. If not, the arrest and resulting detentionviolated

section 9 of the Charter. [12] With respect to

section 8, while the onus is generally on the accused to establish breaches of Charter rights on a balance ofprobabilities, breath samples involve a warrantless search, and warrantless searches are prima facie unreasonable. The Crown bears thepersuasive burden of establishing that (1) the search was authorized by law, (2) the law is reasonable, and (3) the search was conductedin a reasonable fashion: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Collins, (SCC), [1987] 1 S.C.R. 265. Inthis case, reasonableness of the law and the conduct of the search are not in issue.

The only question is whether the search wasauthorized by law. [13] The law authorizing compelled breath samples is section 254(3) of the Criminal Code. It allows a police officer to demandsamples of breath for analysis where the officer believes, on reasonable grounds, that a person has committed a drinking and driving-related offence in the preceding three hours. If Cst. Harris did not have reasonable grounds to believe that Mr. Larocque’s ability todrive was impaired by alcohol when she made the breath demand, then the demand was not lawful, and the taking of breath samplesviolated Mr. Larocque’s rights under

section 8. [14] The breath demand in this case was made immediately after Cst. Harris arrested Mr. Larocque for impaired driving. Both thearrest and the breath demand were based on the same observations. The lawfulness of the arrest and the breath test demand will bedetermined by whether or not Cst. Harris had reasonable grounds to believe that Mr. Larocque had driven while his ability to do so wasimpaired by alcohol. [15] Reasonable grounds, in sections 495 and 254, has both a subjective and an objective component.

The subjective componentrequires the officer to have an honest belief that the subject committed the offence. This belief must be supported by objective facts. The objective component is satisfied if a reasonable person placed in the position of the officer would be able to conclude that there werereasonable grounds for the arrest (or demand): R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254; R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; R. v. Bush, 2010 ONCA 554; R. v.

Shinkewski, 2012 SKCA 63. [16] Reasonable grounds is more than suspicion, but less than proof beyond a reasonable doubt, or even a prima facie case: R. v.Bush, supra; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527. The arresting (or demanding) officer is not required to establish thecommission of an indictable offence on a balance of probabilities, but must be acting on something more than reasonable suspicion or ahunch: R. v. Shinkewski, supra, at para. 13.

While the reasonable grounds to believe standard should not be watered down, and mustcertainly be more than reasonable suspicion, it is not an onerous standard. As noted by Caldwell J.A. in R. v. Gunn, 2012 SKCA 80, atparagraph 9: [T]he precondition to an officer’s authority to make a breath demand may be satisfied where, objectively speaking, an officer hasreasonable grounds to believe an individual’s ability to drive is even slightly impaired by the consumption of alcohol. [17] In considering whether Cst. Harris had reasonable grounds to believe that Mr. Larocque’s ability to drive was even slightly

[17] In considering whether Cst. Harris had reasonable grounds to believe that Mr. Larocque’s ability to drive was even slightlyimpaired by alcohol, I am mindful of the decision of Baynton J. in R. v. MacDonald (1996), (SK KB), 146 Sask. R.306 (Q.B.), where he wrote: It is now common knowledge that a person’s judgment, perception, and reaction time can be detrimentally affected by a level of alcoholconsumption that may not be manifested in observable conduct such as the manner of walking or talking.

Such a person may well beable to walk in a straight line or speak without a slur, but is a danger behind the wheel of an automobile where judgment and reactiontime is critical to the safety of others on the road. [18] MacDonald was also cited, with approval, by Keene J., in R. v. Bonter, 2013 SKQB 31. In my view, the decision of the Courtof Appeal in Gunn, supra, is also consistent with the reasoning in MacDonald. Driving a motor vehicle is a complicated task thatdemands mental alertness, visual acuity, physical coordination, and the ability to recognize and respond appropriately to rapidlychanging situations.

If one’s mental or physical faculties are even slightly diminished through the consumption of alcohol, one’s abilityto drive is impaired. [19] It is also important to keep the following in mind when assessing the “reasonable grounds to believe” standard: • All the evidence must be considered, cumulatively, and not piecemeal: R. v. Savage, 2011 SKCA 65; R. v. Shinkewski, supra; R. v.Storrey, supra. • The reasonable grounds standard must be interpreted contextually, and take into account all the circumstances, including the timinginvolved and the events leading up to the arrest or demand: R. v.

Nguyen, 2010 ABCA 146; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R.851; R. v. Shinkewski, supra. • The assessment of reasonable grounds must take into account the reality of the situation. It does not require the officer to ensure thatthere has been informed consideration of all the information available at the time of the arrest; it only requires that the officer considerthe incriminating and exonerating information to the extent that the circumstances reasonably permit.

Police must make decisionsquickly, in circumstances that are less than ideal, and on the basis of information available to them at the time, which is sometimesincomplete: R. v. Shinkewski, supra at para. 16; R. v. Slippery, 2014 SKCA 23; R. v. Bush, supra. • The inference that the subject is impaired may be reasonable even if it is not the only inference that can be drawn from the observedconduct. “Reasonable grounds to believe” does not require the officer to be in a position to dispel, or rule out, innocent or innocuousinferences that may be drawn from the same observations: R. v. Gunn, supra; R. v.

Bush, supra; R. v. Valentine, 2014 ONCA 147. • The reasonableness of the police officer’s belief must be assessed by considering whether the observations and circumstancesarticulated by the officer are rationally capable of supporting the inference of impairment; however, the Crown does not have to provethat such an inference was true or even accurate. In other words, the factors articulated by the arresting officer need not prove theaccused was actually impaired: R. v. Churko, 2014 SKCA 41. [20] In this case, Cst. Harris concluded that Mr. Larocque had caused an accident.

She didn’t see it happen, but in thecircumstances, it was the only reasonable inference she could have drawn. Mr. Larocque’s vehicle crashed into other vehicles that werestationary, waiting for the light to change. The accident occurred on a level stretch of paved road, in July. There was no evidence tosuggest that anything obstructed Mr. Larocque’s view of the two stationary vehicles. There was no evidence which suggested that roador weather conditions had anything to do with the accident. That said, Cst.

Harris fairly acknowledged, in cross-examination, that suchcollisions frequently occur, even where the driver at fault is completely sober. [21] When Cst. Harris approached Mr. Larocque, she noticed that his eyes were glossy and slightly red. She acknowledged thatthis could have been attributable to the chemical dust that would have been released when the air bags in Mr. Larocque’s car weredeployed. [22] Cst. Harris also observed that Mr. Larocque was stepping side to side, and back and forth as she spoke to him, as though hewas having difficulty maintaining his balance.

She acknowledged that he may have been dazed from being struck by the air bag in hiscar when it deployed. She also agreed that Mr. Larocque appeared to have no difficulty walking from his car to the police car, and thathe displayed no other deficits in physical coordination.

[ 23 ] Mr. Larocque’s breath smelled of alcohol when he spoke, and he admitted to consuming alcohol, but Cst. Harris did not notice any slurring of words or any other deficits with his speech. [ 24 ] While each individual observation made by Cst.

Harris in this case can be explained away, or may support an innocuous inference, I am satisfied that, when all of her observations are considered cumulatively: (i.e., an unexplained collision with a stationary vehicle, difficulty maintaining balance while standing still, glossy eyes, smell of alcohol on breath, and admission of drinking), they support a reasonable inference that Mr. Larocque’s ability to drive was impaired by alcohol, even if only slightly.

I am therefore satisfied that objectively reasonable grounds existed for the arrest and breath demand. [ 25 ] That said, there is still the question of whether, at the time of the arrest and demand, Cst. Harris honestly believed that Mr. Larocque’s ability to drive was impaired by alcohol. When first asked, in direct examination, why she made a breath demand, Cst. Harris said “Because I had come to the conclusion that (Mr. Larocque) had consumed alcohol prior to driving”. That response does not suggest that Cst. Harris believed Mr.

Larocque was impaired, but rather that she believed he had consumed alcohol. [ 26 ] Later in her testimony, however, Cst. Harris said that she “formed the opinion that (Mr. Larocque’

s) ability to drive was impaired by alcohol” before making the demand. I must be cautious about giving much weight to this portion of her testimony, because this answer came after a leading question, followed by an objection, then some discussion between counsel and the Court about the subject area in issue. [ 27 ] Cst. Harris also testified that she read the breath test demand to Mr.

Larocque from a standard-issue card, which begins with the words “I have reasonable and probable grounds to believe that your ability to operate a motor vehicle is impaired by alcohol...” [ 28 ] There are no “magic words” that an officer is required to recite in order to establish that she believed the accused’s ability to drive was impaired. Generally speaking, a mere recitation of the breath test demand, without more, is insufficient to satisfy the subjective component of the reasonable grounds required for a breath demand: R. v. Shewchuk , 2006 SKQB 33 .

Furthermore, the failure of a police officer to testify as to her subjective belief that the subject of a breath demand is impaired may mean that the reasonable grounds standard is not met, even if objectively reasonable grounds exist: R. v. La Fosse , 2010 NSSC 240 . [ 29 ] However, the Court is entitled to draw reasonable inferences from circumstantial evidence.

If the existence of the necessary subjective belief on the part of the officer can be inferred from the evidence, then it does not matter that the officer fails to use the precise wording of the “reasonable grounds” standard in describing that belief: R. v. Harrison , 2012 BCCA 339 . [ 30 ] Considering all the evidence in this case, I am satisfied on a balance of probabilities that when Cst. Harris arrested Mr. Larocque and made the breath demand, she held the necessary subjective belief that his ability to drive was impaired. [ 31 ] I say this for the following reasons: Cst.

Harris made a breath demand that included the words “reasonable and probable grounds to believe that your ability operate a motor vehicle is impaired by alcohol”, and she based that demand on a number of observations which spoke not merely of consumption of alcohol, but of impaired driving ability. Cst. Harris referred, on several occasions, to Mr. Larocque’s unsteadiness on his feet while she dealt with him - as though he was struggling to maintain his balance. This was a significant factor in her decision to make a demand.

She also testified that the occurrence of the car accident (one which, on the evidence, was unexplained and completely avoidable) was another key reason she made a breath demand. The reliance that Cst. Harris placed on these two factors, when considered along with her other observations, demonstrates that she had turned her mind not only to the question of whether Mr. Larocque had consumed alcohol, but also to the question of whether his ability to drive was impaired. Therefore, I am satisfied that it is more likely than not that when Cst. Harris made the decision to arrest Mr.

Larocque and demand samples of his breath, she believed that his ability to drive was impaired by alcohol, notwithstanding her initial response in direct examination. [ 32 ] As such, I am not satisfied that Mr. Larocque’s rights under sections 8 or 9 of the Charter were violated. The Certificate of a Qualified Technician will be admitted as evidence.

(2) Should the evidence be excluded, pursuant to section 24(2) of the Charter ?

[33] Since I have concluded that no violation of Mr. Larocque’s rights under sections 8 or 9 of the Charter has been established, itis not necessary that I answer this question. However, in the circumstances of this case, even if I had found such a violation on the basisthat Cst. Harris lacked reasonable grounds for the arrest or breath demand, I would not have excluded the evidence under section 24(2)of the Charter. [34] Exclusion of evidence is not automatic upon a finding that the evidence was obtained in a manner that violated the Charterrights of the accused. Nor is the evidence prima facie inadmissible.

Section 24(2) of the Charter requires the Court to exclude theevidence only if it is established that, having regard to all the circumstances, its admission would bring the administration of justice intodisrepute. The accused bears the burden of establishing this, on a balance of probabilities: R. v. Bartle, (SCC), [1994] 3S.C.R. 173; R. v. Sandhu, 2011 ONCA 124; R. v.

Collins, supra. [35] In determining whether admission of the evidence would bring the administration of justice into disrepute, the Court mustassess and balance the following: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on theCharter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC32, [2009] 2 S.C.R. 353.

This requires attention to whether the overall repute of the justice system, viewed in the long term, andobjectively speaking, will be negatively affected by the admission of the evidence, taking all the circumstances into account. [36] With respect to the seriousness of the Charter-infringing state conduct, even if I had concluded that Cst. Harris lackedreasonable grounds for the arrest or demand, there is nothing in the evidence to suggest that her conduct was egregious or reckless, orthat she made a conscious decision to disregard Mr. Larocque’s Charter rights.

That said, ignorance of Charter standards should not becondoned, and the requirement of reasonable grounds for an arrest or breath demand is not a new or particularly complicated concept. Iwould have concluded that consideration of this factor favours exclusion of the evidence, but only marginally. [37] With respect to the impact of the breach on the Charter-protected interests of the accused, I note that, even if I had concludedthat Cst.

Harris did not have reasonable grounds to make a breath demand under section 254(3) when she made the demand, the evidencevery clearly establishes that she had a basis for investigating the issue of impaired driving, based on all the surrounding circumstances,which would have resulted in Mr. Larocque being detained for some period of time. Furthermore, it is only because Mr. Larocque hadcaused a car accident that he came to the attention of the police at all. In my view, the impact of any breach is therefore much less thanit would have been if, for instance, he had been the subject of a random stop.

There is also no evidence that Mr. Larocque was otherwisemistreated, or subjected to any demeaning or unwarranted investigative procedures. Furthermore, as noted in paragraph 111 of Grant,supra, breath sample evidence is relatively non-intrusive, and involves minimal interference with a suspect’s bodily integrity. [38] As such, had I found a breach, I would have concluded that analysis of this factor weighs in favour of admission of theevidence. [39] Finally, there is the question of society’s interest in adjudication of the case on its merits.

Had I found a breach, I would haveto consider whether the truth-seeking function of the criminal process would be better served by the admission or the exclusion of theevidence. In this case, if there had been a breach, I would have concluded that consideration of this factor weighs overwhelmingly infavour of admission of the evidence. Breath sample evidence is reliable, minimally intrusive, and its admission would clearly serve thetruth-seeking process more than would its exclusion. [40] If I were required to weigh and balance all these factors, I would have concluded that the evidence should be admitted.

Thebreach - had I found one - would not be one I would consider flagrant or intentional. It did not result in any significant impact on Mr.Larocque’s dignity and security of the person, and the evidence obtained was highly reliable. To exclude highly reliable evidencerelating to a drinking-and-driving offence, on the basis of a relatively minor breach, where the accused person came to the attention ofthe police only because he had caused a car accident while driving after consuming alcohol would be inimical to the truth-seekingfunction of the criminal process.

In the circumstances, the breach alleged would not have caused me to exclude the evidence of thebreath samples.

(3) Has the Crown proven that Mr. Larocque operated a motor vehicle while his ability to do so was impaired by alcohol or drug?

[41] In order to convict Mr. Larocque of the offence of impaired driving, I must be satisfied beyond a reasonable doubt that hisability to operate a motor vehicle was impaired, to some degree, by the consumption of alcohol: R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, aff’d, [1994] 2 S.C.R. 487n. The Crown may lead evidence of alcohol consumption and aberrant driving,but it is not necessary that the evidence demonstrate bad driving to prove impairment.

Because the Crown must prove that the accused’sability to drive was impaired, the standard may be met in the absence of evidence of aberrant driving through, among other things,evidence of a deterioration of the accused’s judgment or attention, a loss of motor coordination or control, increased reaction times, ordiminished sensory perceptions: R. v. Thomas, 2012 SKCA 30. At the end of the day, the question is whether the totality of theaccused’s conduct and condition can lead to a conclusion other than that his ability to drive is impaired to some degree.

If the evidenceis ambiguous in that regard, then the accused must be acquitted: R. v. E.(A.L.), 2009 SKCA 65. [42] In this case, there is evidence of bad driving. Mr. Larocque caused a car accident by running into a vehicle that was stoppedat a red light. There is no evidence to suggest that road or weather conditions contributed to the accident in any way. That said, thecircumstances of the accident are no less consistent with momentary inattention than they are with impaired driving ability. [43] There is evidence that Mr. Larocque had consumed alcohol.

His breath smelled of alcohol, his eyes were red, and he admitteddrinking. There is also some evidence that his balance was affected while he stood still, as observed by Cst. Harris. However, on theother side of the coin, he had been in an accident where the air bag in his car deployed, which may have accounted for the redness in hiseyes, and the lack of balance while standing. There is also evidence that Mr. Larocque exhibited no other deficits in coordination ormotor function. He had no difficulty walking. He did not slur his speech.

He responded appropriately to questions, and did not appearconfused or disoriented. [44] In the end, this case is a very good illustration of the difference between reasonable grounds to believe, and proof beyond areasonable doubt. While the evidence satisfies me that a reasonable person, standing in Cst. Harris’ shoes would believe that Mr.Larocque’s ability to drive was probably impaired, it does not satisfy me beyond a reasonable doubt that his ability to drive wasimpaired, as there are other reasonable conclusions one could come to, based on the same evidence and observations, when considered asa whole.

CONCLUSION: [45] I have a reasonable doubt as to whether Mr. Larocque’s ability to drive was impaired by alcohol. I find him not guilty onCount 1. [46] The Certificate of a Qualified Technician is admissible. It indicates that, at 1:27 a.m. and 1:48 a.m., Mr. Larocque’s bloodalcohol concentration was 170 mg of alcohol in 100 ml of blood. The evidentiary presumptions in sections 258(1)(

c) and (

g) apply infavour of the Crown, and there is no evidence to the contrary. I am satisfied beyond a reasonable doubt that Mr. Larocque operated amotor vehicle while his blood alcohol concentration exceeded the legal limit. Accordingly, I find him guilty on Count 2. J.D. Kalmakoff, J