Her Majesty the Queen - v. -, 2014 SKPC 210

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 210 Date: December 10, 2014 Information: 24532518 Location: Ile a la Crosse _____________________________________________________________________________ Between: Her Majesty the Queen - and - Stephanie Gardiner Appearing: Greg Piper For the Crown Lee Douglas For the Defendant M. F. Martinez , J Introduction [ 1 ] The defendant, Stephanie Gardiner, faces the following four charges arising out of events that occurred in the late evening of August 31 and the early morning of September 1, 2013, in Ile a la Crosse, Saskatchewan: • Operating a motor vehicle while her ability to do so was impaired by alcohol;

• Without reasonable excuse, failing to comply with a demand to provide samples of her breath for analysis to determine the concentration, if any, of alcohol in her blood; and • While being pursued by a peace officer operating a motor vehicle, and in order to evade the peace officer, failing, without reasonable excuse, to stop the vehicle she was operating as soon as was reasonable in the circumstances; • Failing to keep the peace and be of good behavior while bound by a probation order. [ 2 ] The Crown proceeded by

summary conviction on all counts.

The Issues [ 3 ] The defendant asks me to dismiss all of the charges. [ 4 ] She admits that she failed or refused to provide samples of her breath for analysis but submits that the arresting officer’s demand that she provide breath samples was not lawful and for this reason she did not have to comply with it. [ 5 ] Specifically, her counsel submitted that, when viewed objectively, the officer had only a reasonable suspicion that the defendant was driving with alcohol in her body as opposed to reasonable grounds to believe she had committed a drinking and driving offence under s. 253 of the Criminal Code .

As such, he did not have the grounds for a breath-demand. Consequently, his breath-demand was unlawful and the defendant was not compelled to comply with it. [ 6 ] In addition, the defendant submitted that her rights under s. 10(

b) of the Canadian Charter of Rights and Freedoms (the Charter ) – the right to retain and instruct counsel without delay and to be informed of that right – were denied as the officer obtained her admissions about drinking while she was under arrest for another offence and before telling her about her rights to counsel. For this reason, defence counsel submitted that her admissions should be excluded as factors in the officer’s grounds for his breath demand. [ 7 ] Crown counsel countered that the breath-demand under s. 254(3) of the Criminal Code was lawful because a detainee’s 10(

b) Charter rights are suspended for a reasonable period during an impaired driving investigation and for this reason the defendant’s admissions properly formed part of the officer’s reasonable and probable grounds for his breath-demand.

Alternatively, the Crown submitted that the officer had reasonable and probable grounds to make a breath-demand even without the defendant’s admissions. [ 8 ] As for the impaired driving charge, the defendant submits that on the basis of the observations made by the arresting officer the Crown failed to prove this count beyond a reasonable doubt. [ 9 ] In respect to the offence of failing to stop in order to evade the police the defendant submits that the Crown failed to prove an essential element of the offence, namely that the reason she failed to stop was in order to evade the police. [ 10 ] The facts leading to these charges are relevant to all of the legal issues.

First, I will summarize the facts and then I will deal with the legal issues arising from the facts. The Relevant Facts [ 11 ] At about 11:40 p.m. on August 31, 2013, R.C.M.P. Constables Wirch and Colley were on patrol in a marked police vehicle in Ile a la Crosse, Saskatchewan. They received a message from central dispatch telling them of an anonymous complaint about a silver- grey Dodge Caravan being driven erratically in a certain area of Ile a la Crosse. Cst.

Colley drove the police truck to the area described in the complaint where he spotted a van fitting the general description given by central dispatch. [ 12 ] The van was parked in front of the Northern Sunset restaurant and bar.

[ 13 ] Cst. Colley drove toward the back of the van on an angle and, from license plate information provided by the dispatch centre, confirmed the van was the vehicle described in the complaint. From his vantage point, Cst. Colley could see that the van’s driver was the defendant, Stephanie Gardiner. [ 14 ] Cst. Colley activated the emergency lights on the roof of the police vehicle and stepped out to speak to Ms. Gardiner. As he approached the van, it began to drive away at what he described as “normal speed”, which I take to mean that it did not speed away. [ 15 ] Cst.

Colley re-entered the police vehicle to pursue the van which had driven around the building. The constable drove the police vehicle the opposite way around the restaurant and bar in order to intercept it. After rounding the building, both officers saw the van some distance ahead of them on Ahenakew Boulevard. [ 16 ] Cst. Colley activated his vehicle’s siren and accelerated in order to close the distance to the van.

Instead of pulling over, the van drove 50 to 100 meters along Ahenakew Boulevard then turned left onto Thomas Street and then left again onto an adjoining avenue where it parked in the driveway of a home known to the officers as the Gardiner residence. [ 17 ] Both officers were surprised that the van did not pull over immediately as their vehicle was within two or three car lengths behind it with lights and siren activated while it drove down Thomas Street and to the Gardiner residence.

In cross-examination, the officers testified that there was plenty of room for the van to pull over and stop on the side of the road and out of the way of any traffic on Ahenakew Boulevard. The officers also believed that the van could have pulled over safely on the other streets although they conceded that those streets are considerably narrower than Ahenakew Boulevard. [ 18 ] In cross-examination, Cst. Wirch estimated the trip from the Northern Sunset restaurant and bar to the driveway of the Gardiner home took no more than one or two minutes.

Both officers testified that there was nothing erratic about how the defendant drove the van. She did not disobey any traffic rules, and although Cst. Wirch thought the van was travelling faster than the posted speed limit, Cst. Colley testified that the van’s speed was around the speed limit and was about the speed at which vehicles usually travelled in that area of the town. [ 19 ] In the driveway of the Gardiner residence, the van pulled into an empty space in front of a parked vehicle.

Both constables saw a couple of passengers leave the van and go directly into the house. [ 20 ] As soon as the police vehicle stopped, Cst. Wirch went to the van where he arrested the defendant as she exited it. Cst. Wirch told Ms. Gardiner that the reason for her arrest was “flight from police”. [ 21 ] At that point, the officer noticed a number of open beer cans in the van.

As he walked the defendant back to the police vehicle he noted a strong odour of beverage alcohol on her breath, that her eyes appeared red and glassy, and that her speech was slow and drawn out when she told him that she had gone to the bar to pick up her brother, Melvin. [ 22 ] After he placed the defendant in the police vehicle, but before telling Ms. Gardiner about her rights to legal counsel, Cst. Wirch asked her a few questions including whether she had had anything to drink, how much she had drunk, and when she had her last drink. Ms.

Gardiner replied that she had drunk three beer that evening, the last of which she finished just before leaving home to pick up her brother. [ 23 ] It is at this point that Cst. Wirch, as he put it, “formally” arrested the defendant for evading the police and impaired driving.

He then informed her of her right to consult legal counsel, demanded that she provide breath samples to determine the concentration, if any, of alcohol in her blood (referred to throughout as a breath-demand ) , and gave her the usual formal police warning. [ 24 ] The officers then transported the defendant to the R.C.M.P. detachment in Ile a la Crosse where she spoke to Legal Aid duty counsel in private and later failed to provide adequate breath samples.

Failing or Refusing to Provide a Breath Sample [ 25 ] The defendant did not notify the Court of the potential Charter issue as required by the Provincial Court’s Practice Directive VII. Although Crown counsel did not object to the defendant’s submissions on the alleged Charter breach, my decision focuses only on whether Cst.

Wirch had reasonable grounds for a breath-demand. [ 26 ] Before a police officer can make a breath-demand, the officer must have reasonable grounds to believe that in the preceding three hours the suspect has committed an offence under s. 253 of the Criminal Code (either impaired driving or driving with a blood alcohol concentration that is “over .08”) [1] . [ 27 ] If the officer only suspects that the person had alcohol in their body when they drove a motor vehicle, he or she cannot make a breath-demand but can continue to investigate the person’s state of sobriety by: 1. requiring the person to perform sobriety tests, or 2. demanding that the person provide a sample of their breath for analysis by means of an approved screening device (an ASD demand ) [2] . [ 28 ] Whether or not the constable had reasonable and probable grounds to make a breath-demand is a question of mixed fact and law.

It includes subjective and objective components in that the officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code , and there must be reasonable grounds for that belief [3] .

However, the officer’s grounds need not amount to a prima facie case for conviction [4] . [ 29 ] The Court of Appeal of Saskatchewan describes the standard against which the officer’s grounds for belief must be measured and how a trial judge should assess that belief as follows: “…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.” [5] [ 30 ] Cst.

Wirch testified that the following factors formed the foundation of his belief that the defendant had been driving while impaired or “over .08”: 1. while being followed by a police vehicle with its emergency lights and siren activated, the defendant drove home instead of pulling over, 2. her red and glossy eyes, 3. the open beer in the van, 4. the strong odour of beverage alcohol on her breath, 5. her slow and drawn out speech, and

6. her admission that she drank three beer before driving the van. [ 31 ] Cst. Wirch did not arrest the defendant for a s. 253 offence until after she admitted drinking before driving. He did not say why this was the case and he was not asked this question in cross-examination.

However, because he did not make a breath-demand until the defendant admitted drinking, I conclude that up to that point he did not believe that he had reasonable grounds for such a demand. [ 32 ] Failing to pull over immediately, red and glassy eyes, slow and deliberate speech, the strong smell of beverage alcohol on her breath, and open beer cans in the van, individually or cumulatively, are not signs that the defendant’s ability to drive was impaired. Further, based on this constellation of factors it would be unreasonable to believe that the defendant was driving while “over .08”. For these reasons, Cst.

Wirch quite properly did not believe that he had reasonable and probable grounds to make a breath-demand. [ 33 ] The remaining question is, when viewed objectively, is it reasonable that the defendant’s admitted drinking could elevate the officer’s reasonable suspicion that she had alcohol in her body to reasonable grounds to believe that her ability to drive was impaired by alcohol or that she had driven while “over .08”? This is the question of law that I must resolve. [ 34 ] In my opinion, Ms. Gardiner’s admission about what and how much she drank before driving the van added little, if anything, to what Cst.

Wirch already knew. Her answers to his questions simply confirmed what he suspected, namely: that she had alcohol in her body when she drove the van. Knowing that she had drunk three beer added nothing to his earlier observations about her state of impairment.

Further, a suspect’s admission about drinking alcohol before driving most often confirms an officer’s suspicion that the driver has alcohol in their bodies and leads to an ASD demand [6] unless the suspect also displays gross signs of impairment [7] . [ 35 ] For these reasons, both before and after obtaining the defendant’s admissions, the officer did not have reasonable grounds to believe her ability to drive was impaired by alcohol or that she was driving while “over .08”. Consequently, he did not have the grounds for a breath-demand and the defendant was not required to comply with it.

Impaired Driving [ 36 ] The burden is on the Crown to prove that the defendant’s ability to drive her vehicle was impaired by alcohol or drugs. The level of impairment can be slight, but there must be some evidence of impairment: “In all criminal cases the trial judge must be satisfied as to the defendant's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an defendant of impaired driving, the trial judge must be satisfied that the defendant's ability to operate a motor vehicle was impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the defendant must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.” [8] [ 37 ] According to Constables Colley and Wirch, aside from not pulling over, there was nothing remarkable about how the defendant drove her van. Although she spoke slowly, the defendant did not slur her words. Neither officer testified that Ms.

Gardiner had any trouble keeping her balance or in making her way from the van to the police vehicle. Cst. Wirch did not say that she had any difficulty understanding or answering his questions. [ 38 ] As I noted earlier, neither the manner in which the defendant drove her vehicle, nor her red and glassy eyes, nor her slow speech, are, individually or cumulatively, signs of even slight impairment. [ 39 ] Based on the evidence before me, I find that the Crown failed to prove beyond a reasonable doubt that Ms. Gardiner’s ability to drive was impaired.

Failing to stop in order to evade the police [ 40 ] In the case of an offence under s. 249.1(1) of the Criminal Code , the Crown must prove beyond a reasonable doubt that:

1. the defendant was operating a motor vehicle, 2. the police were in their own motor vehicle, 3. the police were pursuing the vehicle driven by the defendant, 4. the defendant did not stop as soon as was reasonable in the circumstances, 5. the defendant did not have a reasonable excuse not to stop, and 6. the reason that the defendant did not stop was to evade the police. [ 41 ] The defendant conceded that the Crown had proven the first five elements of the offence but submitted that it had not proven the sixth. [ 42 ] The defendant did not testify at trial.

For this reason, there is no direct evidence about why she drove home instead of stopping the van. [ 43 ] When a defendant does not testify, and there is no other direct evidence about the defendant’s purpose in not pulling over when being pursued by the police, their purpose must be inferred from the evidence about the manner in which the vehicle is operated or the evidence of what the defendant did after stopping their vehicle.

For example, an accused was convicted under s. 249.1(1) in a case where he drove at 120 kilometres per hour in a residential district while being pursued by the police, cut a corner at an intersection at a high speed, and then ran away from the police after stopping the vehicle [9] . [ 44 ] In this case, the evidence is that Ms. Gardiner drove away from the Northern Sunset restaurant and bar in a normal manner, after which there was nothing unusual about how she operated the van, and she did not drive at an excessive speed.

When she arrived home, unlike her passengers, she did not hurry to get out of the van and into the house or otherwise attempt to get away from Constables Colley and Wirch. [ 45 ] On the evidence before me, I am left with a reasonable doubt that the defendant intended to evade the police when she failed to stop the van at her earliest reasonable opportunity. Conclusion [ 46 ] For the reasons described above, I dismiss all of the charges against the defendant. ______________________________ M. F. Martinez, J.