Her Majesty the Queen - v. -, 2014 SKPC 55

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 055 Date: March 12, 2014 Information: 44332070 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brent Michael Hogan Appearing: J. McLean For the Crown J. Abrametz For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] The accused was charged on March 12, 2013 with operating a motor vehicle while his ability to do so was impaired by alcohol and with operating a motor vehicle while his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood.

A further charge of possession of a controlled substance, cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act (CDSA) was alleged on a separate information. As the accused was asserting violations of his rights pursuant to s. 8 and s. 9 of the Charter of Rights and Freedoms , the Crown evidence was heard on a voir dire ; all the Crown evidence was applied to the CDSA information. The

accused did not testify. Counsel for the accused advised that identity was not in issue, nor was there any issue with the Certificate of Analyst being filed on the voir dire. Counsel further agreed that all admissible evidence could be applied to the trial proper and advised that the accused did not wish to testify on the trial of the merits. EVIDENCE Constable Taylor [ 2 ] Constable Taylor has been a peace officer with the Saskatoon Police Service for approximately seven years.

On March 12, 2013, he was in uniform and on patrol in a marked police vehicle colloquially referred to as the paddy wagon. [ 3 ] On March 12, 2013 at approximately 3:15 a.m., he and his partner, Constable Webb, were travelling westbound when he saw an approaching car driven by a younger male. He noticed that the vehicle had a smashed windshield and damaged front end. Immediately after passing the police vehicle, this car turned left and Constable Taylor continued to the next corner and turned right to travel parallel to the path taken by the car.

At the first corner, he saw the car a block away and continued to follow. The car took a “hard left” turn into an alley at a speed greater than he would expect. His suspicions aroused, he took pursuit. The alley in question ended in a parking lot behind a local bar that was closed for the night. At the entrance to the parking lot, the vehicle turned to the right and parked at an angle. As the officer entered the lot, a male was exiting the driver’s door of the car. Less than a minute had passed from the time that the officer first saw the vehicle to the time it was stopped.

He lost sight of it for five to ten seconds. [ 4 ] Constable Taylor decided that he wanted to check the roadworthiness of the vehicle and the sobriety of the driver given the manner of driving. The emergency equipment on the police vehicle was not engaged until the car had stopped. When the driver, later identified as the accused, left his vehicle, the officer was concerned that he might flee, so approached him quickly. The accused did not run but rather, proved to be cooperative and polite.

The officer asked the accused whether he had been drinking and driving, to which he responded, “yes”, and then volunteered that he had urinated in his pants. As the officer came nearer, he saw evidence to that effect and also smelled alcohol coming from the accused. He believed that the loss of bladder control was related to the consumption of alcohol and, at 3:23 a.m., arrested the accused for impaired driving.

The officer candidly reported that the accused did not have any difficulty walking and that his motor skills were “fairly good”. [ 5 ] He based the arrest on the following observations: the evasive driving, the smell of alcohol, the admission of alcohol consumption, the loss of bladder control and slurred speech.

The officer defined the speech of the accused as deviating from normal speech in that words in a sentence were not separated and consonants and vowels were not clearly enunciated. [ 6 ] Immediately after the arrest, he read to the accused his rights to counsel; when the accused was asked whether he wished to call a lawyer, he said that he did not.

The accused was also provided with the standard police warning, followed at 3:24 a.m., with a demand that he provide samples of his breath suitable for analysis. [ 7 ] Subsequent to the demand, the accused was secured in the police vehicle while the officer did a cursory search of his car and, with the permission of the accused, parked it properly in a stall where it was left. Constable Webb advised that the accused admitted to having some cocaine.

The accused told Constable Taylor that the substance was in his jacket pocket and gave the officer permission to check; in the pocket, the officer found a small baggie of what appeared to be cocaine. The accused was arrested for that offence and again asked if he wished to speak to a lawyer; he declined. [ 8 ] They left the parking lot about 3:30 or 3:35 a.m. and arrived at the police detention centre at 3:47. Once the accused was booked in and searched by detention staff, he and Constable Taylor waited until the technician was ready to take breath samples.

The accused continued to be cooperative and polite; he seemed to be comfortable with the officer, remorseful about the situation in which he found himself and quite loquacious. The officer opined that the inhibitions of the accused seemed somewhat lowered in that he spoke of many personal things. [ 9 ] During this time the officer completed an investigative check sheet which consisted of a number of questions pertinent to an impaired driving investigation. He noted that the accused repeatedly expressed remorse for his actions that evening.

He told the officer that he had not eaten since the previous morning but had consumed 12 beer and 13 ounces of hard liquor over the previous 12 hours. Defence counsel conceded the voluntariness of these statements.

[ 10 ] At approximately 4:00 a.m., Constable Moninger, the breath technician, met with the accused and proceeded to set up the instrument. The accused provided three samples of his breath; Constable Taylor remained with him throughout. After the third test, the accused was again read his rights to counsel in relation to a charge of driving while over the legal limit. The accused was asked whether there was a sober person who might be prepared to collect him from the police station; however, he elected to remain in custody.

This concluded Constable Taylor’s dealings with him. [ 11 ] Constable Taylor subsequently weighed the contents of the baggie (1.1 grams) which he seized from the accused and kept secured at the police station until a portion was sent to a laboratory for analysis. The Certificate of Analyst was filed as P-1 and showed the contents of the bag to be cocaine. [ 12 ] In cross-examination, the officer conceded that there was nothing particularly wrong with the driving of the accused and that he wanted to run a check on the registration of the vehicle.

He also acknowledged that the accused was outside the vehicle when the emergency lights were engaged. He also agreed that his notes recorded the time of the traffic stop as 3:18 a.m. but indicated that he did not actually have his notebook out until 3:23 a.m. when he read the Charter rights to the accused. He agreed that the arrest of the accused was effected very quickly after the stop and but did not agree that five minutes had lapsed between the first encounter and the reading of rights.

He explained that the times recorded might have come from different sources; for example, the computer in the police vehicle, his watch or the police station. Constable Robert Webb [ 13 ] Constable Webb has one and one-half years experience with the Saskatoon City Police and was working with Constable Taylor on March 12, 2013. He was the passenger in the paddy wagon operated by his partner. The roads were slippery and quite treacherous. On 20 th Street, he noticed a two-door red car which he recognized as an Acura as he had once owned such a car.

They followed the Acura for three to four blocks, and then down an alley where it stopped, near a fence and at an angle across parking stalls. As he was the passenger, he called in this vehicle stop to the Communications Centre and ran the licence number of the car. In the meantime, Constable Taylor approached the driver who had stepped out of the Acura. Constable Webb then went to the front of the police vehicle where he saw that the accused had been handcuffed, that he smelled of alcohol and that he appeared to have urinated in his trousers.

He took the accused to the rear of the police van, searched him for weapons and noted the smell of alcohol emanating from his breath. [ 14 ] After securing the accused in the back of the van, he checked for any information that might have been received, by computer, with respect to the identity of the accused and the registered owner of the Acura. While doing this, the accused summoned him, saying that he had something to show him. He and Constable Taylor both went to the rear of the van to speak to the accused who said that he had some cocaine and showed them where it was. This was seized.

Constable Webb was of the view that the accused’s level of intoxication seemed more apparent at this point and that he seemed nervous and upset. The accused was taken to the police station, talked very little en route and seemed concerned about his predicament. Constable Taylor took charge of the accused at the police station. [ 15 ] In cross-examination, he said that he and his partner were a maximum one-half block behind the accused when they turned into the alley and maintained that the accused was in the process of getting out of his car as they arrived.

He was on the police radio so believed that Constable Taylor, who was nearer to the accused, would have had a better opportunity to observe the actions of the accused. [ 16 ] Constable Webb identified a recording of his conversations with Communications, the first of which was at 3:20:06 when the vehicle stop was reported. At 3:20:14, Constable Webb provided a description of their location, the car and its licence number. At 3:24:04, Constable Taylor advised Communications that a breath technician will be required and that a male was arrested.

The officer acknowledged that while at the booking desk in detention, the accused was able to stand on one leg while his hands were on the counter. Constable Laura Moninger

[17] Constable Moninger has been a peace officer since January 2010 and was certified by the Attorney General as an Intoxilyzertechnician in May 2011. She has maintained that qualification. Prior to March 12, 2013, she had conducted 133 breath tests and as of thedate of trial had performed 171 such tests. [18] At 3:30 a.m., on March 12, 2013, she was called upon to conduct breath tests. She arrived at detention at 3:44 a.m.; theaccused arrived at 3:47 a.m. She spoke briefly to Constable Taylor and learned the times of the arrest and the demand; she obtained thedriver’s licence of the accused.

She spoke to the accused at 3:55 a.m. and provided him with a secondary warning. She asked whetherhe had an opportunity to call a lawyer; he said he had but did not wish to do so. The accused was advised to tell an officer if he changedhis mind. She then explained the procedure with respect to the taking of breath samples and the accused said that he would comply. Healso told her that between 3:00 p.m. and 3:00 a.m., he had consumed six beer and four or five three-ounce drinks of rum.

He also hadsniffed cocaine. [19] Constable Moninger used an approved instrument, which was in proper working order, and the Calwave Lot 20724 solutionthat did not expire until January 31, 2014. Prior to each sample being taken, the instrument went through a process in which a sample ofthe alcohol standard was drawn and measured. The results were within the expected range, thus ensuring that the instrument wasworking properly.

She had no reason to believe that the test results were inaccurate. [20] At 4:12 a.m., the accused provided the first sample which resulted in a reading of 220 milligrams of alcohol in 100 millilitresof blood; at 4:35 a.m., a second sample resulted in a reading of 190 milligrams of alcohol in 100 millilitres of blood. Since there was adifference of more than 20 milligrams percent between the two readings, the instrument directed that a third sample be taken. At 4:59a.m. the third sample resulted in a reading of 180 milligrams of alcohol in 100 millilitres of blood.

All samples were provided directlyinto the instrument and were suitable for analysis. The instrument printed the test record card, but did not provide the option to print aCertificate of Analyses since three samples were taken. [21] While she was with the accused, Constable Moninger noted that he had red, bloodshot eyes, white film on his tongue and thathe smelled of cigarette smoke. In cross-examination, she agreed that the accused was cooperative, answered questions directly and tookdirections well.

POSITIONS OF THE PARTIES [22] Counsel for the accused argues that the arrest of the accused was not lawful as there was no proof that the accused was theoperator of the vehicle and that this constitutes a breach of s. 9 of the Charter. Further, it is for the Crown to prove the lawfulness of thearrest; if the lawfulness of the arrest is not established, the subsequent demand is a violation of s. 8 of the Charter. With respect to thetrial proper, counsel for the accused argued

a) that the Crown had not established beyond a reasonable doubt that the accused was theoperator or in care or control of the vehicle;

b) that the test for impaired driving as set out in R. v. Stellato, (ON CA),[1993] O.J. No. 18 (C.A.), affd. (SCC), [1994] 2 S.C.R. 478 (SCC) and R. v. Andrews, 1996 ABCA 23 , 104C.C.C. (3d) 392 had not been met; and

c) that in the absence of a Certificate of Analyses the Crown cannot rely on the presumption thatthe blood alcohol content at the time of driving was the same as the lowest reading. On this point, counsel relies on R. v. Stevenson, (BC CA), [1972] 14 C.C.C. (2d) 412. [23] Counsel for the Crown argues that there was no violation of s. 8 as the evidence establishes a lawful arrest pursuant to s.495(1)(

b) and (

d) of the Criminal Code. The Court also was referred to R. v. Gunn, 2012 SKCA 80. Further, if there was a violation ofs. 8, it was of such a minor nature that it would not warrant exclusion of the evidence pursuant to R. v. Grant, 2009 SCC 32 ,2009 S.C.J. No. 32 and R. v. Shinkewski, 2012 SKCA 63. With respect to the trial proper, the Crown argues that the evidence doesestablish impaired driving within the meaning of Stellato (supra) and also referred to R. v. McDonald, (SK KB), 146Sask. R. 306 (SKQB) for the proposition that coordination of the accused does not rule out impairment.

Further, as the evidenceestablishes that samples were taken within two hours of the driving, the Crown is entitled to rely on the presumption of s. 258(1)(

b) ofthe Criminal Code: R. v. Lightfoot, (SCC), [1981] 1 S.C.R. 566 (SCC). ISSUES [24] The issues for consideration by the Court are:

1. Was the arrest of the accused lawful? 2. Has the Crown proven, beyond a reasonable doubt, that the accused operated a motor vehicle? 3. Have the elements of impaired driving been established beyond a reasonable doubt? 4. Is the Crown entitled to rely on the presumption set out in s. 258(1) (

c) of the Criminal Code and proven, beyond a reasonable doubt, the offence of driving while over .08? 5. Has the Crown proven, beyond a reasonable doubt, that the accused was in possession of cocaine? ANALYSIS 1. Was the arrest of the accused lawful? [ 25 ] Section 495(1) (

b) of the Criminal Code provides authority to a peace officer to arrest, without warrant, a person who is found committing a criminal offence. The validity of the arrest does not require a subsequent conviction; rather, the officer making the arrest must subjectively believe that there are reasonable and probable grounds to effect an arrest and those grounds must be objectively verified.

It is not disputed that the officer in this case subjectively believed that he had the grounds to make the arrest; the question is whether a reasonable person in the same circumstances would have believed that those grounds existed.

Counsel contends that the arrest was not lawful as there is no proof that the accused was the operator of the vehicle and no evidence of impairment; ergo , no grounds to believe an offence was being committed, or to make a demand. [ 26 ] In assessing whether the standard of “reasonable grounds to believe” has been met, it should be remembered that an officer need only believe that a person’s ability to drive is slightly impaired.

As stated at para. 9 of Gunn (supra) : ...the precondition to an officer’s authority to make a breath demand may be satisfied where, objectively speaking, an officer has reasonable grounds to believe an individual’s ability is even slightly impaired by the consumption of alcohol. [ 27 ] In the case at hand, it is uncontradicted that the police followed a vehicle for less than a minute and lost sight of it for five to ten seconds. The driver appeared to be evading the police, made a hard left turn and parked at an unusual angle. The accused was seen getting out from the driver’s side of that car.

He smelled of alcohol, slurred his speech, urinated in his pants and admitted that he had been drinking and driving. It is the view of the Court that this evidence does objectively provide reasonable grounds to believe that the operator’s ability to drive was at least slightly impaired by alcohol and that a lawful arrest and demand could be made on the basis of those observations. Accordingly, there is no violation of s. 8 or 9 of the Canadian Charter of Rights and Freedoms and the application for exclusion of evidence fails.

Having found that no breach occurred, there is no necessity to embark on a Grant (supra) analysis. 2. Has the Crown proven, beyond a reasonable doubt, that the accused operated a motor vehicle? [ 28 ] Counsel for the accused also argues that the Crown has not proven, beyond a reasonable doubt, that the accused operated a motor vehicle. This is, of course, an essential element of the offences of impaired driving and driving over .08 and the burden of proof is much greater than that required to establish reasonable and probable grounds.

In reviewing the evidence, I find the following facts: a young male is seen operating a particular vehicle; this vehicle was followed for less than a minute; the officers lost sight of it for five to ten seconds; the same vehicle was followed to a parking lot where it stopped, and the accused was seen getting out of the driver’s seat. There was no one else in, or near, the car. Further, after being arrested and provided with his rights to counsel, the accused made statements against self-interest, such as, “I am fucked”. All of this evidence is uncontradicted and was unshaken in cross-examination.

The only reasonable conclusion that one can draw from this evidence is that the accused was the operator of the vehicle and the Court is

satisfied of that fact beyond a reasonable doubt. 3. Have the elements of impaired driving been established beyond a reasonable doubt? [29] The test, as set out in Stellato (supra), requires that the Crown prove, beyond a reasonable doubt, that the ability of theaccused to operate a motor vehicle was impaired to some degree by his consumption of alcohol. The evidence as a whole must establishthat such an inference can be drawn reasonably from conduct that is a departure from the norm.

That departure may fall upon acontinuum from slight to great, but it must lead to no other reasonable conclusion but that the accused’s ability to operate a motor vehiclewas impaired to some degree by the consumption of alcohol and/or drugs. Thus, it is not necessary for the Crown to prove a markeddegree of impairment in the ability to operate a motor vehicle; rather, any degree of impairment of that ability, if established beyond areasonable doubt, is sufficient for a conviction: see MacDonald (supra) at para.10.

The Saskatchewan Court of Queen’s Bench inMacDonald also considered the Andrews (supra) decision and its

interpretation of Stellato (supra) and R.v. McKenzie (1955), (AB KB), 111 C.C.C. 317. At para. 10 and 11 of MacDonald, the Court said: As a matter of common sense, if the MacKenzie threshold of evidence is still the law, then a conviction for impaired driving could neverbe made unless the degree of impairment was great. This is clearly inconsistent with the decision and reasoning in Stellato. I take comfort in this conclusion in the reasons given by our Court of Appeal in three recent unanimous decisions that interpret Stellato.

These cases unfortunately were not referred to in Andrews and in my view it is inconsistent with them... I have concluded that despitethe dismissal by the Supreme Court of leave to appeal Andrews, it stands only on its narrow ratio and its observations respecting theMacKenzie threshold of proof is obiter. I am bound by and prefer the decisions of our own Court of Appeal that interpret Stellato. [30] Does the evidence establish some departure from the norm to permit an inference that the ability of the accused to operate amotor vehicle was impaired in this case? A review of the evidence establishes: (

i) the accused attempted to avoid the attention of thepolice; (ii) he made a hard left turn into an alley more quickly than would be considered normal; (iii) his speech was slurred; (iv) heparked across more than one stall; (

v) he had urinated in his pants; and (vi) he was quite uninhibited and loquacious in his later dealingswith the arresting officer. Further, the accused later admitted that he had consumed a considerable amount of alcohol and madeadditional statements against self-interest, referred to above, which this Court interprets as some evidence that he knew he should nothave been driving. [31] In R. v. Hall, (SK CA), 125 Sask. R. 62, the Saskatchewan Court of Appeal, referring to R. v.

Morin, (SCC), [1988] 2 S.C.R. 345 said at para. 13: “...the trial judge was entitled, and indeed required, to look at all of the evidenceand not use the piecemeal analysis advocated on behalf of Mr. Hall.” Counsel for the accused urges the Court consider the possibilitythat the accused drove as he did as he was desperate to find a secluded place to relieve himself and when his search was unsuccessful,wet his pants; there is, however, there is no evidence before this Court to this effect.

It is not for the Court to speculate whether there arepossible alternative explanations for the symptoms and the driving, but rather the Court is obliged to look at the picture that is painted byall of the evidence and make a determination only on that basis. [32] Having had an opportunity to consider all of the evidence regarding the manner in which the accused operated his vehicle aswell as the conduct, demeanour and physical symptoms displayed by him, the Court is left with no doubt whatsoever that the ability ofthe accused to operate a motor vehicle was impaired by the alcohol that he ingested.

Although the driving was not egregious, and thesymptoms and behaviour demonstrated by the accused were not a marked departure from the norm, I am satisfied that the evidence, as awhole, supports the conclusion that his judgment in the operation of a motor vehicle was impaired to a degree, albeit slight. 4. Is the Crown entitled to rely on the presumption set out in s. 258(1)(

c) of the Criminal Code and proven, beyond a reasonabledoubt, the offence of driving over .08? [33] Counsel for the accused argues that in the absence of a Certificate of Analyses, the Crown is not entitled to rely on thepresumption set out in s. 258(1)(

c) of the Criminal Code and cites Stevenson (supra) in support of this proposition. Section 258(1)(c)says, in part:

1. In any proceedings under subsection 255(1) in respect of an offence committed under

section 253... (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if (ii) each sample was taken as soon as practicable after the time the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between...the samples, (iii) each sample was received from the accused directly...into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time the offence was alleged to have been committed was... if the results of the analyses are different, the lowest of the concentrations determined by the analyses... [ 34 ] Although the accused relies on Stevenson (supra) , I find that it has no application to the matter at hand.

Stevenson dealt with a blood analysis at a time when the Criminal Code did not provide a presumption in relation to the analysis of blood. The accused admitted to being the driver of a vehicle involved in a motor vehicle accident and was taken to hospital. There, the investigating officer asked for, and received, two vials of blood that were drawn from the accused one hour and 20 minutes after the accident. That blood was analysed and a certificate showing the results was tendered at trial.

The Court held that the certificate proved the accused’s blood alcohol level one hour and twenty minutes after the driving, but not at the time of driving. In 1971, the Criminal Code only provided that any analysis of breath samples, absent any evidence to the contrary, was proof of the proportion of alcohol in the blood of the accused at the time the offence was alleged to have been committed. As there was no similar presumption with respect to blood sample analyses, and no expert evidence to extrapolate the reading to the time of driving, Mr.

Stevenson was necessarily acquitted. [ 35 ] The decision of the Supreme Court of Canada in Lightfoot (supra) , does however, apply. There, the Court held that the Crown was entitled to rely on the presumption regardless of whether the offence was proven by certificate or viva voce evidence, provided that the requirements of the various subsections were satisfied and that there was no evidence to the contrary introduced. [ 36 ] Having reviewed the evidence, I find that all of the preconditions of s. 258(1) (

c) of the Criminal Code have been met and the presumption does apply. The Court has found that the accused was lawfully arrested and that the demand pursuant to s. 254(3) was valid. Further, I find that the accused was operating his motor vehicle just prior to 3:23 a.m., he waived his right to counsel, he provided a first sample as soon as he practically could and that sample was taken well within two hours of the driving. A waiting period of at least 15 minutes was observed between the samples.

Although a Certificate of Analyses was not tendered, there was viva voce evidence from a qualified technician that she received three samples of the breath of the accused directly into a properly functioning, approved instrument. No evidence to the contrary was offered and accordingly, the presumption applies. The blood alcohol level of the accused at the time of driving is found to be 180 milligrams of alcohol in 100 millilitres of blood. 5.

Has the Crown proven, beyond a reasonable doubt, that the accused was in possession of cocaine? [ 37 ] No challenge was taken with respect to the evidence in relation to this offence. It does establish that a substance was seized from the possession of the accused, and a sample of it was subsequently sent for analysis. The Certificate of Analyst prepared in relation to that sample establishes that it was the controlled substance of cocaine.

This, in combination with the spontaneous utterance to the officers in which the accused admitted to possessing cocaine, satisfies me, beyond any doubt that this offence has been made out. [ 38 ] Further, all of the elements of driving while over .08 and driving while impaired have been established beyond a reasonable doubt and the accused is found guilty of both counts. The charge of impaired driving will be conditionally stayed pending any appeal. He is also found guilty of the possession of cocaine.

_____________________________ M. L. Gray, J