Her Majesty the Queen - v. -, 2011 SKPC 107

IN THE PROVINCIAL COURT OF SASKATCHEWAN 2011 SKPC 107 Date: June 24, 2011 Information: 45419673 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kevin C. Tetz Appearing: J. Morrall For the Crown R. Piche For the Accused JUDGMENT H. M. HARRADENCE, J I. INTRODUCTION [ 1 ] The accused is charged as follows:

Count # 1: While his ability to operate a motor vehicle was impaired by alcohol or a drug, have the care or control of a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code . Count # 2: Having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, have the care or control of a motor vehicle, contrary to section 255(1) and section 253(1) (

b) of the Criminal Code . [ 2 ] The general outline of the facts is not in dispute. This accused was found asleep behind the wheel of his vehicle by police, as a result of a complaint, in the Tim Horton’s drive-through in Prince Albert, Saskatchewan. The time was approximately 3:10 a.m. These facts were testified to by Cst. Keith as follows: Q Okay. Now, when you got there, tell me what you saw? A I arrived there, I parked my police car in the parking lot. I walked to the drive-through, and I observed Mr. Tetz in the driver’s seat of a vehicle parked in the drive-through. He was the lone occupant.

The vehicle was running. His head was slumped forward. He appeared to me to be passed out or asleep at that moment. I knocked on the -- I was on the passenger side of his vehicle, because it was quite close to the drive-through window. I knocked on the window and there was no response. I opened the passenger door. It was unlocked. I opened it and I said in a very loud voice, “City Police”, and there was, again, no response. Q Was there anyone else in the truck at that time? A No. No, nobody else in the truck. Q Okay.

A I reached in, and I turned the ignition off, more for my safety than anything, just to -- I wasn’t sure if it was in drive or not. And then I gave Mr. Tetz a push on his right shoulder, the shoulder that was closest to me, and again identified myself “City Police.” At that point in time, he did appear to wake up. He seemed a little disoriented, and he muttered something incoherently that I didn’t really understand. I identified myself again, “City Police”, and I asked him to exit the vehicle. He did so out the driver’s side door and he was – he managed to scoot between his vehicle and the building itself.

At that point in time, Constable Mitchell, who had arrived, took custody of Mr. Tetz. [1] [ 3 ] A demand that the accused provide breath samples was made and the accused was taken to the Prince Albert City Police Station. At the station the accused spoke with Legal Aid and thereafter provided two samples of his breath.

He was then held in cells for approximately five hours before being served with documents and released. [ 4 ] By agreement of counsel the trial commenced with a voir dire focusing on a defence motion for exclusion of the Certificate of Analyses or a stay of proceedings on the basis of two alleged Charter breaches; (1) breach of the accused’s legal rights, particularly the streaming of the accused to Legal Aid; and (2) that the accused was arbitrarily detained, the over holding issue. [ 5 ] On the voir dire the Crown called four witnesses. The accused chose to testify on the voir dire.

At the conclusion of the voir dire the Crown evidence from the voir dire was applied to the trial proper, by consent. Importantly the accused’s evidence was not applied to the trial, and therefore I will only consider his evidence in relation to the issues raised on the voir dire . II. CHARTER ISSUES RAISED ON THE VOIR DIRE

a) Section 10(b) - Streaming the Accused to Legal Aid. [ 6 ] I refer to Jacobi in Mr. Piche’s material, at paragraph 39 where His Honour Judge Jackson quotes from R. v. Ryland and R. v. MacLaren as follows: ... The right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defend the charges brought against them.

Including with this fundamental right to counsel, the additional right to choose one’s own counsel enhances the objective perception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent. (emphasis added) [2]

[ 7 ] In this case the accused testified candidly. He said that he did not know any lawyers, he did not believe that he could afford a lawyer, and he was confused by the police saying that he could have the assistance of a lawyer free of charge. [ 8 ] The accused did speak to Legal Aid. He did not choose to speak to any other lawyer. [ 9 ] The evidence at the voir dire fails to convince me that the accused was streamed to Legal Aid. Quite to the contrary in this case when I consider the evidence of Cst. Mitchell and Cst.

Keith, together with the evidence of the accused, it is clear to me that the officers were genuinely trying to assist him and did not interfere with his freedom of choice. I am not satisfied that there was a breach of s. 10(

b) in these circumstances.

b) Section 9 – the Over Holding Issue [ 10 ] I am familiar with R. v. Holbrook , R. v. Paquette , R. v. Fox , R. v. Bender , R. v. Wilcox , R. v. Donald and most recently R. v. Salisbury , [3] a decision of Mr. Justice Gerein, which I understand is presently under further appeal to the Saskatchewan Court of Appeal. [ 11 ] In this case there is no evidence of a pattern of over holding by the detaining officer or an abusive use of custody. Cst. Mitchell testified that he detained this accused in custody to prevent the continuation of the offence. Cst.

Mitchell was not overwhelmingly knowledgeable about his powers under s. 497, but there is some basis in the evidence on the voir dire that the decision was justified. Again, this basis is supplemented by the candid testimony of the accused. He admitted he had too much to drink. He agreed that he did phone a friend who did not answer. He made the deliberate choice not to phone his parents. I presume, hopefully correctly, that if he had called his mother and that she had shown up at the police station he would have been released to her custody. In cross-examination Mr. Tetz testified as follows: Q Mr.

Tetz, that night before you were in the drive-through at Tim Hortons, is it fair to say that you really hadn’t formulated a plan how to get home at that point? A That would be accurate. Q So there was the possibility you may have driven home? A I guess it could have been a possibility. Q Had you not passed out at the Tim Hortons drive-through; is that fair? A I guess, yeah. Q Okay. And when you were -- if you were to be released at 4:30, you were still fairly intoxicated at that point too? A Yeah. Q Okay.

And at that point too, you didn’t really have a plan about what you were going to do, how to get home, or anything of that nature? A I had just planned -- well, I guess the option of being released hadn’t been presented, so I hadn’t even tried to formulate a plan. Q Okay. But you wouldn’t have known what to do at that point? A I would have -- just thinking about it now, I would have -- what I would try -- or what I would have tried to do was to try and call Jeff again until I got a hold of him. Q Okay. And if you hadn’t got a hold of him?

A I guess I would have had to call my parents, which was the thing I was avoiding the most. [4] [ 12 ] Given the evidence presented on the voir dire I am not satisfied that the accused’s rights under s. 9 were breached. [ 13 ] The Charter applications are dismissed.

III. THE TRIAL PROPER [14] On the trial proper I must consider the Crown evidence as it relates to the following issues: 1. Has the Crown proven that the Intoxilyzer test was conducted as soon as practicable? 2. Has the Crown proven service of a true copy of the Certificate of Analyses? 3. Has the Crown proven the accused was impaired by alcohol or a drug? Issue #1: Has the Crown proven that the Intoxilyzer test was conducted as soon as practicable? [15] Mr. Piche says that the time period at issue is 18 minutes.

The onus in relation to this issue is on the Crown to prove beyonda reasonable doubt that the test was conducted as soon as practicable. [16] Mr. Piche refers to three Saskatchewan cases all from this Court: Hiebert, Allin and Lott.[5] [17] I refer specifically to R. v. Lott[6] at paragraph 18 where Judge Whelan refers to R. v.

Carter[7] in holding that a judge in thesecircumstances needs to apply common sense and reason and that every incident need not be explained unless the judge is not satisfiedthat the samples were taken as soon as practicable. [18] In these circumstances, based on these facts, including where the accused was located and the fact that he had to be awakenedand then transported to the police station I am satisfied beyond a reasonable doubt that the samples were taken as soon as practicable.

Issue #2: Has the Crown proven service of a true copy of the Certificate of Analyses? [19] Section 258(7) of the Criminal Code reads as follows: No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (

h) or (

i) unless the party intending to produce it has,before the trial, given to the other party reasonable notice of his intention and a copy of the certificate. [20] I am satisfied that service of the Certificate of Analyses must be proven by the Crown beyond a reasonable doubt.[8] Mr. Piche has filed the decisions of R. v. Reiss and R. v. Vogel, Mr. Morrall has filed R. v. Laing and R. v. Odermatt.[9] [21] The Crown is required to prove on a prima facie basis that a true copy of the certificate was served. The test is set out by Mr.Justice Barclay in R. v.

Laing at paragraphs 11 - 14: 11 Given this purpose, it is critical that the Crown demonstrate that an accurate copy of the original certificate was served upon theaccused person. In determining what "a copy of the certificate" as set out in the

section requires, Culliton C.J.S. used the followingdefinition in R. v. Glass, (SK CA), [1973] 5 W.W.R. 761 (Sask. C.A.) at 764: A "true copy" was defined by Lord Sumner, in delivering the opinion of the Judicial Committee in Commercial Credit Co. of CanadaLtd. v. Fulton Bros., (UK JCPC), [1923] A.C. 798 at 806, [1923] 3 D.L.R. 611, as follows: It has been said: per Kay, J., Sharp v. McHenry (1887), 38 Ch. D. 427, that a copy is true if it is true in all essential particulars, so that noone can be misled as to the effect of the instrument, but that if the true effect is misstated it is immaterial whether it is misstated in favourof one party or of the other.

12 In the present case the appellant argues that because Constable Tonn did not compare the original and the copy word for word,and in fact only ensured that both typewritten contents and handwritten contents were present, it cannot be concluded with certainty that atrue copy had been served on the accused. In the present case, however, Constable Tonn also gave evidence to indicate that the copy heserved on the accused was, in fact, a carbon copy. The more recent jurisprudence reflects that if a carbon copy is used then such detailedcomparison is not necessary. 13 This was alluded to in R. v.

Morash (1982), 17 M.V.R. 34 (Sask. Q.B.). In that case the police officer held a form containinghandwritten notes, which he indicated was the original certificate, and he read the handwritten portions to the accused who held anotherdocument. Wright J. stated that there was no suggestion that the form held by the accused was a copy of the one held by the policeofficer, other than the handwritten portions. Wright J. found at p. 39 that: ...

The sheet of paper given to the accused may have been an entirely different form in its printed parts from the certificate in thepossession of the police officer or it might have been blank as to the printed portions. There is no evidence of the use of carbon paper toprepare the second copy or that a photocopy was made. [Emphasis added]. 14 I agree with the learned Provincial Court judge that if there is evidence that a carbon copy was used, this can be sufficient todemonstrate that a true copy was served on the accused. In fact, this conclusion has been reached in other cases. In R. v.

Bergstrom (1982), (MB CA), 65 C.C.C. (2d) 351 (Man. C.A.) it was found that a pre-assembled set of sheets, with carbon paperin between, had been used. One officer prepared the document by typing in the blank spaces on the top sheet and then signed it. Thesecond officer, who was the one who testified, said that he was present when this occurred and further that he also signed it and thenhanded the accused one of the copies while giving him a short explanation of the contents.

Freedman C.J.M. held at p. 352: In our view, the evidence adduced constituted in law prima facie compliance with the requirements of s. 237(5) [now s. 258(7)] of theCriminal Code. Indeed, it satisfies the requirements referred to by Berger J. in the case of R. v. Pederson (1973), (BCSC), 15 C.C.C. (2d) 323, [1974] 1 W.W.R. 481 (a case heavily relied on by the accused), when he says that a specific comparisonbetween an original document and a purported copy of it does not have to be made if the copy resulted either from a Xeroxing or from a carbon paper. The latter is what occurred here.

It is prima facie sufficient. [10] [22] Recently Justice Foley has summarised the test for whether there has been service of a true copy in R. v. Vandal at paragraph18: In R. v. Bergstrom, (MB CA), [1982] 2 W.W.R. 95, the Manitoba Court of Appeal concluded that the type ofevidence proffered in this case by Constable Gardiner is prima facie sufficient to establish that the document provided to Mr. Vandal wasindeed a copy of the certificate. The same result was achieved in the Newfoundland Court of Appeal in R. v. Mavin (1997), (NL CA), 119 C.C.C. (3d) 38.

There, as here, there was no evidence suggesting that the copy served may not have been an exactreplica of the original and, in such circumstances the officer effecting service did not need to go further and give assurances of the copy’s accuracy.[11] [23] In this case there is some evidence that the Intoxilyzer operator prepared the Certificate of Analyses, P1. However, theevidence is that the accused was not served immediately after the test results were obtained but rather some time later when he was beingreleased from custody. Neither the Intoxilyzer operator, nor Cst.

Mitchell, the investigating officer, served the accused with theCertificate of Analyses. [24] The accused was released by Sgt. Barry Wauters, the Day Sergeant, who started work at 7:00 a.m. Sgt. Wauters was calledby the Crown to prove service of a true copy of the certificate. Mr. Morrall proved to be persistent in his examination-in-chief. I mustsay that I was not expecting Cst. Wauters to testify in the manner that he did and at the time of testifying I was concerned about hisevidence.

I have now had an opportunity to consider the transcript of his testimony and I will confine my analysis to a consideration ofthe issue of service of a true copy of the Certificate of Analyses. [25] In his examination-in-chief Sgt.

Wauters eventually does say the following: A …I would have served this document on him in -- on that counter in that area, and went over the document indicating that this is aCertificate of Analyses, this is the officer that filled this part out, your name, et cetera, et cetera, down to the bottom, and then I wouldhave put mine -- or this Notice of Intention to Produce on the bottom with my name and signature, then tore a copy of that off, and placedit on the counter or give it to him, and then I would have served the other document, the -- Q Promise to Appear. A Yeah.

Q Now, in terms of -- you said serving a copy of that document. How did you know that?

A How did I know it’s a copy? Because it was in this package -- or this paper that contains four pieces -- or four separate papers, andthey’re each a different color. Q Okay. But how do you know it’s a copy? A Because the original is on top, and the handwriting and stuff is the original of my handwriting. This is not a photocopieddocument. Q Okay. How do you know that the bottom portions are copies though? A Because it goes through on -- just through putting your pen pressure on the paper. It goes through the three other copies. Q Okay. By what means, do you know?

A Just carbonated paper and the pressure, I think. Q And was that done in this case? A Yeah.[12] [26] This is the evidence of Sgt. Wauters at its strongest. I appreciate that a less stringent standard of comparison is required forthe service of a true copy when documents are in a package that is carbonated. This should not be interpreted as a complete removal ofany standard of comparison. In this case there is some evidence of a comparison and of the copy coming from a carbonated package. Iam satisfied that the test has been met.

Issue #3: Has the Crown proven the accused was impaired by alcohol or a drug? [27] The question in relation to this count, put quite simply, is whether the Crown has proven beyond a reasonable doubt that theaccused had care or control of the vehicle while his ability was impaired. This test is not novel or difficult, but as has been stated, beforeits application to facts of individual cases has led to considerable debate. In considering whether the Crown has proven this count I haveapplied the legal test referred to by my colleague, Her Honour Judge Whelan, in R. v.

Lott, at paragraph 28: In reaching a determination as to whether count 1 has been proven beyond a reasonable doubt, I have read the decision of R. v. Hall(1994), (SK CA), 125 Sask. R. 62 (C.A.). In that case the accused had argued that he could not be convicted ofimpaired driving unless the court found that his behaviour and physical characteristics demonstrated a "marked departure from thenorm". The Court referred to the decision of R. v. Stellato (T.) (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont.

C.A.); theappeal to the Supreme Court of Canada having failed for the reasons given by Labrosse, J.A. in the Ontario Court of Appeal. Atparagraph 5 of our Court of Appeal's decision Jackson, J.A. stated: "... Labrosse, J.A., said the Criminal Code does not prescribe any special test for determining impairment. Rather impairment is an issueof fact to be found on all the evidence beyond a reasonable doubt. He said (at p. 384): "In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can beregistered.

Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability tooperate 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 areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out."[13] [28] This test was applied by His Honour Judge Kalmakoff in R. v.

Carriere as follows: [62] It is not necessary that the Crown prove any particular degree of impairment by alcohol, as long as the evidence establishes that theaccused’s ability to operate a motor vehicle is impaired by alcohol to some degree. The evidence must prove that the accused’sfunctional ability, as it relates to operating a motor vehicle, is impaired. [63] In the case before me, Mr. Carriere’s vehicle was observed to move slightly to the right when Cst. Belton pulled in behind him.

Mr.Carriere displayed slight slurring of speech, a slight sway in his walk, and a smell of alcohol on his breath, but no other signs ofdiminution of physical dexterity. He was at all times coherent, able to understand and converse with Cst. Belton.

[64] On the basis of this evidence, although the observable signs of alcohol consumption by Mr. Carriere were sufficient to give Cst. Belton reasonable and probable grounds to believe that Mr. Carriere was impaired, the evidence does not satisfy me beyond a reasonable doubt that Mr. Carriere’s functional ability to operate a motor vehicle was impaired. I therefore find him not guilty on Count 1. [14] [ 29 ] I have referred to the testimony of Cst. Keith earlier in these reasons. He was the first officer on the scene and indicates his initial assessment of the circumstances. Initially, in his evidence, Cst.

Keith testified that he had reason to believe that it was possible the accused was under the influence of alcohol. [15] Cst. Keith has been a police officer for five years. He considered that he has lots of experience with people who are under the influence of alcohol. He only recalled two observations which he attributed to alcohol, glassy bloodshot eyes, and unsteadiness. [16] He noted that the accused being slumped over the wheel of his vehicle is generally a sign of impairment.

Specifically, he did not notice any smell of alcohol from the accused, as agreed in cross-examination, and apparently no slurring of the accused’s speech. Significantly he spoke with the accused at the detachment, in order to assist him to appreciate his legal rights. Although Cst. Keith did not make any notes of this incident, he did prepare a Can-Say. [ 30 ] Cst. Mitchell dealt more extensively with this accused. His experience in these matters is limited to six or seven investigations. His evidence on the issue of impairment was as follows: Q Okay.

And when you say symptoms of impairment, can you describe each symptom of impairment that you noted that led you to form that opinion? A Yeah. Right off the bat, his poor balance. You know, somebody that is impaired is going to have the improper balance. The odor of alcohol that came from his body, and the fact that he was, you know, sleeping behind the wheel of the truck. Q Now, you also mentioned some other things? A Yes, he had glossy eyes, and he had speech -- slurment (ph) of his speech. Q And you also mentioned something about his gait. What can you tell me about that? A Sorry? His walk?

He kind of walked side to side. Like, he had trouble walking a straight line. When he exited the vehicle, he had a lot of trouble getting out of the vehicle, exiting it, walking to us, and walking to the police I noticed that he was kind of stumbling, a side-to-side motion. Q Okay. Now, at that time, did you associate that with anything? A With signs of impairment of alcohol. Q Okay. Along with the others that you’ve mentioned? A That’s correct. [17] [ 31 ] In cross-examination Cst. Mitchell testified that he smelled a strong smell of alcohol.

He also testified that while he noted slurred speech he could not say what words were slurred. Cst. Mitchell also confirmed that he did not note any particulars of the slurred speech in his notebook. [ 32 ] He does agree in cross-examination that the accused told him that he suffered a football injury. There is no evidence at this trial from the accused on this point. In these circumstances I will not consider this injury in assessing whether the Crown has proven that the accused was impaired. [ 33 ] Cst. Edwardson testified. She was the operator of the Intoxilyzer and took the samples from the accused.

She has 11 years experience. She candidly admitted she did not have a recollection of this matter. On the Intoxilyzer check sheet, under the heading observations of the accused, Cst. Edwardson agreed in cross-examination that she recorded only one observation, namely that the accused had bloodshot eyes. This observation was made at the time she administered the breath test, just shortly after Cst. Mitchell was dealing with the accused.

Significantly, she did not note that the accused had slurred speech or that he was unsteady on his feet. [ 34 ] It is important that I emphasize that a consideration of whether the accused’s ability was impaired must not be undertaken on a piece-meal basis, but rather after a consideration of the totality of the circumstances. The fact that the accused was asleep in his vehicle in a Tim Horton’s drive-through at 3:10 a.m. in the morning, without more, is suggestive of impairment. I must therefore consider the Crown evidence, of Cst. Keith, Cst. Mitchell and Cst.

Edwardson, in its entirety in determining whether the Crown has proven this count beyond a reasonable doubt that the accused was impaired.

[ 35 ] There is a significant difference in the Crown evidence regarding the signs of impairment observed. Cst. Mitchell includes in his observations slurred speech, smell of alcohol and stumbling. Cst. Keith observed no smell of alcohol, no slurred speech, but did notice unsteadiness. Cst. Edwardson, an officer of considerable experience, and an Intoxilyzer operator, noted only bloodshot eyes. This difference in observations is significant to me and is unresolved by the evidence presented at trial. It is my conclusion based on the evidence I observed that Cst.

Mitchell was the officer with the least experience, and his observation of slurred speech was not specific, either in his testimony or by refreshing his memory from his notebook. [ 36 ] Having considered the evidence presented by the Crown at the trial, and having applied the law as I have stated it, I find on these facts that I have a reasonable doubt as to whether the accused was impaired by alcohol or a drug. IV. CONCLUSION [ 37 ] For the foregoing reasons the Certificate of Analyses is admissible as evidence in this trial.

This certificate indicates two readings of a blood alcohol concentration of 170 milligrams of alcohol in 100 millilitres of blood. There being no other evidence, the accused is found guilty of count #2. [ 38 ] I have a reasonable doubt as to whether the accused’s ability to have care or control of the vehicle was impaired therefore I find the accused not guilty of count #1. ________________________ H. M. Harradence, J