Her Majesty the Queen - v. -, 2012 SKPC 176

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 176 Date: November 30, 2012 Information: 39985553 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joshua Ward Appearing: Lua Young For the Crown Michael Owens For the Accused DECISION ON VOIR DIRE D.E.

LABACH , J [ 1 ] During the trial of the accused, Joshua Ward, on charges that he was driving while impaired and while his blood alcohol exceeded .08, Defence counsel advised that he wished to enter into a voir dire on the issue of whether the accused’s sections 8 and 9 Charter rights were violated. Specifically, it was the Defence contention that the officer who made the breath demand on the accused did not have the reasonable grounds to do so.

If I accepted that the accused’s rights were breached, it was counsel’s position that all evidence obtained as a result of the breaches should be excluded from evidence pursuant to section 24(2) of the Charter . [ 2 ] The facts on this voir dire are not complicated. On the evening of October 22, 2011, Sergeant Worobec, an officer with 12

years policing experience with the Saskatoon Police Service, was working as the east side patrol sergeant. He was in full uniform, working alone, operating a marked patrol vehicle and supervising members working on Saskatoon’s east side. [ 3 ] At approximately 9:30 p.m. he received a dispatch about a possible impaired driver operating a white Ford F-150 truck. According to the dispatch this vehicle had been eastbound on 22 nd Street, had turned north on Idylwyld Drive and was now heading east on 29 th Street.

He did not receive any further information about why the driver was considered possibly impaired, who was driving the truck, the manner in which it was being operated or the licence plate of the truck. [ 4 ] Sergeant Worobec responded to the dispatch and made his way to the area of Idylwyld Drive and 29 th Street. In a parking lot behind Outlaws Country Rock Bar he came upon what he felt was a white Ford F-150 truck that was parked. The driver’s side door of the truck was opening as the officer pulled up and the truck’s interior light was on.

Constable Worobec observed the accused exit the driver’s door and walk towards the back of the truck. The time was 9:36 p.m. [ 5 ] As the accused began walking away from the truck, Sergeant Worobec got out of his police vehicle and confronted him. According to Sergeant Worobec the accused was swaying in his walk. He explained that by saying that the accused was not walking a straight line. It also appeared to him that the accused lacked focus in his eyes and had to strain to make out objects. As a result of these observations, Sergeant Worobec thought that the accused was intoxicated by alcohol.

He dealt with intoxicated individuals daily and in his opinion, these observations were not indicative of normal day to day actions. As a result, he arrested the accused at 9:37 p.m. for impaired driving. Upon being arrested, the accused had a cell phone in his hand and would not initially give it up and put his hands behind his back so he could be handcuffed. Eventually the accused acquiesced, was handcuffed and placed in the back of the officer’s patrol vehicle. [ 6 ] At 9:38 p.m. Sergeant Worobec read the accused his right to counsel.

When asked if he understood this right, the accused responded that he did not. Sergeant Worobec asked the accused what he did not understand. There is nothing in the evidence as to what the accused’s response was to this question however Sergeant Worobec concluded that the accused was not cooperating. [ 7 ] Next, Sergeant Worobec read the accused the police warning. When asked what the accused’s response was, the officer said, “Again, I believe he indicated he didn’t understand and he was being uncooperative”. [ 8 ] Finally, the Sergeant made a breath demand on the accused.

He felt he had reasonable grounds to make a breath demand because of the information provided to him by dispatch and because the accused was showing signs of being impaired by alcohol. According to the officer’s handwritten notes, besides the slight sway in his walk and difficulty focusing, these signs included bloodshot eyes, a red face, slow movements, slightly slurred speech and the accused was uncooperative. [ 9 ] Sergeant Worobec and the accused then departed for the Saskatoon Police station. Once at the station, the accused was booked in and again asked if he wanted to call a lawyer.

The accused responded that he did not wish to call legal counsel so Sergeant Worobec gave him a secondary warning. There is no evidence as to what the accused’s response to this secondary warning was, but Sergeant Worobec testified that he felt he understood his right to counsel and was waiving it. [ 10 ] Sergeant Worobec took the accused into an interview room and shortly thereafter they were joined by Constable Warkentin, the breath technician. After explaining why he was there, Constable Warkentin gave the accused another warning. The accused advised he understood and would provide samples of his breath.

While in the interview room dealing with the accused, Constable Warkentin noted a moderate smell of alcohol. [ 11 ] Constable Warkentin obtained two breath samples from the accused. The first sample was provided at 10:05 p.m. and the second sample, at 10:25 p.m. Both samples were over .08. Sergeant Worobec observed the samples being provided by the accused.

The accused appeared to be blowing hard and did not have any problem providing either sample. [ 12 ] Sergeant Worobec did not observe or document any change in the accused’s physical signs from the roadside to the police station except that he felt the accused became more cooperative.

[13] There was a videotape of the accused arriving at the Saskatoon Police station, being escorted up to the Detention area, andbeing booked in at the Detention counter. While Sergeant Worobec had not watched this video prior to the accused’s trial, he agreed incross-examination that this video would give a good indication as to how the accused was that evening. [14] This video was played in court and entered as an exhibit on the voir dire. The tape shows Sergeant Worobec driving hispolice car into the sallyport, getting out and opening the back door of his vehicle.

The accused, while handcuffed behind his back, getsout of the police vehicle without any assistance from the officer. [15] The videotape then shows the accused walking towards a doorway, going through the doorway and getting into an elevator. The elevator goes to the Detention area. When the elevator doors open up, the accused is directed to exit by Sergeant Worobec and towait just outside the elevator until the officers at the booking counter are ready to deal with him. [16] Finally, the video shows the accused being directed to approach the booking counter.

He stands in front of the counter withhis hands cuffed behind his back while a female officer asks him some questions and fills out a form. Once that is finished, an officerremoves the accused’s handcuffs and the accused takes off his boots, his coat, removes his belt, takes off his hat, empties his pocketsand then places his hands on the booking counter so he can be patted down by an officer. There is some discussion between the accusedand Sergeant Worobec after the booking procedure is completed and then the accused follows the sergeant into an interview room. [17] The issues on this voir dire are twofold.

Firstly, did Sergeant Worobec have the requisite reasonable grounds to make abreath demand on the accused? The case law is abundantly clear that if a police officer does not have reasonable grounds to make abreath demand, it is a violation of an individual’s right to be free from unreasonable search and seizure as guaranteed by

section 8 of theCharter and/or their right to be free from arbitrary detention as guaranteed by

section 9 of the Charter. (See R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 (S.C.C.); R. v.Sperle 2004 SKQB 382 (Sask. Q.B.); R. v. Churko, [2010] S.J. No. 562 (Sask.Prov. Ct.); R. v. MacArthur, [2012] S.J. No. 570 (Sask. Prov. Ct.)) Secondly, if the accused’s sections 8 and/or 9 Charter rights wereviolated should the evidence obtained as a result of those breaches be excluded pursuant to section 24(2) of the Charter? [18] Dealing with this first issue, when faced with a question of whether a police officer has reasonable grounds to make a breathdemand, the Court must be satisfied that the officer had an honest belief that the suspect committed an offence under

section 253 of theCriminal Code and there must be reasonable grounds for this belief. (See R. v. Bernshaw, supra at paragraph 48 and more recently, R. v.Shepherd, 2009 SCC 35 , [2009] 2 S.C.R. 527 (S.C.C.) at paragraph 17). [19] In R. v. Gunn, 2012 SKCA 80, the Saskatchewan Court of Appeal allowed a Crown appeal and ordered a new trial in a casewhere the lower courts had been of the view that the arresting officer did not have reasonable grounds to demand a breath sample fromthe accused. In overturning the acquittal, Mr.

Justice Caldwell had this to say about how a court is to approach this question of whetheran officer has the requisite reasonable grounds to demand a breath sample: [7] . . . . This means the officer must subjectively (or honestly) believe the individual has driven while impaired or “over .08” withinthe preceding three hours and that belief must be rationally sustainable on an objective basis (see R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at para. 48).

This does not mean that the Crown has to demonstrate a prima facie case for conviction (R. v.Shepherd, 2009 SCC 35 , 2009 S.C.C. 35, [2009] 2 S.C.R 527 at para. 23), let alone prove its case beyond a reasonable doubt(R.v.

Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127); rather, the standard of “reasonable grounds to believe” is one of lesser probabilitywhich simply requires the reviewing court to determine whether the factors articulated by the officer who made the breathdemand 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. (Highlights are mine.) [8] Where an individual challenges the validity of a breath demand on the basis that the police officer’s belief was not reasonable, thequestion for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officerwould have believed the individual’s ability to operate a motor vehicle was impaired (See: R. v.

Storrey, (SCC), [1990]1 S.C.R. 241 at p. 250; and R. v. Restau, 2008 SKCA 147, 314 Sask. R. 224 at para. 17). . . . . . . . . [9] When determining whether the standard of “reasonable grounds to believe” has been met, it is important to keep in mind that a

police officer need only believe an individual’s ability to drive is slightly impaired. . . . . As such, a pre-condition 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 to drive is even slightly impaired by the consumption of alcohol (see: R. v. Bush at para. 48 ). [ 20 ] Later on in the judgment, Caldwell J. talks about how the Court should assess the evidence when determining the reasonableness of the police officer’s belief. He states: [15] . . .

The trial court must consider whether the observations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which was drawn by the officer; however, the Crown does not have to prove the inferences drawn were true or even accurate. In other words, the factors articulated by the arresting officer need not prove the accused was actually impaired. This is so because that is the standard of proof reserved for a trial on the merits (i.e. proof beyond a reasonable doubt). . . . . [18] . . . .

However, what is at issue in the instant Charter inquiry is the objective reasonableness of the investigating officer’s belief. Logically then, the assessment of the reasonableness of this belief must be centred around the factors which actually led the officer to conclude there were reasonable grounds to believe Mr. Gunn’s ability to operate a vehicle was impaired thereby satisfying the standard imposed under s. 254(3) of the Criminal Code . [ 21 ] Finally, the Court must bear in mind that the appropriate time for determining whether the demand was reasonable is the time the demand was made.

I agree with Foley J.’s comments in R. v. Vandal , [2009] S.J. No. 153 (Sask. Q.B.) at paras. 11 and 12 , when he says: 11 In my opinion the time to test whether the officer had the requisite reasonable and probable grounds to believe the driver’s ability to drive the vehicle was impaired by alcohol is at the time the formal Criminal Code demand is made.

It is evident from the evidence of Constable Simpson that he made the formal demand pursuant to s. 254(3) of the Criminal Code in the police car. 12 It may well be that during the totality of the investigation from stop to demand an officer’s subjective belief like the objective circumstances will develop or reduce as more is learned or observed or as exculpatory matters arise. These all crystalize upon the making of the formal s. 254 demand.

That, for want of a better phrase is “the moment of truth” - the point at which the officer’s belief falls to be tested against the legal standard. [ 22 ] In the present case, Sergeant Worobec was the officer who arrested the accused and made the breath demand upon him.

He testified that he made the breath demand because of the information he had received from dispatch and because the accused had a slight sway in his walk, difficulty focusing, bloodshot eyes, a red face, slow movements, slightly slurred speech and he was uncooperative. [ 23 ] While this is what Sergeant Worobec testified to, the evidence does not substantiate some of these factors upon which he relies. One of Sergeant Worobec’s articulated reasons for believing that the accused had just been driving impaired was the information he received from his dispatch.

However, he testified that the only information he received from dispatch was that a possible impaired driver was operating a white, Ford F-150 truck east on 22 nd Street, north on Idylwyld Drive and then east again on 29 th Street. Dispatch did not provide him with a description of the driver, whether the driver was male or female or the license plate of the truck.

Dispatch never provided Sergeant Worobec with any information as to the manner in which the truck was being driven or why the driver was thought to be possibly impaired. [ 24 ] Sergeant Worobec never saw the accused driving the white Ford truck he was getting out of and there is no evidence that he questioned the accused about when or where he had been driving that evening or if he had been driving at all. The officer never spoke to the person who had called in the complaint or to any other witnesses, nor did he do any investigation to determine if the accused was the subject referenced in the dispatch.

Without any evidence of this nature the words of the dispatch ring hollow and are far from capable of supporting Sergeant Worobec’s belief that the accused was driving while impaired.

[ 25 ] Another of the officer’s articulated grounds was that the accused was being uncooperative. As an example, he said that the accused would not put down his cell phone and place his hands behind his back so he could be handcuffed. Sergeant Worobec also explained that he felt that the accused was not being cooperative when he indicated that he did not understand his right to counsel and the police warning. But the evidence does not satisfy me that the accused was being uncooperative.

The evidence was that as the accused was walking away Sergeant Worobec confronted him, immediately arrested him for impaired driving and told him to place his hands behind his back so that he could be handcuffed. There is no evidence that he questioned the accused or gave him any explanation as to why he was arresting him. He simply told him he was under arrest for impaired driving. I have no doubt that the accused was surprised at being arrested without any indication from the officer why that was occurring and was hesitant to allow himself to be handcuffed.

I cannot conclude that the accused’s reaction in these circumstances is indicative of impairment. In any event, his defiance must have been momentary at best as the officer did not have to resort to any physical contact to get him to comply. [ 26 ] I also do not accept that if an accused states that he does not understand his right to counsel or his police warning that that necessarily leads to the conclusion that he is being uncooperative.

In certain cases the evidence may bear out that the accused is not being sincere when he states that he does not understand his rights but that is not the evidence in this case. Here, Sergeant Worobec was unable to recall what the accused said to him when he asked the accused what he did not understand about his right to counsel. The right to counsel is a long, involved warning and it is very possible that an individual may not understand it or a portion of it.

Without knowing the accused’s response or whether he even did respond to the officer’s question, I cannot conclude that the accused was being uncooperative. [ 27 ] Sergeant Worobec’s testimony as to the accused’s response when he read him the police warning also does not lead me to conclude that the accused was being uncooperative. All Sergeant Worobec said was that the accused advised that he did not understand the police warning. There is no evidence that the officer followed up on this response and asked the accused what he did not understand about the police warning.

It just appears that Sergeant Worobec did not believe the accused when he said he did not understand, but he gave no reason why he did not believe him. As a result, I am left guessing whether the accused simply did not understand the right to counsel or the police warning or whether he was acting this way as a result of the consumption of alcohol.

Since it is not appropriate for the Court to speculate, I am not satisfied on the evidence that the accused was being uncooperative. [ 28 ] Finally, the evidence does not bear out Sergeant Worobec’s purported observations that the accused was swaying in his walk (which he described as meaning that the accused was not walking a straight line), that the accused had slow movements and that the accused had difficulty focusing. He made all these observations between the time he arrived at 9:36 p.m. and the time he read the accused the breath demand at 9:38 p.m.

However the video evidence of the accused arriving at the police station, riding the elevator up to Detention and being booked in by the Detention staff does not support the officer’s observations even though it was recorded shortly after Sergeant Worobec dealt with the accused at the scene. [ 29 ] The total video evidence of the accused at the police station is 7 ½ minutes in length. It shows the accused handcuffed behind his back and getting out of the back seat of the police car, without any help from Sergeant Worobec and without any problems.

It clearly shows the accused walking a straight line to the elevator, going through a doorway, getting on the elevator and riding it up to the Detention area. His movements are not slow or deliberate and he is not swaying. He appears to be walking like a normal individual. When the elevator door opens, the accused is observed following Sergeant Worobec’s direction to exit first and wait by the elevator until the Detention staff can begin processing him. He has no problems walking straight to the Detention counter and standing there, still handcuffed behind his back, while the Detention staff book him in.

He is not having any problems maintaining his balance. It is also apparent that the accused is paying attention to what is going on, he is answering questions from different officers and having a discussion with others. There is no indication on the video that the accused is looking off into space or having any difficulty focusing on the individuals around him. [ 30 ] The video also shows an officer taking off the accused’s handcuffs. Once these are removed, the accused takes off his boots, his coat, his belt and his hat and empties out his pockets, all without any problem or any balance issues.

He then places his hands on the booking counter and is frisked by an officer without any issue. [ 31 ] Before this video was played in Court, Sergeant Worobec testified that although he had not seen it, it would give a good indication as to how the accused was that evening. After he watched the video being played in court, he said that what he saw in the video was different than what he saw at the scene. I do not believe Sergeant Worobec when he says this.

Had this video been taken some time after Sergeant Worobec dealt with the accused at the roadside, I may accept his testimony that it does not accurately reflect what he saw at the scene. But this video was taken within a very short time after Sergeant Worobec made his observations of the accused at the roadside. As a matter of fact, without even looking at it, he was confident that it would accurately reflect how the accused was.

[32] Based on the evidence before me I do not believe Sergeant Worobec when he says that the accused was swaying or havingproblems walking a straight line, that he was having difficulty focusing, that he had slow movements or that he was uncooperative. These factors articulated by Sergeant Worobec are not supported by the evidence and are therefore not reliable and not capable ofsupporting his belief that the accused was impaired. For the reasons I have already articulated, the information from dispatch is also notcapable of supporting the inference that the accused was impaired and driving.

Thus all that is left is Sergeant Worobec’s observationsof bloodshot eyes, red face and slightly slurred speech. These are not sufficient in and of themselves to support his belief that theaccused was driving while his ability to do so was impaired by alcohol thereby justifying the breath demand. [33] Sergeant Worobec not having the requisite grounds to make a breath demand, I am satisfied that he breached the accused’ssection 8 Charter right to be free from unreasonable seizure of his breath and his

section 9 Charter right not to be arbitrarily detained.

Having reached this conclusion, I must continue on to the second issue and determine if the evidence that was obtained as a result ofthese Charter breaches should be excluded pursuant to section 24(2) of the Charter. [34] In order to determine if evidence should be excluded under section 24(2) of the Charter, a court must balance the seriousnessof the breach, the impact of the breach on the Charter protected interests of the accused and society’s interests in the adjudication of thecase on its merits in deciding whether admission of the evidence would bring the administration of justice into disrepute.

See R. v.Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 (S.C.C.). [35] The best way of describing Sergeant Worobec’s investigation in this case would be careless or negligent. He received a dispatch about a possible impaired driver in a white truck in the vicinity of 29th Street. He did not observe this truck being driven and hehad no other information identifying the truck or the driver. The only thing tying the accused to this dispatch was that he was seen getting out of a white truck that was parked in a parking lot off 29th Street.

Sergeant Worobec did not ask any questions of the accused,he did not contact dispatch for any further information nor did he speak to the complainant or any other potential witnesses to determineif the accused’s vehicle was the same white truck referred to in the dispatch. He observed the accused for a very short period of time andmade some inaccurate observations of the accused. He made no observation of any odour of alcohol coming from the accused. Hemade no inquiries or did any investigation to determine when or if the accused had been consuming alcohol or if he had been driving.

He did not take the proper time to observe the accused and determine if there were any substantiated signs of impairment. [36] In R. v. Gavin (1993), (PE SCAD), 50 M.V.R. (2d) 302 [1993] P.E.I.J. No. 136 (Q.L.), the Prince EdwardIsland Supreme Court - Appeal Division described the reasonable and probable grounds for belief required by the peace officer making ademand under section 254(3) in the following terms at paragraph 7: 7 A police officer must have reasonable and probable grounds for his belief before section 254(3) authorizes him to make a demand forbreath samples.

This condition precedent guards against arbitrary and precipitous demands. That is why, prior to making ademand, the officer must do such investigation or receive such information as the circumstances require to enable him toproperly form a belief that will justify a section 253(3) demand (Highlights are mine.) . . . . [37] Sergeant Worobec was an experienced police officer. There was no urgency in this case. This was not a situation of aninexperienced officer making an honest mistake.

He had a duty to act with some restraint, investigate the matter properly and make acareful assessment of the situation, but he did not. His conduct showed a reckless disregard of the accused’s Charter rights and as aresult, these breaches are at the more serious end of the spectrum. [38] With respect to the second line of inquiry,

section 8 of the Charter protects an individual’s right to privacy of their body andsection 9 ensures that a person is not deprived of their liberty for an unlawful purpose. While case law has held that providing a breathsample is minimally intrusive on the dignity and privacy of a person, I agree with my brother Judge Green’s comments at paragraph 20in R. v.

Churko, supra, that in a case where an officer does not have the reasonable grounds for a breath demand, there is a significantinterference with an accused’s right to liberty in that he is being arrested without lawful authority, taken in a police car to the policestation and required to provide self incriminating evidence. This unjustified state interference had a significant impact on the accused’sCharter protected rights. [39] It is trite to say that society has a strong interest in criminal cases being adjudicated on their merits.

The Certificate ofAnalyses and any observations of impairment are relevant and necessary to the Crown’s case. Thus, this factor favours inclusion of theevidence.

[ 40 ] Balancing these three factors, I am of the view that the Certificate of Analyses and any signs of impairment that arose as a result of the Charter breaches should be excluded from evidence in this case. On the evidence that I have found, Sergeant Worobec did not do a proper investigation.

He did not take the appropriate time to investigate, assess and evaluate the situation but rather recklessly jumped to conclusions that were not sustainable on the information he had and detained the accused without lawful authority for the purposes of having him provide incriminating evidence against himself. [ 41 ] While I appreciate that society has an interest in seeing drunk drivers prosecuted, we do not live in a police state. Society also has an interest in seeing that our individual liberties are protected and that the police adhere to the law.

Sergeant Worobec’s evidence fell far short of establishing grounds to justify detention and seizure of the accused’s breath. Balancing the three factors in Grant , supra , I am of the view that admitting the impugned evidence would undermine public confidence in the rule of law and bring the administration of justice into disrepute. Consequently, the Certificate of Analyses and any signs of impairment arising from the Charter breaches shall be excluded from evidence in this case pursuant to section 24(2) of the Charter . ____________________ D. E. Labach, J