Her Majesty the Queen - v. -, 2020 SKPC 51

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 51 Date: November 25, 2020 Information: 90406145 Location: North Battleford _____________________________________________________________________________ Between: Her Majesty the Queen - and - Russell Schultz Appearing: Mr. T. O’Hara For the Crown Mr. R. Pich é For the Accused JUDGMENT M.M. BANIAK , J [ 1 ] Mr. Schultz of North Battleford, Saskatchewan, did on or about the 10 th day of May, 2020: 1) operate a conveyance while ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug contrary to s. 320.14(1) (

a) of the Criminal Code ; and 2) operate a conveyance while ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug contrary to s. 320.14(1) (

b) of the Criminal Code . [ 2 ] Since count #2 is identical to count #1, the Crown stayed count #2 at the commencement of the trial. By agreement, the proceeding started as a blended voir dire with the understanding that all of the evidence from the voir dire would be applied to the trial proper.

[ 3 ] The Crown’s first witness was Corporal Steven Bell, a 15 year member of the RCMP presently stationed at the Maidstone detachment. On May 9, 2020 he was on duty patrolling Highway #16 near Radisson, Saskatchewan. According to Corporal Bell, a truck coming towards him was travelling at a high rate of speed, well in excess of the posted speed limit of 110 kph. [ 4 ] He activated his lights and proceeded to follow this vehicle.

He attained a speed of 145 kph while catching up to the accused’s vehicle. [ 5 ] He testified that he followed the accused for about two and one-half minutes and over a distance of some two kilometers. [ 6 ] An audio-video recording was played in court. Both the officer following the accused’s vehicle, his interaction with the accused outside the police vehicle as well as the ride to the North Battleford detachment were exhibited (Exhibit P-1). [ 7 ] The times recorded, which I believe are relevant, are as follows:

a) video starting: 22:49:53 hours

b) siren activated: 22:51:20 hours

c) vehicle coming to a stop: 22:52:43 hours

d) demand for test (ASD): 22:57:26 hours

e) ASD test completed: 23:00:37 hours [ 8 ] When Corporal Bell first approached the accused’s vehicle he asked Mr. Schultz why he did not stop right away. Mr. Schultz replied: “I thought you were going to go around me.” [ 9 ] Corporal Bell advised the accused that he blew a “fail” and that they would need to go to the detachment to get a breath test. Rights to counsel given to the accused at 23:03:05 hours, and the police warning at 23:03:42 hours. Corporal Bell and Mr. Schultz departed the scene at 23:08:48 hours.

At this juncture, no formal demand for a breath test was executed. [ 10 ] During the time that Corporal bell was following the accused’s vehicle, which was for a period of less than two minutes (which is the time that the vehicle could be clearly seen on the video), the vehicle touched the right shoulder demarcation line and also drifted slightly towards the centre line. The short distance driven in the shoulder lane was unremarkable and normal. [ 11 ] The drive to North Battleford was without incident. The accused was polite and cooperative. Corporal Bell did not see any need to have him handcuffed.

During the back and forth conversation, the accused told Corporal Bell his educational background, his occupation and the fact that he had just recently become a new father. Corporal Bell suggested that he could arrange for Mr. Schultz’s wife to pick him up, and he placed a call to her to advise her of the time and place. [ 12 ] With regard to drinking, Mr. Schultz advised that he had six or seven Labatt Light beer over the course of the night (starting around 6:00 o’clock in the evening) with a friend. He believed that he was safe to drive.

When Corporal Bell asked him where he would slot himself on a scale of one to 10 as far as being intoxicated he said three. [ 13 ] Corporal Bell completed his examination-in-chief by stating that the accused appeared to mumble some words and that his gait was slow when he was walking to the police vehicle. He also testified that Mr. Schultz touched the hood of the police car when he was walking by it.

On the whole, Corporal Bell testified that the video fairly represented what had happened. [ 14 ] During cross-examination, Corporal Bell was directed towards the video and the driving that took place from 22:50:42 hours (when he was going 145 kph) to 22:52:32 hours (when the accused’s vehicle came to a stop), a time of two minutes and ten seconds. During this time it was established that the speed at which the accused was travelling was reduced rapidly – by 22:50:27 hours the vehicle was clocked at 71 kph.

At 22:50:33 hours both vehicles were in the same lane and no apparent weaving was noticeable. [ 15 ] Defence also suggested that when the accused would have seen the police car straddling the two lanes behind him it would be a normal reaction for him to move a little over to the right. Corporal Bell did not agree or disagree with this suggestion.

It was agreed that the accused drove well in the shoulder lane. [ 16 ] Corporal Bell agreed that the stop was initiated because of the accused’s speeding, and that the suspicion of drinking occurred after the stop: Q: Your suspicion was aroused when you were on the passenger side?

A: Yes. [ 17 ] Further, Corporal Bell acknowledged that the accused was not advised as to the reason the accused was asked to exit his vehicle, and, further, that he did not exhibit any impairment in getting out of his vehicle. [ 18 ] In terms of demeanour and behaviour, Corporal Bell agreed that the accused was cooperative, alert and coherent throughout.

He understood everything that he was told and was able to fully comply with the requests made of him. [ 19 ] As a final note, Corporal Bell acknowledged that the formal breath demand was not made until more than an hour after he stopped the accused, and that counsel rights were not read to the accused after the breath demand was made: “I forgot to read it at roadside, and read it at the station. I forgot to read counsel rights at the station.” [ 20 ] He also agreed with defence counsel that impairment cannot be determined by smell of alcohol.

Position of the Parties [ 21 ] The Crown’s position is that if the totality of the evidence is considered, and properly analyzed, it points towards

impairment.

More particularly, the Crown argues the following: 1) the accused admitted to having consumed six – seven beers over the course of 4 to 4.5 hours; 2) vehicle not being driven properly – drifted a little to the right and centre; 3) vehicle’s speed fluctuated, although not accurately established; 4) accused’s speech was slightly slurred; and 5) the accused described his level of intoxication on a scale of one to 10 as being three. [22] Defence counters with the following arguments: 1) scale of 1 to 10, as it pertains to intoxication, does not apply to impaired driving; 2) a close scrutiny of the video suggests weak indicia of impairment, let alone impairment to drive; 3) all evidence points to the accused as being cooperative, pleasant, coherent and alert.

He had a normal conversation with the policeofficer. He did not slur his words, and the police officer in his testimony did not use the word “slurred”; 4) the accused did not display any problems with mobility, other than inadvertently touching the police vehicle hood as he was walkingtowards it; and 5) the police officer resorted to using the ASD because he was not sure if the accused was intoxicated to a point of impairment.

Analysis [23] The main issue, and having regard to the charge, the only issue, is whether the evidence establishes, beyond a reasonabledoubt, that the accused’ ability to operate a motor vehicle was impaired by alcohol. [24] For some time there was a lack of consensus as to what constituted impaired driving. This uncertainty was put to rest with the Ontario Court of Appeal’s decision in R v Stellato, (1993), (ON CA), 78 CCC (3rd) 380 (Ont CA).

This decision wasaffirmed by the Supreme Court [Stellato, aff’d [1994]] (SCC), 2 SCR 478. [25] Stellato at p 384 stated: 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 impairmentranging from slight to great, the offence has been made out. [26] Subsequent cases, including the recent case of R v McKenzie, 2020 SKQB 206, decided by our Court of Queen’s Bench,stresses the importance of noting that “any degree of impairment” test “specifically applies to an accused’s ability to operate a motorvehicle.” (McKenzie, para 31) [27] This, by implication, directs courts to recognize the distinction between impairment generally, and impairment of one’s abilityto operate a motor vehicle specifically. [28] As the Alberta Court of Appeal held in R v Andrews, 1996 ABCA 23, 104 CCC (3d) 392 [Andrews] p. 399: The question iswhether the person’s ability to drive is impaired to any degree by alcohol or a drug.

In considering this question, judges must be carefulnot to assume that, where a person’s functional ability is affected in some respects by consumption of alcohol, his or her ability to drive isalso automatically impaired. [29] That is not to say that evidence of one’s functional ability being affected by alcohol or drug cannot be considered whenanalyzing his ability to drive.

This would be particularly useful in a case of where “care and control” is being alleged, as such a caseoften depends on circumstantial evidence as to an accused’s level of impairment and whether that level of impairment would establishbeyond a reasonable doubt a person’s impairment with respect to driving. [30] The evidence, as presented in this case, necessitates the examination of both, the accused’s functional ability as well as hisdriving ability. [31] Functional ability relates to a person’s behaviour, his speech, his appearance (eg.

Blood shot eyes), his mobility, his balance,his dexterity, his coherence and overall appearance of normalcy. An absence or a presence, of one or more of these does not necessarilymean that a person’s functional ability is impaired by alcohol or drug, but in the absence of an explanation (such as medical or someother external factor) an inference may be drawn. [32] Keeping this in mind, let us examine Mr. Schultz’s interaction with Corporal Bell. Upon being stopped, he was asked why hedid not stop right away.

He replied: “I thought you were going to go around me.” [33] It must be noted that Corporal Bell followed the accused’s vehicle for about two and one-half minutes and travelled about twokilometers, according to his testimony. If this testimony is accurate, Mr. Schultz would have been reducing his speed and travellingbelow the speed limit. Corporal Bell had his lights flashing. Once he activated his siren the accused pulled over almost immediately –literally within several seconds.

[ 34 ] In light of this evidence, the accused’s response to Corporal Bell’s question is not only understandable but also logical. He did not know what the police vehicle intended to do, so he slowed down, pulled over a little to the right and ostensibly waited to see what would happen. Once the siren came on he pulled over. I do not consider this behaviour to be out of the ordinary. [ 35 ] Once he was stopped he understood what was asked of him by Corporal Bell.

He did not have any difficulty in finding and producing the documents requested of him. [ 36 ] When asked to get out of his vehicle he did so without any difficulty and proceeded to the police vehicle without displaying any problems with balance or mobility. Corporal Bell testified that the accused understood all his rights and warnings.

He did not observe any blood shot eyes or slurring of speech – the most that Corporal Bell noticed is that the accused may have mumbled a couple of words. [ 37 ] Corporal Bell acknowledged that he asked the accused for a sample of breath into the ASD because he did not want to take him for a breathalyzer test to the detachment unless he had to because of COVID concerns. He suspected the accused had been drinking because he could smell liquor on his breath and not because of the presence of other indicia of impairment. [ 38 ] The ASD demand was made at 22:57:48 hours.

The formal breath demand was not made until 00:15 hours – some one hour and twenty minutes later. During that time, Corporal Bell and the accused had a wide-ranging conversation while travelling to North Battleford. Watching the video recording, I did not observe any visible or auditory indicia of impairment. I did not hear any slurring of words. The accused presented as a respectful, polite and coherent individual. Corporal Bell did not see the need to handcuff him prior to placing him in the police vehicle. His conversation with Corporal Bell appeared normal. He was alert.

He asked Corporal Bell about the seat belt policy in the rear of police vehicles and took the initiative to buckle up. In short, when observing the accused’s conduct throughout, I failed to observe any behaviour that deviated from the normal. [ 39 ] Accordingly, I find that the Crown has failed to prove beyond a reasonable doubt that the accused’s functional ability was impaired to some degree by alcohol or a drug. [ 40 ] Next, was the accused ability to drive impaired?

We start from the premise that consumption of alcohol, or, for that matter, smell of alcohol, is not sufficient, by itself, to establish impairment in the operation of a vehicle. [ 41 ] In this case, the speed of the oncoming vehicle being driven by the accused piqued Corporal Bell’s reaction to it. He estimated that it was travelling well in excess of 110 kph. Corporal Bell testified that he was going as fast as 145 kph for a short while before he caught up to it. He acknowledged, however, that in order to catch up to the accused’s vehicle he would have had to be travelling faster than the accused was.

In the end, there is no conclusive evidence as to the exact or actual speed of the accused vehicle when it first encountered the police vehicle, but I do accept the evidence that he was speeding. [ 42 ] Speeding, in the absence of any other driving infraction, is not indicative of impaired driving. Most drivers who are stopped for speeding are not impaired – conversely, many impaired drivers are not speeding.

Was there then anything in the manner of driving which would prove impairment? [ 43 ] Corporal Bell testified that the accused’s vehicle “kept veering to the right”, to the point where it touched the right shoulder line. During cross-examination it was suggested to him that when a police vehicle is straddling the two lanes while following another vehicle “it would be normal for the other vehicle to move a little over to the right”. Corporal Bell did not offer an opinion one way or another. [ 44 ] I, for my part, while watching the video, did not notice anything unusual about the accused’s driving.

There may have been a slight drift by the accused’s vehicle, but it was not weaving and at no time did it encroach on the opposite lane. It appeared to me that he was in control of his vehicle. [ 45 ] I conclude, based on the totality of the evidence, both his functional and driving ability, that the Crown has not proven beyond a reasonable doubt that Mr. Schultz’s ability to operate a motor vehicle (or a conveyance) was impaired by alcohol or a drug or by a combination of alcohol and a drug. _________________________ M.M. Baniak, J