Her Majesty the Queen - v. -, 2011 SKPC 70

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 070 Date: May 04, 2011 Information: 24392479 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Steve Wiebe Appearing: Val Adamko For the Crown Michael Owens For the Accused JUDGMENT D.E. LABACH , J [ 1 ] The accused, Steve Wiebe, is facing charges of impaired care and control of a motor vehicle and being over .08 and having care and control of a motor vehicle.

These offences are alleged to have occurred in the early morning hours of June 13, 2010 in the Town of Warman, Saskatchewan. [ 2 ] Mr. Wiebe pled not guilty to both of these charges. At his trial, his counsel advised that he would be making application that Mr. Wiebe’s

section 8 and

section 9 Charter rights were violated in that the officer did not have the requisite reasonable grounds to make a breath demand on his client. If proven, he asked that the Certificate of Analyses be excluded from evidence pursuant to section 24(2) of the Charter . The Crown acknowledged receiving proper notice of this Charter application.

[ 3 ] On the voir dire on this issue, the Crown called the arresting officer, Constable Deacy and the Defence called the accused. After the evidence on the voir dire was completed, Crown and Defence agreed that all evidence heard on the voir dire could be applied to the trial proper and that neither of them had any further evidence to call. The Crown then entered a stay of proceedings on the charge of impaired care and control of a motor vehicle contrary to section 253(1) (

a) of the Criminal Code and both counsel made closing argument on the voir dire and the trial proper on the issues on the remaining count on the Information. It is on this remaining charge of being over .08 and having care and control of a motor vehicle that I now render my decision. FACTS [ 4 ] In June, 2010, the accused, Steve Wiebe, was living in a condominium complex in Warman, Saskatchewan with his then girlfriend. He was working construction at the time. On the evening of June 12, he and his girlfriend went to a cabaret in Warman. It was not very far from their condominium so they walked to the cabaret.

The accused had been up early that day working and was tired. He did not really want to go, but his girlfriend did, so he relented and went. [ 5 ] His girlfriend had been drinking before going to the cabaret and continued drinking once they got there. He had nothing to drink prior to going but was consuming beer at the cabaret. At some point during the evening, he got into an argument with his girlfriend. As a result of that, he ended up leaving the cabaret without her and walking home.

He estimated that he was at the cabaret for one and a half to two hours. [ 6 ] He got back to their condominium some time between midnight and 12:30 a.m. He opened a beer and began getting ready to go to bed. Shortly thereafter, his girlfriend returned home and they had another heated argument. In order to avoid any further confrontation, he decided to go and sleep in his car. [ 7 ] He grabbed what was left of his beer and went to his vehicle, a 2003 Honda Civic, parked in a stall in the parking lot of their condominium complex. It was some time between 12:30 a.m. and 1:00 a.m.

He used his fob to unlock the door and he got in the driver’s seat. He was only wearing jeans and a short sleeve t-shirt and although it was June, it was a cool night. He began to get cold but did not want to go back to the condominium to get his jacket for fear of getting into another confrontation. He had relatives in the surrounding district but did not want to wake them up nor did he feel that he should be driving given how much he had had to drink. So, in order to warm up, he started the vehicle. [ 8 ] The accused had had five to six beer that evening including the beer he took with him to his car.

Eventually he fell asleep. At the time he fell asleep, he was sitting in the driver’s seat with his feet down by the pedals. The partially consumed beer was between his legs. His vehicle was a standard. It was running but in neutral with the parking brake engaged. The vehicle was parked on a slight incline and without the parking brake on, the vehicle would have rolled away. [ 9 ] The accused testified that his seat was in a tilted position so he could sleep.

However, the officer testified that when she first noticed the accused he was slumped over the steering wheel in the front seat although his head was not touching the wheel. I do not believe the accused but accept the officer’s testimony on this point. She had detailed notes of her observations, was not under the influence of alcohol at the time she made her observations and did not recant her position on cross-examination. The accused on the other hand had been drinking, was tired and had only his memory to rely on in regards to an incident that occurred some ten months prior to his trial date.

Moreover, his positioning led the officer to believe he was in distress or deceased, not sleeping. Had his seat been tilted, the natural assumption would have been that he was sleeping. Since I accept the officer’s evidence on this point, the accused’s seat must have been in an upright position and not tilted. [ 10 ] Constable Deacy had only been a peace officer for some four months at the time this incident occurred. She had just finished her night shift and was on her way home in her police vehicle. She lived in another condominium in the accused’s complex.

After pulling into the parking lot she noticed the accused’s vehicle in one of the parking stalls, running with its lights on. It was 3:50 a.m. She saw the accused slumped behind the wheel. Concerned that he was in distress or deceased, she approached. The accused moved so she knocked on the window. He woke up and she motioned for him to roll down his window. As he did so, she noticed a smell of alcohol coming from his vehicle and she saw a bottle of beer between his legs.

[11] The officer told the accused to turn off his vehicle and put the keys on the dashboard. He turned the vehicle off but put thekeys on the roof of the car instead of on the dashboard. She asked him to get out of his vehicle. He had no problem getting out but as hedid so, the officer leaned in closer to him and could smell alcohol coming from his breath.

Based on these observations, she arrested theaccused for impaired care and control of a motor vehicle and placed him in the back of her police car. [12] While the accused was in her police car, she gave him his right to counsel, police warning and made a breathalyzer demandupon him. He appeared to understand what she said to him and responded appropriately. He told the officer that he had been sleeping inhis car because he had had a fight with his girlfriend. [13] The officer took the accused to the Warman RCMP Detachment where, once again, she read him his right to counsel, policewarning and breath demand.

Thereafter, the accused provided two samples of his breath into an Intoxilyzer. Both samples were over.08. The officer prepared a Certificate of Analyses and served it on the accused. ISSUES ON THE VOIR DIRE Did Constable Deacy have reasonable grounds to make a breath demand on the accused? [14] The Criminal Code is clear that an officer cannot demand a sample of someone’s breath or blood without the appropriatebasis upon which to do so. In the case of breath samples, section 254(3)(a)(

i) states as follows: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at anytime within the preceding three hours,has committed an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand as soon aspracticable, require the person (

a) to provide as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, or . . . . [15] The case law is also clear that if an officer makes a breath demand but does not have the requisite reasonable grounds to doso, it is a violation of an accused’s

section 8 Charter right to be free from unreasonable search or seizure and/or his or her

section 9Charter right to be free from arbitrary detention. See R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 (S.C.C.); R. v.Singer, [1999] S.J. No. 221 (Sask. Q.B.); R. v. Sperle 2004 SKQB 382 (Sask. Q.B.); R. v. Cook, [2007] S.J. No. 284 (Sask. Prov. Ct.); R. v. Kopperud, [2010] S.J. No. 360 (Sask. Prov. Ct.); R. v. Gunn, [2010] S.J. No 280 (Sask. Prov. Ct.) upheld on appeal at 2010 SKQB451 (Sask. Q.B.). [16] Until recently, section 254(3) of the Criminal Code read that an officer must have “reasonable and probable grounds”. InJuly, 2008, the Government of Canada amended this

section to read that an officer need only have “reasonable grounds”. Despite thischange in wording, case law has held that “reasonable and probable” and “reasonable” have the same meaning. See R. v. Shepherd, 2009SCC 35 , [2009] 2 S.C.R. 527 (S.C.C.) at paragraphs 13 and 16. Thus, the case law regarding the

interpretation of reasonableand probable grounds continues to be applicable on the new wording of this section. [17] In R. v. Bernshaw, supra, the Supreme Court of Canada discussed how a trial judge is to approach the issue of reasonablegrounds. At paragraph 48, Mr. Justice Sopinka said: The Criminal Code provides that where a police officer believes on reasonable and probable grounds that a person has committed anoffence pursuant to

section 253 of the Code, the police officer may demand a breathalyzer. The existence of reasonable and probablegrounds entails both an objective and a subjective component. That is, section 254(3) of the Code requires that the police officersubjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this

belief: R. v. Callaghan, (SK KB), [1974] 3 W.W.R. 70 (Sask. Dist. Ct.); R. v. Belnavis, [1993] O.J. No. 637 (Gen.Div.) (Q.L.); R. v. Richard (1993), (ON SC), 12 O.R. (3d) 260 (Prov. Div.) . . . . [18] The Alberta Court of Appeal in R. v. McClelland, 1995 ABCA 199 , [1995] A.J. No. 539 at paragraph 21, stated thetest in the following words: . . . . the question of the existence of reasonable and probable grounds must be based on facts known by or available to the police officerat the time he formed the requisite belief. I accept that the police officer’s understanding of the facts must be a reasonable one.

Toparaphrase the statements in the cases cited, does the totality of the evidence available to the police officer at the time he formed thebelief support an objective finding that he had reasonable and probable grounds to believe that the ability of the driver was impaired byalcohol? . . . . See also R. v. Singer, supra, at paragraph 44 and R. v.

Knoedler, supra, at paragraph 29. [19] In the present case, Constable Deacy testified that she made a breath demand on the accused because his vehicle was running,there was an odour of alcohol coming from him, he had a beer between his legs and he was slow moving and had difficulty processinginformation and complying with her demands. [20] On cross-examination, the officer agreed that the accused’s vehicle was properly parked in a parking stall in the condominiumcomplex parking lot, the accused did not have any problem getting out of his car, walking to her police car or talking to her.

She said thatthe accused had no problems with comprehension and she made no note of any bloodshot or glassy eyes. [21] She said that the accused complied with her directions but was slow doing so. The only direction of hers that he did notfollow was her request to put his car keys on the dashboard of his car.

She testified that he placed them on the roof of the car instead. [22] Finally, she admitted that this was the first care or control investigation that she had done by herself, she did not have anapproved screening device with her nor did she request another officer to bring one, she did not ask the accused how much he had todrink or how long he had been in his vehicle and she did not ask him to do any field sobriety tests. [23] It is also clear from her testimony that the accused gave appropriate responses to her questions regarding his right to counsel,the police warning and the breath demand. [24] In this particular case, I am not satisfied that the totality of the evidence testified to by Constable Deacy supports an objectivefinding that she had reasonable grounds to believe that the accused was impaired by alcohol.

There was nothing untoward about theaccused’s vehicle except that it was running. It was not parked inappropriately or in an erratic fashion. Her first impression was that theaccused was in distress or deceased not that he was impaired. The only thing that changed her mind in that regard was the smell ofalcohol coming from the accused and the beer bottle between his legs.

She said as much in cross-examination when she told Defencecounsel that she decided to make the breath demand “because she could smell alcohol on him”. [25] However, she did not notice any other signs of impairment nor did she ask any questions or perform any tests that would havesubstantiated her view that the accused was impaired. She did say that he was slow moving in processing information and complyingwith her demands however, she was not able to give any specific examples of what she meant by this.

Considering that she had to wakehim up to deal with him, it does not surprise me that he was slow moving and not immediately processing what she was saying. [26] I also do not put much weight to the officer’s observation that the accused ignored her request to place his keys on the

dashboard and instead, put his keys on the roof of his car. He explained in his testimony that it was not possible to place his keys on thedashboard as they would have simply slid off onto the floorboards. As a result, he placed them on the roof of his car. The officer didnot make note of the accused’s dashboard so there is no evidence before me contradicting the accused’s testimony on this point. However, the accused had no problem responding to the officer’s request to turn off his vehicle.

Given that the accused followed theofficer’s direction to turn off his vehicle, it is apparent that he had a functioning mind and simply made a decision to put his keys inanother spot where they would be accessible to the officer in compliance with her demand. [27] In R. v. Hopkie (1994), (SK KB), 126 Sask. R. 44 (Sask. Q.B.) MacPherson C.J.Q.B., stated at paragraph16: Neither the smell of alcohol nor redness of eyes, together or by themselves, can indicate impairment in the ability to operate a vehicle.

But in combination with a staggering walk, slurring of speech, knowledge of erratic driving, inability to reasonably answer questions, orperhaps any of these things, could give rise to a belief of impairment on reasonable and probable grounds. But none of these otherfactors were present. . . . [28] Besides the smell of alcohol and the open beer in the accused’s vehicle, there was no other evidence substantiating ConstableDeacy’s belief of impairment. At best, the evidence supports a suspicion that the accused had been drinking but that does not equate toreasonable grounds to believe that he was impaired.

I am not satisfied on an objective analysis of the evidence that Constable Deacy hadreasonable grounds to make a breath demand on the accused. Not having the requisite grounds, Constable Deacy breached the accused’ssection 8 Charter right to be free from unreasonable seizure of his breath. There being no other reason to detain him, her subsequentdetention of the accused for the purpose of providing breath samples was unlawful and a breach of his

section 9 Charter right not to bearbitrarily detained. Should the Certificate of Analyses be excluded from evidence pursuant to section 24(2) of the Charter as a result of ConstableDeacy’s violation of the accused’s Charter rights? [29] Exclusion of evidence in the case of a Charter violation is not automatic. If an individual’s Charter right has been breached,an analysis of the circumstances of the breach in light of the factors set forth in R. v.

Grant 2009 SCC 32 , [2009] 2 S.C.R. 353(S.C.C.) is required. [30] In Grant, supra, at paragraph 71, the Supreme Court of Canada instructed judges to deal with section 24(2) applications asfollows: [71] . . . . When faced with an application for exclusion under section 24(2), the Court must assess and balance the effect of admitting theevidence on society’s confidence in the justice system having regard to:

(1) The seriousness of the Charter infringing state conduct(admission may send the message the justice system condones serious state misconduct),

(2) The impact of the breach on the Charterprotected interests of the accused (admission may send the message that individual rights count for little),

(3) Society’s interest in theadjudication of the case on its merits. The Court’s role on a section 24(2) application is to balance the assessments under each of theselines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration ofjustice into disrepute. These concerns, while not precisely tracking the categories of consideration set out in Collins, capture the factorsrelevant to the section 24(2) determination as enunciated in Collins and subsequent jurisprudence.

Seriousness of the Charter infringing state conduct [31] Constable Deacy was of the view that the accused was impaired after she did some minimal investigation to determine why hewas sleeping in his vehicle that morning. Although she discovered some evidence that the accused had been consuming alcohol,objectively speaking, it was not sufficient to meet the standard of reasonable grounds to believe that the accused was impaired. This wasnot a case of the officer having no grounds or acting in bad faith.

Rather, it was a case of the officer’s grounds being sufficient to raiseonly a suspicion that the accused was drinking but not meeting the higher standard of reasonable grounds to believe that the accused wasimpaired.

[ 32 ] While I would not categorize Constable Deacy’s conduct as a serious breach of the accused’s Charter rights, it was also not a minor violation of those rights. He was detained for the purpose of providing conscripted evidence to further a prosecution against himself. In a case such as this, it is incumbent on the police to make all the necessary inquiries to justify the breath demand on the accused. I find support for this conclusion in the judgment of the Saskatchewan Court of Appeal in R. v. Sundquist 2000 SKCA 50 . Although Mr.

Justice Cameron was speaking of the Highway Traffic Act , his comments at paragraph 41 and 42 are appropo to the present case: [41] According to the terms of subsection 91(3), police officers are not empowered to suspend a person’s license on “reasonable suspicion”. They may only do so on a belief, based on “reasonable and probable grounds” that the person’s blood alcohol level is such as to warrant suspension, having regard for subsection 91(2). This standard constitutes a safeguard against arbitrary police action, one drawn from the common law.

It imposes responsibility on police officers to act with restraint and after careful assessment. Indeed, it contemplates a judgment being made about the condition of the person - a judgment based on objective criteria borne of a degree of likelihood that transcends reasonable suspicion, and open to later judicial assessment. That is what the legislature had in mind in enacting this standard. [42] However, the line between “reasonable suspicion” on the one hand and “reasonable and probable grounds” on the other, is often a fine one calling for resolution by some means.

Traditionally, as a matter of police practice, the means consisted of noting the person’s appearance and actions, asking a few questions, and if need be, conducting one or more simple sobriety tests to gauge the physical and mental agility of the person, if only roughly. Now, as a matter of practice sanctioned by statute, the means include roadside screening devices, such as the Alcotest, a compact, portable device intended for use on the spot and capable of measuring the amount of alcohol in the bloodstream, though only approximately. [ 33 ] Here, Constable Deacy fell short.

Had she taken time to make some more observations of the accused, asked some further questions of the accused or his girlfriend, made some effort to have sobriety tests performed or even made arrangements for an approved screening device test to be performed, she may or may not have obtained the reasonable grounds to substantiate the detention of the accused for the purpose of a breath test. She had a duty to act with restraint and make a careful assessment. There was no urgency in this case.

I recognize that this was the first impaired care and control investigation she had done on her own, but nonetheless she was a police officer and should be expected to be as cognizant of her responsibilities in this area as a more senior officer. By not taking the time to more fully investigate the matter, Constable Deacy’s conduct fell toward the more serious end of the continuum of officer conduct. Impact on the Charter protected interests of the accused [ 34 ] The purpose of

section 9 of the Charter is to ensure that a person is not deprived of their liberty for an unlawful purpose. One of the purposes of

section 8 is to protect an individuals right to privacy of their body. These Charter protections however, must be balanced against society’s desire that police be able to investigate and prosecute those who choose to drink and drive. [ 35 ] This balance is met by the wording of section 254(3) of the Criminal Code . A police officer can only detain a person and demand a sample of their breath if certain criteria set forth in this

section are met. In this case, I have determined that that criteria was not met. As a result, the unlawful demand that the accused provide a sample of his breath led to him being arbitrarily detained in violation of his

section 9 Charter right and to an unreasonable seizure of his breath in violation of his

section 8 Charter right. The Intoxilyzer test results did not exist but for the impugned seizure of the accused’s breath. This led to the charge against the accused before the Court and moreover may have more far reaching consequences for the accused beyond a criminal conviction. The impact of the breach on the accused’s Charter protected interests was accordingly, very significant. Society’s interest in the adjudication on the merits [ 36 ] It is an oft quoted phrase that society has a strong interest in criminal cases being adjudicated on their merits. This case is no exception.

The evidence of the breath test results is reliable and without it, the Crown would have no case. Thus this factor favours inclusion of the evidence.

Balancing the factors [ 37 ] While society has an interest in seeing drunk drivers being prosecuted, society also has an interest in ensuring that our individual liberties are protected. This latter interest lies at the heart of democracy. In our system of law, an accused is under no duty to incriminate himself. However, in certain circumstances, the law gives the police the ability to demand that an accused provide evidence to be used against him in a prosecution. The taking of breath samples is one such circumstance.

However, the police do not have an unfettered right to demand breath samples of an accused whenever they wish. Understandably, a standard of reasonable grounds to believe that the accused has committed an offence under

section 253 of the Criminal Code within the preceding three hours is required in order to conscript an accused to provide potentially incriminating breath samples. If the state is going to create an exception to the fundamental principle that a person is under no duty to incriminate himself then society should expect the state to strictly adhere to the minimum standard they set for such an exception.

If the state does not meet the minimum standard then the conscripted evidence should be inadmissible even if it means a guilty person going free. [ 38 ] In the present case, the officer’s investigation fell short of establishing the necessary reasonable grounds to justify a detention and seizure of the accused’s breath. To allow the evidence to go in despite the breaches would elevate suspicion of drinking to reasonable grounds to believe one is impaired. That is not appropriate.

Consequently, while society’s interest in an adjudication of this case on its merits favours inclusion of the accused’s breath test results despite the breaches of the accused’s Charter rights, the seriousness of the state’s conduct and the impact on the Charter protected interests of the accused, does not. As a result, the Certificate of Analyses in this case will be excluded from evidence.

ISSUE ON THE TRIAL PROPER Has the Crown proven beyond a reasonable doubt that the accused was in care and control of a motor vehicle? [ 39 ] Given my decision on the issues on the voir dire, it is not necessary for me to address this issue of whether the evidence proves beyond a reasonable doubt that the accused was in care and control of his vehicle. CONCLUSION [ 40 ] The evidence of the results of the breath tests of the accused having been excluded, there is no evidence proving that the accused was over .08 at the time he was found in his motor vehicle by Constable Deacy.

I therefore find the accused not guilty of the charge of being over .08 and having care and control of a motor vehicle contrary to section 253(1) (

b) of the Criminal Code . ________________________ D.E. Labach, J