Her Majesty the Queen - v. -, 2018 SKPC 001

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 001 Date: January 4, 2018 Information: 90147798 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Shirley A. Perillat Appearing: Melodi Kujawa For the Crown Lisa Watson For the Accused DECISION ON VOIR DIRE AND TRIAL S.S. ANAND , J I. INTRODUCTION [ 1 ] Ms.

Perillat is charged with operating a motor vehicle while her blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood and with operating a motor vehicle while her ability to do so was impaired by alcohol. These charges stem from a tip to the police from staff working at a casino that an impaired driver recently left the premises. A police officer promptly found the vehicle, followed it, and made some observations of its driving pattern.

Then the officer decided to stop the vehicle and, in the course of conducting the stop and dealing with the driver, additional aspects of driving as well as some behavior and characteristics of the driver, Ms. Perillat, were noted. Armed with this information, the police officer arrested Ms. Perillat for impaired driving and made a breath demand of her. Prior to giving her breath samples at the police detachment, Ms. Perillat asked to speak to a specific lawyer. The

investigating police officer called the lawyer in question but received no response. When Ms. Perillat was informed of this situation, she agreed to provide breath samples immediately and proceeded to do so. [ 2 ] The matters in dispute raise issues of whether the investigating police officer infringed the constitutional rights of the accused, the appropriate remedies that should be granted if such rights were infringed, and the strength of the evidence the Court can consider pertaining to the charged offences. Specifically, I am called upon to address the following questions:

(1) Did the police officer violate Ms. Perillat’s s.10(

b) Charter right to counsel by failing to give her a Prosper warning?

(2) Did the police officer lack reasonable grounds to make a breath demand of Ms. Perillat pursuant to s. 254(3) of the Criminal Code and thereby infringe her s. 8 Charter right to be secure against unreasonable search or seizure and her s. 9 Charter right not to be arbitrarily detained or imprisoned?

(3) If there are Charter violations, what is the appropriate remedy?

(4) Does the admissible evidence establish, beyond a reasonable doubt, that Ms. Perillat’s ability to operate a motor vehicle was impaired by alcohol? [ 3 ] The trial of this matter was conducted on November 22, 2017. During the trial, I heard evidence from three civilian witnesses, all of whom were and continue to be employees of the casino. Since counsel for the accused provided notice of her intention to raise ss. 8, 9, and 10(

b) Charter arguments, the evidence of the investigating officer was called by the Crown on a voir dire . There was an agreement that all of the evidence called on the voir dire could be applied to the trial proper with the possible exception of the Certificate of Analyses pertaining to the breath samples (the admissibility of the latter evidence would, of course, depend on my determination of the Charter issues raised). No evidence was called on behalf of the accused on either the voir dire or trial. [ 4 ] At the conclusion of the voir dire , I heard submissions pertaining to it as well as the trial proper.

I reserved my decisions, and the matters were adjourned to November 24, 2017. On that date, I gave an oral judgment and ruled that, although the police officer did not violate Ms. Perillat’s s. 10(

b) Charter right, he did infringe upon her ss. 8 and 9 Charter rights. I also concluded that the admission of the Certificate of Analyses would bring the administration of justice into disrepute, and I excluded the Certificate from the evidence of the trial pursuant to s. 24(2) of the Charter . As a result, I found Ms. Perillat not guilty of the over .08 charge. After considering the rest of the evidence of the investigating officer as well as the three civilian witnesses, I was left with a reasonable doubt as to whether the accused’s ability to operate a motor vehicle was impaired by alcohol.

Consequently, I also found her not guilty of the impaired driving charge. [ 5 ] Although the rationale given in my oral judgment was fairly extensive and detailed, I indicated that even more comprehensive reasons would follow in a written judgment. The primary reason that I have opted to render a written decision in this matter is to further elucidate what is meant by the reasonable grounds standard to demand breath samples pursuant to s. 254(3) of the Criminal Code . Crown counsel made the submission that this standard is less onerous than what is required to obtain a search warrant or to make a lawful arrest.

The Crown argued that the standard for a s. 254(3) demand is met simply if there is any evidence upon which a reasonable inference could be drawn that the person to whom the demand is being made committed an offence under s. 253 of the Criminal Code as a result of the consumption of alcohol. Given the prosecution’s position on this issue, with which I disagree, I felt that written reasons exploring the legal standard that must be met for a s. 254(3) demand may provide useful guidance for the future.

Those reasons, as well as the reasons addressing the other matters in dispute raised by this case, are provided in the paragraphs that follow. II. ANALYSIS

(1) Did the police officer violate Ms. Perillat’s s. 10(

b) Charter right to counsel by failing to give her a Prosper warning?

[6] The relevant facts concerning this issue are not in dispute. After RCMP Corporal Nicklin, the investigating officer, arrested Ms.Perillat at the roadside for impaired driving, he immediately read to her the rights to counsel caution (including the Brydges informationabout the existence and availability of duty counsel and Legal Aid plans), the breath demand, and the police warning.

When asked if sheunderstood the information given pertaining to her rights to counsel, she responded, “Yes.” When queried about whether or not shewished to call a lawyer, she answered, “I don’t suppose so, perhaps at the detachment.” When asked if she understood the breathdemand, she said, “Thank you.” Finally, upon the officer checking to see if she comprehended the police warning, she stated, “Thankyou, yeah.” [7] Upon arriving back at the police detachment and before she gave samples of her breath, Ms. Perillat asked to speak to a specificlawyer, a Mr. Berkeley Buchko.

Corporal Nicklin found the business phone number for this lawyer and called his office, but the officerreceived no response. When Corporal Nicklin advised Ms. Perillat that no one picked up the phone at the number called, Ms. Perillat saidsomething to the effect of, “Fuck it, let’s just do this then,” presumably referring to taking the breath tests. Corporal Nicklin did not recallif he then made any comment to Ms. Perillat about the availability of Legal Aid, but he did say to her, “If at any time you want to stopand contact a lawyer, there is no problem with that.” The officer testified that Ms.

Perillat never asked to speak to a lawyer again and sheprovided the breath samples documented in the Certificate of Analyses. On cross-examination, Corporal Nicklin indicated he did notgive Ms. Perillat a Prosper warning prior to the breath tests being administered. Indeed, he indicated that he has never given a Prosperwarning to anyone and that, from what he knew, in Saskatchewan that warning had just begun to be given. It should be noted thatCorporal Nicklin has been an RCMP member since November of 2000. [8] Defence counsel argued that Corporal Nicklin breached Ms. Perillat’s s.10(

b) Charter rights by not giving her a Prosperwarning. The Supreme Court in R v Prosper, (SCC), [1994] 3 SCR 236, 92 CCC (3d) 353 [Prosper] gives guidance onhow police should approach a charged or detained individual who asserts his or her right to counsel but then subsequently has a changeof mind and no longer wants to consult counsel.

The Supreme Court indicates that, to ensure that the Charter-protected right to counsel isnot too easily waived, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and ofthe obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentiallyincriminating process until he or she has had that reasonable opportunity.

This additional informational requirement on police, the so-called Prosper warning, ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she isactually giving up. This knowledge is a prerequisite for a valid waiver. [9] However, Crown counsel astutely pointed out how the Supreme Court indicates that, before police are called upon to give aProsper warning, detainees must not only have asserted their rights to counsel but also have been reasonably diligent in exercising theirrights to counsel (see Prosper at 274).

During oral argument, I indicated my concern that the “reasonable diligence” requirement seemsto be in tension with the raison d’etre of the Prosper warning’s rationale. As Professor Steven Penney notes in his recent paper, the warning’s purpose is to . . . ensure that detainees know what they are giving up when they abandon their efforts to speak to counselwithout delay . . . But that purpose is poorly served by a rule deeming detainees to have . . forfeited that right by not being reasonablydiligent in exercising it . . .

That rule dilutes the warning’s benefits with little if any gain to law enforcement or the search for truth. (Steven Penney, “Should Prosper Warnings Be Given to Non-diligent Detainees who Waive the Right to Counsel?” (2017) 39 CR (7th)33 at 54.) In this same article, Professor Penney makes an interesting argument that the Supreme Court’s comment pertaining to the reasonablediligence requirement in Prosper is obiter and therefore this requirement is not binding on lower courts and should not be followed (seePenney at 41-42). [10] Nevertheless, Crown counsel also cited a number of Saskatchewan cases in which superior courts have held that the obligationon police to give detainees Prosper warnings did not arise because of the lack of diligence of the detainees in exercising their rights tocounsel and these rulings were determinative of the s.10(

b) Charter issues raised in the cases. Consequently, these Saskatchewanholdings cannot be considered obiter and I am bound by them. [11] Perhaps the most useful Saskatchewan decision cited to me by Crown counsel on this issue was Drake v R, 2016 SKQB 384[Drake]. In Drake, the accused, who was charged with impaired driving, indicated a clear intention to consult with a lawyer and madeattempts to contact two different lawyers. When the phone number that she had in her cell phone for the first lawyer was called, thelawyer’s voice mail was activated and a message was left, but the lawyer did not call back.

A call was then placed to a second firmidentified by the accused. When an after-hours message was received in response and the police officer asked the accused if she wantedto try another lawyer, she declined. The police officer did not, at that point, advise the accused that she had an option to contact LegalAid duty counsel, nor did the police officer provide a Prosper warning. The accused was then escorted to the breathalyzer room whereshe provided her samples of breath. The Court ruled that the accused did not act reasonably and diligently in pursuit of her right toconsult a lawyer.

An instructive paragraph in Zuk J.’s judgment is para. 54, which reads as follows:

It is clear that Ms. Drake [the accused] did not ask Cst. Schmidt to look up any other lawyer’s telephone number nor did she specifically ask for the telephone number to Legal Aid. She did not ask for the officer to wait for a period of time until her lawyer returned her call. She did not tell Cst. Schmidt that she wished to speak with another lawyer but did not know who she could call. Cst. Schmidt asked her if she wanted to call another lawyer. She declined and said she was happy just leaving a message. Many of Zuk J.’s observations of the accused in Drake apply equally to Ms.

Perillat. [ 12 ] Compared to Drake , it can be contended that greater efforts were made by the accused to exercise his rights to counsel in another impaired driving case, MacNab v R , 2016 SKQB 61 [ MacNab ]. In MacNab , the accused made a single unsuccessful phone call to his lawyer of choice, but failed to get in touch with him for a consultation. The accused then searched through a phone book looking for a lawyer that he thought he knew, but he could not find that lawyer. The accused then said to the police officer, “No, forget it.

Let’s get it over with.” The police officer asked, “Are you sure?” to which the accused replied, “Yes, let’s get it over with.” The accused then proceeded to provide his breath samples. In these circumstances, the Court held that the accused was not sufficiently diligent in pursuing his right to counsel to trigger the need for a Prosper warning.

However, it should be noted that the Court’s ultimate decision could have been influenced, to some extent, by the fact that the accused was told that the first lawyer he contacted would be available half an hour later and that the accused was told that police were willing to wait until he called the lawyer again in thirty minutes time, yet the accused failed to avail himself of this option. [ 13 ] The Saskatchewan Court of Appeal considered the due diligence precondition for a Prosper warning in R v Basko , 2007 SKCA 111 , 226 CCC (3d) 425 [ Basko ].

In this case, the accused wished upon arrest to consult with Legal Aid. At 12:32 a.m., he indicated he wished to speak to Legal Aid. The police officer dialed the number for Legal Aid, and it was busy. He dialed a second time, and it was still busy. After waiting a short interval, the police officer dialed a third time, at about 12:40 a.m.

The accused, upon hearing the busy signal, said to the officer, “I know what they are going to tell me, so I’ll call one tomorrow.” The police officer asked at 12:41 a.m., “Would you like to try a different lawyer?” and the accused responded, “No, let’s get it over,” referring to the giving of breath samples, which were then taken. The Court of Appeal rejected the proposition that the lack of a Prosper warning in these circumstances meant that a s.10(

b) breach was established since the accused did not make sufficiently diligent efforts to exercise his rights to counsel. In all material respects, it appears difficult to distinguish Basko from the present case. [ 14 ] It is difficult to define the due diligence standard with precision, and it is therefore also sometimes unclear whether this standard has been met by a detainee. Consequently, whether or not a Prosper warning will be required depends on the factual context of any given case.

But when I read Drake , MacNab , and Basko together, it seems safe to assert that, in order to meet the due diligence standard, a detainee who has invoked his or her right to counsel and who has been given an opportunity to contact counsel of choice but has been unsuccessful in reaching the lawyer, must do more than make a single phone call. [ 15 ] But even this statement requires some qualification. In R v Fountain , 2017 ONCA 596 [ Fountain ], a case that was not cited by Crown or defence counsel, the police arrested and cautioned the accused and he invoked his right to counsel.

The police tried to contact his lawyer, but the lawyer was apparently out of town. The police then told the accused that he could either wait until morning to try again or call duty counsel immediately. After he chose the former option, the officers began interrogating him without first giving a Prosper warning, and he made several inculpatory statements. Paciocco J.A., writing for the Ontario Court of Appeal, concludes that a Prosper warning is not only required when an accused changes his or her mind and no longer wants to speak to his or her lawyer.

The warning is triggered anytime it is apparent that a detainee has changed his or her mind about wanting to speak to counsel without delay. In this case, the police officer in question believed that Mr. Fountain changed his mind about contacting a lawyer immediately after an initial attempt was made, opting instead to call the lawyer the next day, because the officer told him he had that option.

The Court held that, given the information the police presented to the accused, the accused’s decision to wait until the next day to resume attempts at contact met the due diligence standard giving rise to a Prosper warning. [ 16 ] Even though the fact situation in Fountain actually involved multiple phone calls to the lawyer in question and messages being left for the lawyer to call back, the Court’s decision does not really depend on the number of failed phone calls made to the lawyer.

Imagine a situation involving the police telling a detainee, after he or she made one unsuccessful attempt at contacting a lawyer, that he or she could wait for a period of time and try phoning counsel again. The detainee promptly chooses the waiting option, but before the period of time mentioned has expired, the police proceed to take breath samples from him or her. In such a scenario, the reasoning in Fountain should be applied to hold that the detainee’s s. 10(

b) Charter rights were breached by the failure of the police to give him or her a Prosper warning. [ 17 ] It is fair to say that attempting to contact a lawyer only a single time without more does not constitute sufficient diligence to trigger a Prosper warning. Is there anything more in Ms. Perillat’s case that could trigger the warning? I find it impossible to equate Ms. Perillat’s situation to the one endured by Mr. Fountain. Ms. Perillat cannot point to any communication by Corporal Nicklin to her that would estop the Crown from raising the issue of due diligence. As a result, I have no hesitation in ruling that Ms. Perillat’s s.10(

b) rights were not infringed by the failure of the police to give her a Prosper caution.

(2) Did the police officer lack reasonable grounds to make a breath demand of Ms.

Perillat pursuant to s. 254(3) of the Criminal Code and thereby infringe her s. 8 Charter right to be secure against unreasonable search or seizure and her s. 9 Charter right not to be arbitrarily detained or imprisoned? [ 18 ] There is no doubt that the relevant time to test whether a police officer has the requisite reasonable grounds to believe a driver’s ability to operate a vehicle is impaired by alcohol is at the time the formal Criminal Code breath demand is made (see R v Vandal , 2009 SKQB 32 , 330 Sask R 84 at paras 11 and 12 ).

Thus, the relevant facts pertaining to this issue constitute what the police officer knew when he made the demand. [ 19 ] In this case, this knowledge begins with a tip given to the investigating officer. Corporal Nicklin received information from his radio from the Regina Dispatch Centre. The information was something to the effect that there was an impaired driver that had left the casino located on the Whitecap First Nation and that the complaint had been called in by either the security or the surveillance staff at the casino.

The information relayed to the officer went on to state that the impaired driver was heading northbound on Highway 219 toward Saskatoon and she was travelling in a grey Nissan vehicle bearing Saskatchewan Licence Plate number 307 GST. [ 20 ] When the officer received the complaint from dispatch, he was already travelling southbound on Highway 219. Ten minutes after receiving the call, Corporal Nicklin saw the vehicle pass him travelling northbound on Highway 219.

It should be noted that at all relevant times, the area of Highway 219 in the Rural Municipality of Corman Park with which this case is concerned is an undivided highway with occasional passing lanes. When the vehicle passed Corporal Nicklin, he engaged his radar device and confirmed that it was travelling 118 km/hour in a 100 km/h speed zone. [ 21 ] Corporal Nicklin testified that he did a U-turn and began travelling northbound on Highway 219 in an attempt to catch up with the vehicle. Eventually, his vehicle was able to pull in behind the vehicle being driven by the accused.

The officer indicated that, within thirty seconds of following immediately behind the accused’s vehicle, he saw it touch the white line separating the lane from the shoulder of the highway. Then, a short time later, Corporal Nicklin testified that he saw the accused’s vehicle approach, but not quite touch, the yellow line separating the two directions and lanes of traffic.

He described these two movements made by the accused’s vehicle within the lane towards the white and yellow lines as “slight swerving.” Almost immediately after this second “slight swerve,” the officer testified that he activated his emergency police lights.

Although the accused’s vehicle stopped and pulled over onto the shoulder in a timely fashion, the vehicle in front of the accused’s vehicle, which was also travelling northbound, stopped and pulled over to the shoulder before the accused’s vehicle executed the maneuver. [ 22 ] During cross-examination, Corporal Nicklin was questioned pertaining to a video recording made by a camera located within his police vehicle. This video recording was entered into evidence by defence counsel. The recording depicted essentially what one would see from the vantage point of the front windshield of the police vehicle.

Corporal Nicklin admitted that what was depicted in the video accorded with his memory of the events. The officer indicated that, just prior to pulling over the accused’s vehicle, both his vehicle and her vehicle were travelling approximately 104-105 km/h and that the earlier speed of the accused’s vehicle, being 118 km/h, was not fast enough that he would have written her a ticket for speeding. In fact, he stated that it was not uncommon for him to see drivers traveling at these rates of speed on that highway.

Corporal Nicklin also admitted that when the accused’s vehicle touched the white line, the vehicle did so at a point where there is a slight bend in the road. An examination of the video reveals that there is, in fact, a significant curve of the roadway to the right (from the perspective of vehicles travelling northbound) at the juncture where the accused’s vehicle moves slightly within the lane to the right to touch the white line separating the lane from the shoulder.

From the time stamp on the video, it is approximately fourteen seconds from the point at which the police vehicle begins following immediately behind the accused’s vehicle (with no other vehicles between them) to the point at which the accused’s vehicle “slightly swerved” within the lane to touch the white line. Again, from the time stamp on the video, it is approximately a further eighteen seconds later when the accused’s vehicle is seen “slightly swerving” within the lane towards the yellow line that separates the two lanes and directions of traffic.

Approximately eight seconds after this second “slight swerve” within the lane, the video shows that the police emergency lights have been activated. [ 23 ] A close examination of the video reveals some interesting information. First, Corporal Nicklin followed immediately behind Ms. Perillat’s vehicle for approximately fifty-one seconds. Secondly, when the accused’s vehicle moved towards the yellow line, her vehicle can be seen travelling very closely behind the vehicle in front of her, which was also travelling northbound. Eight seconds later, the police emergency lights were activated.

Seven seconds after that occurrence, the vehicle in front of the accused’s vehicle pulled over to the shoulder and multiple vehicles can be seen coming towards the accused’s vehicle travelling in the southbound lane. Thirdly, six seconds after the vehicle in front of the accused’s vehicle pulled over, Ms. Perillat pulled over her vehicle to the shoulder.

The video recording shows that she pulled her vehicle all the way over onto the shoulder, and even past the shoulder, so that the vehicle rested partly in the ditch at an incline. [ 24 ] Upon stopping the accused’s vehicle, Corporal Nicklin confirmed that the vehicle he stopped had the same licence plate number as the one mentioned in the dispatch. He testified that, his interactions with the accused, as well as his observations of her, were

pertinent to his decision to make a breath demand. Once he was at the driver’s side window, the accused immediately handed CorporalNicklin her licence and registration. The officer noticed that she was the only occupant of the vehicle and that she was smoking a freshlylit cigarette. When asked how he knew it was a freshly lit cigarette, Corporal Nicklin indicated that he used to be a smoker and could tellfrom the nature of the cigarette paper and the way that it burned that it had been recently lit. He could not detect an odour of alcoholemanating from her.

The officer then leaned into the accused’s vehicle and observed that her eyes appeared to be glassy. [25] Corporal Nicklin stated that when he asked the accused to exit her vehicle, he formed the opinion that her ability to operate amotor vehicle was impaired by alcohol. It was at this juncture that the officer formed the intention to make the breath demand. When theaccused exited her vehicle, Corporal Nicklin had her accompany him back to the police vehicle.

The officer testified that she had nodifficulty exiting her vehicle even though her vehicle was parked at a slight incline nor did she display any issues in walking to the rearof the police vehicle. When they reached the police vehicle, he placed her under arrest for impaired driving, handcuffed her, and placedher in the backseat of the police vehicle. She was then read her “right to counsel” warning and the breath demand. [26] Consequently, the basis for the officer’s breath demand can be summarized quite succinctly.

It consists of the tip from thecasino, the accused speeding and slightly swerving within the lane as observed by the officer, the fact that the driver in front of theaccused pulled over before she did when the officer activated his emergency lights, the accused’s glassy eyes, and her smoking a freshlylit cigarette. [27] Section 254(3) of the Criminal Code sets out the statutory test that must be met before a police officer can make a valid breathdemand.

Pursuant to this provision, a police officer may not demand a breath sample of an individual unless the officer has “reasonablegrounds to believe” the individual has, within the preceding three hours, driven while impaired or while over the proscribed limit as aresult of the consumption of alcohol.

The failure to meet this standard would mean that there would be no legal authority for obtainingthe breath samples and an illegal search or seizure is unreasonable constituting an infringement of s. 8 of the Charter (see R v Collins, (SCC), [1987] 1 SCR 265, 33 CCC (3d) 1 at 14). [28] The Supreme Court of Canada has shed significant light on the meaning of the legislative standard articulated in s. 254(3) of theCriminal Code.

In R v Shepherd, 2009 SCC 35, [2009] 2 SCR 527 at para 16 [Shepherd], the Court held that, to satisfy the legislativeprovision, a police officer must have reasonable and probable grounds to make the breath demand. The Court also stated that there isboth a subjective and an objective component to establishing reasonable and probable grounds.

These components are met if the officerhad an honest belief that the suspect committed an offence under s. 253 as a result of the consumption of alcohol and if there arereasonable grounds for this belief (Shepherd at para 17). [29] In this case, I accept the evidence of Corporal Nicklin that he subjectively believed that the accused had committed the offence ofoperating a motor vehicle while impaired in the preceding three hours as a result of the consumption of alcohol.

Crown counsel, in hersubmissions, stated that Corporal Nicklin relied very heavily on the tip from the casino staff in formulating his belief that the accused’sability to drive was impaired. I agree. Although the tip does not indicate the possible source or reason for this impairment (for example,was the accused’s ability to drive impaired by the consumption of alcohol or the ingestion of a drug), Corporal Nicklin did testify that itwas his experience that many people will light cigarettes to cover the odour of alcohol.

My conclusion is that, relying primarily, albeitnot exclusively, on the tip and the evidence of the accused smoking a freshly lit cigarette, Corporal Nicklin possessed the subjectivebelief required under s. 254(3) of the Criminal Code. [30] In making her submission that the other prerequisite for a s. 254(3) demand, the objective component, was also present in thiscase, Crown counsel cited R v Wang, 2010 ONCA 435, 256 CCC (3d) 225 at para 17 [Wang] for the proposition that, “The test is not anoverly onerous one.” The Crown argued that the standard for a s. 254(3) demand is met simply if there is any evidence upon which areasonable inference could be drawn that the person to whom the demand is being made committed an offence under s. 253 of theCriminal Code as a result of the consumption of alcohol.

Crown counsel elaborated by stating that the test for demanding a breathsample under s. 254(3) is lower than the standard needed to justify a common law arrest or the test that must be met to validly issue astandard s. 487 search warrant under the Criminal Code.

She indicated that the test of probability in s. 254(3) means “less than fiftypercent” and that it is therefore less demanding than the standard of proof required in the civil context. [31] Crown counsel asserted that her position, that the breath demand test is met if it is reasonably possible that the subject committedan offence under s. 253 as a result of the consumption of alcohol, is supported by statements made by the Saskatchewan Court of Appealin R v Gunn, 2012 SKCA 80, 399 Sask R 170 [Gunn].

In Gunn, the Court of Appeal makes the following comments pertaining to theofficer who makes a breath demand and the belief that he or she must possess: [T]hat belief must be rationally sustainable on an objective basis . . . In a voir dire held to determine the reasonableness of the police officer’s belief, 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 ( see Gunn at paras 7 and 15 ). [ 32 ] However, a close reading of Gunn reveals other statements that refute the Crown’s position.

Indeed, later in the same above quoted passage from Gunn , the Court of Appeal makes clear that when the Court refers to the accuracy of inferences being irrelevant to the s. 254(3) test, the Court is referring to ultimate accuracy or reliability as reflected in the reasonable doubt standard not the threshold reliability to make a breath demand (see Gunn at para 15 ). Indeed the Court goes on and clarifies that the objective reliability of the inferences remains important in determining whether the s. 254(3) test is met.

Specifically, the Court states, [The] simple fact that a police officer’s observations objectively support, on the one hand, an inference which buttresses the officer’s belief that an accused was impaired and, on the other hand, one or more inferences of innocent or innocuous explanation for the activity which aroused the officer’s initial suspicion is not sufficient to render the officer’s inference unreliable . . .

The standard of “reasonable grounds to believe” does not require that the arresting officer be in the position to dispel innocent or innocuous inferences which might also be reasonably drawn from his or her observations . . .

This is not to say that the availability of other rational inferences is irrelevant; rather, the fact innocent or innocuous inferences may be rationally drawn from the circumstances may, depending on the soundness or cogency of those inferences, serve either to undermine or to reinforce the reliability of the inference of impairment drawn by the officer; but this requires factual determinations to underpin the inferences, a judicial assessment of the reliability of the inferences drawn and then the weighing of conflicting inferences in context and against the soundness and cogency of the officer’s inference of impairment[.] ( Gunn at paras 22 and 23 .) Perhaps most revealing of the intention of the Court of Appeal pertaining to the s. 254(3) standard is the Court’s statement that the standard of reasonable grounds to believe is one of “lesser probability” ( Gunn at para 7 ).

This statement should be juxtaposed with the options that were not opted for by the Court – a standard of greater probability, which might be equated to the reasonable doubt standard (in Starr v R , 2000 SCC 40 , [2000] 2 SCR 144 at paras 241-243 , the Supreme Court indicates that the beyond a reasonable doubt standard can be defined as requiring something less than absolute certainty but more than probable guilt), and a standard of reasonable possibility, which might be characterized as being akin to the investigative detention standard expressed in R v Mann , 2004 SCC 52 , [2004] 3 SCR 59. [ 33 ] Referring back to Wang and the Ontario Court of Appeal’s statement that the s. 254(3) standard is not an overly onerous one, that statement must also be read in context.

Immediately after the Court makes this statement, it also states, “A prima facie case need not be established.” ( Wang at para 17 .) One of the established meanings of the phrase, “ prima facie case” refers to the situation whereby the strength of the evidence compels the verdict sought by the Crown if the accused produces no evidence to rebut it (see Black’s Law Dictionary , 6 th ed., s.v. “prima facie case”). So the concept of a prima facie case, at least in the criminal law context, necessarily invokes some reference to the “beyond a reasonable doubt” standard.

Consequently, I agree that the standard to satisfy the test for a breath demand under s. 254(3) of the Criminal Code is not an overly onerous one 1) if the comparison that is being made is to the standard of a prima facie case, which is the comparison the Court makes in Wang , or 2) if the comparison that is being made is to the beyond a reasonable doubt standard, which is the comparison that the Saskatchewan Court of Appeal makes in Gunn (see Gunn at para 15 ). [ 34 ] Crown counsel maintained that lesser probability merely means reasonable possibility.

Furthermore she argued that reasonable possibility does not require that the inferences that could reasonably be drawn from the evidence be so strong that they could lead to the conclusion that it was more likely than not that the grounds for a valid breath demand exist. That is to say, the standard is lower than “more likely than not.” [ 35 ] The proposition that lesser probability merely means reasonable possibility has been made less tenable in light of the distinction the Supreme Court has drawn between reasonable grounds and reasonable suspicion.

In R v McKenzie , 2013 SCC 50 , [2013] 3 SCR 250 at para 27 , the Court differentiates the two concepts by stating, “[W]hile both concepts must be grounded in objective facts that stand up to independent scrutiny, reasonable suspicion is a lower standard, at it engages the reasonable possibility, rather than the probability, of crime[.]” [ 36 ] Perhaps the largest obstacle to adopting the Crown’s position is the constitutional imperatives at play.

Section 254(3) of the Criminal Code is a provision that authorizes a warrantless search and seizure and it must therefore be read, if possible, in a manner that ensures compliance with the constitution.

As stated by Popescul C.J.Q.B. in R v Ducherer , 2016 SKQB 110 , [2016] 9 WWR 543 at para 17 in referring to the reasonable grounds requirement in s. 254(3) , “The reasonable grounds requirement is not only a statutory requirement, but is also a constitutional requirement to a lawful search and seizure[.]” The first case in which the Supreme Court gave comprehensive consideration to s. 8 of the Charter also involved a legislative provision authorizing a warrantless search. In Hunter v

Southam Inc. (SCC), [1984] 2 SCR 145, 14 CCC (3d) 97 (SCC) at 120-121 the Court makes the following statementsabout when such a legislative provision would withstand constitutional muster: The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point whencredibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold forsubordinating the expectation of privacy to the needs of law enforcement. . .

In cases like the present, reasonable and probable grounds . .. to believe that an offence has been committed and that there is evidence to be found at the place of the search constitutes the minimumstandard consistent with s. 8 of the Charter, for authorizing search and seizure. Probability in this context must mean more likely than not.

Therefore, in order for s. 254(3) to be Charter compliant, it must be read asrequiring that the grounds relied upon by the officer give rise to reasonable inferences that could make it more likely than not that theperson to whom a breath demand is made has, within the preceding three hours, driven while impaired or while over the proscribed limitas a result of the consumption of alcohol. [37] This

interpretation of the s. 254(3) test should not be construed to be the equivalent of the civil standard of proof. TheSaskatchewan Court of Appeal has indicated that a police officer faced with making such an assessment is not required to establish thecommission of the offence on a balance of probabilities (see R v Shinkewski, 2012 SKCA 63 [Shinkewski] at para 13). Most recently, theSupreme Court of Canada had occasion to comment on the civil standard of proof in F.H. v McDougall, 2008 SCC 53, [2008] 3 SCR 41[McDougall].

In this case, the Court holds that there is only one standard of proof in a civil case and that is proof on a balance ofprobabilities, but that to meet this standard the evidence must be clear, convincing, and cogent (see McDougall at paras 39 and 40).Extrapolating from these statements, the civil standard of proof would require evidence giving rise to reasonable inferences that arestrong enough that they must establish that the allegation in question is more likely to have occurred than not.

This standard is higherthan the one that I have articulated for the reasonable and probable grounds test within the criminal law context.

This latter standardsimply requires evidence giving rise to reasonable inferences that are strong enough that they could establish that the allegation inquestion is more likely to have occurred than not. [38] While the “reasonable grounds” standard for a breath demand under s. 254(3) of the Criminal Code reflects the same level of testthat must be met for police to make a common law arrest or to obtain a s. 487 Criminal Code search warrant, whether or not the standardhas been met must be assessed by taking into account the type of power exercised and the background circumstances in which it isexercised.

In R v Golub (1997), (ON CA), 117 CCC (3d) 193 (Ont CA), leave to appeal refused, [1998] 1 SCR ix),the Ontario Court of Appeal discussed the contextual differences between a justice contemplating the issuance of a search warrant and apolice officer deciding whether or not to make an arrest. The Court observed that, Both a justice and an arresting officer must assess the reasonableness of the information available to them before acting.

It does notfollow, however, that information which would not meet the reasonableness standard on an application for a search warrant will also failto meet that standard in the context of an arrest. In determining whether the reasonableness standard is met, the nature of the powerexercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very differentthan those which operate on an application for a search warrant. Often, the officer’s decision to arrest must be made quickly in volatileand rapidly changing situations.

Judicial reflection is not a luxury the officer can afford. The officer must make his or her decisionbased on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a policeofficer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. (Golub at para 18).

The Saskatchewan Court of Appeal has intimated that the standard of “reasonable grounds to believe” may not require that an officer inthe field ensures that there has been informed consideration of all the information at the time that either an arrest or a breath demand ismade.

As explicitly stated by the Court at para 16 of Shinkewski, “The standard simply requires the . . . officer to consider allincriminating and exonerating information which the circumstances reasonably permit.” [39] I am mindful that, pursuant to R v Stellato (1993), (ON CA), 78 CCC (3d) 380, aff’d (SCC),[1994] 2 SCR 478n, to make out a charge of impaired driving, the Crown only needs to prove beyond a reasonable doubt that the driver’sability to drive was slightly impaired.

So, when faced with assessing whether there were sufficient objective grounds to make a s. 254(3)demand, perhaps there is an optimal way in which courts can approach this issue.

For instance, a judge in this situation might ask himselfor herself the following question: On the whole of the evidence relied upon by the police officer in making the breath demand, could areasonable person standing in the shoes of the officer have come to the conclusion that it was more likely than not that the accused’sability to operate a motor vehicle was even slightly impaired as a result of the consumption of alcohol? [40] The last eight words of this requirement play a pivotal role in this case.

My reading of s. 254(3) suggests that before a breathdemand can be made under this provision, a police officer must have the reasonable and probable grounds to believe that the driver hasconsumed alcohol. Because of the paucity of evidence pertaining to whether the consumption of alcohol as opposed to the ingestion of

drugs or some other factors led to any impairment of the accused’s ability to operate a motor vehicle, I have no hesitation in concluding that the objective component of the s. 254(3) test is not met in this case. While the experience of Corporal Nicklin and the evidence of the freshly lit cigarette establish his subjective belief that the accused had consumed alcohol, a reasonable person standing in the shoes of the officer could not have come to the conclusion that it was more likely than not that Ms. Perillat had consumed alcohol.

This conclusion is buttressed by the absence of any dispatch information pertaining to the accused having imbibed at the casino and by the lack of evidence of odour of alcohol emanating from Ms. Perillat’s breath. [ 41 ] What the officer did have was a reasonable suspicion that Ms. Perillat had alcohol in her body. That suspicion coupled with his knowledge of her operation of the motor vehicle could and should have led to him making an approved screening device demand under s. 254(2) of the Criminal Code .

If the accused’s breath sample into the approved screening device yielded a fail result, that result would have been cogent evidence tending to establish the objective component for a s. 254(3) breath demand. [ 42 ] If I am incorrect, and the evidence relied upon by the officer is sufficient to establish to the requisite standard that Ms. Perillat had consumed alcohol, on the whole of the evidence considered by Corporal Nicklin, was his subjective belief that the accused’s ability to operate a motor vehicle was impaired supported on an objective consideration of all the evidence?

In making this assessment, a consideration of the decided case law cited by counsel proves helpful. [ 43 ] In R v Nernberg , 2013 SKPC 197 [ Nernberg ], the investigating officer was advised by police communications that a caller said that a vehicle was swerving all over the road and had hit a curb. The caller then indicated that they had followed the vehicle to a specific residential address and that the caller believed the driver to be male, about forty years of age, with dark hair.

Seven minutes later, the officer arrived at the residential address in question and observed the accused in a vehicle parked on the driveway. The officer smelled a strong odour of beverage alcohol coming from the accused’s breath. Although the accused admitted to drinking that evening, he also indicated that his girlfriend had driven him from the bar and that he was just grabbing his wallet from the vehicle. The officer did note that the accused had red glassy eyes (although the reliability of this observation appears to have been questioned by the trial judge).

Taking into account all of this evidence, the Court concluded that the s. 254(3) standard had not been met. It should be noted that in Nernberg the tip provided specific detail as to why the accused was considered by the caller to be impaired, namely the manner of driving engaged in by the accused.

However, the Court also appears to have had some concerns pertaining to whether or not the investigating officer had dealt with the same vehicle that was identified by the caller. [ 44 ] In R v Ward , 2012 SKPC 176 [ Ward ], the investigating police officer received a dispatch about a possible impaired driver operating a white Ford F-150 truck. The officer was told that the truck was in the area of a certain intersection. When the officer approached this area, he saw a white Ford-150 truck that was parked and he observed the accused exit the driver’s door and walk towards the back of the truck.

The officer then made certain observations of the accused, specifically that he had bloodshot eyes, a red face, and slightly slurred speech. Although there appeared to be more pronounced concerns regarding whether or not the investigating officer was dealing with the same vehicle identified by police communications in this case than in Nernberg , the Court in Ward also specifically indicates that the observations the officer made of the accused were not sufficient in and of themselves to justify the breath demand (see Ward at para 32 ).

Moreover, the Court remarks upon the fact that dispatch never provided the investigating officer with any information as to the manner in which the truck was being driven or why the driver was thought to be possibly impaired. In the end, the Court concludes that the objective component of the s. 254(3) test had not been met. [ 45 ] Crown counsel contended that in making the assessment as to whether the objective grounds for the demand existed, I should give a great deal of weight to the source of the impaired driving tip – the casino staff.

Specifically, she indicated that the source in this case was highly reliable because in calling in the tip, the casino was going above and beyond the mandate of its business to ensure that the police could take steps to ensure the public’s safety. [ 46 ] After reviewing the cases cited to me, it is not clear why the casino tip would be considered any more reliable than a motorist who makes a 911 call when he is suspicious that a fellow driver is impaired.

Officer Nicklin was not made aware of any special training received by casino staff in detecting and handling intoxicated patrons nor was he given any detailed information as to why the casino staff considered Ms. Perillat to be intoxicated. Moreover, there is no suggestion that whoever made the tip from the casino had provided reliable information to the police in the past. [ 47 ] Officer Nicklin testified that the accused’s manner of driving was also a factor leading to his decision to make the breath demand.

While the accused was travelling at over the posted speed limit, her speed was not excessively over that limit. In fact, the officer testified that Ms. Perillat was not going fast enough that he would have issued her a speeding violation ticket. I had the opportunity to view the video that captured her driving behavior. As I indicated in my oral decision of this matter, the video depiction of the accused’s driving did not rouse my suspicions that the accused was an impaired driver. Her manner of driving seemed completely normal to me.

When she “swerved slightly” to touch the white line, there is a significant curve of the roadway to the right. The most compelling inference to draw from this “slight swerve” is that she failed to measure with total precision the angle of curvature of the road and adjust her driving accordingly – something that is commonplace on our roads and highways with completely sober drivers. When I viewed the video, it was clear that the most reasonable inference to draw from Ms. Perillat’s approach towards the yellow line is that she was attempting to see if

it was clear to pass the vehicle that was in front of her travelling northbound, and when she saw that it was not safe to do so due to oncoming traffic travelling southbound, she resumed travelling within the center of her lane. Because she was travelling so close to the car in front of her, I do not believe that much weight can be attributed to the fact that the vehicle travelling in front of Ms. Perillat pulled over in response to the police emergency lights before she pulled over her vehicle. Indeed, I note that Crown counsel did not purport to rely heavily on this factor in her submissions.

That the Crown would take this position is not surprising given the fact that Ms. Perillat did pull over her vehicle in a fairly prompt and safe fashion. [ 48 ] Corporal Nicklin made two observations of the accused that were contended to be probative as to whether or not the objective grounds in s. 254(3) were met. First, she displayed glassy eyes. Secondly, she was smoking a freshly lit cigarette.

While the presence of glassy eyes can be considered a sign of impairment, it should be noted that this type of condition in combination with a red face and slightly slurred speech was held to be insufficient to meet the objective component of the s. 254(3) standard in Ward . The smoking of a cigarette can, at most, lead to an inference that smoking was being used to mask the odour of alcohol emanating from the accused’s breath.

It is precisely this inference that Corporal Nicklin drew and, while his observation does give rise to a reasonable suspicion that the accused had consumed alcohol, it does little to establish that the accused’s ability to drive was impaired by alcohol. [ 49 ] It is important to keep in mind that when assessing whether or not the “reasonable grounds to believe” standard has been met, all the evidence must be considered cumulatively and not piecemeal (see R v Savage , 2011 SKCA 65 , 371 Sask R 283).

Thus, it would be an error to consider each of the pieces of evidence relied upon by Corporal Nicklin in isolation in determining whether the s. 254(3) standard had been met.

Even though much of the evidence relied upon by the officer can be characterized as suffering from the frailties that I have outlined, I must consider the whole of the evidence and I must be mindful that weakness in some aspects of the evidence can be bolstered by strengths in other aspects. [ 50 ] On the whole of the evidence relied upon by the police officer in making the breath demand, could a reasonable person standing in the shoes of the officer have come to the conclusion that it was more likely than not that the accused’s ability to operate a motor vehicle was even slightly impaired?

It is clear to me that the answer is no. The strength of the inferences that could reasonably be drawn from all of the evidence are insufficient to meet the reasonable and probable grounds test. On the whole of the evidence, it could be reasonable to suspect that the accused had committed the offence of impaired driving but the constellation of factors relied upon by the police officer fell well short of the reasonable and probable grounds standard. Consequently, the breath samples were obtained without lawful authority resulting in a breach of Ms.

Perillat’s s. 8 Charter rights. [ 51 ] Although defence counsel did not make oral submissions during the trial pertaining to s. 9 of the Charter , her pre-trial Charter notice did advance an allegation that her client’s right to be free from arbitrary detention or imprisonment was infringed. It is therefore appropriate that I address this allegation, and I can do so in a fairly concise way.

Despite the fact that Corporal Nicklin had the lawful authority to stop any vehicle, even at random, under provincial traffic safety legislation to check for driver sobriety and vehicle fitness, and although he had reasonable suspicion to briefly detain Ms. Perillat in particular to investigate the impaired driving tip, he did not have the reasonable and probable grounds to arrest her for an offence under s. 253 of the Criminal Code .

The reasons I gave in relation to the sufficiency of grounds for the breath demand apply to the sufficiency of grounds to make the lawful arrest because the demand and the arrest were made close in time, were identical in terms of the criteria that had to be met (given the theory of the investigating officer that it was alcohol and not drugs that was the impairing agent), and both the decision to make the breath demand and the decision to make the arrest were made in the same field context. The continued detention of Ms.

Perillat in the guise of an unlawful arrest constitutes a detention that is not authorized by law and, pursuant to R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 at paras 54 and 56 , such a detention violates s. 9 of the Charter .

(3) If there are Charter violations, what is the appropriate remedy? [ 52 ] The question of whether to exclude evidence obtained in contravention of an accused’s Charter rights involves balancing a number of factors and it is an analysis that depends heavily on the unique facts presented by each case. While Crown counsel made vigorous submissions pertaining to whether or not Corporal Nicklin breached Ms. Perillat’s Charter rights, Crown counsel’s arguments concerning whether or not the Certificate of Analyses ought to be excluded by way of remedy were much more restrained.

She essentially indicated that she would leave it to the Court to decide whether or not this evidence should be excluded under s. 24(2) of the Charter . The Crown’s position, of course, does not impact upon my responsibility to engage in a comprehensive analysis of this issue and I was aided in my analysis by defence counsel’s thorough submissions on this point. Of course, a determination of whether or not to exclude the evidence is governed by the test outlined in Grant , which requires an inquiry along the following three lines: (

i) the seriousness of the state conduct which infringed the Charter ; (ii) the impact on the Charter -protected interests of the accused; and (iii) the interests of society in having the matter adjudicated on the merits. [ 53 ] Although my assessment of the issue of the seriousness of the Charter -infringing state conduct in this case suggests that at least this line of inquiry in the Grant analysis weighs in favour of exclusion of the evidence, I reject one of the key arguments made by defence counsel pertaining to this aspect of the Grant test.

Defence counsel contended that Corporal Nicklin’s practice of never having given a Prosper warning as well as his admitted ignorance of this case’s long-standing applicability in the province is indicative of the

lack of care that the officer showed in this investigation even though I found that a Prosper warning was not required in this case. There was also some suggestion that the officer’s lack of knowledge pertaining to Prosper means that the Charter infringements that I did find were simply part of a larger pattern of more systemic breaches engaged in by Corporal Nicklin.

While I am concerned about the officer’s apparent lack of knowledge of his potential Prosper obligations, there is no evidence before me that establishes that he has ever been confronted by fact situations that would mandate that he actually give Prosper warnings.

Quite simply, the evidential foundation does not exist in this case to buttress defence counsel’s submission that the Charter breaches were part of a larger pattern of constitutional misconduct by the officer. [ 54 ] There are a number of more cogent rationales for holding that the seriousness of the Charter -infringing conduct is quite pronounced in this case. Despite the fact that there is no evidence that Corporal Nicklin deliberately breached the accused’s constitutional rights, he was clearly negligent in his failure to preserve Ms. Perillat’s ss. 8 and 9 Charter rights.

This negligence cannot be equated with good faith. While I would refrain from characterizing the level of negligence as gross, as the officer had reasonable suspicions that the criteria in s. 254(3) were met, the evidence in this case also does not come particularly close to meeting the reasonable and probable grounds standard. Indeed, the evidence relied upon by Corporal Nicklin falls far short of meeting this standard, both pertaining to whether she had committed the offence of impaired driving and concerning whether her impairment was due to the consumption of alcohol.

I am also quite troubled by the lack of evidence suggesting the officer even adverted to the possibility of using additional investigative steps, such as the deployment of an approved screening device. Finally, the fact that multiple provisions of the Charter were breached by the state conduct at issue here tends to support exclusion. [ 55 ] The second line of inquiry mandated by Grant also militates toward exclusion.

While it is true that the s. 8 breach does not seriously undermine the interests protected by this provision of the Charter , because providing a breath sample is a relatively unobtrusive procedure which does not demean dignity, the breach of s. 9 in the guise of the unlawful arrest goes to the heart or core of the values and interests protected by that constitutional guarantee.

In R v MacArthur , 2012 SKPC 110 , 401 Sask R 172 at para 50 , the Court found that where the accused was detained significantly longer than would have been necessary for a roadside sample for which the grounds did exist, the impact upon the accused’s s. 9 Charter protected interests was substantial. Likewise in Ward at para 38 , the Court held that breaches of s. 9 that are underpinned by the lack of reasonable grounds to make an arrest for impaired driving constitute a significant interference with an accused’s right to liberty.

The impact on an accused’s Charter protected rights is elevated in situations like the one faced by Ms. Perillat where the police also require an accused to provide self-incriminating evidence. [ 56 ] The third line of inquiry in the Grant analysis is the only one that would favour the admission of the evidence. Two important factors to take into account in this line of inquiry are the reliability of the evidence and its importance to the prosecution. In Grant at paras 110-111 , the Supreme Court notes that the results of breath sample analyses are generally considered reliable.

In addition, the exclusion of the Certificate of Analyses would end the prospects for a successful prosecution of the offence of driving while over the legal limit. [ 57 ] In making an assessment of whether evidence ought to be excluded, I must consider the long-term potential effects of breaches to the repute of the justice system and the administration of justice. After weighing the three lines of inquiry directed in Grant , and for the reasons given I conclude that the admission of the Certificate would bring the administration of justice into disrepute.

Consequently, it is my ruling on the voir dire that the Certificate is excluded from the evidence of the trial pursuant to s. 24(2) of the Charter .

(4) Does the admissible evidence establish, beyond a reasonable doubt, that Ms. Perillat’s ability to operate a motor vehicle was impaired by alcohol? [ 58 ] The evidence that can be relied upon in relation to the impaired driving charge comes from three civilian witnesses who observed Ms. Perillat approximately seventy-five minutes before she was arrested as well as the evidence of Corporal Nicklin, including his post- arrest observations of her. [ 59 ] The first civilian witness that testified was Bryce Cameron.

He testified that on June 2, 2017, he was employed as the Senior Operations Manager at the Dakota Dunes Casino located twenty minutes south of Saskatoon on Highway 219 on the Whitecap First Nation Reserve. However, he was not on duty at the time. Instead he was a guest attending an awards banquet for a golf tournament that had been held earlier that afternoon. The banquet was being held in the multipurpose room of the casino. [ 60 ] Mr. Cameron recalled that at 8:15 p.m., he observed the accused, who was also a guest at the banquet, showing visible signs of intoxication.

She had been sitting at the table to the left of Mr. Cameron and she had a bottle of beer in front of her. His attention was drawn to her because she was speaking in a very loud manner and her voice was slurred. Mr. Cameron contacted the casino’s Surveillance Supervisor and told him to ensure that the accused was not served any more alcohol and that she had a safe ride home. Mr.

Cameron also pointed her out to the Surveillance Supervisor. [ 61 ] Later that evening, Mr. Cameron reviewed the casino’s surveillance footage and the footage showed that she drove off site at approximately 9:20 p.m. in a silver car bearing Saskatchewan licence plate number 307 GST. He also indicated that the normal practice in such a situation would be for the surveillance department to contact the police. However he did not know if this practice was followed on this occasion. [ 62 ] On cross-examination, Mr.

Cameron admitted that he could not recall the words he heard the accused slur or what she said loudly. [ 63 ] The next civilian witness that testified was Clinton Joyal. On the evening of June 2, 2017, Mr. Joyal was working as the Security Supervisor at the casino. He testified that when he walked into the multipurpose room, Mr. Cameron called him over and told him to “cut off” the accused. When Mr. Joyal asked Mr. Cameron who he wanted “cut off,” Mr. Cameron pointed out the accused who had just left the bathroom and was returning to her table. Mr.

Joyal approached the accused and asked if they could speak away from the table. She indicated that she would be willing to do so, and the two of them stepped away from the table to converse. Mr. Joyal then told her that, “the house has decided to cut you off from alcohol. You are welcome to stay and drink coffee, pop, or water.” He then asked her if she had a safe ride home, and she mentioned that she was going to get a ride home from some nephews who were also at the banquet. The accused then returned to her table. [ 64 ] When Crown counsel questioned Mr.

Joyal about his impressions of the accused’s sobriety, he indicated that he only spent half a minute with her but that she was answering his questions appropriately. On cross-examination, he admitted that the accused had not drawn his attention prior to Mr. Cameron pointing her out. Mr. Joyal also stated that he saw the accused walk from the bathroom back to her table, a distance of approximately twenty feet, and he did not notice any staggering on her part. Moreover, Mr. Joyal did not notice that the accused displayed any slurred speech. [ 65 ] The final civilian witness that testified was Brian Eigenmann.

That evening, Mr. Eigenmann was working at the casino as security personnel. He had been posted by the washrooms when he saw a lady approach the washrooms. He testified that he could tell that this lady was not sober because she was not walking totally normally. He also observed Mr. Cameron point out this same individual to Mr. Joyal and direct Mr. Joyal to “cut her off.” After she was “cut off,” Mr. Eigenmann testified that the lady said to him that she should not have been cut off and she asked if the guy who “cut her off” had a last name of Tony.

He responded that the person responsible did not have the last name of Tony. When she spoke to him, Mr. Eigenmann indicated he could tell that she had been drinking because he could smell alcohol on her breath and she had glassy eyes. Mr. Eigenmann could not make an in-court identification of the accused as the lady with whom he had been dealing that night. [ 66 ] On cross-examination, Mr. Eigenmann made some important admissions. He stated that he prepared an incident report in relation to this matter in order to, among other reasons, assist him in refreshing his memory.

When questioned about the lady’s eyes, he said that they were “kind of glassy.” However, he also stated that there was no mention of such an observation in his incident report, which was made contemporaneously with the events that it described. Mr. Eigenmann was asked if he noticed whether the lady had slurred speech when he spoke with her and he indicated, “from what I remember, there was a bit of a slur.” Yet, he admitted that there was nothing about slurred speech in his incident report.

Moreover, he could not remember which words were being slurred. [ 67 ] Corporal Nicklin made a number of observations of the accused after he stopped her vehicle in response to the tip that he received from the casino. He testified that he stopped her vehicle shortly before 9:30 p.m. The driving behavior that he observed was described earlier, as were the observations of the accused that he made at the roadside. After placing her under arrest and while transporting her back to the Saskatoon detachment, Corporal Nicklin engaged in a fairly extensive conversation with the accused.

During that lengthy conversation, he only heard her slur one phrase, “best ball.” Otherwise her speech was normal. When the accused was at the detachment, she had to travel from the booking area to the room where the approved instrument was located and she had to navigate the hallway between these areas on two occasions. The officer admitted that he did not observe her having any difficulty in walking at the detachment. In fact, he had no concerns about her balance and coordination throughout his entire dealings with her. [ 68 ] In order to convict Ms.

Perillat of the offence of impaired driving, the Crown has to prove beyond a reasonable doubt that her ability to operate a motor vehicle was even slightly impaired by the consumption of alcohol. The Crown may lead evidence of alcohol consumption and aberrant driving, but it is not necessary that the evidence demonstrate bad driving to prove impairment.

Because the Crown must prove that the accused’s ability to drive was impaired, the standard may be met in the absence of evidence of aberrant driving through, among other things, evidence of a deterioration of the accused’s judgment or attention, a loss of motor coordination or control, increased reaction times, or diminished sensory perceptions ( R v Thomas , 2012 SKCA 30 , 393 Sask R 1). In order to convict the accused of impaired driving, the only reasonable inference must be that her ability to drive was impaired to some degree.

If the evidence allows for other reasonable inferences, the accused must be acquitted.

[ 69 ] Crown counsel implied that she had doubts about the strength of her impaired driving case against the accused and I agree. As Crown counsel acknowledged, there is not good evidence that Ms. Perillat was slurring her speech. I have already indicated that her driving appeared to be normal and that the strongest inferences that could be drawn from her driving behavior are innocent ones. The only evidence that she had difficulty with her balance or motor coordination came from Mr.

Eigenmann, but it was Corporal Nicklin who had the opportunity to observe her more extensively and more proximate to the time of her driving, and the officer detected no difficulty with her balance or motor skills. All of the witnesses that conversed with Ms. Perillat that evening indicated that she responded appropriately to questions and did not appear confused or disoriented. As a result, the evidence does not satisfy me beyond a reasonable doubt that Ms.

Perillat’s ability to drive was impaired, as there are other reasonable conclusions that could be drawn, based on the same evidence and observations, when considered as a whole. III. CONCLUSION [ 70 ] Given my findings with respect to the charge of impaired driving, I find that the elements of the offence have not been proven beyond a reasonable doubt and I find the accused not guilty.

Having excluded the Certificate of Analyses, the elements of the offence of driving while her blood alcohol content exceeded 80 mg of alcohol in 100 ml of blood have not been made out and the accused is found not guilty with respect to that offence as well. ________________________ S.S. Anand, J