Her Majesty the Queen - v. -, 2011 SKPC 138

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 138 Date: August 19, 2011 Information: 24299836 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert Leach Appearing: C. Bliss For the Crown R. Pich é For the Accused DECISION ON VOIR DIRE R.D. JACKSON , J I BACKGROUND [ 1 ] The accused stands charged on September 24, 2010, at Kindersley with operating a motor vehicle while impaired by alcohol and driving while over .08.

[ 2 ] The Crown proceeded at trial by way of voir dire having been alerted by Defence to potential Charter issues. [ 3 ] The Crown called two witnesses, the complainant Gillian McMillan and the investigating officer, Constable Darcy Thiemann. The Defence elected to call no evidence on the voir dire reserving the right to call evidence on the trial proper pending determination of the Charter issues. II ISSUES [ 4 ] The following issues were raised by Defence for determination:

a) Whether the investigating officer had reasonable and probable grounds to make the Intoxilyzer demand pursuant to s. 254(3) of the Criminal Code ;

b) Whether the accused ought to have been given rights to counsel pursuant to s. 10(

b) at roadside prior to embarking upon sobriety investigation;

c) Whether the accused ’s s. 10(

b) rights were violated by the investigating officer not giving formal waiver rights to the accused prior to providing breath samples for analyses;

d) Whether, if breach is made out, the appropriate remedy would be exclusion of Certificate of Analyses pursuant to s. 24(2). III DECISION Reasonable and Probable Grounds [ 5 ] Constable Thiemann testified that he received a dispatch about a possible impaired driver in the vicinity of the Co-op Convenience Store in Kindersley.

Upon attending the scene he spoke with the complainant, Gillian McMillan (who confirmed this evidence in her testimony), that the subject male had parked his vehicle out front so close to a neighbouring vehicle (roughly six inches) so as to prevent access to the vehicle other than through the passenger door. Further Ms.

McMillan had been apprised by one of her co- workers at the store that this individual “smelled strongly of alcohol and appeared drunk”. [ 6 ] As the subject vehicle, a black half-ton truck, had entered the on-site car wash, Constable Thiemann took up a surveillance position some 200 yards distant at the entrance to the adjacent WalMart. When the vehicle exited the car wash, Constable Thiemann followed to “obtain driving evidence”. [ 7 ] Constable Thiemann observed the accused to come to a complete stop at a stop sign entering onto a main road, Ditson Drive, then turn left and proceed.

He followed the vehicle at a distance of three to four car lengths for approximately two miles before initiating a stop. [ 8 ] Throughout the entire driving distance Constable Thiemann observed no erratic or suspicious driving. In his words “... I had no driving evidence whatsoever”. Nonetheless he initiated a traffic stop just prior to the vehicle entering upon a gravel highway. His reason for so doing was to “assess the validity of the complaint”.

He noted the time to be 17:05 hours. [ 9 ] Constable Thiemann parked roughly twelve feet behind the truck and when he approached the driver he detected the smell of alcohol however, he was unable to determine whether the smell came from inside the cab or the driver himself. He ascertained the

lone occupant and driver to be the accused, Robert Leach. He noted no issues concerning dexterity or ability to retrieve his driver’s licence nor any issue with comprehension. He thought he noticed a slight slurring of the accused’s speech. [ 10 ] At this point Constable Thiemann requested the accused to step out and walk to the back toward the patrol car.

His reason, he testified, was to observe the cab console area to see if any liquor was present and to assess the accused’s balance - “to see if he was steady - if he was able to walk to the back of the truck”. [ 11 ] As he walked beside the accused he witnessed the accused reach out with his left hand, seeming to sway a bit as he did so, toward the rear truck fender and then retrieve his hand quickly before making contact with the truck.

He noted the accused’s steps were very deliberate - “he was in no rush to get to the back of the vehicle”. [ 12 ] When they arrived at the patrol car, the accused asked Constable Thiemann if he could just forget about this and give him a ride home as he lived only a few kilometres away. Constable Thiemann was not prepared to do so. [ 13 ] Constable Thiemann then noticed a stream of liquid running down the inside of the right leg of the accused which he assumed was urine.

At this point Constable Thiemann believed he had reasonable and probable grounds to make the breath demand pursuant to s. 254(3) of the Criminal Code . He summarized his grounds at this point to be:

a) the accused had urinated down his leg but made no mention of it as if he was unaware that it had happened. . . .“if you don’t know if liquid is running down your leg you shouldn’t be driving”.

b) major balance issue in reaching for the truck fender;

c) the fact that the accused had asked to let him go. [ 14 ] In cross-examination, Constable Thiemann elaborated that additionally there was the smell of alcohol, although he didn’t know if it came from the accused or not, speech “a little bit slurred” and that his eyes were “a little droopy and red”. [ 15 ] On this last point Constable Thiemann conceded there was no reference in his report or notes to the eyes being “droopy”. He later testified that he would accept his notes over his memory because the matter was over a year old so he had no choice. [ 16 ] He further testified in cross-examination that:

a) the stop at the stop sign was normal as was the left-hand turn onto Ditson Drive, there was no crossing lines or weaving in the driving lane, and the accused stopped appropriately when signalled to do so;

b) there was no reason to pull him over concerning his driving;

c) he did not have an approved screening device (ASD) with him and that, in fact, he was not trained in the usage of the ASD although he knew of its purpose and requirement for use;

d) this was a “close call” which he elaborated upon in re-examination to mean “may have been close to full breath demand or having someone come out from the Detachment to administer the ASD”;

e) the lack of driving evidence did not play a big role in formulating his grounds;

f) he did not search the accused prior to placing him into the patrol car and transporting him to the Detachment;

g) that he learned in conversation with the accused subsequent to the breath tests that the liquid running down his leg at the scene was in fact beer. At this point Constable Thiemann searched the patrol car and found a beer can in the back which had not been there before the incident. He recalled at this point that he had heard something “rolling in the back of the patrol car” while en route to the Detachment. [ 17 ] A

summary then of all the information known to Constable Thiemann relevant to making the breath demand is as follows:

a) the accused had parked inordinately close to another vehicle necessitating entry to that vehicle through the passenger side;

b) the accused, according to a co-worker of the original complainant, smelled strongly of alcohol and appeared drunk;

c) the accused made a complete stop at the stop sign entering Ditson Drive and negotiated the left-hand turn thereafter appropriately;

d) the accused was followed and closely observed driving a distance of roughly two miles prior to the stop and exhibited no suspicious or irregular driving - in Constable Thiemann’s words “I had no driving evidence whatsoever”;

e) the accused stopped in a timely and regular manner when signalled to do so;

f) upon attending upon the accused Constable Thiemann could make out a smell of alcohol but could not say whether the smell emanated from the truck or from the accused himself;

g) the eyes of the accused appeared red (In his evidence Constable Thiemann added the eyes were also “a little droopy” however acknowledged this description did not appear in his report or his notes and that he would normally include all relevant indicia of impairment in his notes. Further, he stated that his notes should be taken as more accurate than his memory since the incident was over a year ago. Accordingly, the Court cannot find as a fact that this indicia was indeed present);

h) the speech of the accused was “a little bit slurred”;

i) there were no problems with dexterity noted in retrieving the accused’s driver’s license;

j) there were no problems with comprehension;

k) the accused took deliberate steps in making his way back to the patrol car - “he was in no hurry”.

l) the accused swayed and reached out with his left hand toward the rear fender and retrieved it quickly without making contact with the truck;

m) the accused pleaded with Constable Thiemann to simply overlook the matter and drive him home;

n) the accused had liquid running down the inside of his right leg and made no reaction as if he was unaware of it. [ 18 ] Based upon the information that Constable Thiemann initially possessed, he certainly had grounds to make a traffic stop to check sobriety. [1] Beyond that however, the Court is unable to agree that Constable Thiemann had reasonable and probable grounds to make a s. 254(3) demand.

The Court is satisfied that he believed he did but on the evidence, such belief is not objectively supportable. [ 19 ] Constable Thiemann knew the accused had probably been consuming alcohol based upon the complainant information. He also knew that if the accused had consumed alcohol it certainly did not appear to have impacted upon his ability to drive based upon his observations. Although driving evidence is usually a strong complement to other noted indices of impairment, it is not always required since the offence entails “the ability to operate a motor vehicle”.

Depending upon the other signs of noted alcohol impairment, lack of strong driving evidence may not be fatal to making a formal breath demand. However, when careful observations over an extended period reveal no driving evidence whatsoever militating against a conclusion of impaired driving, this cannot simply be ignored particularly where other common impairment indicators are absent. [ 20 ] What then crystallized the officer’s grounds was the fact that he observed liquid running down the inside of the leg of the accused which he assumed to be urine which the accused did not acknowledge.

Regrettably, Constable Thiemann took no steps to question the accused about this nor to search his person prior to placing him in custody in the patrol car. Had he done so he would have immediately ascertained that the accused had not in fact urinated but rather was concealing a can of beer which was the source of the “liquid”.

It is apparent from the Constable’s evidence that absent the significant reliance he was placing upon this indicia of impairment that a s. 254(3) demand would not have been made. [ 21 ] In formulating reasonable and probable grounds, it is not necessary that the investigating officer’s belief be accurate - only that it be reasonable in the circumstances. [2] It was not reasonable in these circumstances however for Constable Thiemann to simply jump to the conclusion that the accused had urinated by reason of gross impairment by alcohol.

There were no other indicators of such gross impairment that were obvious to the officer at this point. Further, Constable Thiemann himself testified that sometimes individuals have medical conditions which may parallel signs of alcohol impairment so it is important that these be canvassed to clarify whether such signs do appear to emanate from alcohol ingestion or not.

Notwithstanding that there were no other signs of impairment which would have supported his immediate conclusion, Constable Thiemann opted to make no inquiries whatsoever but rather chose immediately to assume the worst i.e. that the accused was grossly impaired by alcohol.

Further, Constable Thiemann did not perform any routine pat down search or any search at all for that matter prior to the accused being placed under arrest, which, as indicated, would have yielded the concealed beer. [ 22 ] What is also troubling to the Court to some extent is that Constable Thiemann neither had an ASD device with him nor was he trained on its usage.

This may well have been a factor in Constable Thiemann elevating in his own mind what he testified was a “close call” to a s. 254(3) demand rather than what would have been more appropriate in the circumstances, that being an ASD demand. [ 23 ] In coming to its conclusion, the Court has had the opportunity to review the decision of Madam Justice Wilkinson in R. v. Kopperud [3] provided by Crown counsel. This is a very useful

summary of trial and appellate decisions outlining the appropriate principles to apply when determining whether reasonable and probable grounds for the breathalyzer demand existed. As pointed out in paras. 55, 56 and 57 of her decision, the fact that certain “traditional” indicators of impairment are absent is not determinative of the issue but rather whether the indicies that were available to the investigating officer objectively supports the reasonable belief that the driver’s ability to operate the motor vehicle was impaired by alcohol. [4] These factors will of course vary from case to case. “. . .

Each case has its own particular inflexions and accents, with some features more pronounced than others.” [5] [ 24 ] For the reasons stated however, in this case, reviewing all of the information available to Constable Thiemann at the time the demand was made and having due regard to what, in law, is required to satisfy the objective component, the Court is of the opinion that the threshold has not been met.

Breach of S. 10(b) [ 25 ] Defence counsel raised the issue of whether the accused ought to have been given his s. 10(

b) rights at roadside prior to any “sobriety tests” being administered. The Court does not find however that sobriety tests per se were in fact administered. Constable Thiemann was entitled to make the requisite inquiries and observations pursuant to his traffic stop, one of which was to determine whether or not there was any alcohol in the vehicle which he could not ascertain without the accused stepping out. Further, the Court is of the view that the officer is entitled to request the driver to alight to check balance and motor functions to assist in formulating reasonable and probable grounds to make a breath demand. [6] [ 26 ] The accused further raises the issues that his s. 10(

b) rights were breached by Constable Thiemann not giving a “ Prosper warning” [7] prior to the accused providing breath samples. [ 27 ] The accused confirmed at roadside that he wished to contact counsel.

He was placed in the interview room at the Detachment shortly after arrival which the Court infers from the evidence to be approximately 17:22 hours. [ 28 ] Thereafter, he was taken at 18:10 hours for the first breath sample, leaving a period of roughly 50 minutes devoted to attempting to arrange counsel for the accused, according to Constable Thiemann. [ 29 ] Initially, the accused advised he had a lawyer of choice but needed to contact his wife to obtain the name and phone number.

He was permitted to do so and thereafter there was an approximate 15 to 20 minute wait for his wife to call back with the required information. Once received, three calls were placed in succession to different numbers (all for the same counsel) with no success. No messages were left and in fact Constable Thiemann could not recall if any such option was available at any number. [ 30 ] Constable Thiemann then suggested that the accused look in the phone book however the accused required his glasses to do so which were left in his truck at roadside.

Another officer was then dispatched to retrieve the glasses from the truck. The accused however did not then wish to go through the phone book asking several times why he needed a lawyer. Constable Thiemann explained that he could not give legal advice and offered Legal Aid as a choice more than once which the accused rejected stating Legal Aid was incompetent. [ 31 ] At 18:04 and 18:06 hours respectively, at the suggestion of Constable Thiemann, the accused tried the office and home numbers of a local counsel, Mr.

Sheppard, however was unable to reach him. [ 32 ] Constable Thiemann testified he also tried another local counsel, Mr. Ard, however no reference is made to this in his field notes or report. Given he had meticulously documented events previous and testified he deferred to his notes as being accurate compared to his recollection at trial, the Court is unable to conclude this contact of Mr. Ard was attempted. [ 33 ] After failing to reach Mr. Sheppard, according to Constable Thiemann, the accused no longer wished to contact counsel using terminology to the effect “. . .

I know a judge in Saskatoon and will call him later”. He recalls other phraseology used by the accused to be “this is a waste of time” and “there is no point”, all of which conveyed clearly to the officer that he was done attempting to contact counsel and that “later” meant some time down the road and not today. [ 34 ] Constable Thiemann acknowledged that a Prosper warning was not given to the accused notwithstanding it appeared to be a rather abrupt decision on the accused’s part to call a halt to his attempts to call counsel.

This was simply an oversight he testified, however the accused had not been willing to speak to available counsel, being Legal Aid, and appeared adamant that he no longer wished to waste his time looking for counsel at that time.

[ 35 ] Having regard to the evidence presented, the Court is not satisfied there has been a breach of s. 10(b). The accused was afforded the opportunity to contact counsel of choice being the three numbers that his wife had supplied. Thereafter, he required his glasses which were accordingly retrieved, then once having obtained the glasses appeared disinterested in perusing the phone book or contacting available Legal Aid counsel.

He queried Constable Thiemann several times why he would need a lawyer and then intimated that the process was a waste of time and that he would contact a judge whom he knew in Saskatoon later. [ 36 ] In the circumstances, it cannot be said that the accused was being diligent in pursuing his right to contact counsel. Constable Thiemann did everything he could to ensure the accused received legal advice prior to giving breath samples. Although he did not give a formal Prosper warning, the facts are not supportive of such being required. In R. v.

Prosper the accused made persistent and diligent attempts to contact duty counsel however (unknown to him) he could not do so because Legal Aid counsel was on strike at the time. Here it was reasonable for Constable Thiemann to conclude based upon the words and actions of the accused that he no longer wished to avail himself of the opportunity to obtain legal counsel. [8] IV REMEDY [ 37 ] The Court has found a breach of s.8 by reason of Constable Thiemann not having reasonable and probable grounds to make the breath demand pursuant to s. 254(3) of the Criminal Code .

Having so found, the Court must determine pursuant to s. 24(2) whether, having regard to all of the circumstances, admission of evidence obtained by reason of the breach, in this case the Certificate of Analyses, would bring the administration of justice into disrepute. [ 38 ] As Crown counsel suggests, the landscape has changed for making such determination by virtue of the Supreme Court decision in R. v. Grant [9] requiring a three step objective analysis concerning:

a) seriousness of the Charter infringing conduct;

b) impact of conduct on the Charter protected interests of the accused; and

c) society’s interest in having the case adjudicated on its merits. Seriousness of Charter infringing conduct [ 39 ] Sometimes it becomes necessary to re-state the obvious to focus upon the broader principles upon which our laws are based and our rights enshrined. We live in a free and democratic society the central pillar of which is our ability to come and go within the confines of the law without restraint or interference by governmental authority.

Few could argue credibly that a restriction on such liberty is not serious, including, the rights embodied in s. 8 to be free from unreasonable search and seizure. [ 40 ] Permissible restrictions do exist, for example, in drinking and driving cases such as this one, police have the continuum provided in s. 254 of the Criminal Code once a lawful stop is effected to assess whether offences of driving while over .08 and/or impaired driving have been committed. [ 41 ] Parliament has decreed that the very low threshold of suspicion that a driver has alcohol in his or her body is all that is required for s. 254(2) ASD demand, a failure on which gives grounds for a formal breath demand.

This roadside “detention” is relatively quick and non-intrusive which may or may not lead to the much more involved and protracted formal breath demand process. [ 42 ] The formal breath demand criteria embodied in s. 254(3) requires the elevated threshold of the officer believing on reasonable and probable grounds that the accused has committed the offence(

s) of over .08 and/or ability to operate the motor vehicle being

impaired by alcohol. The threshold is met by a fail on the ASD, if utilised, or by the officer’s personal observations and interaction with the driver. [ 43 ] So the tools exist for police officers to detain and collect evidence. Society simply demands and expects that the tools be properly and fairly utilised. In this case, although Constable Thiemann may have acted in good faith and certainly did not display egregious or high-handed conduct, his investigation nonetheless was seriously flawed.

He chose to ignore significant evidence such as perfectly normal and lawful driving over a very considerable distance and not being able to detect whether the odour of alcohol came from the breath of the accused, vehicle or his person. Rather, he incorrectly and unreasonably jumped to the conclusion that the liquid running down the accused’s leg was urine and that it would relate automatically to being impaired by alcohol. By his own evidence, he was aware that there could possibly be a medical explanation which at the very least he should have canvassed with the accused.

Finally, he made no effort to search the accused - even by means of a cursory pat down - which may well have put him on a different path completely by discounting his conclusion of gross intoxication and perhaps explaining even the smell of alcohol he detected earlier. [ 44 ] In R. v. Bush , supra, at para. 46 the Court stated: In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test . . . it must not be inflated to the context of testing trial evidence.

Neither must it be so diluted to threaten individual freedom. [ 45 ] In the present case, it is the lack of reasonableness that does dilute this demand to the point of infringing upon individual freedom. Accordingly, the Court finds the breach to be serious favouring exclusion.

Impact of the conduct on the Charter protected interests of the accused [ 46 ] A formal breath demand sets in motion a chain of events, including being taken into custody, transporting to the nearest detachment, time spent awaiting preparation of the Intoxilyzer, perhaps seeking and receiving legal advice and providing the samples themselves.

At a minimum, the process generally takes in the range of two hours to complete. [ 47 ] Providing breath samples has been recognized by the Supreme Court in Grant , supra [10] , to be relatively non-intrusive. [ 48 ] In this circumstance, once the demand was made the accused was dealt with professionally and as expeditiously as possible. He was released to the custody of his wife following provision of samples. [ 49 ] On balance, the Court finds the impact of the Charter infringing conduct on the accused to be neutral, neither favouring inclusion or exclusion of the evidence.

Interests of society in having the case adjudicated on its merits [ 50 ] Just as few could disagree that unjustified intrusions on one’s liberty are serious so too could anyone reasonably disagree with the proposition that drinking and driving offences continue to be a serious concern for law enforcement and society generally. The words of Mr. Justice Sopinka in R. v. Bernshaw [11] continue to resonate just as strongly today as they did in 1995. [ 51 ] Without the Certificate of Analyses the Crown does not have the ability to successfully prosecute the accused for driving while over .08. Little more need be said.

This line of inquiry favours inclusion of the Certificate of Analyses.

V CONCLUSION [52] When considering exclusion of evidence pursuant to s. 24(2) the Court is to look to the long term effects of breach upon therepute and administration of justice rather than short term case by case analysis and consideration. [53] In this case, Constable Thiemann conceded it was a “close call” between a formal breath demand under s. 254(3) and that of ademand for samples on an approved roadside instrument in accordance with s. 254(2). This concession however is predicated uponConstable Thiemann believing that the accused had relieved himself due to gross impairment by alcohol.

Without this indicia however,which would have been removed had the investigation been done properly, the officer’s grounds fall markedly short of the necessarycriteria to establish reasonable and probable grounds. [54] Balancing the lines of inquiry, the Court must on these facts give sway to the damage in the long term to the repute of thejustice system if the Certificate of Analyses were to be allowed into evidence.

Perhaps on different facts where it truly was a borderlinecall, all things considered, a reasonable person on a qualitative analysis would favour admission of the Certificate of Analyses intoevidence. To permit the inclusion however where there would then appear to be no distinction between the carefully crafted testsoutlined in s. 254 of the Criminal Code, would overall, be far more detrimental to the justice system and the rights society expects to beupheld. [55] Accordingly, the Certificate of Analyses will be excluded from the evidence pursuant to s. 24(2) of the Charter. _____________________________ R.D.

Jackson, J [1] S. 209.1 Traffic Safety Act [2] See R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641 (Ont. C.A.) at para. 66 [3] 2011 SKQB 192 (Sask. Q.B.) [4] For example in R. v. Shepherd, 2009 SCC 35, 245 C.C.C. (3d) 137 referenced in Kopperud at paras. 43 and 44, even though theaccused did not display several of the common indicators of alcohol impairment, his driving and physical observations denoting likelyimpairment by alcohol were in themselves sufficient to support a breath demand.

This included, chiefly, that the accused failed to stopfor police for over three kilometres and then providing the totally irrational reason for not doing so that he “thought the police vehiclewas an ambulance”. [5] Para. 56 [6] Even if sobriety tests are performed, the accused does not have the right to speak to counsel prior to such tests being administered. See R. v. Sundquist 2000 SKCA 50 (Sask. C.A.) [7] See R. v. Prosper, (SCC), [1994] 3 S.C.R. 236, 92 C.C.C. (3d) 353 (S.C.C.) [8] See R. v. Basko 2007 SKCA 111 , [2007] S.J. No. 564 (Sask. C.A.) at para. 21: “. . . The burden is on the person detained,

not the police, to establish reasonable diligence. If the detained person is unable to reach counsel after reasonably diligent efforts (whichrequires some evidence) then the issue of waiver will arise and a “Prosper” warning may be required”. [9] 2009 SCC 32 , 2009 S.C.C. 32, [2009] 2 S.C.R. 353 [10] See para. 111 [11] (SCC), [1995] 1 S.C.R., 254 (S.C.C.) at para. 16: Every year drunk driving leaves a terrible trail of death, injury,heartbreak and destruction. From the point of view from numbers alone it has a far greater impact on society than any other crime.

Interms of the death and serious injuries resulting in hospitalization drunk driving is clearly the crime which causes the most significantsocial loss to the country.