Her Majesty the Queen - v. -, 2014 SKPC 204

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 204 Date: November 25, 2014 Information: 43174415 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - William Reid Vavra Appearing: Melodi Kujawa For the Crown Ammy Murray For the Accused JUDGMENT D.E. LABACH , J INTRODUCTION [ 1 ] The accused, William Vavra, is charged that on January 11, 2014, he was driving while his ability to do so was impaired and further, that he was driving with a blood alcohol concentration that exceeded .08.

He pled not guilty to both of these offences and came before me for trial on October 20, 2014. [ 2 ] Prior to the accused’s trial date, his counsel, Ms. Murray, served a Charter notice on the Crown and filed it with the Court.

The Notice alleged breaches of the accused’s sections 8, 9 and 10(

b) Charter rights. If any of these breaches were proven, her Notice asked for an exclusion of evidence pursuant to section 24(2) of the Charter . [ 3 ] At the beginning of trial, Defence counsel advised that she was abandoning the allegation that the accused’s

section 10(

b) Charter right had been violated. However, it was still her view that his

section 8 and 9 Charter rights had been infringed. The crux of her argument was that the officer who stopped the accused did not have the necessary reasonable and probable grounds to arrest him for impaired driving and make a breath demand on him. As a result, the Court entered into a voir dire on the Charter issues. At the conclusion of the voir dire evidence, both parties asked that I apply all evidence from the voir dire to the trial proper subject only to my ruling on the Charter issues. Both counsel also advised that neither of them had any further evidence to call on the trial proper.

Both closed their respective cases and made argument on all issues on the voir dire and the trial proper. What follows is my decision in this case. FACTS [ 4 ] On the evening of January 10, 2014, the accused and Erica Klassen made arrangements to meet at a restaurant and bar in downtown Saskatoon called the Spadina Freehouse after Ms. Klassen finished working her shift at another bar called The Congress. While the evidence is not clear as to when Ms. Klassen finished her shift, she met the accused at the Spadina Freehouse sometime after midnight.

She could not say whether the accused was drinking before she met up with him, but she did see him drinking at the Freehouse. While at the Freehouse, she was talking to a lot of different people and hanging out with the accused and his friend. She was consuming alcohol and by the time they left, she was quite intoxicated. She could not say how much the accused had to drink before they left. [ 5 ] Given how much she had to drink, she was not certain when they left the Freehouse but she was clear that her, the accused and his friend left together and went to find a party. Ms.

Klassen and the accused’s friend were both quite intoxicated and I gather, incapable of driving. Although the accused had been drinking at the Freehouse, he was not in the same state as Ms. Klassen or his friend so he drove. The three of them drove to a house expecting a party, but there was nothing going on at that residence. Then they drove to a friend’s apartment thinking there might be something happening there, but there was nothing going on there either. They eventually decided to call it a night and they drove the accused’s friend to his apartment and dropped him off.

Following that, the accused was going to take Ms. Klassen home. [ 6 ] The accused’s friend lived on Kingsmere Boulevard in the southeast part of Saskatoon. Ms. Klassen lived in the west central area of the City on Avenue G North. In order to get to her residence, the accused drove through downtown Saskatoon.

On his way to drop her off, the two of them started arguing about something that had happened on New Years Eve. [ 7 ] At the same time that the accused was driving through downtown Saskatoon, Constable Rorick was finishing up a shift working traffic control for snowgrading that was being done that night on City streets.

At approximately 5:00 a.m., Constable Rorick was driving north on 4 th Avenue in his unmarked police vehicle when he noticed the accused’s vehicle in front of him. [ 8 ] At this time of the morning, the traffic lights at certain intersections in downtown Saskatoon are flashing amber while other lights are flashing red. At the intersection of 24 th Street and 4 th Avenue, the traffic lights for north and southbound traffic on 4 th Avenue were flashing amber. Constable Rorick observed the accused turn westbound from 4 th Avenue onto 24 th Street.

The officer was heading in that same direction and followed him. [ 9 ] At the intersection of 24 th Street and 3 rd Avenue, the traffic lights for east and westbound traffic on 24 th Street were also flashing amber. The accused and the officer went through the intersection and continued westbound on 24 th Street. At the intersection of 24 th Street and 4 th Avenue, the lights for westbound traffic were flashing red. The accused went through this intersection westbound without stopping for the red light.

As a result, Constable Rorick turned on his emergency lights to stop the accused’s vehicle for this traffic violation. To this point, the officer had not noticed anything wrong with the accused’s driving. [ 10 ] The accused’s vehicle pulled over to the side of the curb almost immediately. Constable Rorick pulled in behind it, got out and went to the driver’s side door. The accused rolled down his window. When he got to the driver’s side window, he asked the accused if he realized that he had just gone through a flashing red light and if he knew what that meant.

The accused looked confused and said that he thought the light was amber. He told the officer that he had been arguing with his passenger.

[ 11 ] Constable Rorick asked the accused for his driver’s licence and vehicle registration and the accused provided them. While speaking to the accused, the officer noticed a smell of alcohol on the accused’s breath and that his eyes were glassy and bloodshot. Before walking back to his police vehicle to check the accused’s documents, the officer asked the accused if he had been drinking, The accused said that he had had a couple of drinks.

Constable Rorick also thought that the accused’s movements were slow and deliberate when he was removing his driver’s licence from his wallet but for reasons which are set out later in my judgment, I do not believe that the officer made this observation. [ 12 ] Constable Rorick returned to his police cruiser and ran the accused’s driver’s licence and registration on his in-car computer. There was no problem with either document.

According to the officer, as he was either walking back to his police cruiser or checking the accused’s documentation on his in-car computer, he decided to arrest the accused for impaired driving. He returned to the accused’s vehicle, told the accused that he was arresting him for impaired driving and asked the accused to exit his vehicle. The accused told the officer that that might be a bit tricky. He explained to the officer that he was disabled and used a wheelchair. So at 5:11 a.m.

Constable Rorick read the accused his right to counsel, police warning and breath demand while the accused was still seated in his vehicle. The accused understood everything he was told by the officer and said that he would like to call a lawyer. [ 13 ] Constable Rorick returned to his police vehicle and called for some assistance in transporting the accused as his vehicle was not set up to transport people. At 5:28 a.m. a marked patrol unit arrived, the accused got out of his vehicle and into his wheelchair, rolled himself through the snow to the rear door of the police unit and got in.

They then departed for the Saskatoon police station. Constable Rorick remained on scene until a tow truck arrived. At some point during all this, Ms. Klassen, the accused’s passenger got out and left. Once the accused’s vehicle was hooked up to the tow truck, Constable Rorick went to the police station to deal with the accused. [ 14 ] He arrived at the police station at 5:45 a.m. When he got there, the accused had already been processed in detention. He asked the accused if he wanted to call a lawyer and the accused said he did. He place the accused in a phone room and facilitated his call to legal counsel.

In this case, the accused asked to speak to Legal Aid. [ 15 ] At 5:50 a.m. the accused finished his call to Legal Aid and told Constable Rorick that he was satisfied with the advice he had received. They sat in an interview room and Constable Rorick filled out an Investigator’s check sheet.

On the sheet, he noted that the accused’s actions were slow, that as they spoke, the accused repeated the questions the officer was asking him and that the accused had three or four drinks of gin that evening with his first drink at 9:45 p.m. and his last at 1:05 a.m. [ 16 ] Constable Rieger, the Intoxilyzer technician, came and got the accused and took him to the breath room. At 6:12 a.m. the accused provided a sample of his breath resulting in a reading of .13. At 6:33 a.m. the accused provided a second sample but the machine said that it was insufficient. At 6:34 a.m. the accused provided a third sample.

This sample was sufficient and the reading was also .13. According to Constable Rieger, the accused was polite and cooperative throughout his dealings with him. [ 17 ] Constable Rieger prepared a Certificate of Qualified Technician evidencing these readings and gave it to Constable Rorick who served it on the accused along with some other documents. A number of months later, the Crown asked Constable Rieger to prepare a new Certificate of Qualified Technician and serve it on the accused himself.

He did this and it was this second Certificate that was entered as an Exhibit on the voir dire and upon which the Crown relies to prove the accused’s blood alcohol concentration at the time of driving. ISSUES (

i) Did Constable Rorick have reasonable grounds to make a breath demand on the accused? (ii) If Constable Rorick did not have the requisite reasonable grounds, should the evidence be excluded pursuant to section 24(2) of the Charter? (iii) Has the Crown proven beyond a reasonable doubt that the accused was driving his motor vehicle while his ability to do so was

impaired? ANALYSIS (

i) Did Constable Rorick have reasonable grounds to make a breath demand on the accused? [18] Section 254(3) of the Criminal Code gives a police officer the power to demand a breath sample from a person. This sectionstates as follows: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at anytime within the preceding three hours,has committed an offence under

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

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, . . . [19] This

section is limiting. A police officer cannot demand a breath sample from a person on a whim. Certain pre-conditions asset out in the

section must exist before an officer has the lawful authority to make such a demand. If the officer does not have therequisite grounds to make the breath demand then it is a violation of an accused’s

section 8 Charter right to be free from unreasonablesearch and seizure and/or their

section 9 Charter right to be free from arbitrary detention. [20] When faced with the issue of whether there were reasonable grounds for a breath demand, the Court must look at what theofficer knew at the time he made the breath demand. Information that the officer gleaned after he made the demand is not relevant indetermining whether he or she had the requisite grounds at the time they made the demand. The Court must be satisfied that the officer’sbelief was both subjectively and objectively supportable on the facts.

In other words, the Court must be satisfied that the officer honestlybelieved that an individual had driven while impaired or over .08 within the preceding three hours and that a reasonable person, standingin the shoes of the officer, would have that same belief. See R. v. Slippery, [2014] S.J. No. 123 (Sask.C.A.) at paragraph 21; R. v. Gunn,2012 SKCA 80 , [2012] S.J. No. 503 (Sask. C.A.) at paragraphs 7 and 8. [21] An officer must clearly articulate his or her observations and point to other evidence that rationally and reasonably sustains hisor her belief of impairment on an objective basis.

The observations the officer made and the circumstances they noted must be reliableand the facts have to be rationally capable of supporting an inference of impairment. The inference of impairment though can beanywhere from slight to great. See R. v. Gunn, supra, at paragraphs 7 to 15. [22] It is thus incumbent on the Court to look at all the evidence that existed at the time the officer made the breath demand. There may be commonly accepted indicia of impairment but there is no list of these indicia that a judge must rigidly apply to determinewhether someone is impaired.

Moreover, it is a mistake for a Court to just look at the indicia noted by an officer and conclude thatbecause they testified to four or five indicia as opposed to one or two, a person is impaired. A Court is supposed to consider the totalityof the evidence available to the officer at the time he made the demand. The reliability aspect requires a judge to make findings of factas to what an officer knew and/or observed at the time he made a breath demand and the context in which those observations weremade.

Then a judge must ask themselves if, on the evidence they accept, a reasonable person would believe that the accused’s ability todrive was impaired. This encompasses the aspect of rationality. [23] In the present case, the sum total of what Constable Rorick knew at the time that he made a breath demand on the accusedwas that the accused had gone through a red flashing light at 5:00 a.m. in downtown Saskatoon and when stopped, the accused had a

smell of alcohol on his breath and his eyes were glassy and bloodshot. When Constable Rorick asked him if he had been drinking, theaccused said that he had had a couple of drinks. [24] Constable Rorick offered one other observation that he felt was a sign of impairment. He said that the accused’s movementswere slow and deliberate when he was removing his driver’s licence from his wallet. I do not accept the officer’s testimony that theaccused’s movements were slow and deliberate.

The in-car video from both Constable Rorick’s unmarked police cruiser and the markedpolice unit that attended to transport the accused were entered as exhibits in this case. The accused is never visible in the video fromConstable Rorick’s police car but in the video from the other police car I saw the accused in his wheelchair, wheeling himself throughthe snow towards the rear passenger door of the police cruiser. I saw him getting out of his wheelchair and into the police cruiserunassisted and putting on his seatbelt without any problems.

Finally I saw him leaning forward and talking to the officers in the frontseat and then sitting back as they travelled to the Saskatoon police station. At no point in time are his movements ever slow ordeliberate. As a matter of fact, the in-car video shows that his movements are quite normal. [25] I must consider these indicia in light of the fact that Constable Rorick followed the accused for some time and did not noticeany erratic driving.

Looking at the video from his in-car camera, the accused was not speeding, he was travelling in his proper drivinglane, nobody had to take any evasive action to avoid a collision with the accused, the accused pulled over to the curb properly when theofficer put his emergency lights on and according to the officer, the accused’s driving was fine. The officer did not stop the accusedbecause he had concerns that the accused was impaired.

He stopped the accused because at the last intersection he went through, thetraffic light was flashing red and the accused did not stop. [26] There was also nothing untoward about the fact that it was 5:00 a.m. when the accused was stopped. The video shows thatthere was traffic in downtown Saskatoon at this time of the morning. The accused was not observed coming out of a bar and there wasno evidence he was stopped in the vicinity of a bar.

It appeared that the accused was simply driving down the street but where he wascoming from, where he was headed or what he was doing, Constable Rorick had no idea. [27] Once stopped, Constable Rorick asked the accused if he knew he went through a red light. The accused told the officer thathe thought the light was amber. He said he had been arguing with his female passenger, the inference being that he was distracted by theargument and did not realize the light was red. The officer knew this before he made his breath demand on the accused.

This is a factorto consider. [28] The officer asked him if he had been drinking and the accused admitted he had. But the officer did not delve into that anyfurther. He could have asked him when or where he had been drinking, what he was drinking or how much he had been drinking but theofficer chose not to pursue and questions in that regard. Without getting more information about the accused’s drinking, the officerreally knew very little about the accused’s alcohol consumption.

Considering that the officer did not notice any other indicia ofimpairment in the accused during the ninety seconds he spent talking to the accused at the door of his vehicle, it is surprising that he didnot do more investigation. [29] The evidence satisfies me that Constable Rorick believed that the accused had driven impaired. However, I am not satisfiedthat a reasonable person standing in the shoes of Constable Rorick would believe on the entirety of the admissible evidence that theaccused was impaired.

Going through one red light after showing no signs of erratic driving, an admission of drinking, a smell of alcoholon your breath and glassy bloodshot eyes, without more, does not meet the objective test. [30] In R. v. Hopkie, (SK KB), [1994] S.J. 545 (Sask.Q.B.), Chief Justice MacPherson heard a Crown appealfrom the dismissal of drinking and driving charges against the accused. The question on appeal was whether the trial judge had erred inconcluding that the officer had reasonable and probable grounds to make a breath demand.

The accused had been involved in anaccident and when he and the officer were sitting in the police car filling out the accident paperwork, the officer smelled a strong aromaof alcohol coming from the accused breath and noticed that he had red eyes. On the basis of the accident and these observations, theofficer arrested the accused for impaired driving and made a breath demand. [31] The accused was acquitted at trial on the basis that the officer did not have the requisite reasonable and probable ground tomake a breath demand. Chief Justice MacPherson dismissed the Crown appeal.

At paragraph 16 of his judgment, he said: [16] Neither the smell of alcohol nor redness of eyes, together or by themselves, can indicate impairment in the ability to operate avehicle. But in combination with a staggering walk, slurring of speech, knowledge of erratic driving, inability to reasonably answerquestions, or perhaps any of these things, could give rise to a belief of impairment on reasonable and probable grounds. . . .

[32] These observations are similar to what Constable Rorick noted in the accused in the present case. These observations werenot sufficient to satisfy Chief Justice MacPherson that the accused, Mr. Hopkie, was impaired and they are not sufficient to satisfy methat the accused in this case was impaired either. Since Constable Rorick did not have the necessary reasonable grounds to make abreath demand on the accused, I am satisfied that he breached the accused’s

section 8 and 9 Charter rights. (ii) If Constable Rorick did not have the requisite reasonable grounds, should the evidence be excluded pursuant to section 24(2)of the Charter? [33] Exclusion of evidence in the case of a Charter violation is not automatic. If an individual’s Charter right has been breached,the Supreme Court of Canada in R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 said that a judge is supposed to assess andbalance the seriousness of the breach, the impact of the breach on the Charter protected interests of the accused and society’s interest inthe adjudication of the case on its merits in determining whether admission of the evidence would bring the administration of justice intodisrepute. Seriousness of the Breach [34] Constable Rorick’s breach of the accused’s

section 8 and 9 Charter rights was serious in this case. Section 254(3) of theCriminal Code establishes a condition precedent to making a breath demand in that an officer must have reasonable grounds to believethat a person is impaired. An officer must do sufficient investigation to make a properly informed decision as to whether he or she hassuch a belief. It is in this fashion that the public is protected against arbitrary detentions and unreasonable seizures. [35] Here, Constable Rorick did minimal investigation.

He should have taken some time to make more observations of theaccused, ask some further questions of the accused or his passenger or even make arrangements for an approved screening device test tobe performed. There was no urgency in this case. He had the time and a duty to make a careful assessment of the situation. As a resultof his haste, the accused was arrested, subjected to a demand for a breath sample and later gave breath samples, all without a lawfulbasis.

By arresting the accused for impaired driving and demanding breath samples without having the requisite reasonable grounds todo so, Constable Rorick overstepped his lawful authority and as such his conduct could best be described as negligent or careless. Policeofficers should never be negligent or careless. A breach of this nature favors exclusion of the evidence. Impact on the Charter Protected Interests of the Accused [36] One of the purposes of

section 8 of the Charter is to protect an individual’s right to privacy of their body. The purpose ofsection 9 is to ensure that a person is not deprived of their liberty for an unlawful purpose. While a breath test is minimally intrusive, theaccused was arrested without lawful authority, taken by police car to the Saskatoon police station and had to provide self-incriminatingevidence in the form of breath samples.

This in turn lead to charges being laid against him and an automatic loss of driving privileges fora period of time pursuant to provincial legislation without a court judicially determining his guilt or innocence. The impact of the breachon the accused’s Charter protected interests was far-reaching and significant. Society’s Interest in the Adjudication on the Merits [37] I have yet to come across a criminal case where society did not have a strong interest in the case being determined on itsmerits. In this case, the evidence of the breath tests are both reliable and relevant.

Without these results, the Crown would have nocase. This factor favors inclusion of the evidence. Balancing the Factors

[38] Balancing these three factors, I am of the view that the evidence should be excluded. The legislative scheme that has beenput in place to allow police to demand that an individual provide potentially incriminating evidence against themselves in the form ofbreath samples strikes a balance between the individual rights enshrined in the Charter and society’s interest in apprehending andprosecuting those who drink and drive.

But if the courts were to admit evidence where the police failed to strictly comply with thatlegislation because they were careless or negligent, the administration of justice would certainly be brought into disrepute. [39] In this case, Constable Rorick acted too quickly in arresting the accused and demanding a breath sample. He should havetaken the time to do more investigation rather than jumping to the conclusion that the accused was impaired based on what little he knewat the time.

These were serious breaches of the accused’s Charter rights that had a significant impact on his liberty and his right not tohave to incriminate himself and in this case they outweighed society’s interest in having this case adjudicated on its merits. As a result,the Certificate of the Qualified Technician and any signs of impairment noted by officers after the accused was arrested are excludedfrom evidence. (iii) Has the Crown proven beyond a reasonable doubt that the accused was driving his motor vehicle while his ability to do so wasimpaired? [40] The case of R. v. Stellato, (ON CA), [1993] O.J.

No. 18 (Ont.C.A.), aff’d (SCC), [1994]S.C.J. No. 51 (S.C.C.) says that proof beyond a reasonable doubt of driving and any degree of impairment from slight to great issufficient to ground a conviction under section 253(1)(

a) of the Criminal Code. In this case, the video from Constable Rorick’s in-carcamera shows him following the accused through downtown Saskatoon. During this time, they proceed through three intersections. Evident in the video and according to the officer, the accused was not speeding and his driving was fine until he went through the red flashing traffic light at 24th Street and 3rd Avenue. [41] When the officer put on his emergency lights, the accused immediately pulled his truck over to the curb and had no problemsdoing so.

When the officer attended to the door of the accused’s truck he noted a smell of alcohol coming from the accused’s breath andthat the accused had glassy, bloodshot eyes. There were no other indicia of impairment. Any evidence about anything else noted by anyof the officers after the accused was arrested for impaired driving has been excluded from evidence. [42] The evidence in this case does not satisfy me beyond a reasonable doubt that the accused’s ability to operate a motor vehiclewas impaired. CONCLUSION [43] The accused’s

section 8 and 9 Charter rights were breached in this case as Constable Rorick did not have the reasonableground to make a breath demand on the accused. As a result of these breaches, the Certificate of Qualified Technician, any signs ofimpairment noted after the accused was arrested for impaired driving and the results of the Intoxilyzer tests will be excluded fromevidence pursuant to section 24(2) of the Charter. To do otherwise would put the administration of justice into disrepute. There beingno evidence that the accused was driving with a blood alcohol concentration exceeding .08, I find the accused not guilty of section253(1)(

b) of the Criminal Code. [44] The remaining evidence does not satisfy me beyond a reasonable doubt that the accused was driving while his ability to do sowas impaired and as such, I find the accused not guilty of section 253(1)(

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