Her Majesty the Queen - v. -, 2016 SKPC 1

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 001 Date: February 5, 2016 Information: 33387250 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Corrinne Gillis Appearing: C. Bliss For the Crown M. Buchinski For the Accused JUDGMENT M.L. GRAY , J [ 1 ] Ms. Gillis was charged on March 5, 2105 with the following Criminal Code offences: (

i) operating a motor vehicle while her ability to do so was impaired by alcohol contrary to s. 253(1)(a); (ii) refusing to provide sample of her breath suitable for analysis contrary to s. 254(5); and

(iii) leaving the scene of an accident with the intent to escape civil or criminal liability contrary to s. 252(1). [ 2 ] Evidence on the matter was called on a voir dire , as the accused asserted violations of s. 9 and s. 10(

b) of the Canadian Charter of Rights and Freedoms . As a result of these violations, counsel asks for exclusion of all evidence obtained subsequent to the arrest of the accused. Counsel consented to have the evidence on the voir dire applied to the trial proper subject to the Court’s rulings on admissibility. The evidence of the accused relates only to the trial. [ 3 ] The charges arose after the police were called to investigate a motor vehicle collision where the complainant’s vehicle was rear-ended at a red light. The complainant, Mr.

Qureshi, concluded that the driver of the responsible vehicle, who I am satisfied was the accused, was intoxicated. While Mr. Qureshi was reporting the accident to police, the accused left the scene in another car. Mr. Quereshi was able to obtain the licence plate number on that vehicle and within minutes, police located it parked in front of the residence of the accused. She was in the passenger side of the car with her spouse in the driver’s seat. Constable Broadbent very quickly placed the accused under arrest for impaired driving and hit and run based on the information that he had up to that point.

Rights to counsel were not provided for some five to seven minutes after the arrest. After returning to the scene of the accident, which was about two minutes away, Constable Broadbent read to the accused a demand to provide samples of her breath suitable for analysis. She was taken directly to the police station and, after a 20 minute observation period, was presented to a qualified breath technician who had prepared an approved instrument. The accused did not provide a suitable sample and ultimately, in very vulgar terms, refused to make any further attempt to do so. Voir Dire Issues (

i) Has there been a violation of s. 9 of the Charter ? [ 4 ] Constable Broadbent testified that he was dispatched to the scene of a motor vehicle accident at 9:32 p.m. on March 5, 2015. He continued to receive information about the matter to which he was being sent as he was en route . For example, he learned that there was a lot of damage but no injuries as a result of the collision. Further, the driver of one of the vehicles appeared intoxicated and could not walk properly.

He also received information via the in-car data terminal that the complainant smelled alcohol from the other driver who left the accident scene in another vehicle. The licence plate of that vehicle was provided and records showed that the registered owner was Clayton Wagner who lived at 3169 Milton Street. He also had information that the suspect who left the scene was a female, approximately 50 years old, with dirty-blond hair and wearing a black jacket and jeans.

This information was confirmed in the hard copy of these transmissions, which was filed as exhibit P-2 and in the 9-1-1 call, which was marked as exhibit P-1. In addition, the officer learned that the registered owner of the vehicle responsible for the collision was Corrinne Gillis. [ 5 ] With this knowledge, Constable Broadbent went to the Milton Street address where he found a female (the accused) in the passenger seat of the vehicle described leaving the accident scene.

The male driver of that car, Clayton Wagner, advised the officer that the accused “had a few” which the officer interpreted as a few alcoholic beverages. The female fit the general description of the suspect and on seeing her glossy, red, tired-looking bloodshot eyes, the officer promptly placed her under arrest for impaired driving and hit and run at 9:40 p.m. He enunciated the following grounds for the arrest: (

i) the information that he had linking the accused to the vehicle involved in the collision and that she had left the scene; (ii) she matched the general description of the driver of that vehicle; (iii) the information from the complainant that the driver was drunk and (iv) his own observations of her that made him think that she was intoxicated. In cross-examination, the officer acknowledged that he only suspected alcohol was involved until he actually spoke to the accused and observed what he interpreted as signs of impairment. [ 6 ] After the arrest, Constable Broadbent spoke to Mr.

Wagner and directed other officers to search Mr. Wagner’s car for alcohol. He then drove two minutes to the scene of the accident where he spoke to officers there in order to confirm his information, particularly the time of driving. He also testified that he wanted to determine if there was any exculpatory information. In speaking to officers at the accident site, he confirmed the time of the call to police, and the time of the accident. He also received a further physical description of the driver and was told that she was the only occupant of her vehicle at the time of the collision.

Armed with this information, Constable Broadbent testified that he formed the opinion that the ability of the accused to operate a motor vehicle was impaired by alcohol and, at 9:54 p.m., he read to her the demand that she provide samples of her breath suitable for analysis. [ 7 ] Counsel for the accused submits that the officer did not have reasonable grounds to conclude that the accused was the

operator of the vehicle responsible for the accident, nor did he have reasonable grounds to conclude that her ability to operate a motorvehicle was impaired by alcohol or to make a breath demand pursuant to s. 254(3) of the Criminal Code.

Accordingly, the arrest anddemand were not lawful and resulted in an arbitrary detention. [8] Crown counsel argues that reasonable grounds as described in R v Storrey (SCC), [1990] 1SCR241[Storrey] have been demonstrated in the evidence, that reasonable grounds did exist for the breath demand and that no violation of s.9 of the Charter has been shown. [9] I will deal first with the nature of the arrest. Section 495 (1) of the Criminal Code authorizes a peace officer to arrest,without warrant, a person who he believes, on reasonable grounds, to have committed an indictable offence.

The offences of impaireddriving and leaving the scene of an accident are indictable offences until the Crown elects to proceed summarily. The question for theCourt is whether reasonable grounds existed for the arrest and demand. [10] Madam Justice Gunn in R v Santos, 2014 SKQB 5 [Santos], at para 182, quoted Mr. Justice Caldwell in R v Shinkewski, 2012SKCA 63 regarding the legal standard of “reasonable grounds to believe”: The legal standard of “reasonable grounds to believe has been the subject of considerable judicial

interpretation. I do not propose toreview it all; however, I make the following observations from the jurisprudence: (

a) an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objective pointof view - in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeedreasonable grounds for the arrest: R v Storrey, (SCC), [1990] 1 SCR 241 (SCC); (

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera vCanada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 SCR 100 (SCC) or a prima facie case for conviction (R vStorrey) before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” or a hunch (R vMorelli, 2010 SCC 8, [2010] 1 SCR 253 (SCC), at para 91; R v Mann, 2004 SCC 52, [2004] 3 SCR 59 (SCC); R v Simpson (1993), (ON CA), 79 CCC (3d) 482 (Ont CA)); (

c) an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, but maydisregard information which the officer has reason to believe may be unreliable: R v Storrey; (

d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion: R v Savage, 2011SKCA 65, 371 Sask R 283 (Sask CA); R v Nguyen, 2010 ABCA 146, 477 AR 395 (Alta CA); and R v Storrey; and (e) “... the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timing involved,the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest”: R v Nguyen, at para 18; and,context includes the experience and training of the arresting officer: R v Nolet, at para 48: R v Whyte, 2011 ONCA 24, 266 CCC (3d) 5(Ont CA), at para 31; and R v Luong, 2010 BCCA 158, 286 BCAC 53 (BCCA), at para 19. [11] The Court is satisfied that Constable Broadbent subjectively believed that he had reasonable grounds to effect an arrest forboth impaired driving and leaving an accident; indeed, his subjective belief was not challenged.

Now, after carefully reviewing theevidence, the Court also is satisfied that those grounds are objectively verifiable for the reasons that follow. The officer had a report thatan indictable offence had been committed, and he had a general description of the person responsible. He also had information that thesuspect left the scene in a car with a particular licence plate. Within minutes, he found that car. A female was in that car, as reported,and she matched the suspect description provided by a witness.

Although the accused explained to him that she left the accident to go tothe hospital to see about her injured ankle, the officer rejected that explanation since the accused had gone in a direction away from thenearest hospital, not toward. Counsel for the accused also argues that the arrest was not lawful as the officer did not ascertain the femalearrested was in fact Corrinne Gillis. However, at the time of arrest, the officer needed only reasonable grounds to believe that the person

arrested was the suspect who left the accident scene; the actual identity of that person is irrelevant to the grounds for the arrest on thefacts before this court. It is the view of the Court that the evidence, taken in its totality, is sufficient to justify an arrest pursuant to s. 252of the Code. [12] With respect to the arrest for impaired driving, the officer had information from the witness that the driver was drunk, haddifficulty walking, smelled of alcohol and had rear-ended another vehicle. He also concluded, after his conversation with Mr. Wagner,that the accused had consumed alcohol.

When he spoke to the accused, he noted red, bloodshot, glossy eyes and opined that she had thegeneral appearance of an intoxicated person. He was not shaken in cross-examination on his evidence. This information, cumulatively,and objectively viewed, provides the necessary reasonable grounds for an arrest for impaired driving, bearing in mind that reasonablegrounds are more than a mere suspicion but less than a prima facie case.

Accordingly, the Court finds that the arrest of the accused forimpaired driving also was lawful. [13] With respect to whether the officer’s grounds for the breath demand can be confirmed objectively, the only issue is whetherthere was sufficient basis upon which to conclude that the ability of the accused to operate a motor vehicle was impaired by alcohol.

Thetask of the Court is not to speculate whether there might be alternative explanations for the symptoms described, but rather, the task is toconsider whether the totality of the evidence suggests that the ability of the accused to operate a motor vehicle was even slightlyimpaired by alcohol: see R v Gunn 2012 SKCA 80 [Gunn] at para 9. The Court must consider whether the circumstances articulated bythe officer are rationally capable of supporting the conclusion drawn by the officer prior to making the demand.

The factors listed by theofficer need not prove that the accused was actually impaired, simply that a reasonable person standing in the shoes of the officer wouldhave believed that the accused’s ability to operate a motor vehicle was impaired by alcohol: see Gunn at para 8 and 15. [14] A review of the evidence leads me to conclude that the officer had garnered the following particulars prior to making thedemand: (

i) the time of driving was shortly before 9:28 p.m.; (ii) the accused was the registered owner of the responsible vehicle; (iii) theaccused drove into the back of a van that was stopped at a red light; (iv) a witness described her as drunk; (

v) the accused fit thedescription of the driver at the time of the accident: approximately 50 years old, dirty blond or tan-coloured hair, skinny, about 5'4" tall,wearing jeans and a black jacket; (vi) the accused had glossy, red, tired-looking bloodshot eyes; (vii) her speech was slow, and slurredand she had difficulty with pronunciation; (viii) she had difficulty walking, which was not totally explained by an injured ankle; and (ix)she smelled heavily of beverage alcohol. [15] Although Constable Broadbent also received information that the accused had consumed alcohol after the collision, herejected that explanation based on his belief that a person would not demonstrate the degree of impairment that he witnessed so quicklyafter imbibing.

In making the assessment as to reasonable grounds, an officer is not required to accept every piece of information that hereceives: see R v Bush 2010 ONCA 554 , [2010] OJ No 3453 at para 66. [16] After reviewing and considering the circumstances and observations available to the officer that led to the making of thedemand, the Court is satisfied that he had ample grounds upon which to draw the conclusion that the accused, in the preceding threehours, had operated a motor vehicle while her ability to do so was impaired by alcohol.

Further, although there was a five to sevenminute delay between the arrest and the making of the demand, the Court is satisfied that the demand was made as soon as practicable. Returning to the scene of the accident, which was only two minutes away, to speak to the investigating officers there and to confirm andclarify some of the information that he had, was an eminently reasonable step. In the words of the officer, he also wanted to ensure thatthere was no exculpatory evidence. Once he satisfied himself that the grounds for a demand existed, he promptly made the demand.

Itis the view of the Court that the delay between the arrest and the demand has been adequately explained and the Court has no hesitationin finding that the demand was lawfully made. [17] Having determined that the arrest and the breath demand were lawful, it is the view of the Court that a violation of s. 9 of theCharter has not been made out. Given those findings, there is no need to embark upon an analysis pursuant to s. 24(2) and R v Grant2009 SCC 32. (ii) Has there been a violation of s. 10 of the Charter? [18]

Section 10 of the Charter provides that upon arrest or detention a person has the right to retain and instruct counsel withoutdelay and to be informed of that right. In this case, the accused was arrested at 9:40 p.m. and placed in the back of the patrol car. The

officer then spoke to Mr. Wagner and to another officer. Seven minutes after the arrest, the officer recited her rights to counsel to her ashe drove to the accident scene. At her request, the accused spoke to duty counsel between 10:20 and 10:27 p.m. Although the accusedwas not advised of her rights to counsel simultaneously with her arrest, the officer did provide some explanation for his actions duringthe delay and, according to his uncontradicted evidence, advised her of her rights to counsel as soon as he practically could.

Further, hedid not attempt to elicit any evidence from her before those rights were provided. Indeed, she was given an opportunity and, in fact,spoke to a lawyer very shortly after her arrival at the police station. Given this set of circumstances, the Court finds that there has beenno violation of s. 10 of the Charter. However, even if the delay in providing those rights did constitute a breach, it is one that istechnical in nature. Further, there is no nexus between that breach and the evidence sought to be excluded.

Accordingly, in the eventthat there was a breach, the evidence would be admitted after a s. 24(2) Grant analysis. [19] In conclusion, no violation of either

section 9 or 10 of the Canadian Charter of Rights and Freedoms has been shown on abalance of probabilities, and all evidence is admissible. As agreed by counsel, the evidence from the voir dire is applied to the trialproper. Trial Issues (iii) Has the offence of impaired driving been proven beyond a reasonable doubt? [20] The accused testified that on the evening in question, she drank two or possibly three beers over the course of three hours.

She then took an indirect route home and, as she drove down a hill toward the intersection where the accident occurred, the three to fourinch heel of her shoe caught and the collision occurred. She twisted her ankle and was rattled by the accident so she told the other driverto call the police. She called her son and told him to come for her as she was injured. Instead, her husband Clayton happened by theaccident scene, picked her up and drove her home so that she could retrieve her health card before going to a near-by minor emergencyclinic.

Rather than immediately entering the house for her health card, she stayed in the car where she consumed a couple of inches ofvodka from a mickey that her husband had in his glove box, as well as some nachos. She took the alcohol to treat her ankle pain. She andher husband were in the driveway for about two to three minutes before the police arrived and arrested her. She denied that she wasfeeling the effects of the alcohol and believed that it was the pain that she was suffering that caused the difficulty with her ability to walkand with her speech.

Further, she denied that she left the accident scene to avoid civil or criminal liability; rather, she left to seek medicalattention as she did not want to pay for an ambulance to be called to the collision site. [21] I listened carefully to the evidence of the accused and have since reviewed and carefully considered all of the evidence. Having done so, I do not believe the evidence of the accused nor am I left with a reasonable doubt by it. Her version of events franklydefies logic and is completely inconsistent with the evidence of the other witnesses.

Her evidence that she left the scene of the accidentwith the intention of seeking medical treatment, but instead decided to treat herself by drinking alcohol straight from a bottle and eatingnachos smacks of an utter fabrication designed to cover the fact that she had been drinking and driving. Her claims of excruciating painare equally exaggerated when one considers the whole of the evidence that she walked across the road from the accident, was treatedwith a bandage wrap and did not seek further medical attention.

On the whole, I find that her evidence is totally unreliable and, in somemeasure, completely fabricated. [22] I accept the evidence of Mr. Qureshi that he had been stopped at a red light for about 20 seconds when he was hit from behindby a car driven by the accused. I am satisfied, beyond a reasonable doubt that the accused was the operator and sole occupant of the carthat struck Mr. Qureshi’s van. His evidence was that she walked like a “drunk person” and he demonstrated a hesitant walk with a widestance. He also smelled alcohol on her breath as she stood within two feet of him.

Although she did not speak directly to him, she wasspeaking when she got out of her car but he could not understand her words; he described her speech as “babbling.” [23] When Constable Broadbent encountered the accused, he noted that she smelled heavily of beverage alcohol, her eyes werered, glossy and bloodshot with a tired appearance, her speech was slow and slurred, she had difficulty pronouncing words and hadproblems with her balance. These observations remained consistent throughout his dealings with her.

Constable Flogan, the breathtechnician, noted only that there was an odour of alcohol from her breath. [24] In determining whether the offence of impaired driving has been proven, the Court must apply the test of R v Stellato (1993), (ON CA), 78 CCC (3d) 380 (Ont CA) affd (SCC), [1994] 2 SCR 478 [Stellato]. That test requiresthat the Court assess the evidence of driving and the physical comportment of the accused to determine whether her ability to operate thatvehicle was impaired, even slightly, by alcohol. Slight impairment to drive is related to a reduced ability to perform a complex task and

may be the result of perception or field of vision, reaction or response time, judgment, regard for rules of the road, and the like beingcompromised by alcohol consumption: R v Censoni and R v MacDonald (1996), (SK KB), 146 Sask R 306 (Sask QB)at para 10.

In other words, the Court must be satisfied beyond a reasonable doubt that the evidence leads to no other reasonableconclusion but that the accused’s ability to operate a vehicle was impaired to some degree by the consumption of alcohol. [25] In R v Hall, (SK CA), 125 Sask R 62, the Saskatchewan Court of Appeal, referring to R v Morin, (SCC), [1988] 2 SCR 345 said at para 13: “. . .the trial judge was entitled, and indeed required, to look at all of the evidenceand not use the piecemeal analysis advocated on behalf of Mr.

Hall.” That is, it is not for the Court to determine whether eachexplanation offered by the accused might reasonably be true, but rather, the Court is obliged to consider the whole of the evidence anddetermine whether or not it proves the offence beyond a reasonable doubt. [26] The evidence of the Crown witnesses, although not identical, is consistent and supports the allegation that at the time theaccused became involved in a motor vehicle accident, her ability to operate her vehicle was impaired by alcohol.

Given the nature andcircumstances of the collision and the accepted evidence of the Crown witnesses, the Court has no hesitation in finding the offence ofdriving while impaired by alcohol has been proven beyond a reasonable doubt and the accused is accordingly, found guilty of that count. (iv) Has the offence of leaving the scene of an accident contrary to s. 252 of the Criminal Code been proven? [27] There is no issue that the accused was the operator of a vehicle that was involved in an accident with another vehicle, nor isthere any dispute that she left the scene without providing her name or address.

Section 252(2) of the Criminal Code states, in part: . . . evidence that an accused failed to stop . . . and give his name and address is, in the absence of evidence to the contrary, proof of anintent to escape civil or criminal liability. [28] In this case, the accused testified that she did not leave the scene for the purpose of evading liability, either civil or criminal. Rather, she says her sole purpose was to seek medical attention for her injured ankle and to avoid the cost of an ambulance.

Counselargues that the presumption of s. 252(2) has thereby been rebutted. [29] However, for the reasons given above, the Court does not accept the explanation given by the accused. Her evidence that shewas experiencing extreme pain in her ankle is not consistent with the uncontradicted evidence that she was able to walk and bear weighton her foot; nor is it consistent with her sitting in her driveway drinking hard liquor straight from a bottle and eating nachos.

There isnothing in this explanation that makes sense; it is, in my view, totally ludicrous and not capable of rebutting the presumption of s. 252(2)of the Criminal Code. As all elements of the offence have been proven beyond a reasonable doubt and the presumption not rebutted, theaccused is found guilty of leaving the scene of an accident. (

v) Has the offence of refusal been established? [30] Section 254(5) of the Criminal Code states: Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. [31] The Saskatchewan Court of Appeal in R v Lewko, 2002 SKCA 121 , [2002] SJ No 622 set out the elements of theoffence of refusal as follows: (

i) a proper demand; (ii) a failure or refusal by the accused to produce the required sample;

(iii) the intention of the accused to provide a failure or refusal; and (iv) once raised by the defence, the absence of a reasonable excuse. [ 32 ] It is undisputed that the accused did not provide the breath sample required. Constable Flogan testified that the first five times that the accused was instructed to provide a breath sample, she stopped blowing before a suitable sample could be obtained.

The sixth time that he presented the mouth piece to her, she responded by saying, “Go fuck yourself” “Fuck you; I’m not doing it.” By her own admission, she had no intention to provide a sample after the first five attempts; nor did she offer to the Court any reasonable excuse for not doing so, except to say that she was cranky and frustrated by the process. [ 33 ] The only argument raised by counsel for the accused was that a proper demand had not been made. However, the Court is satisfied, for the reasons given earlier in this judgment that the demand was valid and lawfully made.

Accordingly, all of the elements of the offence have been proven beyond a reasonable doubt and the accused is found guilty of refusal as well. _____________________ M. L. Gray J