Her Majesty the Queen - v. -, 2015 SKPC 116

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 116 Date: August 31, 2015 Information: 24519120 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dawson Bentley Appearing: Lana Morelli For the Crown Ron Piché For the Accused JUDGMENT M.L. GRAY , J [ 1 ] Mr. Bentley was charged on January 24, 2015 at Martensville with operating a motor vehicle while his blood alcohol content exceeded the legal limit and also with operating a motor vehicle while his ability to do so was impaired by alcohol.

Counsel for the accused provided notice of an application for the exclusion of the Certificate of Qualified Technician on the basis that the accused’s right to counsel had been violated. All evidence was called on a voir dire with agreement that only the Crown evidence would be applied to the trial proper. No further evidence was called on the trial by either party. Counsel for the accused also argues that the prerequisites of s. 258(1)(

c) have not been proven as there is no evidence before the Court of a valid demand either pursuant to s. 254(2) or 254(3) of the Criminal Code .

[ 2 ] The Crown evidence in the matter was largely uncontradicted. It is common ground that on January 24, 2015, the accused was operating a truck in the vicinity of a bar. The attention of the officers was drawn to it as it accelerated rapidly through a parking lot before entering the street in front of the patrol car. A routine stop of the vehicle was conducted at 12:10 a.m. The accused was the operator and lone occupant of the vehicle. The intention of the officer was to investigate the manner of driving and to determine the sobriety of the driver.

When asked, the accused acknowledged that he drank two Caesars, which the officer understood to be alcoholic beverages. As a result, the officer formed the suspicion that the accused had alcohol in his body and asked that he attend to the police vehicle to provide a breath sample into an approved screening device. That test resulted in a fail which prompted a further demand for breath samples. These were ultimately provided and resulted in readings of 130 and 110 milligrams of alcohol in 100 millilitres of blood respectively. [ 3 ] The following issues were left for the Court: (

i) Were valid demands made pursuant to s. 254(2) and 254(3) of the Criminal Code ? (ii) Was there a violation of s. 10(

b) of the Charter ? (iii) If so, what is the appropriate remedy? and (iv) Have the offences alleged been proven beyond a reasonable doubt? (

i) Were valid demands made pursuant to s. 254(2) and 254(3) of the Criminal Code ? [ 4 ] Constable Quan testified that the accused told him that he drank two Caesars, which Constable Quan understood to be alcoholic beverages. As a result, he formed a suspicion that the accused had alcohol in his body, and asked the accused to come to the patrol car to provide samples into the approved screening device. Constable Quan was not qualified to conduct tests on either the approved screening device or the Intoxilyzer. [ 5 ] Nonetheless, at 12:15 a.m., Constable Quan read the ASD demand to the accused.

The accused complied with the demand and at 12:18 a.m. the test resulted in a fail reading which the officer understood to mean a reading of at least 100 milligrams of alcohol in 100 millilitres of blood. As a result, he advised the accused of his rights to counsel at 12:19 a.m. This was followed by the police warning at 12:20 a.m. and the breath test demand at 12:21 a.m. Constable Quan testified that everything that he read to the accused was read verbatim from the “ Charter card” with which he had been provided.

After he read the breath test demand, the accused asked if it was the same as the earlier test he had provided. Constable Quan explained to him that the ASD simply provided a pass or fail result while the “machine” at the detachment would provide a numerical value for the amount of alcohol in his body. Constable Quan was not cross-examined on this evidence. [ 6 ] Constable Rushton was the training officer for Constable Quan on the evening in question and directed Constable Quan to take the lead in this particular investigation.

He stood back, but within earshot, while Constable Quan engaged the accused in conversation immediately following the stop. He heard the accused tell Constable Quan that he had two Caesars, which Constable Rushton also understood to be an alcoholic beverage. Constable Rushton suspected that the accused had alcohol in his body; Constable Quan asked the accused to provide samples of his breath. The accused appeared to be confused by this until it was explained that he was not under arrest, but simply being investigated for impaired driving.

It was further explained that it would be safer to obtain samples of his breath in the patrol car. [ 7 ] Once in the police vehicle, Constable Quan read the approved screening device demand while Constable Rushton prepared the instrument, an Alco-Sensor FST. Constable Rushton was qualified as an operator in September 2014, and this particular instrument will not allow samples to be taken if it has not been properly calibrated. The instrument provides three possible results: pass, warn and fail.

At “fail”, a person has a blood alcohol concentration of 100 milligrams of alcohol in 100 millilitres of blood or higher.

[8] At 12:19 a.m. he received a fail reading and advised Constable Quan that a fail meant a reading of 100 milligrams of alcoholor more in 100 millilitres of blood. At this point, Constable Rushton formed the opinion that the ability of the accused to operate a motorvehicle was impaired by alcohol and directed Constable Quan to read rights to counsel, the police warning and breath demand to theaccused. [9] Neither officer provided evidence to the Court of the actual words used for either demand that was made upon the accused. Counsel for the accused argues that without that evidence, there is nothing to prove that a valid demand was made upon the accused;ergo, the requirements of s. 258(1)(

c) have not been fulfilled and the presumption does not apply. In support of this proposition, counselrelies on R v Semchuk, 2012 ABPC 135 [Semchuk]. Counsel for the Crown argues that the Court can infer from the evidence, oralternatively, take judicial notice that the demands made were valid. [10] Section 258(1)(

c) of the Criminal Code requires that breath samples be taken “pursuant to a demand under subsection254(3).” However, there is no statutorily mandated wording for the demand. It simply requires that the person to whom the demand ismade has a clear and unambiguous message as to what is required: R v Kachmarski, 2014 SKQB 39, para 35 [Kachmarski]. Where anaccused has complied with the demand and samples of breath have been taken, a

summary of what was said to communicate thatdemand will be adequate to fulfill the requirement of a valid demand and trigger the s. 258(1)(

c) presumption: R v Pickles (1973), (ON CA), 11 CCC (2d) 210 (Ont CA) at para 13. [11] Recently, in Kachmarski, Chief Justice Popescul dealt with this issue as did Madam Justice Gunn in Ross v The Queen, 2015SKQB 146 [Ross]. In Kachmarski, at para 37 the Court said: In this case, it is a mistake for the trial judge to hold that there was “no evidence that the demand ... meets the requirements ofSubsection 3.” There was evidence. Specifically, the officer testified that “I read him his breath demand from the card, asked if heunderstood, he said yes.

I said will you provide a sample, he said yes.” Later, the officer agreed with the suggestion that the “formaldemand” was made using his “police issue[d] card.” Further, the context of the rest of the evidence presented at trial, including that thedefendant was forthwith taken to the RCMP detachment and provided samples of his breath into a breathalyzer machine, compels theconclusion that the defendant was given an unambiguous demand which he understood and complied with.

In my view, the onlyreasonable inference that can be drawn from the evidence ...was that the defendant accompanied the officer to the RCMP detachment andprovided samples pursuant to the demand made. At para. 38, Popescul CJQB went on: Even absent evidence of the specific words used by the officer, there was evidence – sufficient evidence - from which to conclude that alawful demand was made for the purposes of s. 258(1)(c). The officer made a formal breath demand from his force-issued card.

Thedefendant stated that he understood that demand and subsequently complied by providing two samples into an approved instrument. [12] In Ross, the accused had been involved in an accident and was under arrest for impaired driving. The officer testified that sheread the breath demand from the standard issued card. The officer did not have the card with her in court and did not provide a

summaryof the demand that she made. The officer asked the accused if she understood the demand and she acknowledged that she did. She wasgiven an opportunity to speak to a lawyer and ultimately provided two samples of her breath. At para. 32, Madam Justice Gunn, inconcluding that there was evidence of a valid demand, stated: This is similar to the Roesslein case where Mr. Justice McIntyre was satisfied that the words spoken by the police officer to the accusedcomplied with the law in Saskatchewan and that the words constituted a demand made pursuant to the Criminal Code.

Justice McIntyrewent on to say that his view was fortified by the fact that the accused understood what was required of him because he did provide twobreath samples as requested and that the presumption contained in s. 258(1)(

c) should apply. I am satisfied that the words spoken by Cst.Bourassa to Ms. Ross complied with the law in Saskatchewan and constituted a demand within the meaning of the Criminal Code. Cst.Bourassa made a “breath demand”. Ms. Ross also clearly understood what had been said to her and she provided two samples of herbreath.

[ 13 ] A different conclusion was reached by the Alberta Provincial Court in Semchuk . Although the court found that there were ample grounds for the demand, the specific words of the demand were not in evidence. The court held that there was no evidence of a valid demand and ultimately excluded the Certificate of Analyses. [ 14 ] Similarly, in R v Larson , an unreported decision of Harradence J. delivered on July 23, 2015 [ Larson ], there was found to be no evidence of a valid demand. In that case, the officer testified, “. . .I would have given him a breathalyzer warning. . .”.

The officer was then asked two leading questions, the first of which was: “Now you said that you then did the breath test demand?” and the second, “Was that also read from a card?” The officer’s response to both questions was “yes.” The card was never identified by the officer. Based on this evidence, the court was unable to conclude what had been read or told to the accused and found that the Crown had not proven a valid demand. [ 15 ] Counsel for the accused submits that the principle of comity would dictate that this Court follow the decision in Larson : see R v Butchko, 2004 SKQB 140 , at para 22 .

However, the facts in Larson are quite distinguishable from the case before me. Although the specific words used to make the ASD demand and the subsequent breath demand were not in evidence, it is clear from the evidence of the officers that “an ASD demand” was made and that Constable Rushton explained that the accused was simply being asked to provide a breath sample in the safety of the police vehicle. A sample was provided into a named approved instrument.

There is nothing in the evidence indicating that the accused was not aware of what was required of him; to the contrary, since he did provide a sample suitable for analysis, it can be inferred that he did comprehend, particularly after further explanation was given. After receiving a fail reading, the officer formed the appropriate grounds for a demand pursuant to s. 254(3) of the Criminal Code . Constable Quan testified that both the ASD demand and the subsequent demand were read verbatim from the “ Charter card” he had been issued.

Although the specific words were not recounted in court, the evidence of Constable Rushton was that the accused was provided further explanation of the breath demand in layman’s language. There is nothing to suggest that the accused did not understand the demand after receiving that explanation and the fact that he did provide two suitable samples suggests that he did. [ 16 ] On the whole of the evidence, I am satisfied that the only inference that the Court can draw is that valid demands were made pursuant to both s. 254(2) and 254(3) of the Code .

Further, this is in accord with Kachmarski and Ross by which I am bound. Accordingly, the requirements of s. 258(1) (

g) have been met and the Certificate of a Qualified Technician is admissible. [ 17 ] Given the clear judicial authority on this point, there is no need to deal with the second argument of judicial notice that was put forward by the Crown. (ii) Was there a violation of s. 10(

b) of the Charter? [ 18 ] No issue was taken with the fact that the accused was properly advised of his rights to counsel at 12:19 a.m. and that he told the officer he wanted to speak to a lawyer. The question is whether those rights were adequately implemented. [ 19 ] Upon leaving the location of the stop, the accused was taken directly to the local detachment where he was placed in a telephone room. The accused and the officers have very similar versions of what transpired in that room with respect to contacting a lawyer.

The accused asserts that the actions of the officers left him with the belief that he had no option but to call duty counsel. [ 20 ] According to Constable Quan, the accused was told that he could use the telephone book and the yellow pages that were provided to find a lawyer and that the telephone number for Legal Aid was on the wall. The room was equipped with a telephone and the accused was instructed to dial “9” should he wish to place a call; however, he also had his personal cell phone. He was left alone to afford him privacy.

The officer watched through a window and saw the accused holding his cell phone to his ear while flipping through the yellow pages. He would periodically stop and appeared to dial a number before putting the phone to his ear. At one point, he motioned the officer to come into the room and said he left a message for a lawyer, but would keep trying. The officer again left the room and shortly after saw the accused put down his phone and rest his head on his hands while he flipped through the phone book. Although the accused had the phone to his ear, Constable Quan could not see his lips moving.

The accused again motioned the officer to come into the room and said that he was still looking for a lawyer. At 12:47 a.m., he told the officer that he wanted to speak to a lawyer named ‘Boardner’. The accused was told that unless he called a lawyer with a 24 hour service, he was not likely to reach a lawyer at that hour of the day. Constable Quan said he told Mr. Bentley that so he would not waste his time calling lawyers. At 12:49 a.m., the accused said he would call Legal Aid. The number on the wall was pointed out to him and the officer again left the room.

[ 21 ] When asked what was said to the accused about whether he could call Mr. ‘Boardner,’ Constable Quan replied that he simply said that it was unlikely Mr. ‘Boardner’ would pick up the phone at that time of night. Constable Quan did not look in the yellow pages or otherwise assist the accused in attempting to obtain a phone number for Mr. ‘Boardner.’ Throughout, the phone book was available to the accused. When the accused said he wanted to speak to Legal Aid, Constable Quan left the room but watched through the window. The accused again signalled him into the room and said he was on call waiting.

A short time later, the accused said Legal Aid had hung up on him. Constable Rushton then asked whether he would like him to try Legal Aid duty counsel and when the accused said he would, Constable Rushton used his police-issued cell phone to do so. Constable Rushton handed that cell phone to the accused at 1:05 a.m. Once the telephone was handed to the accused, both constables left the room. Constable Quan continued to monitor Mr. Bentley and noted that he seemed to be speaking. The call ended at 1:12 a.m. and the accused motioned him into the room.

He was taken to an observation room after confirming that he had finished his call. [ 22 ] In cross-examination, Constable Quan acknowledged that he could not say what region was included in the phone book provided. To the best of his recollection, the duty counsel number was the only one posted on the wall. He agreed that he was content to allow the accused to use his own telephone. He knew that the accused wanted to speak to a specific lawyer named ‘Boardner’ but he did not know that lawyer and did not ask for any further particulars about him.

He also acknowledged that this was the first time he was required to assist an accused in implementing his right to counsel. He could not recall whether Constable Rushton was present when the accused said he wanted to speak to Mr. ‘Boardner’ as his back was to the door. He agreed that, given his limited experience, he had no idea as to the propensity of any lawyer to answer calls at 12:47 a.m. and could not say whether or not Mr. ‘Boardner’ would have answered his phone.

After reviewing his Occurrence Report, Constable Quan indicated that it was Constable Rushton who told the accused that lawyer calls are not normally answered unless they are directed to a 24 hour answering service. He agreed that he wanted the accused to call Legal Aid in order to move things along as the longer the delay, the lower the alcohol level drops. He also agreed that the call to Legal Aid followed Constable Rushton’s comments that lawyers do not usually answer unless it is a 24 hour service.

He did not look in the directory to obtain a number for a Mr. ‘Boardner’ nor did he access the internet in order to assist the accused. He agreed that the call to Legal Aid ended about an hour after he initially spotted the accused’s vehicle and that the accused appeared to be giving his best effort to locate a lawyer. [ 23 ] Constable Rushton testified that the accused was placed in a phone room at 12:36 a.m. and was directed to dial “9” in order to place calls.

The phone book was pointed out to him and he was told that he could call any lawyer he wished and that the 24 hour number for Legal Aid was posted on the wall. The telephone book was for Saskatoon and area. The accused asked how long he had and was told that there was no set time and that he would be given a reasonable opportunity to call a lawyer.

The accused acknowledged that information, the door was closed and Constable Quan continued to monitor the accused while Constable Rushton went back and forth while preparing the breath instrument. [ 24 ] At 12:50 a.m., he noticed that the accused was off the phone and was flipping through the phone book. The accused was told that most lawyers were not in the office and, unless there was a 24 hour service noted, were unlikely to answer the phone. Legal Aid duty counsel was explained again and the door was closed. He told the accused this because at 12:50 a.m. most lawyers are not typically in their office.

Constable Rushton did not know who the accused had called prior to this and did not know if the accused wanted to keep looking for lawyers with 24 hour service or if he wanted to call Legal Aid. At 1:06 a.m., Constable Rushton returned to the telephone room. The accused was no longer on the phone and said that he had tried the Legal Aid number posted on the wall, was put on hold and then the call was disconnected. Constable Rushton asked if he wanted help and the accused agreed. As a result, Constable Rushton used his police issued cell phone to dial the Legal Aid duty number; a male immediately answered.

Constable Rushton explained why the accused was in custody, then handed his phone to the accused and left the room. At 1:13 a.m., the accused ended his call, said he was done and gave the phone back to Constable Rushton. [ 25 ] In cross-examination, Constable Rushton said that he made a comment with respect to 24 hour legal services because the accused complained that he was just getting answering machines. Constable Rushton told him he was likely calling office numbers and only those lawyers with a 24 hour service would be apt to respond.

He also told the accused that lawyers likely would not pick up their office phones at that hour of the day. Constable Rushton did not recall the accused saying that he wanted to call a lawyer by the name of Mr. ‘Boardner.’ He explained that the accused could call Legal Aid or any other lawyer who would answer their phone at that hour. He had never heard of a lawyer named ‘Boardner’ but had been transferred to Saskatoon shortly before this incident.

He agreed that there was no rush to obtain samples. [ 26 ] Dawson Bentley testified that he never had been arrested prior to January 24, 2015 and acknowledged that he was advised of his arrest in the police vehicle and given his rights to counsel. At the Martensville detachment, he was directed to a phone room where Constable Rushton showed him how to use the phone that was available. He used his cell phone to call his father who gave him the name of a lawyer, Morris Bodnar. Because his father did not have a phone number for that lawyer, he looked in the phone book. He

dialled the number listed; however, the call went to voice mail. He did not leave a message. Rather, he motioned to Constable Quanwho was outside the door, and asked how much time he had since he had never been in this situation before; he denied that he wasstalling. He did not know what “reasonable opportunity” meant nor did he know what a 24 hour lawyer was. Neither officer gave himany direction as to how he might reach the lawyer of his choice who, he agreed, he may have referred to as Mr. ‘Boardner.’ After theofficer made a comment about 24 hour lawyers, his next call was to Legal Aid.

He used the number that was posted above thetelephone. He believed the police officer later called that same number. [27] In cross-examination, he could not say whether he called the office number for Mr. Bodnar but agreed that he did not leave amessage. He may have spoken to Constable Quan about wanting to speak to a Mr. ‘Boardner’ (rather than Bodnar) and that ConstableRushton may have come along afterward. He did not recall any discussion with Constable Rushton about office numbers but agreed that24 hour numbers were something other than regular office phone numbers.

He agreed that he was then reminded of the 24 hour LegalAid service. He knew that a 24 hour legal service would mean someone answered the phone 24 hours a day. He agreed that the officerdid not tell him who he should call but did say he could call Legal Aid. He was left with the impression that this was his only option. Hedid not ask any questions but simply relied on the officers’ experience. He did not ask the officers if he had to call Legal Aid.

Whenasked if he was aware he could call whoever he wanted, he responded that anyone he had called, including the two lawyers with 24 hournotices in their ads did not answer. He called Legal Aid because he was told that they would answer the phone. Throughout, he hadaccess to his cell phone and the phone book. [28] Counsel for the accused argues that the accused was diligent in his pursuit of legal advice and that the actions of the officersinadvertently affected the decisions he made, thus interfering with his ability to speak to the lawyer of his choice.

Further, directing anaccused away from his counsel of choice is a serious violation of the Charter that calls for exclusion of the evidence. To this end,counsel relies on R v Dreschner, 1998 ABPC 125 [Dreschner] and R v Balgobin, 2011 ONCJ 108 [Balgobin]. [29] Counsel for the Crown asserts that no violation occurred as the case at hand can be readily distinguished from most“streaming” cases where the authorities control the use of the telephone. Further, the accused chose to defer to the expertise of others,which he is entitled to do.

Counsel referred the Court to R v Yacyshyn, 2014 SKPC 36 , 2014 SKPC 036 [Yacyshyn]. [30] The case law is clear that ‘streaming’ an accused away from a specifically named counsel of choice or toward duty counselwill usually result in a s. 10(

b) violation. Each case depends on its particular facts. I listened carefully to the evidence and have sincehad a chance to review and consider the evidence and the able submissions of counsel. Having done so, it is the conclusion of the Courtthat there was no violation of s. 10(

b) of the Charter for the reasons that follow. [31] In this instance, the accused was not restricted in his efforts to call his counsel of choice nor was he told that Legal Aid washis only choice. Although Constable Quan testified he wanted the accused to call Legal Aid because the longer the breath tests weredelayed, the lower the readings would be, there is no evidence before the Court that this was expressed to the accused or that he waspressured in any way to hurry his calls.

There is no evidence that the decision of the accused to call Legal Aid was the result of coercionor persuasion. [32] These circumstances are markedly different from Balgobin where the accused was told that he could wait in a cell for up totwo hours before a call to duty counsel would be answered. It can also be distinguished from R v Kreiser, 2013 SKPC 107, where theaccused was not provided with a phone book and was told that if his lawyer of choice did not answer the phone, he, nonetheless, wouldbe required to provide breath samples.

After two failed attempts to call his counsel of choice the accused was directed to Legal Aid. There was found to be a violation of s. 10(

b) in both of these cases. [33] Here, the accused had the unfettered use of not one, but two, telephones, a complete telephone directory for the Saskatoonregion and the phone number for duty counsel posted next to him on the wall. He was not told that he had to cease his efforts to contacthis counsel of choice or that he had to call Legal Aid. When he did communicate to the officers that his efforts to contact a lawyer hadfailed, he was told what would seem to be patently obvious–lawyers do not usually answer their business phones at 1:00 in the morning. Indeed, he had learned that from his own experience.

By that time, the accused, by his own admission, had made a number of calls,including a call to his father, to Mr. Bodnar and to two 24-hour service numbers that he found in the phone book. He was reminded of theavailability of duty counsel, which did not interfere with his right to choose counsel: R v Willier, 2010 SCC 37 [Willier], R v Edgington,2010 SKQB 381 at para 18 [Edgington]. Subsequently, of his own volition, while alone in the phone room, the accused placed a call toduty counsel. When that call failed, he promptly notified the officer of the difficulty he was having.

Only at that point, did ConstableRushton intervene and assist by placing the call with the consent of the accused.

[34] Although the accused now says that he felt that he had no other option but to call duty counsel, he did not express that to theofficers; nor did he express dissatisfaction with his call or the wish to continue to try to contact Mr. Bodnar.

If the suggestion of dutycounsel was not acceptable, due diligence on the part of the accused makes it incumbent upon him to tell the officer so and to takewhatever further steps he wished: Willier, R v McCrimmon, 2010 SCC 36, R v Rice, 2011 SKQB 412 at para 29 [Rice], R v Yacyshyn, 2014 SKPC 36 , 2014 SKPC 036 at para 45, R v Thall, 2014 SKQB 234 at para 44 [Thall], leave to appeal dismissed orally. Itis the view of the Court that the police fulfilled their obligation to this accused; they advised him of his rights to counsel and providedhim with the tools and the time to exercise those rights.

In the words of Danyliuk J. in Thall at para 44: “The law does not require peaceofficers to be mind-readers, babysitters, or advocates for detained persons.” [35] In conclusion, the accused was advised of his rights to counsel, he was given a reasonable opportunity to choose a lawyer andultimately chose to call duty counsel. There was no violation of his s. 10(

b) rights and his application to exclude evidence fails. (iii) If so, what is the appropriate remedy? [36] However, in the event that I am in error with respect to my findings in relation to s. 10(

b) of the Charter, I would not excludethe breath test results for the reasons that follow. With respect to the seriousness of the breach and the nature of the Charter-infringingconduct of the state, the Supreme Court of Canada in R v Grant, 2009 SCC 32 [Grant] directed that the more severe or deliberate thestate misconduct, the more inclined the courts must be to disassociate from that conduct by excluding the evidence obtained. Anyinterference with the exercise of an accused’s right to counsel is serious. However, in this instance any breach likely would have beenaverted had the accused communicated his concerns to the officers. Although a s. 10(

b) breach tends toward the exclusion of theevidence, the failure of the accused to inform the officers minimizes the seriousness of the breach. [37] Second, the effect of the Charter breach must be considered. Here, the accused was detained for a relatively brief period oftime in the context of an impaired driving investigation and was then required to provide samples of his breath for analysis. As waspointed out in Grant, providing breath samples is a non-invasive procedure.

Ultimately, prior to providing those samples, the accused didspeak to a lawyer and subsequently had the benefit of most able counsel at trial. Consideration on this arm would favour admission. [38] The third line of inquiry centres on society’s interest in having criminal cases decided upon their merits. The question iswhether “the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by itsexclusion”: Grant para 79.

The Court is obliged to take into account not only the negative impact on the administration of justice byadmitting the evidence but also the negative impact of failing to do so. The reliability of the evidence and its importance to theprosecution are relevant considerations and, as was stated in Grant, the results of breath analyses are taken to be highly reliable and theirexclusion would end any prosecution for driving over the legal limit: Grant para 99-110.

Given the toll that drinking and driving takes,and has taken for decades, on the community, this third factor also militates toward inclusion. [39] After considering all aspects of Grant, this Court concludes that the exclusion of the evidence would bring the administrationof justice into disrepute particularly given the specific circumstances of this case and the type of evidence sought to be excluded. (iv) Have the offences alleged been proven beyond a reasonable doubt? [40] The Court is satisfied that on January 24, 2015 at Martensville, Saskatchewan the accused was the operator of a motorvehicle.

The question is whether his ability to do so was impaired by alcohol. [41] Constable Quan said that he first noticed the vehicle driven by the accused shortly before 12:10 a.m. as it was leaving aparking lot that serviced a local drinking establishment as well as some other businesses. It appeared to be travelling at a speed he feltwas unsafe in a parking lot. The vehicle stopped for about ten seconds before entering the street in front of the officers.

They followedthat vehicle for less than 30 seconds and noted nothing untoward about the driving. [42] In cross-examination, Constable Quan agreed that the accused did not slur his speech, did not have glassy or bloodshot eyes

and had no difficulty getting his driver’s licence. There was no odour of alcohol coming from the vehicle. There was nothing untowardabout the manner in which the accused walked to the police vehicle. He acknowledged that the only reason he suspected the accusedhad alcohol in his body was because of his statement that he had two Caesars. Further, the accused did not display any physical signs ofimpairment at the detachment, although the smell of alcohol was noted in the telephone room.

The accused was cooperative and politethroughout. [43] Constable Rushton said that on the morning of January 24, 2015, he was driving the police vehicle and Constable Quan wasthe passenger. They had just left the detachment and had travelled approximately one block when they observed an orange truck withpersonalized plates back out of a parking stall and accelerate very rapidly. He estimated that the vehicle went from 0 to 50 in a very fewseconds. This driving caught his attention but he waited until the truck pulled onto the street before activating the emergency lights andpulling it over.

It stopped immediately at 12:10 a.m. and was initially seen about one minute earlier. They followed the vehicle for only100 yards and he noted no other unusual driving. When the accused exited the truck, his balance, coordination, speech and walk were“okay”. [44] Counsel for the Crown argues that R v Stellato (1993), (ON CA), 78 CCC (3d) 380 (Ont CA) affd (SCC), [1994] 2SCR 478 [Stellato] requires proof of any degree of impairment and suggests that need not manifest in themanner in which an accused walks and talks.

In support of this proposition, the Court was referred to the Saskatchewan Court of Appealdecision of Rice. [45] In accordance with the test in Stellato, the task of the Court is to assess the evidence of driving and the physical comportmentof the accused and determine whether his ability to operate a motor vehicle was impaired, even slightly, by alcohol. In doing so, theCourt is cognizant that a person’s ability to drive may be impaired even without evidence of bad driving and conversely, a person maydrive badly even though not impaired.

Slight impairment to drive is related to a reduced ability to perform a complex task and may be theresult of perception or field of vision, reaction or response time, judgment, regard for rules of the road, and the like being compromisedby alcohol consumption: R v Censoni and R v MacDonald (1996), (SK KB), 146 Sask R 306 (Sask QB) at para 10. [46] Thus, for a conviction for impaired driving to register, the Court must be satisfied, beyond a reasonable doubt by the evidence,that the ability of the accused to operate a motor vehicle was even slightly impaired by alcohol: Stellato.

This does not mean, however,that slight evidence of impairment is sufficient, nor can the Court speculate or draw inferences from the breath test results. In the case athand, there was nothing untoward about the manner in which the vehicle was driven, apart from the way it left a parking stall. Further,neither officer observed any physical signs of impairment in the accused: they noted nothing unusual in his balance, coordination, speechor walk. His eyes did not have the red, glassy appearance associated with alcohol consumption.

Based on this evidence, this Court is notsatisfied beyond a reasonable doubt that the offence of impaired driving has been proven. Therefore, the accused is found not guilty ofthat offence. [47] With respect to the offence of driving while over the legal limit, the Court has been satisfied that valid demands were madeupon the accused; that the prerequisites of s. 258(1)(

c) have otherwise been satisfied and that the presumption of that

section applies. That presumption and the Certificate of a Qualified Technician establishes that the accused’s blood alcohol concentration at the time ofdriving was 110 milligrams of alcohol in 100 millilitres of blood. A finding of guilt will therefore register on count two, driving whileover the legal limit. ________________________ M. L. Gray, J