Her Majesty the Queen - v. -, 2014 SKPC 93

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 093 Date: May 14, 2014 Information: 44664024 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Janelle Stewart Appearing: Tom Macnab For the Crown Berkeley Buchko For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] Ms. Stewart was charged on June 15, 2013 with operating a motor vehicle while her ability to do so was impaired by alcohol and with operating a motor vehicle while her blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood.

She asserted violations of her rights pursuant to s. 8 and s. 9 of the Canadian Charter of Rights and Freedoms ; the Crown evidence was heard on a voir dire . Counsel agreed that the evidence from the voir dire could be applied to the trial proper; no defence evidence was called on either the voir dire or trial.

[ 2 ] The only evidence before the Court is that of Constable Beth Kostur. She has been a peace officer since August 2006 and on June 15, 2013 was working a shift funded by Saskatchewan Government Insurance to target driving offences. Based on her experience, impaired drivers are more apt to be on the road between 10:00 p.m. and 3:00 a.m. At 12:50 a.m., she and her partner were on 20 th Street near Avenue H and came to a stop at a red light. She saw an approaching vehicle drive through that solid red light at a speed estimated to be between 40 and 50 kilometres per hour.

The operator of that vehicle made no attempt to stop. The roads that day were dry and the weather was clear. There were no other cars at that intersection. [ 3 ] As a result of seeing the vehicle go through a red light, Constable Kostur made a U-turn and activated the emergency lights to stop the vehicle. Her purpose was to investigate the red light violation, to check the sobriety of the driver and to check for a valid driver’s licence. The car stopped immediately. [ 4 ] Constable Kostur approached the accused who was the driver and lone occupant of the car.

Although the accused said that she had a drink earlier, Constable Kostur did not detect any smell of alcohol. Upon receiving the information that the accused had consumed alcohol, she asked her to step out of her vehicle in order to provide an ASD sample. The accused was cooperative and polite. She was placed in the back of the police vehicle at 12:51 and the ASD demand was read. The accused said she understood. [ 5 ] Constable Kostur suspected that the accused had alcohol in her system because of her admission and because she drove through a red light that was very prominent on a dark night.

She noted no physical symptoms of impairment displayed by the accused. [ 6 ] Once the demand was made, the ASD was prepared and the officer provided instructions on how to provide a sample. The first attempt was unsuccessful but the second sample, at 12:57 a.m., was suitable for analysis and resulted in a fail reading. [ 7 ] Constable Kostur used an approved instrument, the Draeger 7410GLC on which she was trained. She personally calibrated the device two days prior and found it to be working properly. [ 8 ] Based on the fail reading on the ASD, the officer formed reasonable and probable grounds for a demand.

The demand and rights to counsel were read to the accused at 12:58 or 12:59 a.m. She said that she understood both the demand and the rights to counsel. She thought she might want to call a lawyer and was asked to let the officer know once she had decided. [ 9 ] A tow truck was called as the accused’s vehicle was in a bus stop. Another patrol vehicle arrived within five to ten minutes to take charge of the towing. While they waited, Constable Kostur spoke to the accused who seemed polite, quiet and somewhat shy. The officer did not smell any alcohol, nor did she note any slurring of speech.

At 1:17 a.m., they left the scene and proceeded directly to the Saskatoon Police Station. [ 10 ] After the accused was booked into detention, she was permitted to speak to her husband and was again provided her rights to counsel. She declined the offer to call counsel and as a result the Prosper warning was read. She chose not to call a lawyer, but did call her husband at 1:39 a.m. At 1:56 a.m., the technician was ready to receive samples of breath from the accused. The first was taken at 1:56 a.m. and resulted in a reading of 110 milligrams of alcohol in 100 millilitres of blood.

The second test was taken at 2:18 a.m. and resulted in a reading of 100 milligrams of alcohol in 100 millilitres of blood. As a result of these readings, the accused was again read her rights to counsel with respect to the additional charge of driving while over .08.

A photocopy of the Certificate of a Qualified Technician (Certificate) that was prepared by the Intoxilyzer technician was served upon the accused and was filed as Exhibit P-1, subject to the Court’s ruling on the Charter application. [ 11 ] Constable Kostur opined that the accused’s condition and demeanour remained similar throughout, but once in the light of the police station she was able to see that the cheeks of the accused were flushed and her eyes were somewhat bloodshot.

In cross- examination, Constable Kostur said there was nothing about the manner in which the accused operated her vehicle that drew her attention apart from the running of the red light. The vehicle did not swerve and it came to an ordinary stop. She agreed that the accused did not slur her words, did not smell of alcohol and walked very normally. Further, the officer agreed that disobeying a red light is not necessarily an indicator of impairment but it did make her suspicious that the operator may have been consuming alcohol.

She further acknowledged that the accused initially said that she had one drink; after the ASD was provided, she said that she had “a couple of

drinks” but did not specify the time, except that it was “earlier in the evening”. The officer did not make any further inquiries as to when that drink might have been consumed or what it was. She denied that the reason for the ASD demand was the SGI initiative on which she was working and stated that the demand was made because she had a “suspicion that there was alcohol in her system”. Her grounds for the ASD demand were the running of the red light, the admission of alcohol consumption earlier in the evening and the time of night.

She also agreed that without the fail reading on the ASD she would not have had the reasonable and probable grounds to make a further demand. ISSUES 1. Can the reasonable suspicion formed by the officer be objectively verified? 2. If there was a breach of ss. 8 and 9 of the Charter , should the Certificate be excluded subsequent to an analysis under Grant? 3. Have the elements of the offences alleged been proven beyond a reasonable doubt? ANALYSIS 1.

Can the reasonable suspicion formed by the officer be objectively verified? [ 12 ] Section 254(2) of the Criminal Code says in part: If a peace officer has reasonable grounds to suspect that a person has alcohol...in their body and...that the person has in the preceding three hours operated a motor vehicle...the peace officer may, by demand, require the person...to provide forthwith a sample of breath... [ 13 ] The question before this Court is whether the reasonable suspicion subjectively held by the officer can be objectively verified by the evidence.

A suspicion is but a mere possibility of criminal conduct; a reasonable suspicion has an objective component that goes beyond a mere hunch: see R. v. Mackenzie , 2013 SCC 50 . In R. v. Chehil, 2013 SCC 49 , at para. 27 , the Supreme Court of Canada described reasonable suspicion in this way: ...while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime.

As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds. [ 14 ] Since the case before me was argued, the Saskatchewan Court of Appeal released R. v. Yates, 2014 SKCA 52 , and at para. 34 said this: Consequently, the constellation of circumstances need not be sufficient to prove the detained person actually has alcohol in his or her body. Nor should each circumstance in the constellation be separated, analysed and evaluated apart from the constellation.

Rather, the adequacy of a police officer’s suspicion is to be assessed under the de novo analysis called for in R. v. Mackenzie using this test: would a reasonable person, standing in the shoes of the investigating officer and aware of all of the objectively verifiable evidence, reasonably suspect the driver had alcohol in his or her body?

The reviewing court is not to consider whether the investigating officer’s suspicion was accurate or whether other inferences could be drawn from the constellation of circumstances, or to consider whether the investigating officer could have taken further steps to confirm or dispel a prima facie reasonably held suspicion that alcohol was present in the driver’s body. It is an error in law to dissect the constellation of circumstances and individually test each circumstance or the absence of other circumstances.

[ 15 ] The Court went on to say, at para. 37: In my opinion, the appeal court judge and the trial judge both misinterpreted the evidentiary and persuasive burden imposed on the Crown by requiring the Crown to prove that the respondent probably had alcohol in his body; whereas the standard of reasonable suspicion only requires that the Crown prove a reasonable suspicion that a driver possibly had alcohol in his or her body. [ 16 ] The question of whether an admission of alcohol consumption is sufficient to base a reasonable suspicion has been the subject of many decisions. In R. v.

Nanooch , 2010 CarswellAlta 2015 , the court summarised the two lines of authority that have developed in Alberta and ultimately concluded that an admission of alcohol consumption “a while ago”, without any other indicia, cannot objectively support a reasonable suspicion. In R. v. Mowat, 2010 CarswellBC 3889 (BCPC) , the accused was stopped for speeding and told the officer that he drank three hours earlier. The court held that the admission alone was not sufficient for a reasonable suspicion that the accused had alcohol in his body. A similar conclusion was reached in R. v.

Staples, 2011 CarswellOnt 1765 (Ont CJ) as the officer conceded that the symptoms demonstrated by the accused were equally consistent with sunburn. R. v. Kachur , 2010 CarswellSask 284 (SKPC) , was a situation where the accused was stopped in a routine check for licence, registration and driver sobriety. The accused stated that he had a drink “a while back”. The Court found this was insufficient as alcohol is eliminated over time and, objectively, there was no reason for the officer to conclude that the accused had alcohol in his system at the time of the stop.

Ultimately, the evidence was admitted after an analysis pursuant to R. v. Grant , 2009 SCC 32 . R. v. Robbins, 2013 SKPC 102 , also considered the issue at hand. There a civilian witness reported that the accused had been driving “carelessly” before rolling his vehicle. The accused admitted that he had one drink over four hours earlier. This was found insufficient to ground a reasonable suspicion. This decision is under appeal. [ 17 ] In R. v.

Mitchell , 2013 MBCA 44 , at para. 35 , the Court said: I am not prepared to go so far as saying that a simple admission of alcohol consumption by a driver is, in and of itself, sufficient to provide reasonable grounds on which to base an ASD demand, as each case must be determined on its own facts.

From a common sense perspective, however, it would be rare, if ever, that there would be an admission of alcohol consumption with nothing else-i.e., evidence as to why the vehicle was stopped, when (especially the time of day and of the year) and where it was stopped, what was the driver’s condition, how did he or she react to the police, what were the driver’s exact words and how were they spoken, etc. These are all important factors to take into account.

It is important to remember that it is the totality of the circumstances known to the officer, viewed together, that must be considered in determining whether there was a reasonable basis for his or her suspicion. [ 18 ] In Saskatchewan, Mr. Justice Keene, in R. v. Drysdale, 2013 SKQB 392 , also considered what constitutes reasonable grounds to suspect that a person has alcohol in their body. Justice Keene found the decision in Mitchell (supra) very persuasive and confirmed the proposition in R. v. Ishmael, 2012 ABCA 282 , that the threshold for reasonable suspicion is low.

In Drysdale , the officer formed her suspicion based upon: (

i) the time of night, (ii) location (leaving the bar), and (iii) admission of one drink. The trial judge found that this did not create a reasonable suspicion and excluded the result of the ASD test. On appeal, the court found that the totality of the circumstances within the knowledge of the peace officer did meet the lower threshold of reasonable suspicion. [ 19 ] A similar situation exists in the case at hand.

The officer was aware that the incidence of impaired driving increases in the late evening and early morning hours; she observed the accused drive through a solid red light without any hesitation and the driver admitted that she had a drink earlier. Although the officer made no further inquiry as to when that alcohol was consumed and although there might be other reasons to drive through a red light, it does not preclude the possibility that the driver had alcohol in her body at the time of driving.

This, coupled with the experience of the officer that the incidence of impaired driving increases at night, is sufficient information on which to form a reasonable suspicion that the accused had alcohol in her body. [ 20 ] Accordingly, the Court finds that the ASD demand was lawful and there was no violation of either s. 8 or 9 of the Charter . Consequently, the subsequent demand, based on the fail reading, also was made lawfully and the Certificate is admissible. 2.

If there was a breach of ss. 8 and 9 of the Charter , should the Certificate be excluded subsequent to an analysis under Grant? [ 21 ] In the event that I am incorrect in concluding that the evidence supports a reasonable suspicion, I would nonetheless admit the reading obtained on the ASD as well as the resulting Certificate. In doing so, I adopt the reasoning of Judge Plemel in Kachur (supra) .

The conduct of the officer was not so serious that it “requires that the Court disassociate itself from the fruits” of the breach of s. 8 and s.9 so as “not to bring the administration of justice into disrepute”: see para. 38, Kachur (supra). Secondly, the provision of breathsamples into the ASD and the approved instrument at the police station are relatively non-intrusive and the evidence received isscientific and reliable. The impact upon the accused of any Charter violation is minimal.

Finally, societal interest in seeing drinking anddriving cases adjudicated on their merits is high in light of the death and destruction caused annually on Canadian roadways by drunkdrivers.

Thus, after balancing the three considerations enunciated in Grant (supra), this Court is of the view that admission of the ASDtest results and the Certificate would not bring the administration of justice into disrepute. [22] Having reviewed the evidence and having found that the Certificate is admissible, the Court finds that the Crown hasestablished, beyond a reasonable doubt, that the accused operated a motor vehicle while her blood alcohol content was in excess of 80milligrams of alcohol in 100 millilitres of blood. [23] With respect to the remaining count of operating a motor vehicle while her ability to do so was impaired, the Court is mindfulof the test set out in R. v.

Stellato, (ON CA), [1993] O.J. No. 18 (C.A.), affd. (SCC), [1994] 2 S.C.R.478 (SCC). In determining whether the offence has been established, the Court must be satisfied, beyond a reasonable doubt, that theability of the accused to operate a motor vehicle was impaired to some degree by her consumption of alcohol. The evidence, taken as awhole, must establish that such an inference can be drawn reasonably from conduct which is a departure from the norm.

This departuremay fall upon a continuum from slight to great, but it must lead to no other inference but that the ability of the accused to operate avehicle was impaired to some degree by the consumption of alcohol. [24] In the matter before the Court, the evidence establishes that the accused drove through a red light, but she demonstrated nophysical symptoms of impairment apart from flushed cheeks and slightly bloodshot eyes.

This is not a sufficient departure from thenorm to permit the Court to draw a valid inference that the ability of the accused to operate a motor vehicle was impaired to even a slightdegree. [25] In conclusion, the accused is found guilty of driving while her blood alcohol content exceeded the legal limit and not guilty ofthe offence of impaired driving. ________________________ M.L. Gray, J