Her Majesty the Queen - v. -, 2010 SKPC 180

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 180 Date: December 21, 2010 Information: 24319186 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - Richard M. Clarke Appearing: B. Pashovitz For the Crown G. Worobec For the Accused DECISION ON VOIR DIRE R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused is charged with impaired driving and driving while his blood alcohol exceeded .08 percent.

[ 2 ] The matter arises from an incident in a public parking lot in Kindersley at approximately 11:45 p.m. March 17, 2009 when RCMP patrol officers were alerted to a woman jumping in front of a large truck necessitating hard braking and manoeuvring to avoid her. The truck then drove off in an “aggressive” manner across the parking lot at which point the RCMP initiated a traffic stop. The operator (subsequently identified as the accused) was noted to have glossy eyes and a bleeding hand which he acknowledged had occurred when he struck his side view mirror.

There was an odour of alcohol emanating from the truck and in response to a query whether he had been drinking the accused indicated “a few” then added “probably had too many”. At this point he was placed in the rear of the patrol car. [ 3 ] In close proximity to the patrol car were two other females and a male who apparently had been in the company of the accused just prior to being stopped. One female (subsequently identified as the “jumper”) was screaming hysterically that it was her fault and that the police should let the accused go.

She repeatedly attempted to enter the patrol car and at one point laid down on the road screaming all the while. The other female was also vocal but not to the same extent. The male subject was described as being clearly agitated, hitting his fists together and approaching the patrol car in an aggressive manner despite attempts by the officers on scene to reason with him to disengage. [ 4 ] At this point, the arresting officer, Constable Anderson, made the decision to leave the scene citing officer security as he felt the confrontation was escalating and that the male was prepared to fight the officers.

Consequently, he drove the equivalent of three to four city blocks and then stopped to resume his investigation. [ 5 ] Constable Anderson then asked how much the accused had been drinking to which he responded “I hate to even guess” and then related that he had three drinks of whisky at the Red Lion bar followed by six to ten drinks of whisky at the Prairie Trail bar over the previous four to five hour span. [ 6 ] At this point Constable Anderson determined that the ability of the accused to operate a motor vehicle was impaired by alcohol which grounds he summarized as follows:

a) Aggressive driving that he had witnessed in the parking lot;

b) That he had caused himself to cut his hand on the mirror;

c) Eyes glossy;

d) Odour of alcohol from his breath which became apparent when speaking to him in the patrol car;

e) Response that he had had a few drinks followed by “probably too many”;

f) Information provided by the accused that he had consumed 9 to 13 drinks of whisky in the preceding four to five hours. [ 7 ] At 23:52 hours the accused was provided his right to counsel to which he responded that he understood and that he did not wish to call a lawyer. At 23:53 hours the police warning and breath demand were read to the accused, the latter being as follows: I have reasonable grounds to believe that your ability to operate a motor vehicle is impaired by alcohol.

In accordance with the Criminal Code I demand that you provide samples of your breath for analysis and that you accompany me for the purpose of providing such samples. These samples will be analyzed on an approved instrument. [ 8 ] When asked whether the accused understood the breath demand he stated “If you had done that earlier, not a problem”. Constable Anderson then stated that he didn’t understand to which the accused replied “you’ll see I’m good to go to jail”. The officer then asked again whether the accused understood what had been read to him to which the accused replied “yep”.

When asked to explain then what he understood the accused responded “nope, I’ll get a lawyer and be out in the morning”. Consequently at 23:55 hours the officer re-read from his card the breath demand to the accused. When asked if this was now understood the accused responded “yes - oh, yeah, you bet, I’m guilty I just want to go to jail”.

[ 9 ] At this point the accused was transported to the detachment where he reiterated that he did not wish to contact counsel and accordingly was turned over to the breath technician in due course to provide samples of his breath. Following completion of the testing which revealed the accused to be over .08, Constable Anderson ascertained that the accused being from Alberta had nowhere to go and noone he could call. Constable Anderson testified that he normally tries to find a means to release an accused in such circumstances to a safe, secure place under the care of a sober adult.

There being no friends or family apparently to take care of the accused other than those individuals who had confronted the police at the scene, the determination was made to lodge the accused in cells at approximately 12:52 hours. No evidence was elicited in chief or cross-examination as to when the accused was released from custody. [ 10 ] The following issues are raised for determination on the voir dire :

a) Whether a proper demand had been made pursuant to s. 254(3) of the Criminal Code ;

b) Whether the Crown proved that the samples had actually been provided, there being only hearsay evidence to this effect since the only Crown witness, Constable Anderson, did not testify that he personally observed the accused provide samples;

c) Whether reasonable and probable grounds existed to make the breath demand;

d) Whether the accused ’s

section 10(

b) Charter rights were breached by not giving rights to counsel prior to questioning the accused once he had relocated from the initial scene;

e) Whether the accused s. 9 Charter rights were infringed by overholding the accused once he had been dealt with at the detachment. The Court will deal with these submissions in the sequence raised in argument. III DECISION

a) Whether a proper demand had been made pursuant to s. 254(3) of the Criminal Code ; [ 11 ] Section 254(3) of the Criminal Code reads as follows: 254(3) If a peace officer has reasonable and probable grounds to believe that a person committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, 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, if any, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and

(

b) if necessary, to accompany the peace officer for that purpose. [ 12 ] Defence counsel maintains that the breath demand as presented by Constable Anderson was deficient in that it failed to convey to the accused that samples of his breath would be taken “... to determine the concentration, if any, of alcohol in the person’s blood.” [ 13 ] Several decisions over the years have canvassed the adequacy of the demand to obtain breathalyzer/intoxilyzer samples. [1] It appears to the Court that the essence of these decisions is that it is not the particular wording of the demand that is critical as long as it is conveyed to the accused that pursuant to an impaired driving investigation he or she must accompany the officer for purposes of providing breath samples for analysis in accordance with the Criminal Code . [ 14 ] In the instant case, this objective has been met.

There could be absolutely no doubt or ambiguity in the mind of the accused that he was required to go with the officer to provide breath samples in connection with the impaired driving investigation. He said as much. For what purpose exactly would analysis of the breath be required other than determining the alcohol level in one’s blood, particularly when so advised that it is in connection with an impaired driving investigation? To require any further wording as suggested by Defence counsel would not only be superfluous but would quite possibly engender confusion where none now exists.

b) Whether the Crown proved that the samples had actually been provided, there being only hearsay evidence to this effect since the only Crown witness, Constable Anderson, did not testify that he personally observed the accused provide samples; [ 15 ] The Defendant maintains that the Court has only hearsay evidence that the breath samples were actually given in that Constable Anderson did not personally witness the accused providing same.

Further, it is asserted that the Court is unable to rely on the Certificate of Analyses to prove this as it is not yet admissible into evidence at trial. [ 16 ] It is correct that it is a condition precedent to admissibility of the Certificate of Analyses under s. 258(1)(

g) that it be proven not only that the demand was made pursuant to s. 254(3) but that the samples were then provided. [2] [ 17 ] In the instant case, the Court is satisfied that samples were in fact provided. Constable Anderson presented the accused to the breath technician for the purposes of providing breath samples for analyses. At the conclusion of the process, the accused was remitted back to the control of Constable Anderson together with the Certificate of Analyses.

In these circumstances, the Court is entitled to draw the logical inference that indeed breath samples were provided during the intervening period resulting in the completion of the Certificate. In such circumstances, the Court is not relying upon the Certificate of Analyses as proof of the contents contained therein but rather the fact that the Certificate was completed as proof that samples were given. [ 18 ] In R. v.

Pickles [3] the Alberta Court of Appeal held that the Court could draw inferences from the arresting officer’s testimony in order to satisfy itself that the two preconditions for admissibility of the Certificate were met. Similarly, in R. v. Kutney [4] the same result occurred on very similar facts to the within case. [ 19 ] Accordingly the test for admissibility has been met and the Court now turns to the issue of potential exclusion of such evidence pursuant to the alleged Charter breaches.

c) Whether reasonable and probable grounds existed to make the breath demand;

[ 20 ] In the instant case, as indicated in para. 6, infra, Constable Anderson based his reasonable probable grounds to make the intoxilyzer demand upon the following criteria:

a) Aggressive driving that he had witnessed in the parking lot;

b) That he had caused himself to cut his hand on the mirror;

c) Eyes glossy;

d) Odour of alcohol from his breath which became apparent when speaking to him in the patrol car;

e) Response that he had had a few drinks followed by “probably too many”;

f) Information provided by the accused that he had consumed 9 to 13 drinks of whisky in the preceding four to five hours. [ 21 ] It is well-established law that an officer’s reasonable and probable grounds must be both subjective (honest belief) and objective (able to be supported on an objective basis) [5] and that the officer is able to rely upon all of the information available to him or her surrounding the incident at the time. [6] This does not mean that each indicia must ultimately be proven or be true, but rather that it was reasonable in the circumstances to rely upon this information. [7] [ 22 ] On the evidence, the Court is satisfied that Constable Anderson’s belief was honestly held and therefore satisfies the subjective component.

What then of the objective analysis? [ 23 ] Constable Anderson testified that he was alerted to a large pick-up truck in the parking lot to have reversed quickly and then manoeuvre around a female who had jumped in front of the truck. The truck had to brake hard to avoid hitting the female and thereafter accelerated quickly away from the scene heading toward the lot exit. [ 24 ] When subsequently stopped, the accused was noted to have glossy eyes and that his vehicle had a broken side mirror. The accused was observed to have a cut and bleeding hand which he acknowledged had been from smashing the mirror.

This appeared odd to the officer. Upon initial questioning, the accused acknowledged he had a few drinks followed by words to the effect “probably had too many”. [ 25 ] During further questioning, the officer noted the accused to be emitting an alcohol odour from his breath. He then received the admission that the accused had consumed a total of between nine and thirteen drinks of whisky in two separate drinking establishments.

All of this information taken together, and in the absence of any observation or information that might indicate some other explanation for the accused’s condition and behaviour, Constable Anderson formed the opinion that the accused’s ability to operate the motor vehicle was impaired by alcohol. Was this a reasonable conclusion in the circumstances? [ 26 ] The Court affirms that it was a reasonable conclusion having regard to the standard as defined in R. v. Stellato [8] that impairment by alcohol from slight to great is sufficient to establish the essence of the charge.

Accordingly his determination in these circumstances is objectively supportable.

d) Whether the accused ’s

section 10(

b) Charter rights were breached by not giving rights to counsel prior to questioning the accused once he had relocated from the initial scene;

[ 27 ] The Defendant asserts that his s. 10(

b) rights to counsel were breached by the failure of Constable Anderson to provide such rights prior to questioning him following relocation from the original scene. Constable Anderson however had the right to question the accused as to his drinking pattern and consumption as part of his investigation.

Although there was a brief lag between initial questioning at the scene and the continuation of his questioning of the accused, Constable Anderson gave uncontradicted evidence as to the emergent circumstances which necessitated his removal with the accused from the immediate vicinity. [ 28 ] The rationale for leaving according to Constable Anderson was officer safety requiring that he leave to avoid escalation of tensions and potential conflict with the compatriots of the accused. This is well supported in the evidence.

Since the entire time lag of initial encounter to breath demand lasted only five to seven minutes according to Officer Anderson and his transport only a matter of three to four blocks before resuming questioning, it had to have been only a few minutes that his questioning was interrupted. [ 29 ] In R. v. Harvey [9] Kalmakoff J. stated at para. 25: [25] The police must proceed diligently and without undue delay, but officers are not required to make a demand for a roadside sample instantaneously upon the first hint that a driver may have alcohol in his or her body.

Clearly, police officers must be allowed the time reasonably necessary to decide whether it is appropriate to make a demand for a breath sample under s. 254(2). They must be allowed reasonable time to make preliminary observations and inquiries.

To require otherwise would be to deprive the police of the time to make sound decisions, giving rise to two alternative and undesirable potential effects, namely subjecting an increased number of drivers to the unnecessary intrusion of a demand for ASD tests, or simply being unable to detect drinking drivers. [ 30 ] Admittedly, Harvey is a case involving a s. 254(2) roadside demand however, the principles are equally applicable to the present case. At the time Constable Anderson re-commenced his questioning he had not yet formed an opinion regarding the accused’s sobriety.

Further, he did not ascertain that the alcohol odour was coming from the breath of the accused until the accused answered questions while in the patrol car. After receiving answers to his questions, he then decided to go straight to a s. 254(3) demand. Is there a necessity in such circumstances to mandate a s. 254(2) ASD demand rather than proceeding straight to a s. 254(3) demand? The Court thinks not. Surely this is the officer’s prerogative based upon whether he or she believes reasonable and probable grounds exist without the benefit or necessity of the ASD.

Whether this is so may be a calculated risk depending upon the evidence however this is the choice the investigating officer has a right to make. [ 31 ] In

summary, what transpired in this case was nothing more than Constable Anderson utilising a reasonable period of time to make preliminary observations and gather information pertinent to his investigation of impaired driving. No s. 10(

b) rights were yet necessary until he then decided to arrest and give the breath demand for the intoxilyzer. Accordingly, the accused has not established a breach of his s. 10(

b) rights in these circumstances.

e) Whether the accused s. 9 Charter rights were infringed by overholding the accused once he had been dealt with at the detachment. [ 32 ] The Defendant asserts that he was arbitrarily detained by reason of his overholding following the provision of breath samples. [10] The principal arguments are that when he stated words to the effect that he knew he was going to jail, Constable Anderson did not disabuse him of this notion by explaining it was not automatically so and further that he failed to make inquiries of the accused as to where he was staying. [ 33 ] As the Court articulated in R. v.

Johnstone [11] the template for consideration of continued detention is set out in ss. 497 and 498 of the Criminal Code . These sections also encompass assessment of the sobriety of the accused to determine whether it would be in the public interest to turn the individual out in an intoxicated condition where personal harm may well result to the subject or the public at large. [ 34 ] In this instance Constable Anderson ascertained from the accused that he had nowhere local to go and that noone was able to collect him.

The only persons with whom Constable Anderson knew were associated with the accused were the three individuals involved at the scene. He did not consider them to be suitable to take control of the accused however he was unaware in any event as to

their availability or desire to do so. [35] Armed with this information and coupled with the knowledge of the accused’s intoxilyzer results (two readings of 130milligrams according to P-1 on the voir dire) Constable Anderson decided that the accused should be detained overnight in thedetachment. Therefore his decision was not “arbitrary”. Nor was there any obligation to provide the accused with any information at thescene regarding potential incarceration following provision of the breath samples. At this point no need or basis to consider the issue ofcontinued detention was required.

Also, the constable had no need subsequently to inquire as to where the accused was staying when hehad already received information from the accused that he had nowhere to go and noone to take control of him. [36] By reason of all of the foregoing, the accused was not arbitrarily detained within the meaning of s. 9 of the Charter.[12] IV CONCLUSION [37] The Certificate of Analyses is admissible into evidence at trial.

The accused has failed to establish any breach of his Charterrights as set out herein and therefore no consideration of exclusion of evidence is required pursuant to s. 24(2) or of a judicial staypursuant to s. 24(1), of the Charter. __________________________ R.D. Jackson, J [1]R. v. Nicholson (1970), (NS CA), 8 C.C.C. (2d) 170 (N.S.S.C. App. Div.) R. v. Ackerman, (SK CA), [1972] S.J. No. 275, 6 C.C.C. (2d) 425 (Sask. C.A.) R. v. Flegel (1972), (SK CA), 7 C.C.C. (2d) 55 (Sask. C.A.) R. v. Boucher (1986), (NB KB), 73 N.B.R. (2d) 113 (Q.B.) R. v. Rentoul (1977), (AB KB), 37 C.C.C. (2d) 78 (Alta.

S.C.T.D.) [2] R. v. Hall (1981), 1981 ABCA 13 , 57 C.C.C. (2nd) 305 (Alta. C.A.) [3] (1973), (ON CA), 11 C.C.C. (2nd) 210 [4] (1986), 409 Sask. R. 203 (Sask. Q.B.) [5] R. v. Bernshaw (1994), (SCC), 95 C.C.C. (3d) 193 (S.C.C.) [6] R. v. Singer (D.G.) (1999), (SK KB), 176 Sask. R. 266 (Sask. Q.B.); R. v. Saulnier (1990), 23 M.V.R. (2d) 16(B.C.C.A.)

[7] R. v. McClelland, 1995 ABCA 199 , [1995] A.J. No. 539 (Alta. C.A.) [8] (1993), (ON CA), 78 C.C.C. (3d) 380, 18 C.R. (4th) 127 (Ont. C.A.) [9] [2010], S.J. No. 170, 2010 SKPC 27 (Sask. P.C.) [10] Notwithstanding that there was no evidence before the Court regarding actual time of release Crown counsel in argument concededthe time to be 8:30 a.m. [11] 2009 SKPC 133 (Sask. P.C.) [12] Compare to R. v. Holbrook where the accused’s wife attended in a sober condition both at the scene and subsequently, at thedetachment to retrieve her husband once breath samples had been provided however he was detained in custody. Clearly this is acircumstance that s. 9 was intended to allay.