Her Majesty the Queen - v. -, 2013 SKPC 217

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 217 Date: December 16, 2013 Information: 24461240 Location: Humboldt _____________________________________________________________________________ Between: Her Majesty the Queen - and - Philip Gerwing Appearing: P. Goldstein For the Crown M. Owens For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused stands charged in a two count Information of driving while over .08 and impaired driving, respectively. [ 2 ] At the commencement of the trial, the impaired driving count was stayed by the Crown.

[ 3 ] Three matters emerged from the trial for determination:

a) Whether the accused was arbitrarily detained relating to the issue of lawful authority to stop the accused?

b) Whether the investigating officer had sufficient grounds to make a s. 254(2) ASD demand?

c) Whether the samples of the accused ’s breath were taken “as soon as practicable ” in accordance with s. 258(1) (c)(ii) of the Criminal Code by reason of the Crown not explaining the purpose of the twenty minute observation period prior to taking the Intoxilyzer samples? II DETERMINATION

a) Whether the accused was arbitrarily detained relating to the issue of lawful authority to stop the accused? [ 4 ] Constable Trevor Sowers testified that he was on duty with his partner on October 15, 2011 in a marked police vehicle. At roughly O3:00 hours while on Highway #5 east of Humboldt, Constable Sowers spotted a vehicle coming toward them on an adjacent side road. The vehicle stopped at Highway #5 and thereafter made a left turn at which time Constable Sowers initiated a traffic stop. [ 5 ] Constable Sowers explained that the road led to the local golf course which was closed at night time.

Given the time of day and the location of the vehicle, he decided to initiate a traffic stop to check on sobriety of the driver, driver’s license and registration. There were no concerns otherwise regarding the operation of the vehicle. [ 6 ] Upon approaching the driver’s side window Constable Sowers could detect an odour of alcohol coming from within the vehicle. He advised the driver that he stopped him for sobriety check, driver’s license and proof of ownership. The driver advised he didn’t have any identification on him but confirmed he was Phillip Gerwing of Lake Lenore. [ 7 ] When speaking to Mr.

Gerwing, Constable Sowers could detect an alcohol odour on his breath and that his eyes were a little red and watery. He then asked Mr. Gerwing about his alcohol consumption and Mr. Gerwing replied that he had three or four beers and one rum drink about three hours, he estimated, before being stopped. For these reasons, Constable Sowers believed Mr. Gerwing had alcohol in his body at that time. Mr. Gerwing was asked to exit his vehicle and return to the patrol car, a distance of some fifteen feet, at which time Constable Sowers noted he was somewhat unsteady on his feet taking “deliberate and careful steps”.

Traction on the pavement was not an issue at that time he explained. [ 8 ] An ASD demand was made upon Mr. Gerwing in the patrol vehicle and he provided a sample resulting in a fail. This, together with the other symptoms of alcohol consumption and its effects noted above, led to a formal Intoxilyzer demand. Ultimately, samples were provided at the detachment indicating blood alcohol content in excess of .08 percent. Authority to Stop [ 9 ] The authority for a peace officer to initiate a traffic stop is well settled in Saskatchewan. Our Court of Appeal in R. v. Houben [1] and R. v.

Doell [2] in interpreting s. 40(8) of The Highway Traffic Act [3] endorsed the Supreme Court position articulated in the 1990 decision of R. v. Ladouceur [4] : . . . vehicle stops which are random are justifiable pursuant to s. 1 of the Charter so long as they are conducted for a purpose which relates to driving a car such as checking the driver’s license and insurance, the sobriety of the driver and the mechanical fitness of the

vehicle. Thus, a random stop would be lawful (i.e. although random would be saved by s. 1 of the Charter ) if for one of these stated purposes. If not for such purpose(

s) then some other articulable cause would be necessary to avoid being arbitrary [5] . [ 10 ] For example, in Houben , supra , the trial judge found that the investigating officers stopped the vehicle only because it appeared suspicious that it had been seen driving back and forth three times in a residential neighbourhood at 2:30 a.m. This was found not to be a lawful stop and thus determined to be arbitrary which was upheld on appeal. Further, in R. v.

Schaeffer [6] , our Court of Appeal upheld the arbitrary nature of the stop as the police officer was concerned only with acts of vandalism in the regional park as well as checking for valid park permits. A further example can be found in R. v. McCammon [7] where the Manitoba Court of Appeal citing R. v. Houben with approval, did not interfere with the trial judge’s finding of fact that the sole purpose of the traffic stop was due to the area where the suspect vehicle was seen i.e. a location where it was common to find abandoned stolen vehicles.

As such, like Houben , the stop was deemed arbitrary. [ 11 ] In 2006, new legislation was enacted in Saskatchewan in the form of The Traffic Safety Act [8] , (supplanting The Highway Traffic Act ), s. 209.1 of which mirrors the provisions of the aforementioned s. 40(8) H.T.A. in subsection 1 and expands police powers in subsections 2, 3, and 4 to assist in carrying out general traffic enforcement duties as per Ladouceur and Houben, supra [9] : Authority of peace officer to stop and request information 209.1

(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer: (

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities.

(2) A peace officer may, at any time when a driver is stopped pursuant to subsection (1): (

a) require the driver to give his or her name, date of birth and address; (

b) request information from the driver about whether and to what extent the driver consumed, before or while driving, alcohol or any drug or other substance that causes the driver to be unable to safely operate a vehicle; (

c) if the peace officer has reasonable grounds to believe that the driver has consumed alcohol or a drug or another substance that causes the driver to be unable to safely operate a vehicle, require the driver to undergo a field sobriety test.

(3) No person in charge of or operating a motor vehicle shall, when signalled or requested to stop by a peace officer pursuant to subsection (1), fail to immediately bring the vehicle to a safe stop.

(4) No person in charge of or operating a motor vehicle shall fail, when requested by a peace officer, to comply with the requests of a peace officer pursuant to subsection (2). [ 12 ] In the instant case, Defence counsel urges that Constable Sowers was acting only out of curiosity when he initiated the traffic stop in a similar vein to Houben et al , supra . In this regard, he points to the accused’s evidence on the voir dire that Constable Sowers did not ask for driver’s licence or registration nor that he even asked about alcohol consumption until after the accused was placed in the

patrol car. [ 13 ] Constable Sowers however testified that he promptly asked the accused for driver’s license and registration, which is corroborated by the presence of the driver’s license number in the officer’s notes made at roadside. Although the accused did not have identification available he confirmed he was Philip Gerwing of Lake Lenore. [ 14 ] As well, Constable Sowers testified he could smell alcohol on the breath of the accused during the course of his verbal interaction at roadside which prompted his immediate queries concerning alcohol consumption that evening.

In cross-examination the accused himself acknowledged it would not have been unreasonable at that point for the officer to have smelled alcohol on his breath given his ingestion of alcohol earlier that evening. [ 15 ] Therefore, the Court finds that the true purpose of the vehicle stop was to check driver’s licence, registration and ascertain driver sobriety, notwithstanding that the officer was alerted to the accused’s vehicle by reason of the time of day and its location.

To find otherwise would require clear evidence of a different unrelated intention as shown in Houben , Schaeffer and McCammon, supra, and not simply speculation in the face of the officer’s stated testimony and corroborating evidence to the contrary. Accordingly, the traffic stop was within the lawful execution of duty, and consequently no finding of arbitrary detention has been made out.

b) Whether the investigating officer had sufficient grounds to make a s. 254(2) ASD demand? [ 16 ] The threshold for making a s. 254(2) demand is low requiring only a reasonable suspicion of alcohol in the body at the time the demand is made. Evidence of this can be garnered in any number of ways including, but not limited to, manner of driving, physical observation of the accused, smell of alcohol (preferably on the breath of the driver) and queries as to alcohol consumption, provided that an objective observer could agree with reason(

s) confirming a reasonable suspicion of alcohol in the body at that time. It is in most cases a confluence of these factors, however each case must be decided on its own unique facts taking all relevant circumstances into account. [10] [ 17 ] In the instant case, the evidence as set out by Constable Sowers, supra, more than satisfies the requisite standard. [ 18 ] The s. 254(2) demand is therefore found to have been validly and lawfully made.

c) Whether the samples of the accused ’s breath were taken “as soon as practicable ” in accordance with s. 258(1) (c)(ii) of the Criminal Code by reason of the Crown not explaining the purpose of the twenty minute observation period prior to taking the Intoxilyzer samples? [ 19 ] Defence asserts that the Crown has failed to prove “as soon as practicable” as required by s. 258(1) (c)(ii) because the purpose of the twenty minute observation period was not explained by the Crown, and hence the Certificate of Analyses cannot be relied upon. [11] [ 20 ] This submission fails for two reasons.

First, the Crown has accounted for the sequence of events leading to the tests being taken i.e. there are no unexplained gaps in the evidence at material times of the investigation [12] . Second, when the Crown attempted to lead evidence on the purpose of this observation period, Defence counsel immediately objected on the basis that the officer could not give such evidence unless he was a qualified technician at the time. Crown counsel then simply proceeded without canvassing this issue.

Had the Court been required to make a ruling, the Defence objection would have been overruled in any event since Constable Sowers is now a qualified technician and could well have answered as he was about to before the objection was registered. The fact that he wasn’t a qualified technician at the time of the incident regarding this evidence is neither here nor there.

[21] If Defence counsel wanted to make an issue concerning the purpose of the observation period prior to samples being given, asit pertains to the requirement of “as soon as practicable”, he could have cross-examined the officer and/or led evidence to support suchargument, neither of which was done. III CONCLUSION [22] The Certificate of Analyses is not excluded from the evidence and the Crown is entitled to rely upon the presumptionscontained therein.

As the accused’s blood alcohol content exceeded .08 as evidenced by the Certificate of Analyses, he is found guilty onCount #1 of the Information. ________________________ R.D. Jackson, J [1] 2006 SKCA 129 [2] (2007), 2007 SKCA 61 , 221 C.C.C. (3d) 336, [2007] 9 W.W.R. 51 (Sask. C.A.) [3] The precursor to our current Traffic Safety Act, infra at para. 11. [4] (SCC), 1 S.C.R. 1257, 56 C.C.C. (3d) 22 [5] See R. v. Dillabaugh 2013 SKPC 76 for a recent thorough review of history of authority to stop caselaw relied upon in Saskatchewan. [6] 2005 SKCA 33 [7] 2013 MBCA 68 [8] c. T-18.1 [9] See R. v.

Anderson, 2013 SKQB 219 at para. 25. [10] See R. v. Drysdale, 2013 SKQB 392 for a thorough canvass of these issues. [11] See R. v. Katwaru, [2006] O.J. No. 5271 at para. 9; R. v. McCoy, (SK KB), [1990] S.J. No. 657 (Sask. Q.B.). [12] See R. v. Henry [1988] S.J. No. 364 (Q.B.) where two 20 minute observation periods prior to giving samples was held to have beenreasonably explained; also R. v. Cander [1981], B.C.J. No. 661 (C.A.) where the 20 minute observation period prior to tests was found tobe reasonable.