Her Majesty the Queen - v. -, 2015 SKPC 32

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 032 Date: March 2, 2015 Information: 24507063 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joel Neilson Appearing: Tom Macnab For the Crown Todd Parlee For the Accused JUDGMENT M.L. GRAY , J Background [ 1 ] Mr. Neilson was charged on June 7, 2014 with operating a motor vehicle while his ability to do so was impaired by alcohol and also with operating a motor vehicle while his blood alcohol concentration exceeded the lawful limit contrary to ss. 253(1) (

a) and (

b) of the Criminal Code . Counsel for the accused gave notice of an application for the exclusion of evidence on the basis of breaches of ss. 8, 9 and 10(

a) of the Charter . Ultimately, the s. 10 argument was abandoned. The Crown evidence was called on a voir dire and then applied to the trial proper. The accused did not testify on either the voir dire or trial.

[ 2 ] Briefly stated, the accused was seen driving through a stop sign at approximately 25 km/hr and then accelerating to a speed of approximately 80 km/hr in a 40 km/hr zone. As a result, at 21:50, he was stopped by a police officer for the purpose of being issued two

summary offence tickets. [ 3 ] When the vehicle stopped, the officer approached the accused, who was the driver, and asked for his licence and registration. The officer advised the accused of the reason for the stop. After that, it took approximately 10 minutes to handwrite the

summary offence tickets. As the officer was about to serve the accused, who was still seated in his vehicle, he noted that there were empty beer cans and a sealed box of beer in the box of the truck. He served the tickets to the accused and, during that interaction, noted a waft of alcohol from the cab of the vehicle but was uncertain as to the source of the smell. He then asked the accused whether there was alcohol in the vehicle and whether he had been drinking.

The accused denied both. [ 4 ] The officer ultimately determined that the smell of alcohol was emanating from the breath of the accused and he received an admission from the accused of having consumed alcohol earlier in the evening. With this information, combined with the manner of driving, the officer formed the suspicion that the accused had alcohol in his body and demanded that he provide an approved screening device (ASD) sample. The test performed on the ASD resulted in a fail which prompted a demand pursuant to s. 254(3) of the Criminal Code .

The accused complied with that demand and two suitable samples both resulted in readings of 120 milligrams of alcohol in 100 millilitres of blood. Position of Counsel [ 5 ] Counsel for the accused argues that the officer did not have reasonable grounds to undertake a search for alcohol pursuant to s. 152 and s. 153 of The Alcohol and Gaming Regulation Act SS c. A-18.011. Thus, any detention beyond what was necessary to issue the

summary offence tickets was not justified and therefore unreasonable. Further, it was only the discovery of alcohol that aroused the suspicion that the accused had alcohol in his body. In addition, counsel argues that the demand pursuant to s. 254(2) was not made forthwith and the pre-demand delay warrants exclusion of the evidence that resulted. The Crown submits that the vehicle stop was lawful pursuant to The Traffic Safety Act SS cT-18.1 and that although the scope of the investigation changed, the detention remained lawful.

No unjustified delay occurred in either the making of the demand or the provision of breath samples. Counsel argues that although the evidence of operating a vehicle while impaired is not strong, it does exist. Issues [ 6 ] The issues left for the Court are: (

i) Was the detention of the accused for the purpose of searching his vehicle lawful? (ii) Did the officer have the requisite suspicion for a demand pursuant to s. 254(2) of the Criminal Code ? (iii) Was the s. 254(2) demand made forthwith? (iv) If there was an arbitrary detention, what is the appropriate remedy? and (

v) Have the offences alleged been proven beyond a reasonable doubt? Analysis

(

i) Was the detention of the accused for the purpose of searching his vehicle lawful? [7]

Section 8 of the Charter protects individuals from unreasonable search and seizure or, in other words, protects individualsfrom unreasonable interference with reasonable expectations of privacy (see: Hunter v Southam Inc., (SCC), [1984] 2SCR 145). A search without a warrant prima facie is presumed unreasonable. In order to rebut this presumption, the Crown is requiredto establish that the search was authorized by law, the law is reasonable and the search was conducted in a reasonable fashion: see R vCollins, [1978] 1 SCR at 278.

In determining the legality of a search, a court must determine whether the accused had a reasonableexpectation of privacy and if the police conducted their search reasonably (see: R v Belnavis, (SCC), [1997] 3 SCR 341[Belnavis]). [8] In R v Nolet, 2010 SCC 24 , [2010] SCJ 24 [Nolet], the Supreme Court of Canada considered the search powers ofthe police in relation to vehicle stops and Binnie J. wrote, at para. 4: It is necessary for a court to proceed step by step through the interactions of the police and the appellants from the initial stop onwards todetermine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfullyobtained at each stage of their inquiry.

Then, at para. 23, Binnie J. went on: . . .[a] roadside stop is not a static event. Information as it emerges may entitle the police to proceed further, or, as the case may be, endtheir enquiries and allow the vehicle to resume its journey. [9] In the case at hand, no issue was taken with the validity of the initial stop pursuant to the provisions of The Traffic SafetyAct. However, as was implied in Nolet, an investigation can be fluid and what began as a routine traffic stop metamorphosed into acriminal investigation.

In this instance, the focus changed when the officer, in presenting the accused with his traffic tickets, notedalcohol containers in plain view in the truck box and an odour of alcohol coming from inside the vehicle. He asked the accused if he hadbeen drinking and if there was alcohol in the vehicle. The accused denied both. Constable Martin concluded that there were threepossibilities to account for the odour of alcohol: (

i) there was alcohol in the vehicle; (ii) alcohol may have spilled in the vehicle; or (iii)either the driver or the passenger had been drinking alcohol. The officer then took further steps to determine the source of the alcoholsmell and asked the accused to step out of the vehicle. Apart from The Alcohol and Gaming Regulation Act, the officer was entitled tomake further inquiries in accordance with s. 209.1(2) of The Traffic Safety Act. [10] Generally speaking, there is a lower expectation of privacy with respect to a vehicle and its contents: see Belnavis.

Adetermination of whether such an expectation exists and whether that expectation is reasonable requires that the Court assess all of thecircumstances: see Nolet, para. 30. The onus of showing an expectation of privacy falls to the accused on a balance of probabilities.

Here, the accused did not testify as to his subjective expectation of privacy with respect to his vehicle and its contents; thus, inaccordance with Nolet, the Court can presume that the expectation of privacy by the accused in his vehicle was limited. [11] In conclusion, the initial traffic stop was lawful and the subsequent investigation into driver sobriety precipitated a lawfulsearch. That search did not violate any reasonable expectation of privacy held by the accused and it was conducted in a manner that wasreasonable under the circumstances.

Indeed, prior to looking inside the vehicle, the officer asked for and received permission from theaccused to do so. Therefore, I find that the search was authorized by law, did not violate any expectation of privacy that the accusedmight reasonably have held, and it was conducted in a reasonable manner.

Accordingly, there has been no violation of either s. 8 or s. 9of the Charter as the accused cannot be said to have been arbitrarily detained for the purposes of a justified and lawful search. (ii) Did the officer have the requisite suspicion for a demand pursuant to s. 254(2) of the Criminal Code? [12] After the officer searched the vehicle, he asked to speak to the accused a short distance away from the vehicle in a continuing

[12] After the officer searched the vehicle, he asked to speak to the accused a short distance away from the vehicle in a continuingattempt to determine the source of the smell of alcohol. The officer again asked the accused whether he had been drinking and this timethe accused said that he had a couple of drinks with supper. At this point, the constable confirmed that the smell of alcohol was comingfrom the breath of the accused and formed the suspicion that the accused had alcohol in his body.

The grounds for this suspicionincluded: the smell of alcohol from the breath, the failure to stop at the stop sign, the decreased inhibition demonstrated by the rapidacceleration and speed, as well as the accused’s admission that he had consumed alcohol. As a result, he told the accused he would beasking for a breath sample into an approved screening device; the accused said that he understood and was directed to the police vehicleapproximately one car length away.

At 22:07 the ASD demand was read to the accused from a card; he confirmed that he understoodwhat was required. [13] Section 254(2) of the Criminal Code stipulates the following requirements for the making of a demand: an officer must havegrounds to believe that an accused was the operator or was in care or control of a motor vehicle and must reasonably suspect that theaccused had alcohol in his body.

No issue arose with respect to the accused being the operator of the motor vehicle. [14] The question of what constitutes a reasonable suspicion has been considered at length in the last few years: see R v Chehil,2013 SCC 49 [Chehil], R v Mitchell, 2013 MBCA 44 and R v Yates, 2014 SKCA 52 [Yates]. A suspicion is but a mere possibility ofcriminal conduct; a reasonable suspicion has an objective component that is more than a mere hunch: see Chehil (para. 27) and R vMackenzie, 2013 SCC 50.

The Supreme Court of Canada in Chehil went on to caution judges not to conflate the reasonable suspicionstandard with the more onerous standard of reasonable grounds. Before a demand is made an officer need suspect only that a driver hassome alcohol present in his body; the officer need not suspect driver impairment or that the driver has a blood alcohol concentration inexcess of the legal limit. [15] In Yates, the trial judge accepted that the accused had glossy, “somewhat bloodshot” eyes, made abrupt lane changes for noapparent reason, and exceeded the speed limit.

Further, the officer detected the odour of alcohol wafting from the vehicle but took nosteps to ascertain the source of that smell. The trial judge found that this was insufficient to found a reasonable suspicion that the driverhad alcohol in his body. This was found to be in error by the Court of Appeal.

At para. 47, Klebuc J.A. speaking for the Court said: . . . a reasonable person standing in the shoes of the officer and aware of the entire aforementioned objective factors, would reasonablysuspect that the respondent had alcohol in his body: see Yates at para. 47. [16] The standard of reasonable suspicion is considerably less onerous than that of reasonable grounds as is clearly demonstrated inR v Drysdale, 2013 SKQB 392 [Drysdale]. In Drysdale, the officer based her suspicion on; (

i) the time of night, (ii) the location (leavingthe bar), and (iii) the admission of one drink. The trial judge found that these circumstances were not sufficient to ground a reasonablesuspicion and excluded the results of the ASD test. On appeal, the Court found that the totality of the circumstances within theknowledge of the police officer did meet the lower threshold. [17] In the matter before the Court, the officer gathered the following information after preparing the

summary offence tickets: hespotted a case of beer and some empty cans in the box of the truck, he found alcohol inside the passenger compartment, and he smelledalcohol from the breath of the accused who also admitted that he had consumed alcohol earlier in the evening. These factors, combinedwith the manner of driving demonstrated by the accused, would certainly cause a reasonable person, standing in the shoes of the officer,to suspect that the accused had alcohol in his body.

I have no hesitation in finding that grounds for a reasonable suspicion have beenestablished, both subjectively and objectively. (iii) Was the s. 254(2) demand made forthwith? [18] Although s. 254(2) of the Criminal Code does not specifically require that a demand be made forthwith, it is considered to beimplicit: see R v Pierman (1994), (ON CA), 19 OR (3d) 704 at para 5.

This is so because the forthwith requirement isinextricably linked to the constitutional validity of s. 254(2) of the Criminal Code: see R v Woods, 2005 SCC 42 at para 29. [19] Much has been written about the meaning of “forthwith” in the context of the provision of roadside samples. It has generallybeen interpreted to mean “immediately” or “without delay” but every case requires an analysis of the circumstances surrounding anydelay and the reasons for it.

In R v Payne (1994), (NL CA), 91 CCC (3d) 144 (Nfld CA), the court held that,generally, a delay in excess of 30 minutes would render a demand invalid; any shorter delay requires a court to consider all the

circumstances in order to ascertain whether the sample was provided forthwith. Thus, there is some flexibility in determining compliance with the forthwith requirement. In R v Janzen 2006 SKCA 111 at para. 4 , Cameron J.A. said: . . .in determining whether a particular roadside screening test has been administered forthwith, it is necessary to have regard for the circumstances of the case, including the extent of the lapse of time and the reason for it, and to assess the matter with the following considerations in mind: (

i) the balance between parliament’s objective in combating the evils of drinking and driving, on one hand, and the person’s constitutional right to be free of unreasonable search and seizure, on the other, and (ii) the fact that a person’s constitutional right to consult counsel is suspended upon demand to provide a sample of breath pursuant to section 254(2). [ 20 ] Similarly, some flexibility in assessing any delay between the formation of the suspicion and the making of the demand is necessary: see R v Brittain , 2000 SKQB 242 ; R v Geisbrecht , 2005 SKQB 314 ; R v Jeffrey Anderson , 2013 SKQB 219 and R v Mertens , 2013 SKQB 252 . [ 21 ] In the case at hand, there is no question that the accused was lawfully detained for the purpose of issuing tickets pursuant to The Traffic Safety Act .

This detention then became an investigative detention for the purpose of determining driver sobriety, an equally lawful detention. The detention for this purpose was very brief. The vehicle was stopped shortly after 21:50; the officer approached the driver and received the information that he required for the

summary offence tickets. It took about 10 minutes to manually write up the tickets and some time following to present the tickets to the accused. A further minute or two was spent searching the truck and then the accused was spoken to briefly and away from the truck. At approximately 22:07, the officer formed his suspicion and the demand was read. At most, approximately five minutes passed while the officer investigated the sobriety of the accused before forming the grounds for the s. 254(2) demand. Once the suspicion was formed, the demand was promptly made and two minutes later a sample was provided. It is the view of the Court that this is precisely the manner in which the

section was designed to function; a brief delay of a motorist is caused while an officer investigates driver sobriety, a demand for a roadside sample is promptly made and the sample follows immediately. If the test were not a fail, the motorist would be on his way. In conclusion, the demand was properly made in accordance with the Criminal Code and there was no violation of either s. 8 or 9 of the Charter .

Accordingly, the results of the ASD are admissible on the trial proper. [ 22 ] Having obtained the fail result, the officer formed the opinion that the accused had been operating a motor vehicle while his blood alcohol level exceeded the legal limit, placed him under arrest and, at 22:12, advised him of his rights to counsel. A demand pursuant to s. 254(3) followed at 22:14.

After the accused retrieved some of his personal possessions from his vehicle, they left the scene at 22:18 and travelled eight to ten kilometres to the nearest detachment where the accused was given an opportunity to exercise his right to counsel. He was given a phone book, was permitted to call his mother to obtain the name of the family lawyer and ultimately spoke to Legal Aid duty counsel. That call ended at 22:48 and then began a 20 minute observation period to ensure the integrity of the breath tests. Samples were provided at 23:09 and 23:30, well within the two hour limit proscribed by s. 258(1) (

c) of the Criminal Code . I find that the demand was valid, was made forthwith and that the samples were obtained as soon as practicable. No violation of s. 8 or s. 9 was incurred in the process.

The results of the breath tests are therefore admissible. (iv) If there was an arbitrary detention, what is the appropriate remedy? [ 23 ] Even in the event that I am in error with respect to the search of the accused’s vehicle and his subsequent detention for the investigation into driver sobriety and the provision of breath samples, it is my view that the resulting evidence should be admitted after an analysis of s. 24(2) of the Charter in accordance with R v Grant, 2009 SCC 32 [ Grant ]. The length of the detention was relatively minimal and the vehicle search involved only a minor intrusion of privacy.

Any breach could not be considered to be a serious one and certainly was not the result of any flagrant disrespect of the accused’s rights by the officer. As a result, the impact on the accused of any Charter violation is minimal. Further, as the Supreme Court of Canada commented in Grant at para. 79 , there is significant societal interest in having drinking and driving offences adjudicated on their merits; therefore, to exclude reliable, scientific evidence would serve only to discredit the administration of justice rather than enhance it.

Overall, the circumstances of this case would favour the admission of the evidence. (

v) Have the offences alleged been proven beyond a reasonable doubt? [ 24 ] There is no dispute that the accused was the operator of a motor vehicle on June 7, 2014. I am also satisfied that a demand pursuant to s. 254(2) was properly made and that the fail result provided reasonable grounds for the subsequent demand pursuant to s. 254(3) of the Criminal Code . The accused provided breath samples at 23:09 and 23:30. A Certificate of Qualified Technician was

prepared and a true copy was given to the accused. As the breath samples were taken in compliance with s. 258(1)(

c) of the CriminalCode, the presumption therein applies and I am satisfied that at the time of driving, the accused had a blood alcohol concentration of 120milligrams of alcohol in 100 millilitres of blood. Accordingly, he is found guilty of operating a motor vehicle while his blood alcoholconcentration exceeded the lawful limit. [25] With respect to the count of operating a motor vehicle while his ability to do so was impaired by alcohol, the Court mustassess the evidence in accordance with the standard set out in R v Stellato (ON CA), [1993] OJ No 18 (CA), affd. (SCC), [1994] 2 SCR 478 (SCC).

That test requires that the Court be satisfied, beyond a reasonable doubt, that theability of an accused to operate a motor vehicle is even slightly impaired by drug or alcohol. This does not mean that only slightevidence will be adequate. Rather, the evidence, as a whole, must establish that such an inference can reasonably be drawn from conductwhich is a departure from the norm.

That departure may fall upon a continuum from slight to great, but it must lead to no otherreasonable conclusion but that the accused’s ability to operate a motor vehicle was impaired to some degree by the consumption ofalcohol and/or drugs. [26] The only evidence before the Court of the accused’s physical state is as follows: he had bloodshot eyes, the smell of alcoholon his breath, and was able to follow instructions well. Constable Martin noted nothing about the accused’s physical condition when hefirst approached the accused.

The driving evidence consisted of: driving through a stop sign at approximately 25 km/hr, and acceleratingrapidly to a speed well in excess of the posted limit. When signalled to stop, the vehicle did so promptly and was parked in a normalfashion. [27] Upon reviewing and considering the whole of the evidence, I am not satisfied that the evidence establishes impairment of theability to drive. Although the driving demonstrated behaviour that is a departure from the norm, I cannot conclude that it was caused bythe ingestion of alcohol.

It amounts to slight evidence of impairment rather than evidence of slight impairment. The accused istherefore acquitted on the charge of driving while impaired. _____________________ M. L. Gray, J