Her Majesty the Queen - v. -, 2012 SKPC 97

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 097 Date: June 25, 2012 Information: 43832627 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Blair Joseph Sinclair Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Merv Nidesh, Q.C. For the Accused JUDGMENT D.J. KOVATCH , J Background [ 1 ] Blair Joseph Sinclair is charged with driving while over .08 percent and impaired driving. Both charges arise out of the same incident occurring on October 26, 2010. The Evidence

[ 2 ] The first Crown witness was Ms. Cheryl Clemenshaw. Ms. Clemenshaw lives in Moose Jaw on a corner lot bordering on Saskatchewan Street. On October 26, 2010, Moose Jaw was experiencing quite a violent fall or winter snowstorm. There was heavy snow, high winds and very slippery or icy road conditions. Ms. Clemenshaw and her husband owned a car trailer that was parked on the street alongside their house. [ 3 ] Ms. Clemenshaw testified that about 11:30 p.m., she was preparing to go to bed and looked out her front window. She saw an SUV coming down Saskatchewan Street. It was fishtailing and all over the road.

It was quite out of control. She could not determine the speed of the vehicle. The vehicle struck the car trailer and then began to leave the scene. She ran out of her house. The SUV stopped and came back, it had a flat tire. She immediately called 911. [ 4 ] As she spoke to the driver of the SUV, who got out of his vehicle, she indicated that he opened his wallet and thought that he dropped his identification on the ground. In fact he had not dropped the identification. She invited him into their garage where they had light, and could exchange information.

She testified that he had red eyes, appeared to be stumbling or unsteady on his feet, and she could smell alcohol. She indicated he fumbled with his wallet and dropped his licence on the floor. She determined that he had been drinking, and clearly was of the opinion that he should not have been driving. Shortly after, the police arrived and she had nothing further to do with the accused. [ 5 ] Cst. Adrian also testified. He testified that the road conditions “were horrible”. It was snowy, blizzard conditions. The roads were snow packed and icy.

On arrival, he noticed the vehicle collision and the damaged vehicles. Cst. Adrian testified that Ms. Clemenshaw told him the accused was acting funny, and his eyes were watery and red. She said that he tried to take off. He did not indicate that Ms. Clemenshaw gave him any other information upon his arrival. He spoke briefly to the accused and looked at the damage. He indicated that in the windy, blizzard conditions, he could not smell any alcohol on the accused and could not say that the accused had been drinking. He did notice that the SUV was pretty much inoperable as a result of the collision.

He suggested to the accused that he get out of the storm and get into the back of the police vehicle. [ 6 ] The accused was put in the back of the police vehicle. The police video cam was operable. The video of the accused in the back of the police car was played for the Court. For the most part, I would describe that video as quite unremarkable. The accused looks fairly normal, and is not clearly impaired. He was fairly polite, and his speech appeared normal.

The police officer testified that the accused’s eyes were red, further, that once the accused was in the back of the police car, the officer detected a strong smell of alcohol. The officer testified that the accused was functioning quite well and was not stumbling around, and was fairly coherent. Nevertheless, the officer formed the opinion that the accused was impaired by alcohol and advised he was under arrest. He made the standard breath demand. [ 7 ] The accused was taken to the police station for the intoxilyzer test. Videos of him in the police station were played.

His walking appears normal. [ 8 ] The officer was cross-examined at some length upon his grounds for determining that the accused was impaired by alcohol and making the intoxilyzer demand. He did not identify anything more than the accused having red eyes and smelling strongly of alcohol, while in the back seat of the police car. In my notes, prepared during the officer’s cross-examination, I made the following notation: “Impression – officer feels entitled to get samples as an investigative technique because MVA and defendant smelling of alcohol”.

Following the conclusion of cross-examination, I asked the officer why he didn’t make an ASD demand. Cst. Adrian said he didn’t think he needed to. He relied upon the accused having red eyes and smelling of alcohol. He also knew of the motor vehicle accident and had witnessed the damage to the vehicles. On the basis of that damage, he concluded that the accused’s vehicle was travelling at a fairly high speed in very bad conditions. The Defence Arguments [ 9 ] Mr. Nidesh argued that the police officer had breached the accused’s rights under

section 10(

a) and 10(

b) of the Charter . He argued that the police officer put the accused in the vehicle and did not immediately advise of the reason for the detention or his rights to counsel and thus the breach was committed. [ 10 ] Mr. Nidesh also argued that the police officer did not have reasonable and probable grounds for the intoxilyzer demand. As a result, the accused was unlawfully detained for the intoxilyzer test and the breath samples were unlawfully seized, contrary to sections 8 and 9 of the Charter . [ 11 ] Lastly, Mr. Nidesh argued that the evidence in support of the impaired driving charge was insufficient. Analysis and Decision

Section 10(

a) and 10(

b) of the Charter [ 12 ] I am not prepared to conclude that there has been any breach of the accused’s

section 10 rights. In my view, the timing and order under which a police officer conducts an investigation, makes an arrest and advises of Charter rights, must be viewed relatively flexibly in light of all of the conditions, and with reason. There is no one right or standard practice. [ 13 ] The police officer conceded that outside of the vehicle, in the windy conditions, he could not smell alcohol. He asked the

accused to sit in the police vehicle and clearly the officer continued his investigation. When he determined that he had grounds, he madean arrest and advised of rights. In my view he acted reasonably and I am not prepared to say there was any breach of these Charterrights. Moreover, the most logical remedy to be granted for breach of these rights would be exclusion of evidence that would not havebeen obtained but for the breach of the rights. In this case, no such evidence has been obtained. Mr.

Nidesh asked the Crown to enter allof the evidence of the videos, because it was favourable to his client in that it indicated the accused was not obviously impaired. Thereis no detrimental evidence to the accused that has been admitted because of a breach. Lack of Reasonable and Probable Grounds for the Intoxilyzer Demand [14] The Crown does not take issue with the Defence’s legal argument on this point.

Rather, the Crown seems to concede, fairlyin my view, that if the police officer did not have reasonable and probable grounds for the intoxilyzer demand, that the detention of theaccused would be unlawful and contrary to

section 9 of the Charter and the seizure of breath would be unlawful and contrary to

section 8of the Charter. (See for example R. v. Leach, 2011 SKPC 138 and R. v. Wiebe, 2011 SKPC 70.) On this point, Mr. Hendrickson arguesonly that the police officer had reasonable and probable grounds for the intoxilyzer demand. [15] I begin by noting that had the police officer made an ASD demand, there would be no issue here. The accused smelled ofalcohol, and admitted that he had been drinking. His eyes were red. It is obvious that he had alcohol in his body and that the officer hada very reasonable suspicion of that. (See R. v.

Monteyne, 2008 SKPC 20.) An ASD fail result would have, in and of itself, given theofficer reasonable and probable grounds for the intoxilyzer demand. (See R. v. Arthurs (1981), (SK CA), 63 CCC(2d) 572 (Sask. C.A.).) [16] In a trilogy of cases R. v. Monteyne, supra, R. v. Morrison, 2008 SKPC 19, and R. v. Rosenau, 2008 SKPC 18, I wrote on thedefinition of reasonable suspicion required for the ASD demand. I attempted to make the point that the standard was very low, and quitedifferent than reasonable and probable grounds required for the intoxilyzer demand.

I also attempted to make the point that the Courtwould not require the higher standard of reasonable and probable grounds (used for the intoxilyzer demand) when looking at the ASDdemand and test. It seems to me that the corollary or flip side of these propositions is that the Court will not apply the reasonablesuspicion test when looking at the intoxilyzer demand and test.

Rather, when looking at the intoxilyzer demand, the Court must hold theCrown to the higher standard of reasonable and probable grounds, and as a result, the Crown must prove that the police officer hadreasonable and probable grounds for the intoxilyzer demand. (See also R. v. Hicks, 2008 SKPC 15.) It is well established that reasonableand probable grounds has both a subjective and objective component. It is clear the officer believed the accused was impaired andbelieved he had reasonable and probable grounds. Thus, the subjective component is met. But, is the objective component met?

Can Idetermine, on the basis of the evidence, that the officer reasonably and properly reached that conclusion? I must conclude that the policeofficer did not have reasonable and probable grounds for this demand. His only basis was the smell of alcohol and the accused’s redeyes. He testified that he relied upon the accident and the damage to the vehicle as well. However, in my view, this did not add to hisgrounds for the demand or make those grounds reasonable. The fact that there is an accident or that there is damage from that accidentdoes not give any indication of impairment.

This is particularly so in the extreme conditions that were present on that evening. [17] As a result, I am compelled to the conclusion that the police officer did not have reasonable and probable grounds for theintoxilyzer demand. Further, the detention of the accused for the intoxilyzer test and the seizure of breath samples were both contrary tohis Charter rights. In my view, admission of the Certificate of Analyses would bring the administration of justice into disrepute. For thereasons advanced in the cases of R. v. Wiebe, supra, and R. v.

Leach, supra, I would exclude from evidence the Certificate of Analyses. As a result, the charge of driving while over .08 must be dismissed. The Impaired Driving Charge [18] If I were able to consider this charge only on the basis of the evidence of Ms. Clemenshaw, I might be inclined to convict. She testified as to her involvement with the accused immediately following the accident and in her garage. She provides some significantevidence of impairment. However, in this case, the evidence goes beyond that of Ms. Clemenshaw. [19] In the case of Thomas v.

The Queen, 2012 SKCA 30, the trial judge convicted the accused of impaired driving based upon theevidence of a lay witness. Also introduced in evidence was surveillance video of the accused. The Court of Appeal set aside theconviction on the basis that the trial judge did not consider or take into account the surveillance evidence. The Court of Appeal stated asfollows: As is readily apparent from the record, the trial judge failed to take the surveillance evidence into account in his reasoning processleading to Mr. Thomas’s conviction on the charge of impaired driving.

While the surveillance record merely proved Mr. Thomas hadexhibited no signs of impairment, it necessarily opened the door to the inference he was not, in fact, impaired. Given this quality, thesurveillance evidence went to the central question before the trial judge and should have played an essential

part in his reasoningprocess. In my opinion, if the trial judge had taken the surveillance evidence into account, it could have affected his verdict. Byoverlooking the surveillance evidence, the trial judge therefore committed an error of law which invites appellate intervention (see: R. v.Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; R. v. Harper, (SCC), [1982] 1 S.C.R. 2; and R. v. Ahenakew, 2008 SKCA 4,[2008] 2 W.W.R. 68).

[ 20 ] In this case, when I take into account the evidence of the police officer that there were no obvious signs of impairment and I take into account all of the video evidence, I am left with a reasonable doubt as to whether the accused was impaired by alcohol. On that basis, I determine that he must be found not guilty of the charge of impaired driving. Dated at Moose Jaw, Saskatchewan, this ________ day of June, 2012. _______________________________ D.J. Kovatch, J