Her Majesty the Queen - v. -, 2014 SKPC 105

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 105 Date: May 2, 2014 Information: 44304702 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Edward Alexander Fulford Appearing: J. Maclean For the Crown M. Owens For the Accused JUDGMENT R.D. JACKSON , J I BACKGROUND [ 1 ] The accused stands charged on June 2, 2012 with operating a motor vehicle while his ability to do so was impaired by alcohol and while his blood alcohol exceeded .08 percent. [ 2 ] The trial proceeded by way of voir dire .

The Crown called the investigating officers, Staff Sergeant Harmon and Constable Tataryn, as well as the breath technician, Sergeant Berg. The Defence called Janelle Best, a friend of the accused, as well as the accused

himself. By consent, all admissible evidence called on the voir dire was applied to the trial proper. [ 3 ] The accused was stopped by police late in the evening on June 2, 2012 at a 7-11 Convenience store on Central Avenue in Saskatoon. Following a brief interaction at roadside, he was transported to the Saskatoon detachment where he ultimately provided two samples of his breath in excess of the legal limit. [ 4 ] The accused now seeks exclusion of the Certificate of Analyses pursuant to s. 24(2) of the Charter by reason of breaches under ss. 9 and 10(

b) of the Charter , specifically that the arresting officer did not have reasonable and probable grounds to make the demand and that the accused’s right to obtain counsel of choice was denied, respectively. [ 5 ] The accused asserts further that the Crown has failed to prove beyond a reasonable doubt that he drove his motor vehicle while his ability to do so was impaired by alcohol. II DETERMINATION Reasonable and Probable Grounds [ 6 ] The accused was observed by police sitting at the exit of a Mac’s Convenience Store at the corner of 108 th Street and Central Avenue in Sutherland.

The police noted that the accused honked his horn for no apparent reason in their view and waited for several opportunities to go before finally exiting the parking lot. [ 7 ] The Saskatoon Police were conducting a targeted impaired driving campaign that evening called “Operation Overdrive”. In this particular patrol vehicle was Staff Sergeant Harmon, a veteran of 32 years service and hundreds of impaired driving investigations by his estimation.

He was partnered with Constable Tataryn, who had been a member of the Saskatoon Police Service for 15 years and had conducted roughly 30 impaired driving investigations by his count. [ 8 ] The accused, who was operating a large Dodge truck, was followed for approximately two blocks on Central Avenue after leaving the Mac’s Convenience Store at which point he pulled into a 7-11 Convenience Store on his left. Both officers testified there was nothing untoward or noteworthy with respect to the manner of driving.

It was determined he should be stopped in any event to check driver’s license, registration and sobriety. [ 9 ] Staff Sergeant Harmon first interacted with the accused while he was in the cab of his truck. He could smell an aroma of alcohol coming from within the vehicle so asked the driver (accused) to step out and accompany him back to the patrol car. While walking, Staff Sergeant Harmon detected a slight weaving to the side by the accused. [ 10 ] Upon reaching the patrol car, he turned Mr. Fulford over to Constable Tataryn to further the investigation while he returned to the truck to locate the ignition keys.

He looked for roughly one to two minutes without success. [ 11 ] As a consequence of Staff Sergeant Harmon’s interactions with Mr. Fulford, he suspected that he had alcohol in his body so he went to the patrol car trunk to retrieve an approved screening device. Before he could remove it however, he was called off by Constable Tataryn who advised him not to bother as he had sufficient grounds to make a formal breath demand. [ 12 ] At trial, Constable Tataryn acknowledged he had no driving evidence whatsoever and had not observed the accused walking to this point.

However, he posited the following as his grounds for making the formal breath demand:

a) the driver admitted to having had a couple of beers;

b) he had an unlit cigarette in his mouth which he appeared to suck on as well as flick as if to remove ash;

c) he slurred certain words (although in cross-examination he conceded this amounted to “two words out of thousands spoken thatevening”);

d) his demeanour was abusive and argumentative and that he raised his voice to shouting level. Again, in cross-examination,Constable Tataryn acknowledged that he too was shouting. The accused for his part testified that he had previous dealings withConstable Tataryn and he was “cocky” and “not nice” and that Mr. Fulford had no difficulty with the other police officers that evening;

e) the accused said words to the effect “you’re not going to give me an impaired over this”. Constable Tataryn thought this to bequite significant and tantamount to an admission that he was impaired by alcohol because “a sober person would not say such a thing”;

f) he was positioned downwind and could smell alcohol on his person from about five feet away. [13] The test the Court is to employ in assessing whether the requisite subjective and objective threshold has been met has been articulated by our Court of Appeal in R. v. Gunn[1] at paras. 7 to 9: 7 A police officer may not demand a breath sample of an individual unless the officer has “reasonable grounds to believe: the individualhas, within the preceding three hours, driven while impaired or while over the proscribed limit.

This means the officer must subjectively(or honestly) believe the individual has driven while impaired of “over .08” within the preceding three hours and that belief must berationally sustainable on an objective basis (see: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 48). This doesnot mean that the Crown has to demonstrate a prima facie case for conviction (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, atpara. 23), let alone prove its case beyond a reasonable doubt (R. v.

Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127); rather, the standard of“reasonable grounds to believe” is one of lesser probability which simply requires the reviewing court to determine whether the factorsarticulated by the officer who made the breath-demand were reliable and were capable of supporting the officer’s belief that theindividual had driven while impaired of “over .08” within the preceding three hours. 8 Where an individual challenges the validity of a breath-demand on the basis that the police officer’s belief was not reasonable, thequestion for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officerwould have believed the individual’s ability to operate a motor vehicle was impaired (see: R. v.

Storrey, (SCC), [1990]1 S.C.R. 241, at p. 250; and R. v. Restau, 2008 SKCA 147, 314 Sask. R. 224 at para. 17). This is a question of law and a trial judge’sanswer to it is measured on appeal against the yardstick of correctness (see: R. v. Shepherd). 9 When determining whether the standard of “reasonable grounds to believe” has been met, it is important to keep in mind that a policeofficer need only believe an individual’s ability to drive is slightly impaired. This follows on the ratio in R. v.

Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, aff’d (SCC), [1994] 2 S.C.R. 478, where the Ontario Court of Appeal heldthat, for the purposes of s. 253(1)(

a) of the Criminal Code, an impaired ability to operate a vehicle may be established where the Crownproves any degree of impairment from slight to great. As such, the precondition to an officer’s authority to make a breath-demand maybe satisfied where, objectively speaking, an officer has reasonable grounds to believe an individual’s ability to drive is even slightlyimpaired by the consumption of alcohol (see: R. v. Bush, at para. 48). [14] Having due regard to Gunn, the Court is of the view that Constable Tataryn’s grounds fall short of the objective standardrequired, for the following reasons:

a) one of the most reliable indicators of driving while one’s ability is impaired by alcohol is the manner of driving itself, or at least, some physical manifestation that could elevate one’s belief past mere suspicion. In this case, Constable Tataryn had neither;

b) the smell of alcohol from the person and admission of consumption of a couple of beers would confirm that alcohol had been consumed but is not a reliable indicator of one’s ability to drive being impaired by alcohol;

c) the evidence of slurring words was diminished to the point of little value by the officer’s concession that it was about two words out of thousands spoken that evening. Granted, the portion at roadside would be a fraction of this total but still, two words is very minimal in this regard;

d) the argumentative demeanour of the accused must be tempered in this instance by Constable Tataryn’s acknowledging he too was shouting during this process, as well as the accused’s evidence (which Constable Tataryn could not refute) that there was a previous history of unpleasant encounters between the two;

e) sucking on an unlit cigarette and making flicking motions may or may not be unusual, but irrespective, has no nexus to the ability to operate a motor vehicle being impaired by alcohol;

f) the significance of the statement by the accused “you’re not going to give me an impaired over this” can just as easily be attributed to incredulity rather than an admission of being impaired based upon the manner it was stated.

Rather, if the accused had used such phraseology as is often heard by this Court as “I know I’m over” or “I shouldn’t have been driving” or “can you give me a break/warning here?” or “I’ll lose my job if convicted” et cetera , the import would be far more convincing to a third party observer. [ 15 ] All of these grounds taken together cumulatively still cannot achieve the standard articulated in Gunn , in the Court’s view.

Rather, this was a clear case where the ASD ought to have been administered since the indicia could not fairly be said to have been elevated beyond a reasonable suspicion of alcohol in the body, as per the determination of Staff Sergeant Harmon. [ 16 ] In R. v. Leach [2] , the investigating officer was faced with a very similar situation - absolutely no driving evidence and very tenuous indicators of physical signs of impairment. However the officer also noted the front of the accused’s pants to be wet and concluded a person who had relieved himself in such a fashion ought not to be driving.

He made no queries or any investigation of this whatsoever. He subsequently determined at the detachment that the driver had shoved an open beer down his jeans upon being stopped which accounted for the wet staining. Similarly in this case, a great deal of stock was put in the query by the accused “you’re not going to give me an impaired over this?” as being tantamount to an admission which is certainly capable of an alternate

interpretation, as stated above. [ 17 ] In R. v. Bush , supra , at para. 46 , the Court stated: In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test. . . it must not be inflated to the context of testing trial evidence. Neither must it be so diluted to threaten individual freedom. [ 18 ] In all the circumstances, the Court is satisfied that based upon the indicia of the accused presented, Constable Tataryn did not have reasonable grounds to believe his ability to operate his motor vehicle was impaired by alcohol. Breach of s. 10(

b) rights [ 19 ] The accused was placed in an interview room with a phone book he claimed was two to three years out of date. Constable

Tataryn did not deny that this was correct. The accused brought this to the attention of Constable Tataryn by demanding a current phone book because, he testified, he knew that his counsel of choice, Mr. Owens, had changed locations since he had last utilised his services. The accused acknowledged however that he made no effort to actually locate a number for Mr. Owens out of this book. [ 20 ] The Court agrees that only the most current phone book should be provided to detained persons as a matter of common sense. In this particular situation however no breach of s. 10(

b) has been made out on this ground because the accused never even attempted to find or utilise any number from this book. The information contained therein may well have been accurate and the same as currently in use for all that the Court is aware. [ 21 ] What is significant however is what ultimately transpired. Constable Tataryn took it upon himself to locate three telephone numbers from the Internet for Mr. Owens: 244 - 1410 665 - 8829 384 - 5340 [ 22 ] Upon calling the 244 - 1410 number Constable Tataryn received no answer.

The 665 - 8829 number produced a message from Mike Owens’ “assistant” permitting a message option to be left, however Constable Tataryn testified that he left no message. Inexplicably, Constable Tataryn did not make Mr. Fulford aware of the 384 - 5340 number nor even try to call it, because, he testified it might have been an incorrect number and he did not want to bother the wrong person at this time of night.

When pressed on this in cross- examination he stated on two occasions that “he hadn’t given up on that number entirely.” This was a rather curious remark in that he obviously had given up on it since he never bothered to call. [ 23 ] Constable Tataryn then advised the accused that he was not able to get through to his counsel of choice, Mr. Owens. Ultimately, the accused provided samples of his breath without obtaining legal advice. [ 24 ] When the accused was asked in his cross-examination why he didn’t try other counsel, he reiterated he wished only to speak to Mr.

Owens and that if he could not be reached that evening he would have to try him the next day. Ordinarily this would be fatal to the accused’s position that his s. 10(

b) rights were breached because the obligation would clearly be on him to try alternate counsel if his or her first choice could not be reached. [3] However in this case, the accused could hardly be faulted in retrospect when he had been given misinformation and no reasonable opportunity had been given for his counsel to call back since proper efforts were not made to contact him by Constable Tataryn. [ 25 ] In a very similar circumstance, my brother Agnew, J in R. v.

Grenier-Spence [4] stated at para. 35: [35] I have concluded that, in the particular circumstances of this case, speculation by the accused as to what he might have done is irrelevant. The accused’s Charter right was breached at the moment when Constable Hiscock erroneously informed the accused that there was no answer at his lawyer’s telephone number. The accused was not given any opportunity to consider whether or not to leave a message and wait for a call back. He was given incorrect information crucially important to the exercise of a very fundamental constitutional right.

At that moment, his right to counsel of choice was breached, and nothing occurred thereafter to ameliorate, repair or minimize that breach. [ 26 ] In the case at bar, the accused likewise was deprived of a proper opportunity to contact counsel of choice by reason of the misinformation of Constable Tataryn and failure to leave a message or try all of the counsel numbers provided. Whether in fact this would have produced any better result if these methods had been employed is irrelevant. As stated in Grenier-Spence , the breach had already occurred. [ 27 ]

Section 10(

b) is a cornerstone constitutional right. When an accused is charged with a criminal offence, he or she should have full, fair and unfettered ability to speak to legal counsel of choice. Decisions made at this juncture could have profound long term significant effects on the future of the accused, including considerations of a criminal record, loss of license, impact on family and

livelihood, and so forth. [ 28 ] As has been pointed out in many decisions [5] , if the police wish to control the process of contacting counsel then they must do as much as reasonably possible as the accused himself or herself would do. This would entail making appropriate attempts and providing accurate information back to the accused to effectively exercise this very fundamental right. In effect, the police become the agent or arm of the accused for this purpose. [ 29 ] In order to avoid future difficulties in this regard, the Court would have the following suggestions:

a) give the accused a current year phone book and a reasonable time to peruse same unless of course the individual has a number he or she wishes to call at the outset;

b) if a list of lawyers is present, then draw such list to the attention of the accused as an additional aid;

c) if the accused signifies to the police officer that he or she requires assistance to locate counsel, then this should be provided by directing the individual to the yellow pages where the lawyers’ names are contained;

d) if the policy of the police handling the phone and placing the call is employed [6] , then the call should be made as provided to the officer and the accused should be informed that the number(

s) have been called;

e) if the police locate telephone number(

s) by alternate means, such as hereby Internet search, the results should be shown to the accused and all numbers utilised;

f) if no answer is received and a message option is provided, the message should be left as to the circumstances and request an immediate call back. The accused should then be advised as to what has transpired and precisely what message was left;

g) a reasonable time should then be given for the lawyer to in fact call back - what is reasonable will obviously vary in the circumstances depending upon time of day, whether it is a weekend et cetera , however the Court would suggest a minimum time of 20 minutes as sufficient for this purpose;

h) if no call is forthcoming within the prescribed period then the accused should be reminded of his or her options to seek alternate counsel and again be given a reasonable opportunity to do so, if that is the accused’s wish. [ 30 ] The Court is aware that no formula will fit every circumstance however this format, in the Court’s view would be a simple common sense approach to reaching counsel of choice. Section 24(2) Analysis [ 31 ] The Court has had the opportunity to review R. v.

Shinkewski [7] wherein the Court directs that the breach should be viewed as to whether it would be at the low end of inadvertent to the high end of blatant disregard. [ 32 ] In the Court’s view the cumulative breaches of failing to have reasonable and probable grounds and not providing the proper s. 10(

b) rights to the accused could not be said to be at the low end of the spectrum.

[ 33 ] Constable Tataryn at roadside waved off Staff Sergeant Harmon, a superior officer in charge with 32 years of experience and hundreds of investigations, on the basis of what the Court considers very tenuous grounds to make a formal demand. The whole point of the roadside screening device is to provide a quick and reliable determination as to whether further procedures would be necessary unless circumstances clearly mandated that this would not be required. By comparison, a formal breath demand requires the accused to leave the scene, attend to the detachment and provide samples of breath, all of which takes several hours to complete. [ 34 ] As far as the breach of s. 10(

b) rights are concerned, the Court has already commented on the seriousness of providing misinformation and not taking proper steps to implement the telephone calls. It is somewhat surprising and distressing to the Court that this officer, for example, would not even bother to place a phone call to the third telephone number which he himself obtained for Mr.

Owens stating somewhat flippantly “I hadn’t entirely given up on this number yet”, whatever that means since he never bothered placing the call. [ 35 ] In all the circumstances balancing the Grant analysis [ 8] , the Court is of the view that admission of the evidence in this particular circumstance would bring the administration of justice into disrepute. Accordingly, the Certificate of Analyses will be excluded from the evidence pursuant to s. 24(2) of the Charter .

III IMPAIRED DRIVING [ 36 ] As stated previously, there is no evidence before the Court as to the manner of the accused’s driving to support the charge that his ability to operate his motor vehicle was impaired by alcohol. Further, the physical observations of the accused relating to the manifestations of alcohol impairment, have been discussed at length. [ 37 ] The Court has also had the benefit of hearing the evidence of Janelle Best, a friend of the accused who was with him on the evening in question. In the Court’s view, Ms.

Best gave straightforward credible evidence as to how the accused presented at the time they departed the residence at around 11:30 p.m. As she testified, she knew the accused for some time and when comparing to circumstances when he was completely sober to the evening in question, she could note no discernible difference. She stated further that had there been a concern, she would have offered to drive since she had her vehicle and was having to follow him in any event.

She also testified that the accused was waiting at the Mac’s Store for her to back out and she was not able to do so until a couple of cars had cleared. This would explain why he was delaying his exit from the parking lot. [ 38 ] The accused admitted to drinking roughly 8 to 9 beers over the course of the evening however the time frame was between roughly 5:30 p.m. and 11:30 p.m., a span of some six hours.

Further, he testified that his left eye socket had been injured some ten years previously and from that point has been prone to excessive watering. [ 39 ] Based upon all of the evidence before the Court, a reasonable doubt has been raised regarding the ability of the accused to operate a motor vehicle being impaired by alcohol. [9] IV CONCLUSION [ 40 ] There being no admissible evidence before the Court in regard to Count #1 and a reasonable doubt having been raised on Count #2, the accused is hereby found not guilty of both. __________________________ R.D. Jackson, J

[1] 2012 SKCA 80 , 399 Sask. R. 170 (C.A.) [2] 2011 SKPC 38 [3] R. v. Hughes [2010] S.J. No. 632, 2010 SKQB 392 (Q.B.) [4] 2013 SKPC 106 [5] See R. v.

Brouillette , 2007 SKPC 67 (P.C.) [6] The better policy in the Court’s view is to simply allow the accused the opportunity to have the phone book and access to the telephone to dial directly - if the accused chooses to abuse this by calling someone else then clearly that is to their detriment. [7] 2012 SKCA 63 [8] [2009] 2 S.C.R. 353, 2009 SCC 32 , 309 D.L.R. (4 th ) 1, 245 C.C.C. (3d) 1 (S.C.C.) [9] This case falls within the parameters of slight evidence of impairment and therefore too frail to base a conviction upon, rather than evidence of slight impairment as referenced in R. v.

Stellato , supra , which would be sufficient to found a conviction.