Her Majesty the Queen - v. -, 2013 SKPC 150

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 150 Date: September 9, 2013 Information: 24481484 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kenneth Kaszas Appearing: Ms. J. MacLean For the Crown Mr. R. Piché For the Accused JUDGMENT B. MORGAN , J INTRODUCTION [ 1 ] Ryan Johnson was a passenger in a vehicle travelling from Calgary to Saskatoon, when he noticed very erratic driving by a vehicle ahead of him heading in the same direction.

Being concerned, he contacted 911, alerting them to his concerns, and providing them with the licence plate number and description of the vehicle. Cst. Jean Strueby of the RCMP responded to that call, and located the vehicle approximately 45 minutes later in the community of Vanscoy, where it was last seen by Mr. Johnson.

[ 2 ] Based on the earlier complaint of erratic driving, and other signs she observed at the scene, Cst. Strueby made a demand that the operator, Mr. Kaszas, provide a breath sample for proper analysis under s. 254(3) of the Criminal Code . [ 3 ] The defence raised two Charter issues, as well as defences on the trial proper, and the matter proceeded on a blended voir dire/ trial. I will deal with the Charter matters first, in which Mr. Kaszas bears the onus of establishing a violation of either alleged Charter breach on a balance of probabilities.

As counsel agreed that the evidence on the voir dire could be applied to the trial proper, depending on the outcome of the voir dire , and as there was no further evidence from the Crown on the trial proper (the defence stating it was calling no evidence on either the voir dire or trial), I will then deal with any remaining trial issues. If I reach that point, the onus of proof on the trial is on the Crown to prove each element of each offence (impaired driving on count 1, “over .08” on count 2, as more formally particularized in the Information) beyond a reasonable doubt.

The Voir Dire 1) Did the officer have reasonable grounds to arrest the accused for impaired operation of a motor vehicle? [ 4 ] The defence position is that, whereas the officer had the subjective belief required, the issue is whether the objective criteria were satisfied at the point in time that the arrest was made. The defence argues that any observations made post-arrest are not to be weighed in that assessment, citing the case of R. v. McClelland, 1995 ABCA 199 . Implicit in this argument, although not stated in the Charter notice, is that such a demand would violate

section 8 of the Charter, respecting unreasonable search and seizure, and

section 9, dealing with arbitrary detention. [ 5 ] The Crown’s position, relying on R. v. Gunn , 2012 SKCA 80 , is that the Court must look at the totality of the circumstances known to the officer at the time of the arrest or demand, the test being whether those circumstances are capable of supporting any inferences the officer may have drawn. [ 6 ] A main plank in the defence argument is that the identity of the driver on the highway was never established, cutting into the reasonableness of the objective grounds of the officer’s belief.

That argument aside, the facts surrounding this issue are not really in dispute, and I find as follows. [ 7 ] Mr. Johnson noted the vehicle that he and the driver came upon was “swerving from ditch to ditch on the highway”, first making this observation just east of Delisle, Saskatchewan. Mr. Johnson’s view was that he wouldn’t have felt safe to pass that vehicle, due to the swerving. He testified that the swerving was across the eastbound lane of the highway, from ditch to centre line and beyond, and at one point that vehicle almost collided with a westbound semi-trailer unit.

Although he wasn’t sure what time of day this was, he testified “it was still light out”, and he described the vehicle as a little silver/grey coloured quarter-ton truck, the make of which he was not sure of at trial. [ 8 ] He was clear there was only one occupant in the vehicle, and when asked in cross-examination if he could say if that person was a male or female, he said he could not.

What he could clearly ascertain, however, was that the sole occupant had “really long hair”. [ 9 ] He and the driver of his vehicle followed this truck into the community of Vanscoy, where it pulled off the highway and parked at a gas station. The Johnson vehicle pulled in and watched for awhile to see if the police arrived, and then shortly left to continue the trip to Saskatoon. [ 10 ] Cst. Strueby received a dispatch call at approximately 8:00 p.m. that evening, and at about 8:10 p.m. contacted the complainant by phone, as she was en route to the area, to get an update.

At that point, she learned the vehicle had turned into Vanscoy. She also learned that the vehicle she was looking for had licence plate number 950 IHX, and that it was a grey little Nissan truck. She was also aware that the driver had long hair. Not finding that vehicle at the gas bar in Vanscoy, Cst. Strueby drove through the community in search of it.

[ 11 ] At 8:43 p.m., Cst. Strueby saw a vehicle that matched the description she had been given pull into the parking lot of the local bar. She immediately pulled up behind the vehicle, activated her lights, and approached the driver. At this point, she was aware that the vehicle matched both the general description she had been given of the vehicle, and the licence plate number. [ 12 ] The driver was Mr. Kaszas, whom she noted had “long straggly hair”. She knocked on the window of the vehicle, and as the occupant appeared to have difficulty in opening the door, she opened the door for him. She noted that Mr.

Kaszas appeared tired, had red eyes, and that an odour of alcohol was emanating from him. When she asked if Mr. Kaszas had been drinking, he mumbled “yes”, at which point Mr. Kaszas put the keys on the seat of the vehicle. She described his speech as being not clear, saying “I could pick out the yes”, referring to his response to her query as to his drinking. At that time, she advised Mr.

Kaszas that he was under arrest for impaired driving. [ 13 ] When asked specifically what her grounds were to make that arrest, she stated they were: 1) the complaint she had received of the previous driving; 2) the odour of alcohol, which she referred to as “a definite odour of alcohol” coming from Mr.

Kaszas; 3) his speech, which she described as not clear; 4) his red eyes; and 5) he “looked a mess”, to which she responded, when asked for clarification, “to me, he looked intoxicated” adding that the arrest was at 8:43 p.m., maybe a minute after the stop, and in her view, “it didn’t take me long ... it was obvious”. [ 14 ] When Mr. Kaszas exited the vehicle after the arrest had been made, “he exited slowly”, put his hands behind his back, and was handcuffed. The officer noted he had poor balance, and difficulty walking back to the police vehicle. [ 15 ] When asked why a breath sample was demanded, Cst.

Strueby again responded it was the odour of alcohol, the red eyes, and the earlier complaint of driving, which, in her view, allowed her to form the opinion that “he was impaired by alcohol”. [ 16 ] In McLelland , supra , the Alberta Court of Appeal dealt with an identical situation to the case at bar, that is, the subjective belief of the officer was not in issue; rather, the “only issue was the sufficiency of reasonable and probable grounds for that belief” (see para. 14).

Citing earlier authority, the Court concluded that it “is clear from these cases, that the question of the existence of reasonable and probable grounds must be based on facts known by or available to the police officer at the time he formed the requisite belief” (see para. 21). “Evidence which arose or came to light subsequent to the formation of the belief is not relevant in determining whether the police officer had reasonable and probable grounds for his belief at the time he formed the belief” (para. 22). [ 17 ] In R. v.

Gunn , supra , our Court of Appeal made it clear that the Crown is not required to establish a prima facie case for conviction: rather, “the standard of ‘reasonable grounds to believe’ is one of lesser probability which simply requires the reviewing court to determine whether the factors articulated by the officer who made the breath-demand were reliable and were capable of supporting the officer’s belief that the individual had driven while impaired or ‘over .08’ within the preceding three hours” (see para. 7 and the cases cited therein). [ 18 ] The Court noted at paragraph 8 that “... the question for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officer would have believed the individual’s ability to operate a motor vehicle was impaired”. [ 19 ] The Court went on to hold that such an assessment of impairment “necessarily calls for the officer to draw one or more inferences from his or her own observations and the surrounding circumstances.

Where the reasonableness of the officer’s belief is challenged in Court [as is the case here], the officer must be in a position to clearly articulate sufficient observations and to point to other evidence which would rationally and reliably sustain the officer’s belief of impairment on an objective basis” (see para. 10).

[ 20 ] The standard to apply, and the process to be followed, is set out in paragraph 15 of Gunn as follows: In a voir dire held to determine the reasonableness of the police officer’s belief, the trial court must consider whether the observations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which was drawn by the officer; however, the Crown does not have to prove the inferences drawn were true or even accurate. In other words, the factors articulated by the arresting officer need not prove the accused was actually impaired.

This is so because that is the standard of proof reserved for trial on the merits (ie. proof beyond a reasonable doubt). (italics in quote) [ 21 ] A central point of the argument of the defence is that the evidence of the earlier poor driving carries very little weight in terms of looking at the objective criteria. The defence points out that driving occurred almost 45 minutes prior to the arrest, that there was never any description of who was driving at that earlier point provided to the officer, and that the registered owner of the vehicle was in fact Mr.

Kaszas’ father. [ 22 ] In these circumstances, I find that it was reasonable for the officer to rely on the information she had respecting earlier erratic driving in making the demand. She had a description of the vehicle, the licence plate number, and the last noted location of that vehicle, and information that the driver had long hair. She then came across that same vehicle, which she knew to be the same vehicle based on the description and the licence plate, in that same community, being driven by an individual with long hair.

As Gunn points out in paragraph 22 , the “standard of ‘reasonable grounds to believe’ does not require that the arresting officer be in the position to dispel innocent or innocuous inferences which might also be reasonably drawn from his or her observations”. That is, it may well be that the person driving the vehicle earlier was not Mr. Kaszas. But I am not concerned at this point with the question of proof beyond a reasonable doubt that Mr.

Kaszas’ ability to operate a motor vehicle was impaired by alcohol, which would necessarily lead to a consideration of whether or not he was the driver noted earlier; that is a trial issue. At this juncture, the question is whether or not Cst. Strueby’s subjective belief in her grounds for arrest was objectively reasonable. I conclude that the inference she made that she was dealing with one and the same driver, in all the circumstances known to her at the time, was reasonable.

In these circumstances, that inference, coupled with the other signs observed by the officer, was in my mind sufficient to justify the making of the demand under s. 254(3) of the Criminal Code . It follows that I dismiss the application for Charter relief on this ground. [ 23 ] With respect to the question of whether or not observations made after the demand was made are relevant for the purposes of determining whether the offence of impaired driving is made out, I need not consider that question at this point; that is a trial issue. 2) Has the Crown proven an unequivocal waiver of rights to counsel? [ 24 ] Cst.

Strueby arrested Mr. Kaszas and provided him his rights to counsel at 8:54 p.m. When asked if he understood the rights to counsel, Mr. Kaszas replied “yes” and when asked if he wished to call a lawyer, he responded “ya ... Ron Piché”. Upon arrival at the detachment in Martensville, at 9:38, Cst. Strueby was in the phone room, with two other officers in the vicinity. Mr. Kaszas confirmed he wanted to speak to Mr. Piché, and Cst.

Strueby made four attempts to contact him: she called him at home, and then called “other phone numbers that were available to us”, explaining that she believed she got the numbers from the phone book, and had called his office, and a toll-free number that she believed she also obtained from the phone book. She testified that “no direct contact was made with anybody, especially Mr. Piché”, confirming that messages were left, and that a total of four calls were made. Mr. Kaszas was informed of the inability to contact Mr. Piché, and the officer testified that Mr.

Kaszas was arguing with the officers, and that he “wouldn’t listen to us”, and he “wouldn’t stop talking”. [ 25 ] Cst. Strueby then read what is commonly referred to as the Prosper warning to Mr. Kaszas, and when he was asked if he understood, he replied “understood”, and when he was asked if he was certain he didn’t want to contact a lawyer, he replied “ya”. Cst. Strueby testified that she assumed he understood all of this because he said so. [ 26 ] In cross-examination, Cst. Strueby remained adamant that Mr. Kaszas wanted to proceed, and was equally adamant that Mr. Kaszas wanted to speak only to Mr. Piché.

In re-examination, she confirmed that at no point in time did Mr. Kaszas ask to call another lawyer.

[27] Cst. Hiscock, the breath technician, testified that after the first sample, Mr. Kaszas wanted to call counsel, and that that officerinitiated a call to Mr. Piché, this being the first time he himself had dealt with the right to counsel issue with Mr. Kaszas. He stated hecalled Mr. Piché’s home number, and received no answer. [28] In cross-examination, he testified that his efforts could have been part of what Cst. Strueby had done, because he couldn’trecall precisely what time calls were made. However, it was clear to Cst. Hiscock that Mr. Kaszas wanted to speak to Mr.

Piché. [29] The position of the defence is that, on all the evidence, the Crown has not proven an unequivocal waiver in thesecircumstances, relying upon the following cases: - Clarkson v. The Queen, (SCC) - R. v. Bitts, 2011 SKQB 438 - R. v. Umpherville (2012 Unreported) - R. v. Johnstone, 2009 SKPC 133 - R. v. McCormack, 2011 ABPC 370 [30] The Crown agrees that the burden of establishing an unequivocal, voluntary waiver is on the Crown, although the burden ofestablishing the exercise of diligence in consulting counsel is on the detainee, citing R. v.

Prosper, (SCC), [1994] 3S.C.R. 236. [31] The Crown also relies on the decision in R. v. Willier, 2010 SCC 37, particularly paragraphs 29 to 35. [32] The law is clearly reviewed in the Willier case, supra, and there is no need to repeat it in this decision. Ultimately, each caseis decided on its facts. [33] In this case, I am satisfied that the Crown has established that the waiver of rights to counsel given by Mr. Kaszas wasunequivocal, voluntary, and free from any compulsion on the part of the police. The evidence is clear that Mr. Kaszas was adamant thathe wanted to speak to Mr. Piché, and only Mr.

Piché, and attempts to locate him were unsuccessful. I appreciate that a total of only sevenminutes elapsed between the time of the initial call and the reading of the Prosper warning, but on the evidence, there was no suggestionat any time that Mr. Kaszas felt hurried or compelled to do anything, nor that he at any time asked to contact any other counsel. Had Mr.Kaszas wanted to contact other counsel, the onus was on him to make that known to the police. Had Mr. Kaszas wished to wait longer tosee if Mr. Piché was available, the onus was on him to advise the police. On the facts here, Mr.

Kaszas was quite content to proceedwith the testing when he was unable to connect with Mr. Piché. [34] The Crown takes the position that this situation is similar to what occurred in R. v. Basko, 2007 SKCA 111, a situation inwhich after three unsuccessful calls to Legal Aid, the detainee told the police “I know what they are going to tell me, so I’ll call onetomorrow”.

When the police asked if he would like to try a different lawyer, the detainee responded “no, let’s get it over with”. [35] The Court held that the waiver by the detainee was in “decidedly unequivocal terms”, and the Prosper warning did not applyon the facts of that case. [36] As noted in R. v. Edgington, 2010 SKQB 381: The police are entitled to give normal

interpretation to the detainee’s words and actions (see para. 15).

[ 37 ] As that case suggests, it might in fact be inappropriate for the police to suggest the individual consider other choices of counsel, as that could be interpreted as the police attempting to steer the detainee away from his choice. [ 38 ] Evidence was led at the trial respecting what allegedly transpired as recorded on the video camera at the detachment, respecting efforts to reach Mr. Piché generally. However, neither Cst. Hiscock nor Cst. Strueby accepted what was allegedly said in the videotape. Essentially, each said they simply couldn’t recall.

Thus, I cannot consider the videotape as evidence, as it was not tendered as an exhibit on the voir dire or the trial. [ 39 ] I am surprised that Cst. Hiscock seemed to think the attempted calls to Mr. Piché were made after the first breath test; I rely on the arresting officer, Cst. Strueby, as to the times calls were made, and what transpired, as she was the lead investigator, whereas Cst. Hiscock was concerned mainly with the mechanics of taking the breath samples. [ 40 ] The waiver was unequivocal. Mr.

Kaszas has not established that there has been a Charter breach in these circumstances, and I dismiss that Charter application. [ 41 ] As I have found no Charter breaches, there is no need to consider possible remedies. [ 42 ] As the parties agreed that all evidence at the voir dire could be applied to the trial, and that there would be no further evidence on either the voir dire or the trial, I will now turn my attention to the other arguments raised by defence counsel. Thus, the evidence on the voir dire is applied to the trial.

At this point, therefore, the onus is on the Crown to prove the essential elements of each offence beyond a reasonable doubt, and I will apply that standard. 3) Can the Court rely on the blood alcohol readings in light of the testimony of Cst. Hiscock? [ 43 ] There is no dispute that three samples were taken: The first at 22:07, with a result of “220 milligrams percent”; Second sample at 22:30, with a result of “190 milligrams percent”; Third sample at 22:51, with a result of “210 milligrams percent”. [ 44 ] Cst.

Hiscock, the qualified technician, testified that in situations in which the two readings are not within “20 milligrams percent of each other”, the policy is to take a third reading to ensure accuracy. He also testified that anything over two readings triggers a situation in which the police do not provide a Certificate of Analyses, which of course would then require the technician to give viva voce evidence, which is what happened in this case. [ 45 ] The evidence of Cst.

Hiscock was that he used an appropriate approved instrument, and that he was satisfied that it was in good working order, as the officer at the detachment who maintained the machine had put a sticker on the side of the Intoxilyzer indicating it was up to date. He said he followed the instructions, and that in his view, the machine was in proper working order.

He confirmed that by both looking at the machine and the documentation the prior officer had left. [ 46 ] He also testified that he was satisfied he had two good samples. [ 47 ] The defence argument is that the Court cannot be satisfied samples obtained were within 20 milligrams percent of each other,

as the readings are truncated; that is, although the Intoxilyzer can be programmed to record to three decimal points, the practice in Saskatchewan is to truncate to an even number. That is, a true reading of .214 would actually be recorded as .210. Thus, the argument goes, if that is taken into account, the officer cannot know that the readings are in fact within “20 milligrams percent” of each other. During his cross-examination, Cst. Hiscock agreed that he couldn’t say if the second and third readings, being .190 and .210 respectively, are or are not within “20 milligrams percent”. [ 48 ] In his brief, Mr.

Piché refers to the Intox EC-IR II instruction manual. Although that document was not made an exhibit, the general tenor of the portion included in the brief is that two results within that tolerance “enhances the confidence that the blood alcohol concentration is accurate and reliable”. [ 49 ] Mr. Piché argues that the situation here is somewhat analogous to the situation in R. v. Greenough , 2013 SKQB 208 . The

summary conviction appeal judge held there was evidence of the improper operation of the Intoxilyzer because the evidence was the technician did not wait 20 minutes, as the manual indicated, after obtaining an improper sample, before taking a second. The result was that the Crown only had one test, and therefore could not rely upon the presumptions of accuracy and identity set out in s. 258 of the Criminal Code . [ 50 ] Although I appreciate the analogy attempted to be drawn, in my view, that decision is not applicable to this case.

There was clear evidence in Greenough that the operator did not follow the procedure in the manual. I am not sure that is the situation in this case, as the manual was not ever tendered as evidence. In any event, the readings, albeit truncated, were within “20 milligrams percent” of each other, and to suggest that the readings could have been outside that range requires me to use conjecture and speculation.

Thus, this argument cannot succeed. 4) Does the viva voce evidence tendered in this case satisfy the requirements regarding proof of the blood alcohol concentration? [ 51 ] The defence takes the position that the evidence given by Cst. Hiscock, the qualified technician, does not satisfy the requirements of the Criminal Code as to establishing what Mr. Kaszas’ blood alcohol level was. The problem identified by the defence is that the officer referred to the first reading as having the result of “220 milligrams percent”. [ 52 ] Upon hearing that response, Ms. MacLean, Crown counsel, asked Cst.

Hiscock to tell the Court what “milligrams percent means”, eliciting a response: So that his blood alcohol content ... it would be milligrams percent in 100 millilitres of blood. [ 53 ] Ms. MacLean, obviously aware of the shortfalls in the evidence, then asked the officer “so what is it then that is in the 100 millilitres of blood”, which elicited an objection, with a break in the questioning. During the pause, in the background, Cst. Hiscock states “I don’t quite understand”. [ 54 ] The defence relies on R. v.

Zeller , 2010 SKPC 99 , and the cases referred to therein, for the proposition that the phrase “milligrams percent” is ambiguous and does not allow the Court to conclude that the statutory requirement in the words of s. 253(1)(

b) have been met, that being that the blood alcohol level of the accused is such that the accused can be found to have “consumed alcohol in such a quantity that the concentration in the person’s blood exceeds 80 milligrams of alcohol in 100 millilitres of blood”. [ 55 ] The Crown distinguishes this case from Zeller on its facts, noting that the officer in this case, unlike the officer in Zeller , did refer to the blood alcohol level, and explained what he meant.

[ 56 ] The evidence of the officer was that the second test was “190 milligrams percent” and the third test resulted in a reading of “210 milligrams percent”. Thus, if it is determined that this phrase is sufficient, the Crown would have sufficient evidence to prove the offence. [ 57 ] For the purposes of this case, one of the essential elements of the offence set out in section 253(1) (

b) of the Criminal Code is that there be evidence that the accused operated a motor vehicle “having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood”. The usual method of proof of this element is through the use of a Certificate of a Qualified Technician that is a form that uses that precise wording. If such a certificate is not used, as is the case here, a qualified witness can provide that information. In either case, the Court can draw inferences, based on proven facts.

The Crown argues that the phrase “milligrams percent” is a term that is used commonly with respect to the level of an individual’s blood alcohol content.

So, on one hand, there are no “magic words” that the officer has to recite, and if the Court is satisfied with the explanation offered, the Court can draw the conclusion that the blood alcohol level exceeds the permitted amount. [ 58 ] On the other hand, what may be commonly known to judges and lawyers is not necessarily commonly known to the accused, and he is entitled to know, if he is convicted, that he has been convicted based on evidence that establishes his guilt beyond a reasonable doubt. [ 59 ] This is not a matter of semantics.

What I have difficulty with in this case is the officer’s reference that he was referring to the blood alcohol “content”, not “concentration”, which is a different matter. [ 60 ] Further, his words were “...and it would be milligrams percent in 100 millilitres of blood”. Assuming the officer is talking about the consumption of alcohol in such a quantity that the “concentration” in Mr. Kaszas’ blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, the addition of the expression “percent” after milligrams is ambiguous.

That is, if “milligrams percent” is an acknowledged and accepted common phrase (which I am merely assuming for the purpose of this analysis), then there would be no need to say “it would be milligrams percent in 100 millilitres of blood”. As was pointed out in Zeller , supra , a milligram is a measure of weight. A millilitre is a measure of volume.

The phrase “milligrams percent” in “100 millilitres of blood” is ambiguous at best, meaningless at worst, and does not meet the standard of providing proof beyond a reasonable doubt that the offence has been committed. [ 61 ] The offence of driving while one’s blood alcohol level exceeds the permitted amount is clearly set out in the Criminal Code , and it is incumbent upon the Crown to establish that in fact Mr. Kaszas had “consumed alcohol in such a quantity that the concentration in [his] blood exceeds 80 milligrams of alcohol in 100 millilitres of blood”. Cst.

Hiscock was present to provide such evidence, and failed to do so. [ 62 ] The evidence before me, “so that’s his blood alcohol content ... it would be milligrams percent in 100 millilitres of blood”, does not satisfy me of what needs to be proven. [ 63 ] Accordingly, I have no evidence as to the concentration of alcohol in Mr. Kaszas’ blood, and I find him not guilty of count #2 in the Information. 5) Is the evidence sufficient to establish that Mr. Kaszas ’ ability to operate a motor vehicle was impaired by alcohol? [ 64 ] The defence raises two specific questions:

(1) Can the identity of the driver on the highway earlier, as noted by Mr. Johnson, be established as being Mr. Kaszas?

(2) Can evidence of the observations of Mr. Kaszas after he exited the vehicle, but prior to his rights to counsel being provided, be used as evidence on the trial proper?

[ 65 ] With respect to the first question, I note that at no time was the identity of the driver on Highway 7 between Delisle and Vanscoy established. Mr. Johnson did not know whether it was a male or a female driver, although he did know the sole occupant of the vehicle had long hair. [ 66 ] Cst. Strueby agreed that she at no time had a description of the person driving the vehicle between Delisle and Vanscoy. She did know that individual had long hair. [ 67 ] Although a court can use inferences to establish facts, an inference is a bridge between two known facts.

In this case, the first known fact is that a person with long hair was operating a vehicle in a bizarre fashion.

It is certainly possible the cause of that erratic driving was that the operator was impaired, but that is somewhat of an assumption. [ 68 ] The second known fact is that the exact same vehicle that was observed on Highway 7 with one driver was found approximately 40 to 45 minutes later, with one occupant in it, in front of the Vanscoy bar. [ 69 ] Whereas those facts have been found to be sufficient to allow the officer to make an inference that it was the same driver, in order to justify a s. 254(3) breath demand, the question now at the trial is whether or not there is proof beyond a reasonable doubt of all of the essential elements of the offence, one of them being the identity of the driver.

There is no question Mr. Kaszas was the driver at the time he was apprehended at the Vanscoy bar. However, I am not able to conclude on that basis, beyond a reasonable doubt, that he was in fact the driver on the highway. [ 70 ] The next issue is whether or not evidence of observations of Mr. Kaszas after he exited the vehicle, but prior to rights of counsel being provided to him, are admissible. The defence relies on, among other cases, that of Whelan J. in R. v.

Demers , 2006 SKPC 65 , in which a thorough analysis of the case law was undertaken (see pages 14 through 17) ...“regarding the use and admissibility of evidence obtained by means of sobriety tests conducted prior to the 10(

b) Charter right to counsel being given”. The Court held that such evidence “ may not be used as direct evidence to incriminate the driver on the issue of impairment” (see para. 37). In Demers , the judge specifically excluded evidence obtained prior to rights of counsel being given. [ 71 ] That case was appealed by the Crown and the

summary conviction appeal court judge upheld the reasoning of Judge Whelan in Demers on that point. [ 72 ] In my view, the facts in Demers are significantly different than the present case. In Demers , an officer stopped the accused at approximately 12:15 a.m., and asked him to step out of his vehicle and walk a straight line back to the police vehicle. It was at 12:22 a.m. that the officer arrested the accused for impaired driving, and five minutes later that he read him his s. 10(

b) right to counsel. Whelan J. specifically held that there had been a denial of the right to counsel, and noted that, unlike the present case, the officer “did not immediately form the opinion that an offence had been committed by the accused”. Thus, Demers must be read in light of those very pertinent facts. In the present case, there has been no s. 10(

b) violation alleged at the roadside, and there were no sobriety tests run by Cst.

Strueby to ascertain whether or not she thought she had grounds to believe an offence had been committed; indeed, she said it was “obvious”, and made the breath demand within a minute of the stop. [ 73 ] As Judge Whelan noted in Demers , “certainly it would be routine to ask an accused who has been arrested to accompany an officer back to his patrol car and to make observations in so doing...”, which is what happened in the present case. [ 74 ] There is a distinction to be drawn between an officer obtaining evidence to be used to prove an offence prior to providing a Charter warning, and an officer making observations while keeping an eye on a person he or she has just arrested.

In the latter case, one would expect a police officer to be particularly vigilant. What happened here falls into that latter category. [ 75 ] I will therefore deal with this issue by admitting into evidence, for the purposes of determining whether or not the Crown has proven the charge of impaired driving beyond a reasonable doubt, the evidence of Cst. Strueby as to the poor balance and difficulty walking she noted of Mr. Kaszas. However, I will exclude evidence of what transpired after he was placed in the police vehicle, but before he was given his s. 10(

b) Charter rights, as although I did not find a Charter breach on the basis argued, there was no reason Cst.

Strueby could not have been more prompt in providing those rights. There was no need to engage Mr. Kaszas in the conversations she did, and it would be unfair to admit that type of evidence in these circumstances. Thus, observations made prior to the granting of rights to counsel will not be used as evidence of impairment on the trial proper, where such evidence was obtained as a result of a police request.

However, observations made by the officer irrespective of any request, and any evidence obtained after rights to counsel were provided, can be used in this case to determine whether or not the Crown has established the charge of impaired operation of a motor vehicle, as more formally particularized in the Information. [ 76 ] The evidence of impairment is as follows: (1) the officer observed a very short period of driving, and nothing was out of the ordinary at that time; (2) when Cst. Strueby approached the vehicle, Mr.

Kaszas had difficulty exiting from that vehicle, and when he did exit, he did so slowly; (3) he looked tired; (4) he had red eyes; (5) his speech was not clear; (6) there was a “definite odour of alcohol”; and (7) in Cst. Strueby’s words, “he looked a mess”. [ 77 ] After the rights to counsel were provided, the admissible evidence of impairment is as follows:

(1) During the drive to Martensville, Mr. Kaszas was lying on the seat.

(2) During the trip, his demeanour was, in Cst. Strueby’s words, “drunk”. She described him as loud and “just drunken behaviour”.

(3) During the short walk from the vehicle to the detachment, Cst. Strueby made no specific observations respecting him.

(4) Generally speaking, according to Cst. Strueby, at the detachment, Mr. Kaszas was “being ignorant ... he wouldn’t stop talking”. In her view, he still seemed intoxicated, and she was relying on the odour of alcohol, and the same evidence she had recounted respecting the circumstances at the time of the stop. [ 78 ] At the detachment, Cst. Hiscock referred to Mr. Kaszas as being “agitated, loud, argumentative with Cst. Strueby”, although at the time of taking the breath sample, he said he was “still agitated but fairly cooperative”. [ 79 ] Cst.

Hiscock did not make an indication in his notes that he saw any indicia of alcohol impairment, although he stated that he stopped doing notes generally speaking about the time of the new forms coming out on the Intoxilyzer. In essence, the tenor of his evidence was that he wasn’t making notes or observations of those types of things. [ 80 ] In determining the question of whether or not an individual’s ability to operate a motor vehicle was impaired by alcohol, a Court is to look at all of the evidence, and is specifically not to look at the evidence in a piecemeal fashion.

If there is evidence of any degree of impairment, ranging from slight to great, the offence is made out. [ 81 ] On the totality of this evidence, I am satisfied beyond a reasonable doubt that the offence of operating a motor vehicle while Mr. Kaszas’ ability to do so was impaired by alcohol has been made out. I appreciate that each of the noted indicia could be due to some reason other than impairment by alcohol. However, the evidence is to be looked at as a whole, and in applying that test, the offence is established. [ 82 ] Cst. Hiscock dealt with Mr.

Kaszas at the detachment over an hour after the stop was initiated by Cst. Strueby, and although he did not make note of his observations as to possible impairment of Mr. Kaszas, it is clear that Mr. Kaszas was obnoxious and agitated from the time of the stop to some point later at the detachment. It was obvious to Cst. Strueby that Mr. Kaszas was intoxicated, and

although that is a conclusion, she was able to, and did, provide evidence which I accept as to how she arrived at that conclusion. It is of course possible that the signs Mr. Kaszas exhibited at the detachment were not apparent to Cst. Hiscock because it was some time later that he had contact with Mr. Kaszas, but that would not impact on what Cst. Strueby noted at the time Mr. Kaszas was driving. [ 83 ] I am satisfied beyond a reasonable doubt that Mr. Kaszas’ ability to operate a motor vehicle was impaired by alcohol, and I find him guilty on count 1. B. Morgan, J