Her Majesty the Queen - v. -, 2011 SKPC 100

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 100 Date: September 16, 2011 Information: 24337628 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Colleen Yakubowski-Suderman Appearing: Sandeep Bains For the Crown Jonathan Abrametz For the Accused JUDGMENT P.S. KOLENICK , J BACKGROUND [ 1 ] The accused is charged that she did at or near Saskatoon, on or about May 3, 2008, commit the following offences: (1) while her ability to operate a motor vehicle was impaired by alcohol or a drug did operate a motor vehicle contrary to

section 253 (

a) of the Criminal Code . (2) having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle contrary to

section 253 (

b) of the Criminal Code . [ 2 ] The accused has provided a notice in writing that her rights pursuant to ss. 7, 8, 9 and 10(

b) of the Charter have been infringed or denied, because the peace officer did not have reasonable and probable grounds to arrest the accused. [ 3 ] Pursuant to s. 24(2) of the Charter the accused also seeks as relief for the alleged Charter breach the exclusion from evidence all observations and the Certificate of Analyses. Those provisions indicate as follows: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8.

Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention . . . (

b) to retain and instruct counsel without delay and to be informed of that right; and . . . 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 4 ] In the course of the trial, a potential issue also arose on the evidence regarding alleged over holding of the accused, under s. 9 of the Charter and contrary to s. 495 of the Criminal Code .

In regard to it, pursuant to s. 24(1) of the Charter, the relief sought is a stay of proceedings, and costs/damages of $5,000.00. [ 5 ] Before the proceedings commenced again, in the course of the evidence of Constable Kurtenbach, an amended notice of Charter application was filed, dated May 24, 2011. Generally, it sought the same relief, and added s. 10(a), to be informed promptly of the reasons for arrest or detention. The amended notice also affirmed alleged breaches under ss. 7, 8, 9, and 10(

b) as previously claimed and seeking relief. EVIDENCE FOR THE CROWN Loretta Shingoose - The Complainant

[ 6 ] Ms. Shingoose advised that she had been returning home from Regina, on the highway, and had exited off on one of the access routes located on the southern edge of Saskatoon. [ 7 ] As she proceeded on the side route, near some railroad tracks, she encountered another motor vehicle heading toward her vehicle, which swerved into the complainant’s motor vehicle lane, causing the vehicles to almost strike. It was as if the other driver had been playing chicken. [ 8 ] In any event, the complainant turned around to follow that motor vehicle, while calling 9-1-1 to contact the police and advise what had occurred.

In the course of getting turned around, she had lost sight of the other motor vehicle for roughly one minute. While she believed it had been the same vehicle, she conceded that they had met one other motor vehicle after she had commenced following behind. Regardless, the police had arrived at the same location as she had directed them to that spot. In the meantime, she had no contact with the other driver, and could not see into the motor vehicle. She estimated having observed it for roughly 10 to 15 minutes. [ 9 ] In cross-examination Ms.

Shingoose confirmed that there was lots of bush in the area, and other driveways connected to the road on which they had been travelling. Constable James Fenrich [ 10 ] Constable Fenrich of the RCMP confirmed that at the time he was a member stationed at the Colonsay Detachment who happened to be at the Saskatoon Detachment when the dispatch had been received. As a result of the complaint, he had attended at the scene, near Furdale Road at roughly 3:00 a.m. Constable Buchanan had also attended in a separate police vehicle.

They concluded that because Constable Fenrich was in the process of being transferred, Constable Buchanan would take the lead in the investigation. As a result, the officer did not have many notes regarding that part of the investigation but observed that her eyes were a bit glossy and she had a flushed face. [ 11 ] In the course of the investigation, the officer followed the police vehicle transporting the accused to the Saskatoon Police Services building, rather than the RCMP detachment where the Intoxilyzer samples were allegedly provided.

Apparently his notes were somewhat better detailed for that portion of the investigation. He was able to confirm therefrom that they had arrived at the Police Services building cell block at 3:19 a.m. He testified that the accused had been rude and belligerent, but had no notes as to her relative sobriety. He had explained to the accused that the purpose of the call was to contact counsel and as such, she could not contact her husband. [ 12 ] The officer was waiting with the accused for a phone to become available so she could contact a lawyer.

He confirmed from his notes that, at 3:24 a.m., she had attempted to contact Mr. Abrametz. The officer had initiated the call at her request and the door was closed at the time. A telephone book had been at her disposal and there was also a list of lawyers by the telephone. [ 13 ] The efforts to contact Mr. Abrametz were unsuccessful, there being a recording to the effect that he was not available. The accused then requested that they try Mark Brayford. That attempt also did not succeed in that the officer received an answering machine reply.

When that attempt was also unsuccessful she instructed the officer to contact Legal Aid duty counsel. The officer indicated from his notes that the call with Legal Aid duty counsel had occurred between 3:35 a.m. and 3:40 a.m. The accused had not expressed any dissatisfaction to the officer regarding rights to counsel which required follow-up. He had done nothing in the investigation between 3:24 a.m. and 3:40 a.m.

He presumed as well that Constable Buchanan had formally advised the accused of her Charter rights more than he had, because Constable Buchanan was the lead investigator. [ 14 ] In cross-examination Constable Fenrich advised that he had only been roughly two minutes from the scene when the dispatch was received, and that it was a very short distance. Constable Tyler Buchanan

[ 15 ] Constable Buchanan of the RCMP had given testimony on the voir dire with the apparent intention of that evidence being applied to the trial proper. However, we adjourned these proceedings in the course of cross-examination because there appeared to be an issue of over holding which had not been addressed in the Charter notice either in respect to the particulars of the allegation, or the prayer for relief. [ 16 ] However, before we got to that point in the evidence, Constable Buchanan confirmed that he had been on duty and present at the Saskatoon Detachment.

At 2:44 a.m. there was a call from the complainant, claiming that her motor vehicle had almost been struck by another motor vehicle, which had the potential to be an impaired operator. She had also provided a license plate number for the offending vehicle. The officer had attended at the scene on Furdale Road. When he approached the driver’s side of the accused’s motor vehicle and spoke to the accused her eyes were glossy. She appeared disorientated and lost as to her whereabouts.

He was also aware of a very heavy smell of alcohol from the motor vehicle which in his experience was consistent with alcohol consumption, rather than it being spilled therein. He asked the accused to get out and accompany him to the police vehicle. He noted that she seemed to be unsteady at times as she made her way there. As well, she had claimed to have had three drinks. [ 17 ] In light of the foregoing, the officer concluded at 2:55 a.m. he had reasonable grounds that the accused had committed the offence of impaired operation, and placed the accused under arrest.

Immediately thereafter he attempted to read to her from a card, rights to counsel. Initially she had indicated the wish to contact a lawyer. However, when the officer attempted reading to her the police warning, she became very belligerent and agitated, interrupting him saying repeatedly “I want a lawyer, I want a lawyer, I want a lawyer” so that he could not conduct a reasonable discussion with her. She would not answer any questions regarding the police warning or the breathalyzer demand which he had also read to her from a card.

She merely again repeated “I want a lawyer, I want a lawyer, I want a lawyer.” She engaged in constant interruption and yelling with no cooperation. The officer noted that during the commentary from the accused her speech seemed quite slurred. She claimed not to understand, and repeated words like “I want a lawyer” without any other reasonable dialogue. [ 18 ] They remained at the scene for a period of time, with the officer attempting to communicate with her in a reasonable manner regarding her rights.

In due course they proceeded to the Saskatoon Police Services building because the Intoxilyzer at the detachment was not available. They arrived at 3:17 a.m. As the officer was a qualified technician, once they had arrived at the Police Services building he attended to setting up the Intoxilyzer for use. In the meantime, the accused confirmed that she did wish to contact a lawyer. Initially the telephone was in use by someone else. When it became available, she told him that she wished to speak to Merchant Law Group, but that contact was not successful.

Thereafter Constable Fenrich spoke to the accused’s rights to counsel while Constable Buchanan tended to the Intoxilyzer. He believed that Constable Buchanan had put her in touch with Legal Aid duty counsel. [ 19 ] After the accused had spoken to Legal Aid duty counsel she was more calm. Therefore, at 3:41 a.m., the officer read the breath demand again and she seemed to understand. As well, the accused had not expressed any concern regarding rights to counsel after she had spoken to Legal Aid duty counsel. [ 20 ] The officer concluded that the accused would be able to provide Intoxilyzer samples.

The Certificate of Analyses was entered as an exhibit for identification on the voir dire and the officer confirmed same herein. It showed samples of 200 milligrams percent and 190 milligrams percent at 4:00 a.m. and 4:26 a.m., respectively. He noted also that the accused had remained somewhat belligerent throughout and as well, he had been aware of the smell of alcohol on her during the course of the whole investigation. [ 21 ] In cross-examination Constable Buchanan confirmed that the accused had been released at 13:45 hours, roughly eleven hours from her detention at the scene.

He had gone off shift at roughly 06:00 hours and could not recall making any phone calls for her. As well, he had not discussed the timing of the three drinks. Further, while he could not differentiate between types of alcohol from the odour, in his experience he was able to conclude whether the smell was from consumed alcohol rather than alcohol which was spilled in the motor vehicle. He had not seen any catering equipment nor any alcohol in his visual search of the interior of the motor vehicle. He had requested the accused remove her jacket in which he did a cursory search for alcohol and found none.

He did not believe he had advised the accused she was under arrest before he did the search. However, when shown one of the police report documents that stated he had placed the accused under arrest and then conducted the search he agreed that it was at odds with his testimony. Regardless, the officer confirmed that he had still been formulating grounds when he asked her to step out of the motor vehicle to determine her condition. As well, there was nothing else for which he could have placed her under arrest and there was no officer safety issue.

He had requested that she come back to the police vehicle even though she had not been formerly placed under arrest. He agreed that most people would comply with that nature of request regardless of their legal rights. It was during that walk of roughly fifteen feet that he was aware she was slightly off balance.

[ 22 ] The officer confirmed that he is qualified to operate the approved screening device and had one with him at the time. However, he had concluded there were reasonable grounds to go with the Intoxilyzer demand and proceeded on that basis. [ 23 ] As noted earlier, we were required to adjourn in the midst of cross-examination so that the accused could formulate for the Court the potential over holding issue which arose as a result of some of the questions which had been asked.

The Court allowed this application change to occur, so that the accused could provide particulars of same and thereafter the Crown not be taken by surprise. [ 24 ] When we continued with the cross-examination after the adjournment, Constable Buchanan indicated that his shift had ended at 4:00 a.m., but he had not departed until 6:00 or 7:00 a.m. He was referred to the prosecutor’s information sheet to confirm that it had been his intention for the accused to be released the next morning.

He was not sure who the officer in charge of the holding cells had been at that time, but had left the various documents of the investigation to be served on the accused by the next shift, and confirm release. [ 25 ] In re-examination Constable Buchanan confirmed the accused had been lodged in the RCMP cells at 4:45 a.m. and had examined the log sheet entries which were an exhibit herein. He concluded that the accused was still fairly intoxicated, very belligerent and argumentative.

As well, it was not apparent therefrom that the accused had provided any contact information so that a sober person could perhaps be contacted to assist in release. He advised as well that the holding units are usually just one cell for each intoxicated person, with a toilet, a foam mat, comforter and a blanket. While meals are regularly served on a set schedule, an intoxicated person might get fed at the usual time or not at all as there is a potential problem with the misuse of food. Anita Schurtek [ 26 ] Anita Schurtek is a matron at the RCMP detention unit.

Her duties include the supervision of female persons in custody, and the preparation of a log of her contacts with the various women while they are in detention. She also reviewed the pertinent portions of the log, which purported to include the time spent with the accused, in preparation to testify. The log was made an exhibit for the Crown in the Charter voir dire herein. For reference, the accused had been assigned number 659 in the log records. [ 27 ] The accused had initially been booked in at 4:45 a.m.

There was nothing of significance of the observations of the accused in the regular checks until 8:25 a.m. when the accused had refused breakfast. Thereafter, she slept until 10:55 a.m., at which time she wanted to know what was happening. Thereafter, at 12:20 p.m., her garbage and blanket were removed in preparation for release. The log indicates that she had been released at 1:45 p.m., with the approval of Constable Kurtenbach, without her money having been counted and confirmed.

There was a note in the log that she was late for the opening of her restaurant and signed off without having the amount verified. [ 28 ] In cross-examination Ms. Schurtek denied that the accused had requested at 8:25 a.m. to be released or that would have been logged. Likewise, in that regard, she had not requested release at 10:55 a.m. At 1:45 p.m., the process of release had been commenced, but there would be no way of confirming the time of her actual release, without seeing the C-13 form, which was completed at the material time and contains many pertinent details of that nature.

She did not believe that the form was any longer in detention files, but might be in storage. [ 29 ] Ms. Schurtek also disputed the accused had requested her to make a phone call for her, nor did she tell her that was a possible option. Otherwise the staff would be calling people all day long on behalf of persons in custody. Constable Larry Kurtenbach [ 30 ] It was apparent from the documents in issue that Constable Kurtenbach, of the RCMP, had overseen the accused’s release from custody. He was on duty from 9:00 a.m. to 5:00 p.m., and likely had some contact with prisoners as part of his general duties.

However, he had no specific memory of dealing with the accused and does not have any notes or memory related to the detention log. Normally he would have reviewed the various documents with the accused and ensured all was in order. As well, it should not have

taken much longer for release than was indicated to have been at 1:45 p.m. Part of that process would have involved the officer completing form C-13. [ 31 ] He confirmed that he did not have any particular memory of the circumstances. However, in 2008 when this matter had allegedly occurred, with blood alcohol concentrations of that nature, the accused would not have been a good candidate for release because of the potential danger to herself and public safety. However, everyone does metabolize alcohol at a different rate, and each person should be assessed as to signs of sobriety.

Every case depends on its particular circumstances. Presumably the accused was suitable for release or it would not have happened, but his analysis in hindsight was quite hypothetical. [ 32 ] During examination-in-chief, Constable Kurtenbach referred again to form C-13 and advised that he was able to produce one on this investigation electronically from a database. He proceeded to produce one for Crown counsel, without prior knowledge of its prior existence or method.

Therefore we were required to adjourn these proceedings for proper disclosure to occur and consultation, in preparation for cross-examination on its contents. The examination-in-chief would continue at that time. At present there was only a blank form as a Crown exhibit. When we reconvened, Constable Kurtenbach confirmed that the copy of the form C-13, which he produced, had some matters entered on it, but none of the entries he would have placed on it at the time. It was entered as an exhibit for the Crown.

In cross-examination the officer advised that he had no knowledge of this particular matter, because he could not recall it. [ 33 ] No evidence was called for the Defence on either the trial proper or the Charter application, and Constable Kurtenbach was the last witness for the Crown. All of the evidence from the Charter voir dire was applied to the trial proper by consent. [ 34 ] Prior to argument, counsel addressed the issue of how the trial judgment herein should ultimately be structured, in accord with the principles contained in R. v. Salisbury , 2011 SKQB 153 (Sask. Q.B., Gerein J.).

The accused herein submitted that it would be appropriate for a broader analysis, including the potential over holding issue. The Crown preferred that it be more limited to the substantive issues and I opted to proceed on that latter mentioned basis herein in order that there be proper focus. Therefore, this judgment will determine if the Crown was able to prove beyond a reasonable doubt the constituent elements of the offences contained in the impaired operation and over .08 offences, contrary to s. 253 (

a) and s. 253(

b) of the Criminal Code , respectively, and in particular, reasonable grounds for the demand. That consideration will occur in the context of a potential breach of the accused’s Charter rights under s. 8 to be secure against unreasonable search or seizure, s. 9 not to be arbitrarily detained or imprisoned, s. 10(

a) and (b), on arrest and detention to be informed promptly of the reasons therefore and retain and instruct counsel without delay. There is a potential remedy under s. 24 of the Charter , depending upon the ruling herein.

ANALYSIS Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the investigator had reasonable grounds to make the Intoxilyzer demand? [ 35 ] My thanks for the material which has been filed by counsel herein, which is greatly appreciated. [ 36 ] S. 254(3) of the Criminal Code currently provides as follows: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, . . . and

(

b) if necessary, to accompany the peace officer for that purpose. [ 37 ] The wording of s. 254(3) of the Criminal Code has been amended to this form since the date of the alleged matter, but that has no real effect on the determination of the issues herein. THE CROWN [ 38 ] Reference was made to R. v. Restau , 2008 SKCA 147 (Sask. C.A.) for the following statement of general principles, at para. 12: [12] Reasonable and probable cause contains both a subjective and objective element. There must be both an actual belief and that belief must be reasonable - this is a question of law.

The prosecution need not establish there is a prima facie case for conviction. In this case the subjective aspect is not in issue - that is, there is no dispute the police officer believed he had reasonable and probable grounds to make a demand. It is the objective element which is in dispute.

That is, does the evidence known to, or available to, the police officer at the time he formed his belief support a finding he had reasonable and probable grounds to make a breath demand. [ 39 ] On the evidence, Constable Buchanan had relied initially on the dispatch of the call from the complainant indicating a possible intoxicated driver. Shortly thereafter, he had direct contact with the accused.

He noted that her eyes were glossy, seemed lost or disorientated as to where she was and the heavy smell of alcohol in the vehicle, which he believed in his experience, was consistent with drinking rather than spilling. He concluded there had been recent consumption by the accused who confirmed that she had three drinks. As she walked to the police vehicle, he noted that her balance seemed to be off and she was unstable on her feet. [ 40 ] Subsequent to making the demand, it was noticed the accused’s speech was quite slurred.

Although that aspect cannot be considered as grounds for the demand, it is still a reliable indicator of impairment. Likewise, although the officer had overlooked that the accused was from Hanley rather than being local, regarding apparent confusion as to her whereabouts, the other factors upon which he relied were relevant and pertinent for current purposes. THE DEFENCE [ 41 ] It was submitted herein that Constable Buchanan had engaged in conduct which was a serious intrusion of the accused’s rights not to be detained or arrested except according to law.

One aspect in that regard was concern that he should not have asked the accused to accompany him to the police vehicle if the accused had not been formerly detained or placed under arrest. However, the officer had testified to placing her under arrest prior to searching her jacket. He had removed her from the car to see what she was like outside of the motor vehicle because he had not yet formulated all of his grounds for the demand and signs of impairment.

He also indicated in his testimony the belief that the grounds existed after her walk to the car and that was the reason he had read her rights to her at the police vehicle. [ 42 ] The accused also disputed that Constable Buchanan was credible in claiming the ability to tell the difference between spilled alcohol and that which was consumed from the odour in the motor vehicle. However, there is no particular reason to doubt that experience for him as a peace officer, in the absence of evidence to the contrary. [ 43 ] The officer had indeed overlooked that the accused was from out of town.

As such, her confusion and disorientation regarding her whereabouts at the scene was not a reasonable ground for making the breath demand. However, that omission by him was made in good faith. [ 44 ] Another issue of concern for the accused in these proceedings was the confirmation by the complainant that she had lost sight of the accused’s motor vehicle for roughly one minute while she got her motor vehicle turned around to follow and call 9-1-1. As well,

she may have met another motor vehicle later on down the road. However, the accused had been identified by the police in theseproceedings as the operator of that particular motor vehicle which had been detained. The complainant had been following that motorvehicle while she spoke to the police on her phone. As well, she was at the scene when the police arrived and confronted the accused.

On that basis it was appropriate for Constable Buchanan to conclude that the accused had indeed been the operator of the alleged motorvehicle as alleged by the complainant at all material times and that there were reasonable grounds to make the demand. CONCLUSION [45] Even if one excludes from the grounds for consideration the disorientation as to the accused’s whereabouts at the scene, thereis ample evidence of reasonable grounds for the demand on both the subjective and objective elements.

Constable Buchanan hadtestified in a reasonable manner and there is nothing of significance to undermine his evidence, nor that of any of the evidence for theCrown. Likewise, the matters and concerns raised by the Defence do not detract from that conclusion by the Court. [46] One must also be mindful of the principles set forth in R. v. Orbanski 2005 SCC 37 , 2005 CarswellMan 190 (S.C.C.)as submitted by the Crown for its general guidance and direction herein, commencing at para. 1: I. Introduction 1.

These appeals again raise issues resulting from the tension between the individual rights of motorists and the broader societal concernin dealing with the carnage caused by those who commit offences involving drinking and driving. The question is whether policeofficers were authorized to ask the drivers about their prior alcohol consumption and, in one of the appeals, to request the performance ofsobriety tests at the roadside without first informing the driver of his right to counsel under s. 10(

b) of the Canadian Charter of Rightsand Freedoms. While this Court has upheld the constitutionality of random roadside stops at common law and the administration ofroadside screening device tests taken pursuant to s. 254(2) of the Criminal Code, R.S.C. 1985, c. C-46, as reasonable limits on the rightto counsel, the law remains uncertain on the constitutionality of other roadside screening measures used to assess the sobriety of drivers. 2. In each case under appeal, the Crown conceded that the driver was detained from the moment a police officer directed him to pullover. Hence the s. 10(

b) Charter right to retain and instruct counsel and to be informed of that right was triggered. The critical issue iswhether police actions in asking questions to Elias and Orbanski about their earlier alcohol consumption and in requesting that Orbanskiperform physical sobriety tests without first complying with s. 10(

b) were justified limits on each individual’s right to counsel under s. 1of the Charter. 3. It is my view that these screening measures, used in each case for assessing the sobriety of driver, were authorized by law andincompatible with the exercise of the right to counsel by the detained motorist at the roadside. The resulting limitations on the s. 10(b)right to counsel were reasonable and demonstrably justified under s. 1 of the Charter. Specifically, the limits arose by necessaryimplication from the legislative provisions found in the Manitoba Highway Traffic Act, S.M. 1985-86, c.3, C.C.S.M. c.

H60, and theiroperating requirements.

Affirming the validity of such screening measures for the limited purpose of assessing the sobriety of the driverat the roadside properly balances the strong public interest in combatting the social evil of drinking and driving with the need to protectthe Charter rights of individuals. [47] New trials were ordered as a result. [48] When one considers the conduct of Constable Buchanan and his contact with the accused as an alleged drinking driver, in thatgeneral context as well, there was nothing of significance which impacted on the accused’s rights as a citizen in any real way. [49] Therefore, the Certificate of Analyses is made a full exhibit in these proceedings.

The Crown has proven beyond a reasonabledoubt the constituent elements of the over .08 count contrary to s. 253(

b) of the Criminal Code.

The count of Impaired Operation contrary to s. 253(

a) of the Criminal Code [50] I had considered this matter in R. v. Kutsenko (W.M.) (2001), (SK PC), 222 Sask. R. 1; 22 M.V.R. (4th)42 (Prov. Ct.), the material portion of which began at para. 39: In regard to this issue, in R. v. Arevalo (B.) (2001), (SK PC), 205 Sask. R. 315, (Sask. Prov. Ct.), I noted the following,commencing at para. 8: [8] Therefore, the evidence of impairment which is alleged by the Crown must be considered in the context of the principles contained in R. v.

Stellato (1994), (SCC), 31 C.R. (4th) 60, in which the Supreme Court of Canada approved the following, from the Ontario Court of Appeal reasons, 18 C.R. (4th) 127, at para. 14: In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. In the process of making this analysis, the Ontario Court of Appeal judgment made reference to the so-called “classic” signs ofimpairment, namely: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness onone’s feet.

Obviously this was not intended to be an all-encompassing list, and also, its application will very much depend on thecircumstances in the case. 40 Further, in R. v. Landes (1997), (SK KB), 161 Sask. R. 305 (Sask. Q.B., Klebuc J.), the court referred to Stellato(supra) and made the following observations, commencing at para. 16: [16] An opinion as to impairment, be it by the trial judge or a nonexpert, must meet an objective standard of “an ordinary citizen” or a“reasonable person” in order to avoid the uncertainties associated with subjective standards, particularly when based on inferences.

Tothat end a list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’smental faculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive a motorvehicle.

Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot orwatery eyes; (3) presence of a flushed face; (4) odour of an alcohol beverage; (5) slurred speech; (6) lack of coordination and inability toperform physical tests; (7) lack of comprehension; and (8) inappropriate behaviour. [17] In my view, a trial judge must carefully review all of the reported tests and observations which inferentially support or negate anyimpairment of the accused’s mental and physical capabilities, and then be satisfied beyond a reasonable doubt that the reasonableinferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by ss. 253 and 255 of theCriminal Code.

A piecemeal approach supporting or negating impairment is not permissible. See R. v. Hall at p. 66. (R. v. Hall (1994), (SK CA), 125 Sask. R. 62). . . . [19] Manner of driving - It is well-established that erratic driving may evidence impairment of the driver’s mental faculties or physicalcapability, or both, to drive a motor vehicle due to the effects of alcohol. However, before any driving may be classified as “erratic”, itmust be referable, in the context of all of the evidence, to the impairment of the driver’s skills by alcohol and not to another cause, e.g.,mere negligence. Cst.

Briant testified people run stop signs when they are sober and when they do, accidents often occur. A similarobservation may be concerning the quick turn and loss of control. ...

41 The indicators of impairment set forth in Stellato (supra) and Landes (supra) are not intended to be exhaustive. However, they do offer some guidance, and they should be considered in the context of the evidence herein of the alleged impairment of the accused. [20] Also, in Landes (supra) , the Court stated as follows in regard to the odour of alcohol, at para. 21: [21] Odour of “Alcohol ” - Alcohol itself is odourless unless the odour detected arises from the nonalcoholic content of the drink consumed. Alan D.

Gold, as he then was, in Defending Drinking and Driving Cases (Toronto: Carswell, 1995), made the following observations: It is generally recognized that odour has no relationship to amount consumed, and is probative of little beyond the fact of some consumption of an alcoholic beverage. A strong odour tends to show recent consumption. Ironically, alcohol itself is odourless and the odour arises from the nonalcoholic content of the drink consumed.

Hence, the strong smell of alcohol on the appellant’s breath is only probative of the appellant having recently consumed a beverage known to contain alcohol. [ 51 ] Therefore, the signs of impairment which are alleged herein need to be weighed and considered in that context. [ 52 ] Applying the principles in Landes , supra , it is reasonable to infer that the erratic driving and belligerent, agitated conduct of the accused are reliable indicators of impairment.

There was also other evidence such as her glossy eyes, flushed face, odour of alcohol beverage, speech that was quite slurred and being slightly off balance. [ 53 ] Giving the accused the benefit of the doubt, odour of alcoholic beverage is only an indicator of recent consumption and not amount. Beyond that aspect, the evidence is sufficient to prove impaired operation beyond a reasonable doubt contrary to s. 253 (

a) of the Criminal Code . However, the Court orders a conditional judicial stay of the impaired operation count which will become absolute in the event that no appeal is taken. ____________________________ P.S. Kolenick, J