Her Majesty the Queen - v. -, 2015 SKPC 105

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 105 Date: July 27, 2015 Information: 24481469 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Marc Prevost Appearing: Mr. John Knox For the Crown Mr. M. Owens For the Accused JUDGMENT M.L. GRAY , J Background [ 1 ] Mr. Prevost was charged on May 21, 2012 at Martensville, Saskatchewan with operating a motor vehicle while his ability to do so was impaired by alcohol contrary to s. 253(1) (

b) of the Criminal Code and with operating a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to section 253(1)(

a) of the Criminal Code . Counsel for the accused argues there were no reasonable grounds for a breath demand and asserts violations of ss. 8 and 9 of the Charter . Exclusion of evidence is sought as a remedy. All evidence was called on a voir dire with agreement that admissible Crown and defence evidence would be applied to the trial proper.

Evidence [ 2 ] Jaret Engele testified that he has been a Conservation Officer for the Province of Saskatchewan since 2007; as such he is a sworn peace officer. In the course of his duties, he has occasion to deal with intoxicated people, particularly at campsites and provincial parks. [ 3 ] On May 21, 2012 he was working, in uniform, and in an unmarked vehicle. At approximately 1:45 a.m. he was driving toward Martensville and was just south of the first access into the town, when he saw a smaller SUV swerving from the right and crossing the line separating the northbound lanes.

The vehicle crossed the right shoulder line and then swerved over the line dividing the two lanes of traffic approximately six times. He also noted one extreme swerve from the right shoulder of the road to the left shoulder of the road; the vehicle quickly corrected to the right lane. He followed the SUV, noted that it signalled and took the second access into Martensville. This road is approximately one minute north of the first access road to which he had referred. When the vehicle got to Main Street, he activated the emergency lights on his vehicle.

At 1:50 a.m., the vehicle parked properly about one block after the lights were activated. [ 4 ] Officer Engele approached the vehicle. The accused identified himself with a driver’s licence; his speech was slurred. He noted that the accused had a difficult time getting his driver’s licence out of his wallet and took approximately ten seconds to do so. Inside the vehicle, there was a passenger who appeared to be unconscious; a smell of alcohol emanated from the vehicle. In response to questioning, the accused said that he had a few beer.

Officer Engele asked the accused to remove the keys from the ignition and place them on the roof of the SUV for officer safety. As he believed that the accused was impaired, he returned to his own vehicle at 1:56 a.m. to call the RCMP as it is the policy of Conservation Officers not to embark on impaired driving investigations. He then went back to the SUV and noted that the passenger had awakened. He asked both the accused and the passenger to stand at the front of the vehicle. There, he engaged the two in conversation and asked where they were coming from.

One of them told him that they had been at Hudson’s, which he understood to be a pub in downtown Saskatoon. He asked whether they went to Hudson’s often and the accused replied “not from recently”. This seemed an unusual response to Officer Engele. While talking to them, he noted that the accused was swaying back and forth but could not recall how far back and forth. It seemed as though the accused was having difficulty holding his balance. [ 5 ] At 2:03 a.m., the RCMP Officer arrived and Officer Engele handed over the driver’s licence he had obtained from the accused.

He told the officer that he had followed the SUV and that it was swerving erratically on the highway. He believed that he told the RCMP Officer about the swerving on the highway and that he believed the accused was very intoxicated. The RCMP Officer said that he would do an approved screening device (ASD) test. He told the officer that would not be necessary as the accused would fail. His conversation with the constable was brief, perhaps a little longer than 30 seconds. He told the officer that the driver was intoxicated but did not elaborate his basis for that belief.

His conclusion that the accused was intoxicated was based on: the swaying, the difficulty with the licence, the smell of alcohol from the vehicle, the slurred speech and the odd response, “not from recently.” Once the RCMP Officer took the accused to the patrol car, Officer Engele gave the passenger a ride home. [ 6 ] In cross-examination, he said that he first spotted the SUV at 1:45 a.m. and followed it for about five minutes. As they were on a four lane highway, he did not consider the weaving as dangerous, but he did consider it out of the ordinary.

He noticed this driving four to five kilometres south of Martensville. He agreed that the driver properly signalled his turn into Martensville. Officer Engele did not ask the driver about his manner of driving and only told the RCMP Officer about the erratic driving, not the driving that was properly executed. [ 7 ] He acknowledged that he was trained in the use of an ASD and had the information necessary to make a demand.

However, he did not have an ASD with him and his directions were to defer to the RCMP in impaired driving investigations. [ 8 ] He could not specify which words the accused slurred and did not recall the accused repeating himself. He noted that the accused stumbled to the front of his vehicle and appeared to have poor coordination and balance. He did not recall the manner in which the accused exited the SUV, nor did he have notes with respect to the dexterity of the accused. He did not tell the accused that he was being detained for investigation of impaired driving nor did he read him his rights to counsel.

It took him less than 30 seconds to conclude that the accused was impaired; this prompted him to tell Constable Peters that an ASD would not be required. He did not take a statement from the passenger, a potential eyewitness. He did not make any note of alcohol on the breath of the accused nor did he tell

Constable Peters about the admissions made by the accused about alcohol consumption. He could not say whether the accused had signalled when he pulled over. He did not do any sobriety tests nor did he check the mental faculties of the accused. He spent approximately 13 to 14 minutes with the accused prior to the officer arriving. He acknowledged that the accused followed directions appropriately and that he did not note the accused to have any difficulty walking to the patrol car with the officer.

He would have checked the eyes of the accused for glassiness or redness but made no note of either. [ 9 ] Constable Jeff Peters has been a sworn peace officer for the Province of Saskatchewan with the RCMP since April 2010. Prior to this incident, he had investigated approximately one dozen impaired drivers and regularly dealt with people under the influence of alcohol. On May 21, 2012, he was on duty and in uniform when he received a call from Telecoms just after 2:00 a.m. [ 10 ] As a result of that call, he went to Main Street in Martensville where a Conservation Officer had stopped a suspected impaired driver.

This is a residential area with very little traffic and was lit by street lights. He arrived there in a marked police vehicle at 2:05 a.m.; he pulled up behind the Conservation Officer’s vehicle and a SUV. Officer Engele, who he had never met previously, was in front of the SUV with two males. He spoke to Officer Engele who told him that he had followed the vehicle northbound on the highway and saw it move from shoulder to shoulder or from one side of the road to the other.

Officer Engele pointed out the accused and identified him as the driver. [ 11 ] After a brief conversation with Officer Engele, he spoke to the accused at 2:10 a.m., and compared him to the photo on his driver’s licence. He was able to identify the accused in court. He asked the accused if he had been drinking and the accused stated that he should not have been driving. The officer took this as an acknowledgment that the accused should not have been driving as a result of alcohol consumption. He noted that the accused had glossy, bloodshot eyes, and slurred his words.

He smelled alcohol from the breath of the accused from two feet away. He believed that the accused had consumed alcohol and explained that he would be detained for an impaired driving investigation. When the accused walked to the patrol car, Constable Peters noted that his hands were held to the side and that he walked slowly, as though trying hard to keep his balance and walk straight.

He had no doubt that the ability of the accused to operate a vehicle was impaired by alcohol. [ 12 ] Once the accused was placed into the rear seat of the patrol car, the officer spoke to Officer Engele again to discuss arrangements for the passenger from the SUV. Constable Peters returned to the patrol car and read rights to counsel to the accused, who said that he understood. When asked if he wanted to call a lawyer, he stated “I know a lawyer, but don’t want to bother her now.” At 2:15 a.m., Constable Peters read the demand and the police warning, both of which the accused said he understood.

Constable Peters then made arrangements for a breath technician. He left the roadside with the accused at 2:29 a.m. and arrived at the detachment at 2:31 a.m. [ 13 ] There, the accused was escorted inside and directed to a telephone but said that he saw no point in calling a lawyer. As the accused walked down the hall, his shoulder rubbed the wall; he was never handcuffed. He was then observed from 2:35 a.m. to 3:00 a.m. to ensure he did not belch or vomit prior to the breath test being administered.

In these intervening 25 minutes, Constable Peters chatted with the accused about his alcohol consumption; he found the accused to be cooperative and calm. [ 14 ] He was present when the breath technician administered the tests, the first of which was taken at 3:00 a.m., the second at 3:21 a.m. [ 15 ] During the 25 minute observation period and in the 20 minutes between the two tests, the accused remained calm and cooperative, and carried on a conversation.

His eyes were obviously glossy and bloodshot; Constable Peters continued to smell alcohol from the breath of the accused. [ 16 ] The Certificate of Qualified Technician was created by Constable Poliski, the breathalyzer technician, and identified by Constable Peters. It was marked as an exhibit. The breath tests both resulted in readings of 150 milligrams of alcohol per 100 millilitres of blood. At 4:00 a.m., the accused was served by Constable Peters with a photocopy of that Certificate. [ 17 ] Once documents were served on the accused, the officer offered him a ride home.

They left the detachment at 4:20 a.m. and it took approximately 20 minutes to drive to the accused’s residence. He did not speak to anyone there or confirm that there was anyone in that home.

[ 18 ] Prior to the demand, he did not know when in the evening the accused had consumed alcohol. He relied on the following factors in making the demand: first, Officer Engele’s account of the driving; and second, his own observations which included the smell of alcohol, the glassy, bloodshot eyes, the slurring of words and the manner of walking. [ 19 ] On his previous shift, he had attended a collision on Highway #16 where the accused was present as a witness.

He assisted in boosting the accused’s car that day, and on that occasion, the accused did not walk slowly with his arms to the side, nor did he slur his speech. [ 20 ] In cross-examination, the officer agreed that he did not remember that meeting with the accused until defence counsel had raised it with him. When it was put to him that Officer Engele simply reported erratic driving, Constable Peters said that he was told that the SUV was going “shoulder to shoulder.” He did not recall Officer Engele saying how far he had followed the vehicle and could not say whether it had been all the way from Saskatoon.

He could not recall whether Officer Engele reported a smell of alcohol on the accused nor did he recall whether he mentioned that the accused slurred his speech. He took a photograph of the accused on the evening in question and that picture might have shown glassy, bloodshot eyes. However, that photograph was never located and he was not certain where the camera went. He also acknowledged that there had been a request to produce all audio recordings which included a Telecoms complaint.

Crown counsel conceded that the telephone call from Officer Engel was recorded and that recording existed for a time but had since been destroyed. A Charter application in relation to this lack of disclosure was dismissed in the course of the trial. [ 21 ] He did not record verbatim what Officer Engele told him about the incident and did not recall whether he told Officer Engele that he would be conducting an ASD test. He denied that he decided to make a demand before taking the accused to the police vehicle and said that decision was made after he saw the accused walking.

In that respect, he noted the accused was walking slowly in comparison to what he would expect normally. [ 22 ] Based on the dispatch, the telecommunications information, and the time of the call to Telecoms, Constable Peters believed the time of driving to be shortly before his arrival at the scene. [ 23 ] When asked about the 31 minute wait before the first sample, he said that the accused was given an opportunity to call a lawyer and then was monitored to ensure that he did not belch or vomit.

Some time was spent discussing a call to a lawyer when they arrived at the detachment at 2:31 a.m.; the observation period began at 2:35 a.m. The video system in the observation room was never activated because the officer did not think of it at the time. Constable Peters described the speech of the accused as slurred, but could not particularize any words or sounds that were a problem. He defined “slurred” as connecting words, to make two words into one. He spoke to Officer Engel less than a minute prior to taking custody of the accused.

The passenger in the accused’s vehicle was very intoxicated so did not provide a statement. [ 24 ] He spent approximately eight minutes with the accused before making the demand. He allowed the accused the chance to walk to the patrol car on his own; that is, he did not take his arm in any fashion. He made no note of the road’s surface or the footwear worn by the accused. He directed the accused to the rear of the patrol car but could not recall whether the accused walked a straight line.

He disagreed with the suggestion that he did not see glossy eyes at the roadside, saying that was “incorrect.” [ 25 ] After his memory was refreshed from a previous statement, he recalled telling Officer Engele that he would do an ASD. He did not recall the accused stumbling, holding on to anything to maintain his balance or mis-stepping in any way. He agreed that he could have done some sobriety tests at the scene but did not.

He did not recall the exact words used by the accused when he communicated that he should not be driving and did not know what question prompted that response. [ 26 ] The accused testified that on May 21, 2012, he worked as a heavy equipment operator at a potash mine from 7:30 a.m. until 7:30 p.m. After work, he and some co-workers went to Hudson’s Pub. He and Barrett, his passenger, left for Martensville at about 1:30 a.m.

Just outside Saskatoon, he realized that Barrett had fallen asleep; he tried to awaken him as they approached Martensville as he did not know where Barrett lived. [ 27 ] He did not notice a vehicle behind him on the highway, but noticed a vehicle behind him on the second access into the town. He had been somewhat distracted trying to awaken Barrett and agreed that he may have been wandering within his lane on the highway.

He had maintained a speed of about 105 kph, signalled his exit from the highway and properly parked his vehicle when signalled to doso. [28] When the officer approached, he asked for a driver’s licence and registration. Mr. Prevost said that he removed his seat belt,and got his wallet from his left pocket. He agreed that it took some five to ten seconds to remove the licence from the plastic sleeve inwhich it was contained; he did not have the registration and told the officer so. He was then asked to put the vehicle keys on the roof andto stand in front of the vehicle.

He had no difficulty getting out of the vehicle or walking. The officer asked questions about where theyhad been and whether he went to Hudson’s frequently. The accused admitted that he messed up his words and attributed it to beingnervous and scared. He was not told why he was being detained and was not aware that the RCMP had been called until they pulled upbehind the Conservation Officer’s vehicle. He estimated that the back door of the police cruiser was 50 to 60 feet from where he wasstanding.

The two officers spoke to each other out of his earshot and shortly thereafter, the RCMP Officer asked him if he had beendrinking that evening. He said that he had three drinks whereupon he was directed to the rear of the police car. He was not told why. He was not handcuffed and walked normally, but slowly as he was uncertain about the situation. Inside the police car, he was told that hewas being detained for an impaired driving investigation. He was taken to the detachment office a few blocks away. He had nodifficulty walking normally from the car to the building or while inside the detachment.

There, he was directed to a waiting room wherehe sat for approximately 15 to 20 minutes. He was then taken to another room to provide a breath sample and had no difficulty gettingthere or giving the sample. After a further wait, a second sample was requested and provided without any problem. When he wasreleased, the officers gave him a ride home. He had no recollection of ever encountering Constable Peters before May 21, 2012. [29] In cross-examination, the accused admitted that he began drinking on May 20 after work. He and seven others went to a co-worker’s home for a barbeque.

There, he had two drinks between 8:00 p.m. and 10:00 p.m. Sometime after that, six of the group went toHudson’s. He agreed that he should not have been driving because of the drinks that he had consumed. He explained that he made the statement because “tolerance is very tight and it doesn’t take much to meet the threshold.” In re-examination, he elaborated by sayingthat his understanding was that two drinks could increase blood alcohol concentration to .04; he did not have the .08 level in mind whenhe made that statement. Issues [30] The issues that arise are these: (

i) Were there reasonable grounds on which to found the s. 254(3) demand? (ii) Was there a violation of s. 8 or 9 of the Charter? (iii) If there was a breach, is exclusion of the Certificate the appropriate remedy after a s. 24(2) analysis? and (iv) Have the elements of the charges alleged been established beyond a reasonable doubt? Analysis (

i) Were there reasonable grounds on which to found the s. 254(3) demand? [31] I am satisfied that at the time Constable Peters made the demand, he held an honest, subjective belief that he had the groundsto do so. The question is whether that subjective belief can be objectively verified. This objective component is satisfied when areasonable person placed in the position of the officer would be able to conclude that there were reasonable grounds for an arrest: see R vStorrey, (SCC), [1990] 1 SCR 241 at para 17.

The test is whether, objectively speaking, there are reasonable groundsto believe that the ability of the accused to operate a motor vehicle is even slightly impaired by alcohol or drug: see R v Stellato (1993),

(ON CA), 78 CCC (3d) 380 (Ont CA) affd (SCC), [1994] 2 SCR 478 [Stellato]. It is not necessary toconduct an impaired driving trial as a threshold exercise in determining whether the officer’s belief was objectively reasonable.

Further,judicial scrutiny of the officer’s grounds also must recognize the context within which the officer operates as they are required to makequick, but informed decisions, based on information which is less than exact or complete: Censoni, [2001] OJ No 5189 (Ont SC) at paras38-41 [Censoni]. [32] Before making any demand, Constable Peters spoke to Officer Engele, albeit briefly, and ultimately articulated the followingreasons for his subjective belief that he had reasonable grounds to make the demand: (

i) Officer Engele’s account of the driving fromshoulder to shoulder; (ii) a smell of alcohol; (iii) glassy, bloodshot eyes; (iv) slurred words; and (

v) the manner of walking. [33] I accept that the attention of Officer Engele was drawn to the vehicle driven by the accused as it wandered over the lanes ofthe highway. I also accept that the accused had the smell of alcohol on his breath, that his eyes were glassy and bloodshot and that heslurred his words. Although Constable Peters was inconsistent in his testimony describing the manner in which the accused walked, Iaccept that the walk he described was somewhat out of the ordinary.

As was pointed out in Censoni at para. 44: ...it must not be forgotten that reasonable grounds as to impairment to drive is essentially an opinion. As such, the belief, based onperceived facts, is frequently a compilation of a state of facts that are too subtle and complicated to be narrated separately and distinctly:Graat v The Queen, supra at 382. It is, accordingly, somewhat antithetical to this understanding that in reviewing whether reasonablegrounds objectively existed we compel a police witness to unbundle the facts contributing to the impression of driving impairment.

Wedo so, however, only to the extent necessary to secure the comfort that the grounds are objectively supported. Sufficiently is never anexamination of the articulated facts in isolation. [34] Although the accused performed some driving tasks appropriately, such as signalling a turn off the highway and properlyparking his vehicle, this does not nullify the existence of reasonable grounds: see R v Hall, (ON CA), [1995] OJ No544 (Ont CA). The question is not whether there is a prima facie case for conviction, rather it is whether the constellation of factors,taken together, amount to reasonable grounds.

A peace officer must believe that an individual’s ability to drive was slightly impaired byalcohol and that belief must be objectively verifiable: see R v Gunn, 2012 SKCA 80 , [2012] SJ No 503 at para 7 and R vShepherd, 2009 SCC 35 at para 23.

After carefully considering and weighing the evidence and the law, I am satisfied that the groundsarticulated by Constable Peters objectively and reasonably support the demand that he made. (ii) Was there a violation of s. 8 and 9 of the Charter? [35] Having found that the s. 254(3) demand was founded on reasonable grounds objectively verified, there is no violation of s. 8or 9 of the Charter. The Crown has established that the detention of the accused for the purpose of an impaired driving investigationwas warranted and that the taking of breath samples without a warrant was reasonable.

Accordingly, the Charter application to excludethe Certificate must fail. (iii) If there was a breach, is exclusion of the Certificate the appropriate remedy after a s. 24(2) analysis? [36] However, in the event that I am in error with respect to my findings in relation to the Charter, I would not exclude the breathsample results for the reasons that follow.

With respect to the seriousness of the breach and the nature of Charter-infringing conduct ofthe state, the Supreme Court of Canada in R v Grant, 2009 SCC 32 [Grant] directed that the more severe or deliberate the statemisconduct, the more likely the courts will disassociate from that conduct by excluding the evidence obtained. The conduct in the caseat hand is not conduct from which the Court would be required to disassociate. Constable Peters turned his mind to the appropriateconsiderations and formed an opinion that was not based on malice or negligence.

Overall, if his conduct did amount to a breach, itcannot be considered serious Charter-infringing behaviour. A consideration of this aspect would favour admission of the evidence. [37] Secondly, the effect of the Charter breach on the accused must be considered. The accused was detained for a relativelybrief period of time in the context of an impaired driving investigation and was then required to provide samples of his breath foranalysis. As was pointed out in Grant, the gathering of breath samples is a relatively non-invasive procedure.

If indeed there was aCharter violation, the effect on the accused was the inconvenience of being detained for those samples. Consideration on this arm

would also favour admission. [38] The third line of inquiry enunciated in Grant centres on society’s interest in having criminal cases adjudicated on their merits. The question is whether “the truth-seeking function of the criminal trial process would be better served by the admission of the evidence,or by its exclusion”: see Grant para. 79. The Court is obliged to take into account not only the negative impact on the administration ofjustice by admitting the evidence but also the negative impact of failing to do so.

The reliability of the evidence and its importance to theprosecution are relevant and, as was pointed out in Grant, the results of breath sample analyses are generally considered reliable and theirexclusion would end any prosecution for driving over the legal limit: Grant para. 99-110. Given the toll that drinking and driving takeson individual lives and on the community, societal interest in pursuing these prosecutions is high.

This third factor also militates towardinclusion of the evidence. [39] After considering all aspects of the Grant analysis, this Court concludes that the exclusion of the evidence would bring theadministration of justice into disrepute, particularly given the relatively minor nature of the breach and the type of evidence sought to beexcluded. (iv) Have the elements of the charges alleged been established beyond a reasonable doubt? [40] The Court is satisfied beyond a reasonable doubt that on May 21, 2012, the accused operated a motor vehicle at Martensville,Saskatchewan.

Having found that the Certificate of a Qualified Technician should not be excluded, there is evidence that the bloodalcohol concentration in the accused’s blood was 150 milligrams in 100 millilitres of blood. As the prerequisites of s. 258(1)(

c) of theCriminal Code have also been established beyond a reasonable doubt, the presumption of that

section applies. Accordingly, the accusedis found guilty of operating a motor vehicle while his blood alcohol concentration exceeded the legal limit. [41] With respect to the charge of impaired driving, the Court is bound to apply the test enunciated in Stellato. In determiningwhether the offence has been established, the Court must be satisfied, beyond a reasonable doubt, that the ability of the accused tooperate a motor vehicle was impaired to some degree by his consumption of alcohol.

The evidence, taken as a whole, must establish thatsuch an inference reasonably can be drawn from conduct which is a departure from the norm. This departure may fall upon a continuumfrom slight to great, but it must lead to no other inference but that the ability of the accused to operate a vehicle was impaired to somedegree by the consumption of alcohol. Thus, the task of the Court is to assess the evidence of driving and the physical comportment ofthe accused and determine whether his ability to operate a motor vehicle was impaired, even slightly, by alcohol.

In doing so, the Courtis cognizant that a person’s ability to drive may be impaired even without evidence of bad driving and conversely, a person may drivebadly though not be impaired. Slight impairment to drive is related to a reduced ability to perform a complex task and may be the resultof perception or field of vision, reaction or response time, judgment, regard for rules of the road, and the like being compromised byalcohol consumption: R v Censoni and R v MacDonald (1996), (SK KB), 146 Sask R 306 (Sask QB) at para 10. [42] A lot of judicial time and effort is expended on determining impaired driving cases.

All are dependent on the particular factsproven with respect to the manner of driving and the symptoms of alcohol or drug consumption. In the case at hand, I accept that thevehicle driven by the accused wandered within its lane and on one occasion swerved from one shoulder of the road to the other asdescribed by Officer Engele. The accused does not deny this driving but rather, acknowledges that he may have been swervingsomewhat because he was distracted by trying to awaken his passenger.

The evidence is also clear that the rest of the driving waswithout fault. [43] With respect to any physical symptoms demonstrated by the accused, the evidence of the peace officers is that the accused: swayed as he stood, seemed to have difficulty with his balance, had difficulty retrieving his licence, had slurred speech, gave the oddresponse, “not from recently”, had glassy, bloodshot eyes; and walked slowly and deliberately with his hands held away from his body.

The accused explained the odd response as being due to nervousness and his slow and deliberate walk being attributable to hisuncertainty of the situation in which he found himself. He denied any difficulty with balance or coordination. [44] It is the view of the Court that the accused is a less than reliable historian with respect to his own actions and abilities on themorning in question, partly due to his consumption of alcohol. His evidence does not leave me with a reasonable doubt that his ability todrive was impaired by alcohol.

Where his evidence differs from that of Constable Peters or Officer Engele, I prefer and accept theofficers’ version of events. Accordingly, I am satisfied beyond a reasonable doubt that the totality of the evidence does establish that theability of the accused to operate a motor vehicle was slightly impaired by alcohol. He is therefore found guilty of count one of theinformation. This count will be stayed conditionally pending any appeal.

_____________________________ M. L. Gray, J