DARRYL PELLETIER APPELLANT - v. –, 2023 SKKB 227

KING ’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 227 Date: 2023 10 30 Docket: CRM-RG-00369-2021 Judicial Centre: Regina BETWEEN: DARRYL PELLETIER APPELLANT - and – HIS MAJESTY THE KING RESPONDENT Counsel: Moira Keijzer-Koop and Nicolas Brown for the appellant James Fitzgerald for the respondent-Crown DECISION TOCHOR J. OCTOBER 30, 2023 I. INTRODUCTION [ 1 ] Darryl Pelletier was convicted in Provincial Court of impaired driving contrary to s. 320.14(1) (

a) of the Criminal Code , RSC 1985, c C-46 . He now appeals both his conviction and sentence. [ 2 ] Mr. Pelletier lists several grounds of appeal from conviction and these will be addressed below. [ 3 ] With respect to his appeal from sentence, Mr. Pelletier was ordered to serve a one-year driving prohibition and pay a fine of $1,200 and a victim fine surcharge of $360. [ 4 ] However, his notice of appeal makes no mention of grounds of appeal against sentence. Further, Mr. Pelletier did not raise any written argument, or make any oral submissions, about the sentence imposed upon him at the hearing of his

summary conviction appeal. [ 5 ] In light of this, I treat his sentence appeal as abandoned and therefore dismiss this part of his appeal. II. BRIEF BACKGROUND [ 6 ] In order to provide context for the legal issues arising in the appeal from conviction, I will set out a brief

summary of the trial proceedings. [ 7 ] The trial before the Provincial Court Judge proceeded in two stages: (

i) the voluntariness voir dire and (ii) argument on the merits of the offence.

1. The Voluntariness Voir Dire [ 8 ] In the first stage, a voir dire was held to determine the admissibility of statements allegedly made by Mr. Pelletier to the investigating officer at the roadside. [ 9 ] Before the voir dire commenced, the Crown explained that he understood the accused intended to testify on the voir dire and he acknowledged that he could not cross-examine Mr. Pelletier about the offence itself (Transcript, page T2). [ 10 ] The Crown also explained that the traffic stop of Mr. Pelletier was videotaped as well as the roadside interaction between him and the investigating officer.

Therefore, the Crown wished to conduct a blended voir dire in order to avoid having to play the video to the court twice (Transcript, page T3). [ 11 ] Cst. Solomon was the only Crown witness on the voir dire (Transcript, pages T3-T41). He testified that on March 20, 2021, he stopped a vehicle that he believed was speeding at twice the posted speed limit in the city of Regina. After speaking with the driver, who he identified as Mr. Pelletier, Cst. Solomon concluded Mr. Pelletier’s ability to operate a motor vehicle was impaired by alcohol. [ 12 ] Cst.

Solomon testified about his experience, which included 10 years as a paramedic before his 20 year career as a police officer. As a member of the Regina Police Service, he testified he spent several years as a breathalyzer technician and had thousands of interactions with impaired persons. [ 13 ] When testifying about his observations of Mr. Pelletier, Cst. Solomon identified what he described as a “constellation” of factors which supported his conclusion that there were reasonable grounds to arrest or make a breath demand upon Mr. Pelletier (Transcript, page T39). [ 14 ] In his testimony on the voir dire , Cst.

Solomon articulated several symptoms of impairment, including: manner of driving at a high speed and hard braking to avoid collision with vehicles stopped at a traffic light; vehicle stopped slightly askew; odour of beverage alcohol coming from the driver; slurring of speech; difficulty of driver answering questions; swaying when exiting vehicle and leaning against vehicle for support; and a statement made by Mr. Pelletier, “I am drunk”. Cst. Solomon also observed that Mr. Pelletier fell asleep in the police car and was audibly snoring. [ 15 ] After Cst. Solomon’s testimony was concluded, Mr.

Pelletier testified on the voir dire (Transcript, pages T44-T49). His testimony was of short duration. [ 16 ] While being examined in chief by his counsel on the voir dire , Mr. Pelletier briefly testified about his encounter with the investigating officer. He testified that he was the driver and was speeding before being stopped by police. However, he denied he told Cst. Solomon that he was drunk or that he was not wearing a seatbelt. [ 17 ] During his testimony, Mr. Pelletier drifted into an explanation as to why he was speeding through the city that night (Transcript, pages T46-T47).

In this part of the evidence, he began to testify about the circumstances of the alleged offence. When the court and the Crown intervened (Transcript, page T47), counsel for Mr. Pelletier responded by waiving the need for the voluntariness voir dire (Transcript, page T47): MR. NYCHUK: “Yeah. I just … Yes, I’m waiving the voluntariness.” [ 18 ] Counsel for Mr. Pelletier then explained he took no issue with voluntariness of Mr. Pelletier’s statements to police; instead, the defence sought to challenge the accuracy or completeness of Cst. Solomon’s evidence of Mr.

Pelletier’s alleged statements (Transcript, pages T49-T50). [ 19 ] With voluntariness of the alleged statements being waived, the trial judge, Crown and defence counsel agreed the defence concerns about accuracy or completeness of the alleged statement was an issue to be determined by the trial judge in the trial proper (Transcript, pages T50-T51). [ 20 ] After defence counsel admitted the voluntariness of Mr. Pelletier’s statements to police, and the voir dire was concluded, the Crown applied to have the “admissible evidence” on the voir dire applied to the trial (Transcript, page T41).

The trial judge later ruled that “all of the evidence led on the voir dire is admissible on the trial proper” (Transcript, page T50). 2. Argument on the Merits of the Offence [ 21 ] Neither the Crown nor defence called any additional evidence on the trial proper. The parties then made their respective submissions on whether the charge of impaired driving was proven beyond a reasonable doubt. [ 22 ] In argument, the Crown submitted there was a constellation of factors which could support a finding that Mr. Pelletier’s ability to drive was impaired (Transcript, pages T51-T53).

The Crown itemized the evidence set out in the video of Mr. Pelletier’s encounter with police, the speed and driving actions of Mr. Pelletier’s vehicle, and the numerous symptoms of impairment noted by the investigating officer. The Crown also addressed the issue of possible fatigue of Mr. Pelletier raised by defence counsel in the cross- examination of the officer. Although no evidence was led by Mr. Pelletier that fatigue was a factor affecting him that night, the Crown correctly submitted that a combination of alcohol and fatigue may still be a criminal offence (Transcript, page T52). [ 23 ] Counsel for Mr.

Pelletier began his submissions addressing what he called the “ voir dire issue” (Transcript, page T53). He pointed to case authorities which referred to a police officer’s duty to keep accurate, comprehensive and detailed notes. Counsel for Mr. Pelletier argued the trial judge’s finding as to what statements were made by Mr. Pelletier to the investigating officer would be important evidence when the issue of impairment was ultimately determined by the trial judge (Transcript, page T56).

[24] Counsel for Mr. Pelletier also submitted the case law requires a trier of fact to consider all the evidence, includingevidence which was not consistent with impairment. He submitted a trier of fact must not restrict its consideration to evidence whichsupported a conclusion of impairment (Transcript, pages T58-T59). Counsel for Mr.

Pelletier invited the trial judge to also consideralternate explanations – other than impairment – for the symptoms which were observed by the investigating officer (Transcript, pagesT62-T63). [25] After hearing argument from counsel, the trial judge provided an oral judgment and convicted Mr. Pelletier of impaireddriving. [26] His reasons are set out below (Transcript, pages T63-T64): THE COURT: Okay. I don’t need to reserve, I am satisfied beyond a reasonable doubt that Mr. Pelletier was significantly impaired byalcohol and that he has to be found guilty on the charge.

The police officer, in my view, was very a [sic] good and fair witness. Hetestified as to what he saw, he agreed with defence counsel every time defence counsel qualified something or made other suggestions;he agreed with most of those. If we simply had all of the indicia, then perhaps there might be some basis. But the video establishes bad driving, in my view, the reasonfor the pullover.

When he is pulled over, there are all of the indicia: the strong smell of alcohol, some difficulty with the speech, he getsout of the vehicle, there is the sway, he does use his elbow to steady himself against the vehicle, and then he gets back to the vehicle andvery quickly goes to sleep. In my view, all of that evidence taken together indicates a significant degree of impairment while he was operating a vehicle.

A degree ofimpairment beyond -- well beyond the Stellato [ (SCC), [1994] 2 SCR 478] case and I would find him guilty of thecharge of impaired driving. [27] After hearing submissions on sentence, the learned trial judge imposed a fine of $1,200, a victim fine surcharge of$360, and a one-year driving prohibition. III. ISSUES TO BE DETERMINED [28] Mr. Pelletier’s notice of appeal lists the following grounds of appeal: 1. The Trial Judge erred in law when he failed to rule on the content of the Accused’s statement. 2.

The Trial Judge erred in law in failing to consider the statement may have significant exculpatory impact. 3. The Trial Judge erred in law in reviewing the evidence by not considering all the evidence, including the evidence that tended tonegate an inference of impairment. (R. v. Landes, (SK KB), [1997] S.J. No. 785) 4. The Trial Judge erred in law in not relating the evidence of “general impairment” and that of “impaired ability” to drive. 5. The Trial Judge erred in law in not considering plausible, reasonable explanations for the Accused’s conduct.

For instance (R. v.McKenzie, 2020 SKQB 206) 5.1 Falling asleep in the police cruiser may be some evidence of impairment, however, it may also be evidence of fatigue andexhaustion. 5.2 Red eyes may be evidence of impairment, however, it may also be evidence of lack of sleep or fatigue. 6. The Trial Judge did not consider the explanation “statement” of the Accused in assessing impairment – he was up all night and was ina hurry as his spouse was in need of assistance. 7.

Such other grounds as counsel may advise and the Honourable Court may allow. [29] After considering the trial record, in light of the respective submissions of counsel on the

summary conviction appeal, Iconclude the issues raised in the notice of appeal may be re-framed into two issues: 1. Were the exculpatory statements made by Mr. Pelletier on the voluntariness voir dire admissible at the trial? (AppealGrounds #1, #2, and #6) 2. Did the trial judge commit a palpable and overriding error when he determined Mr. Pelletier’s ability to operate a motorvehicle was impaired by alcohol? (Appeal Grounds #3, #4, and #5) [30] After briefly identifying the jurisdiction of the

summary conviction appeal court and the applicable standard of review,I address each of these two issues below. IV. JURISDICTION AND STANDARD OF REVIEW [31] Jurisdiction for

summary conviction appeals is contained in s. 813 of the Criminal Code and s. 822(1) incorporates thepowers set out in ss. 683-689 of the Criminal Code. [32] On questions of law, the appropriate standard of review is correctness, as set out in R v Helm, 2011 SKQB 32, 368 SaskR 115 [Helm] where it was held: [20] On a question of law, the standard is correctness, and the appellate court should intervene if the decision is not correct in law

unless, in the case of defence appeals, there has been no substantial wrong or miscarriage of justice that has occurred. See R. v.Shepherd, 2007 SKCA 29, [2007] 4 W.W.R. 659; and R. v. Henry (B.), 2006 SKQB 469, 286 Sask. R. 154. [33] On questions of fact, the standard of review is reasonableness, as also set out in Helm: [19] On the factual grounds, the standard of review is whether there is evidence upon which a trier of fact, properly instructed, couldreasonably reach the verdict. See R. v. Bigsky, 2006 SKCA 145, [2007] 4 W.W.R. 99 at para. 74; R. v. Biniaris, 2000 SCC 15, [2000] 1S.C.R. 381; and R. v.

Yebes, (SCC), [1987] 2 S.C.R. 168. The appellate court ought not substitute its own view of theevidence for that of the trial judge. However, the appellate court is entitled to review, re-examine and re-weigh the evidence, but only forthe purpose of determining if the evidence was reasonably capable of supporting the learned trial judge’s conclusion. See R. v.Burns, (SCC), [1994] 1 S.C.R. 656. [34] It is within this context that the issue in this appeal must be addressed. V. ANALYSIS OF THE ISSUES 1. Were the exculpatory statements made by Mr.

Pelletier on the voluntariness voir dire admissible at the trial? (Appeal Grounds#1, #2, and #6) [35] Grounds #1, #2, and #6 relate to the testimony of Mr. Pelletier on the voluntariness voir dire. Mr. Pelletier argues that,during the voir dire testimony, he made statements that the trial judge should have addressed when determining if he was impaired. Inresponse, the Crown submits Mr.

Pelletier’s exculpatory statements were inadmissible and should not have been considered. [36] A consideration of the admissibility of evidence raises an error of law and is therefore subject to a standard of review ofcorrectness: see Helm at para 20. [37] Mr. Pelletier’s arguments are summarized in his written submission as follows: 21. The Trial Judge did not address the main reason for the voir dire, namely what was the content of the statement the Applicantmade to Constable Solomon.

The Appellant argues that there was exculpatory evidence within the statement that the Crown wasadmitting into evidence that was not considered. This includes the statements made by the Appellant during the roadside stop but also thestatements made during the vehicle ride to the police station and what was said at the police station. [38] There are fundamental misconceptions in the argument set out in Mr. Pelletier’s written and oral submissions on thispoint. Mr. Pelletier argues the trial judge failed to make a ruling on the contents of Mr. Pelletier’s exculpatory statements to police.

Healso argues the learned trial judge failed to consider these statements when considering the issue of impairment. [39] The first misconception regards the purpose of the voir dire. Contrary to Mr. Pelletier’s submission, the “main reasonfor the voir dire” was not to determine what Mr. Pelletier said to police. The purpose was to determine if Mr. Pelletier’s statements topolice were voluntary. The trial judge was not required to assess competing versions of the evidence and then deliver a ruling on what, infact, Mr. Pelletier said to police.

As ultimately admitted by defence counsel (Transcript, pages T50-T51), any issues about conflictingtestimony between Cst. Solomon and Mr. Pelletier on the contents of the statements could only be determined by the judge during thetrial proper, and not on the voir dire. [40] The second misconception regards the admissibility of Mr. Pelletier’s evidence on the voir dire. Mr. Pelletier’sexculpatory statements to police were not admissible on the issue of whether he was impaired. [41] A long and unbroken line of case law establishes that exculpatory out of court statements made by an accused areinadmissible.

Such statements may be tendered in evidence by the Crown against an accused, but not for him.

While limited exceptionsto this rule are specified in R v Edgar, 2010 ONCA 529, 260 CCC (3d) 1, no such exceptions were raised at trial or in this appeal. [42] Helpful explanations of this principle are found in two Supreme Court cases: R v Simpson, (SCC),[1988] 1 SCR 3 [Simpson]; and R v Rojas, 2008 SCC 56, [2008] 3 SCR 111 [Rojas]. [43] In Simpson, the court held at page 22: As a general rule, the statements of an accused person made out of court – subject to a finding of voluntariness where the statement ismade to someone in authority – are receivable in evidence against him but not for him.

This rule is based on the sound proposition thatan accused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses andthus put his defence before the jury without being put on oath and be subjected, as well, to cross-examination. (Emphasis added) [44] In Rojas, the court held at para. 36: [36] Exculpatory out-of-court statements made by an accused are also subject to the general exclusionary rule against hearsay.

Wherethe accused testifies, such statements are generally inadmissible because they are viewed as self-serving and lacking in probative value.Where the accused does not testify, there is an additional rationale for excluding such statements. [Emphasis added] [45] R v Worrie, 2018 ONSC 7687 also provides a further explanation of this principle at para. 65: [65] … The exculpatory statements are also inadmissible when the accused does not testify.

The rationale for this rule is that anaccused person should not be able to put her unsworn and untested defence before the trier of fact without taking the oath or beingsubject to cross-examination … . [Emphasis added]

[46] Here, Mr. Pelletier only testified on the voluntariness voir dire.

He did not testify at trial where the Crown would havebeen permitted to cross-examine him. [47] The reasoning in Simpson and Rojas is consistent with the earlier ruling of the Saskatchewan Court of Appeal in R vHartridge (1967), (SK CA), 1 CCC 346 (QL) (Sask CA) at paras 37-40 [Hartridge]. [48] In Hartridge, the court followed Eberts v The King, (1912), (SCC), 47 SCR 1, affirming (1912), (AB CA), 2 WWR 542 (Alta CA); and R v Haase (1965), (BC CA), 50 WWR (ns) 321 (BCCA) [Haase],affirmed by the Supreme Court of Canada at (1965) (SCC), 50 WWR (ns) 386 (SCC). [49] Hartridge repeats this passage from Haase, at page 329: Appellant was not entitled to prove exculpatory facts by an unsworn statement, not put in by the Crown, which did not form part of thestatement that the Crown did put in.

If the appellant desired to advance such exculpatory evidence, it ought to have been given under oath… [citations omitted]. [Emphasis added] [50] The principle explained above in Simpson and Rojas has also been followed in jurisdictions across the country. Ontarioexamples include: R v Thomas, 2013 ONSC 1640 at para 12; R v Reis, 2017 ONSC 287 at paras 44-45; R v Johnson, 2020 ONSC 3672at para 51; and R v Marc Issa El-Khoury, 2022 ONSC 629 at paras 19-21.

British Columbia examples include: R v Stewart, 2016 BCSC2490 at para 12; R v Moir, 2017 BCSC 1006 at paras 30-31; R v Bona, 2021 BCSC 230 at paras 43-45; R v Karaim, 2023 BCSC 502 atpara 87. Alberta examples include: R v D.R.S., 2018 ABCA 342 at para 22, 368 CCC (3d) 383; and R v Nickerson, 2021 ABQB 50 atpara 10. [51] The reasoning in Simpson and Rojas is also consistent with case law which prevents an accused from attempting to useexperts to put self-serving statements into evidence without entering the witness box and undergoing cross-examination.

In R v Phillion, (SCC), [1978] 1 SCR 18, the court held at page 24: Statements made to psychiatrists and psychologists are sometimes admitted in criminal cases and when this is so it is because they havequalified as experts in diagnosing the behavioural symptoms of individuals and have formed an opinion which the trial judge deems to berelevant to the case, but the statements on which such opinions are based are not admissible in proof of their truth but rather as indicatingthe basis upon which the medical opinion was formed in accordance with recognized professional procedures. [Emphasis added] [52] See, to the same effect, R v Abbey, (SCC), [1982] 2 SCR 24 at 44-46; R v Tallio, 2021 BCCA 314 atpara 130; R v Chen, 2019 ONSC 3088 at para 31; and R v Lee (1998), (BC CA), 124 CCC (3d) 301 (BCCA) at para61. [53] As well, the reasoning in Rojas and Simpson is consistent with the line of case authorities that prevents an accused fromeliciting exculpatory statements of an accused by cross-examining police officers: R v Keeler, 1977 ALTASCAD 126 , [1977] 5WWR 410 (Alta CA) at paras 4 and 8; R v Liu (2003), (ON SC), 172 CCC (3d) 79 (Ont Sup Ct) at paras 15and 20; R v Whitehawk (1998), (SK CA), 163 Sask R 305 (CA) at paras 5-6; and R v Blanchard, 2016 ABQB 615 atparas 34-35. [54] In

summary, the exculpatory statements allegedly made by Mr. Pelletier to police were not admissible on the issue ofwhether he was impaired. [55] During argument at the hearing of the appeal, Mr. Pelletier pointed to the ruling of the trial judge that “all of theevidence led on the voir dire is admissible on the trial proper” (Transcript, page T50). This was in response to the Crown’s request toapply “all of the evidence – admissible evidence from the voir dire to the trial proper …” (Transcript, page T41). Mr.

Pelletier argues thetrial judge’s ruling on this point – admitting all the voir dire evidence on the trial – rendered those exculpatory statements admissible. [56] After reviewing this part of the transcript in the context of all the evidence, I conclude the trial judge mis-spoke whenhe used the phrase “all of the evidence” in this ruling. I am satisfied in these circumstances that the trial judge did not intend that rulingto apply to all the evidence, including Mr. Pelletier’s exculpatory statements. His ruling was only intended to apply the admissibleevidence, as requested by the Crown.

The trial judge’s intention in this regard is borne out by the fact that the trial judge did not relyupon, or make refence to, Mr. Pelletier’s voir dire testimony in his decision. [57] Support for my assessment of the trial judge’s intention may be found in cases such as R v Ahpay, 2022 SKCA 97[Ahpay] and R v Kiss, 2018 ONCA 184 [Kiss]. [58] In Ahpay, the court dismissed an appellant’s concern that the trial judge improperly referred to evidence as“corroborative” of a complainant’s testimony.

The court concluded that, although the trial judge’s oral decision could have beenexpressed more clearly (para. 75), his use of the terms “corroborative” and “corroboration” was intended to mean “confirmatory” or“supportive” (para. 61). Therefore, despite the literal

interpretation of the trial judge’s words, no error was found in his analysis. [59] Similarly, in Kiss, the court dismissed an appellant’s concern about a trial judge’s acceptance of the complainant’stestimony on a “preponderance of probabilities” (para. 28).

The court reviewed the whole of the trial judge’s reasons and concluded that,although it would have been better if the trial judge had not used such language, “this was a case of infelicitous language, not an error inanalysis” (para. 34). [60] Here, I view the trial judge’s ruling on the admissibility of the voir dire evidence in the same way as the appellatecourts in Ahpay and Kiss viewed the imperfect language used by trial judges in those cases. Viewed in the context of the trial judge’sreasons as a whole, I am satisfied the trial judge intended to apply only the admissible evidence from Mr.

Pelletier’s voluntariness voirdire.

[61] Because the trial judge did not intend to apply the evidence of the exculpatory statements to the trial, the arguments ofMr. Pelletier on this point must necessarily fail. It is not an error for a trial judge to refuse to consider inadmissible evidence. [62] However, if I am in error in my view of the trial judge’s intentions, the result on this issue does not change. If the trialjudge intended to apply inadmissible evidence to the trial, he would have been in error and the arguments of Mr. Pelletier on this issuewould still fail.

It cannot be alleged that a trial judge errs by failing to consider inadmissible evidence. [63] In these circumstances, I conclude the learned trial judge committed no error of law by refusing to consider Mr.Pelletier’s alleged exculpatory statements to police. The grounds of appeal which are critical of the trial judge for not considering theseexculpatory statements (Grounds #1, #2, and #6) are therefore dismissed. 2. Did the trial judge commit a palpable and overriding error when he determined Mr.

Pelletier’s ability to operate a motorvehicle was impaired by alcohol? (Appeal Grounds #3, #4, and #5) [64] Because this issue involves consideration of the trial judge’s findings of fact, the standard of review on this issue iswhether there is evidence upon which the trier of fact could reasonably have reached the verdict: see Helm at para 19. [65] A trial judge’s findings of fact are entitled to deference and the standard of review, in this instance, requires anappellant to identify a palpable and overriding error: Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235. [66] Helpful explanations of the concept of palpable and overriding error are found in the case law.

An error is palpable if itis plainly seen and if all the evidence need not be reconsidered in order to identify it, and an error is overriding if it has affected the result: Law Society of Saskatchewan v Abrametz, 2022 SCC 29 at para 113, 470 DLR (4th) 328. See also: Hydro-Quebec v Matta, 2020 SCC 37 at para 33, 450 DLR (4th) 547; and Salomon v Matte-Thompson, 2019 SCC 14 at para 33, [2019] 1 SCR 729. [67] A palpable and overriding error has been described as one which is both obvious and which goes to the core of thecase.

In Benhaim v St-Germain, 2016 SCC 48 at paras 38-39, [2016] 2 SCR 352, the Supreme Court cited previous decisions describinga palpable and overriding error as an error going to the very core of the outcome of the case; akin not to a needle in a haystack but to abeam in the eye: 38 It is equally useful to recall what is meant by "palpable and overriding error". Stratas J.A. described the deferential standard asfollows in South Yukon Forest Corp. v. R., 2012 FCA 165, 4 B.L.R. (5th) 31 (F.C.A.), at para. 46: Palpable and overriding error is a highly deferential standard of review ....

"Palpable" means an error that is obvious. "Overriding" meansan error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull atleaves and branches and leave the tree standing. The entire tree must fall. 39 Or, as Morissette J.A. put it in G. (J.) c. Nadeau, 2016 QCCA 167 (C.A. Que.), at para. 77, [TRANSLATION] "a palpable andoverriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last twonotions." [Emphasis added] [68] It is within this legal context that Mr.

Pelletier’s arguments on the second issue must be addressed. [69] First, relying upon R v Landes (1997), (SK KB), 161 Sask R 305 (QB) [Landes], Mr. Pelletierargues the trial judge failed to consider evidence that tended to negate an inference of impairment (Ground #3). However, Mr. Pelletier’sreliance upon Landes in these circumstances is misplaced. [70] As set out by Ottenbreit J.A. in R v McKenzie, 2021 SKCA 150 at paras 60-61, 87 MVR (7th) 21 [McKenzie CA], the“vigorous point-by-point analysis” used in Landes was overruled. Contrary to Mr.

Pelletier’s submission, the specific reasoning processset out in Landes is not a pre-requisite for conviction. As illustrated in McKenzie CA at para 60, the

summary conviction appeal judge’sreliance upon Landes led, in part, to errors. Therefore, the refusal of a trial judge to follow the reasoning process in Landes is not an errorof law. [71] Second, Mr. Pelletier argues the trial judge erred in law by not relating the evidence of general impairment to animpaired ability to drive (Ground #4).

However, this argument was specifically rejected by the Saskatchewan Court of Appeal in R v Cramer, 2019 SKCA 118 at paras 38-39, 48 MVR (7th) 196 [Cramer]; and in McKenzie CA at paras 33-37. [72] In Cramer, Richards C.J.S. held a trial judge does not have an obligation to establish that erratic driving was causedsolely by the consumption of alcohol. He explained at para. 38: [38] That said, Landes warrants some further comment.

I do not understand it as directing, and it should not be read as directing, that inevery case involving an impaired driving charge, a trial judge must make a discrete preliminary determination as to whether theaccused’s bad or erratic driving, if there was any, can be referable only to drug or alcohol consumption. Any such approach would beinconsistent with the notion that evidence is not to be considered in a piecemeal fashion. See, for example: R v Ménard, (SCC), [1998] 2 SCR 109 at para 23. Rather, a trial judge should consider evidence of bad or erratic driving along with all other relevantevidence.

The question for a trial judge is whether, on the whole of the evidence, it has been established beyond a reasonable doubt thatthe accused’s ability to drive was impaired by drugs or alcohol. There is no obligation to make a preliminary determination as to whetherbad or erratic driving, or any other aspect of the evidence, can be attributed only to the consumption of drugs or alcohol. [Italicizedemphasis in the original; underlined emphasis added] [73] Cramer went further and explained, at para. 39, that it is not necessary for a trial judge to undertake the separate or

preliminary analysis suggested by Mr. Pelletier: [39] There could, of course, be cases where erratic or bad driving is explained as being attributable to something other than drugs oralcohol. For example, evidence might be called to demonstrate that swerving from side-to-side while driving was caused by a flat tire orevidence might be called to show that proceeding through a red light was caused by a brake failure.

In those kinds of situations, it isobvious that the evidence of erratic or bad driving will ultimately add little or no weight to the Crown’s side of the balance on thequestion of whether the accused’s ability to drive had been impaired by drugs or alcohol.

But, this reality is something different than thesuggestion that the issue of whether bad or erratic driving is attributable to alcohol consumption should be formally broken out as aseparate and preliminary piece of analysis in the consideration of whether an accused person’s ability to drive was impaired by drugs oralcohol. [Emphasis added] [74] In McKenzie CA, Ottenbreit J.A. at paras. 33-37 came to the same conclusion as Cramer on this point.

He ruled, at para.33, that a trial judge is not required to assess each symptom of impairment against an accused’s ability to drive: [33] Bridging the distinction between functional impairment and impairment of the ability to drive does not require a line-by-lineanalysis referring to each indicium of impairment and to the impairment of the ability to drive. [Emphasis added] [75] Ottenbreit J.A. therefore dismissed the same argument now made by Mr.

Pelletier that a trial judge must make aspecific finding that the symptoms of general impairment are connected to the accused’s ability to drive, at para. 37: [37] The appeal judge’s conclusion that the trial judge failed to draw the distinction between general impairment and impairment of theability to drive therefore misapprehends the trial judge’s reasons for judgment and is in error. I would allow the appeal on that basisalone. [76] As explained in Cramer and McKenzie CA, a trial judge cannot be faulted for refusing to undertake a separate line-by-line analysis of whether Mr.

Pelletier’s driving was attributable to the consumption of alcohol. The trial judge did not commit amethodological error by considering the totality of the evidence and concluding Mr. Pelletier’s ability to drive was impaired by alcohol.As noted in McKenzie CA at para 33, a trial judge is not required to “verbalize the test specifically every time”, but only ensure thewhole of the evidence is considered. [77] Third, Mr. Pelletier argues the trial judge erred by not considering plausible, reasonable explanations for his symptomsof impairment (Ground #5).

In this argument, he relies upon the analysis in R v McKenzie, 2020 SKQB 206 [McKenzie QB] where thesummary conviction appeal judge reviewed the observed symptoms of impairment and concluded the trial judge failed to considerplausible alternative explanations for those symptoms. [78] However, McKenzie QB was expressly overruled on this point by McKenzie CA at paras 59-70. [79] In McKenzie CA, Ottenbreit J.A. held, at para. 65, that the

summary conviction appeal judge substituted his view aboutthe cause of the symptoms of impairment: [65] The appeal judge reinterpreted the indicia of impairment found by the trial judge without, as I indicated above, concluding that thetrial judge’s inferences with respect thereto were the result of palpable and overriding error. He simply substituted his view that theindicia of impairment may have had innocent explanations and, therefore, were insufficient to sustain the view of the trial judge to thecontrary, i.e., they should have resulted in a not guilty verdict. [Emphasis in original] [80] Ottenbreit J.A. also pointed out that the “piecemeal approach” to the evidence taken by the

summary conviction appealjudge was in error: [68] The above excerpts of the appeal judge’s review of “plausible explanations” are also indicative of the piecemeal approach taken byhim in reviewing the evidence. The appeal judge attacked the trial judge’s

interpretation of the indicia of impairment. He focused onindividual indicia of impairment in isolation, asking whether each one may be explained by something other than alcohol consumptionand then, at the end of the process, rendered an opinion on the reasonableness of the verdict. [81] Finally, Ottenbreit J.A. at para. 70 identified an error in the focus of the

summary conviction appeal judge. Rather thandetermining whether the trial judge’s conclusion on impairment was reasonably supported by the evidence, the appeal judge appeared tofocus on whether some alternate explanation was available for each symptom of impairment: [70] Instead of framing his analysis by reference to whether the trial judge could reasonably have convicted Mr. McKenzie, the appealjudge appears to have been focused solely on whether an acquittal would have been possible.

While it is easy to find an alternateexplanation for each indicator of impairment, the approach that should have been employed by the appeal judge was whether itwas unreasonable for the trial judge, taking the indicia of impairment as a whole, to have concluded that they exclude all reasonablealternatives to guilt as explained in the jurisprudence set forth above. [Emphasis in original] [82] As set out above, the ruling in McKenzie CA directly rejects this argument made by Mr. Pelletier. [83] Fourth, and further, Mr.

Pelletier is critical of the trial judge for not considering whether some of the observedsymptoms were attributable to fatigue instead of impairment. Cst. Solomon was asked if some of the symptoms he observed of Mr.Pelletier could be consistent with fatigue and the officer agreed. However, no evidence was led that Mr. Pelletier was, in fact, fatigued.In the absence of such evidence, a trial judge is not required to analyse the effect of a speculative argument. [84] R v Pugh (1985), (SK KB), 46 Sask R 100 (QB) offers analogous assistance on this point.

There, atpara. 5, the court held there must be a factual basis for a defence: [5] I have no hesitation in saying that every trial judge must give effect to every defence available to an accused person whether it is

raised or not. But there must be a factual basis for the defence. [Citations omitted] … In cross-examination, hypothetical questions wereput to the technician about the effect of burping or belching on a reading. The technician answered badly.

But even so, the fact remainsthat there was no evidence that the accused either belched or burped, or anything else was done which would produce a faulty reading.To give effect to a defence for which there is no foundation in fact is an error in law. [85] Finally, in this context, it must be remembered that a trial judge is entitled to accept all, part, or none of the evidence ofa witness.

This principle is well steeped in authority: R v Abdallah (1997), (ON CA), 125 CCC (3d) 482 (Ont CA) atpage 484, affirmed by the Supreme Court of Canada in (SCC), [1998] 1 SCR 980; Nelson v Little Estate, 2005 SKCA120 at para 15, 269 Sask R 231; Montreal Trust Co. v Williston Wildcatters Corp., 2002 SKCA 91 at para 41, 223 Sask R 276; and R vLedinski (1995), (SK CA), 134 Sask R 256 (CA) at para 43. [86] In

summary, Mr. Pelletier failed to demonstrate any error of law in the trial judge’s reasoning. He also failed todemonstrate any palpable and overriding error in the trial judge’s assessment of the evidence. Further, upon a review of the evidence, Iam satisfied the trial judge could reasonably have reached the conclusion that Mr. Pelletier was impaired. [87] Therefore, for these reasons, I dismiss Mr. Pelletier’s appeal from conviction. As noted above, as no submissions weremade on the appeal from sentence, I dismiss that part of his appeal as well. VI.

SUMMARY [88] In

summary, Mr. Pelletier’s appeals from both conviction and sentence are dismissed. [89] The stay of Mr. Pelletier’s driving privileges, pending this appeal, will be expire at 4:00 p.m. on Thursday, November2, 2023; this will allow counsel time to advise him of the dismissal of his appeal. J. M. D. TOCHOR