Docket: CACR2421 Robert Racine Appellant - v. -, 2014 SKCA 73

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 73 Date: 2014-06-26 Between: Docket: CACR2421 Robert Racine Appellant - and - Her Majesty the Queen Respondent Coram: Ottenbreit, Caldwell and Herauf JJ.A. Counsel: Robert Racine, the appellant, based on written submissions only W. Dean Sinclair for the respondent based on written submissions only Appeal: From: Provincial Court Heard: June 18, 2014 Disposition: Appeal dismissed Written Reasons: June 26, 2014

By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Herauf OTTENBREIT J.A. I. Introduction [ 1 ] Robert Racine (“Mr. Racine”) appeals from the decision of the Provincial Court judge convicting him of the following offences after trial:

(1) On or about July 6, 2013, at or near Regina, Saskatchewan, did without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer pursuant to s. 254(5) of the Criminal Code , to provide a sample of his breath to enable analysis to be made by means of an approved instrument contrary to s. 254(5) of the Criminal Code ;

(2) On or about July 6, 2013, at or near Regina, Saskatchewan, did wilfully obstruct Cst. Redekop, a peace officer engaged in the lawful execution of his duty by lying about his name, contrary to s. 129 (

a) of the Criminal Code . [ 2 ] On the first offence the trial judge sentenced Mr. Racine to 352 days incarceration after crediting him 377 days for time spent on remand and also imposed a 5 year driving prohibition. With respect to the second offence, the trial judge imposed a sentence of 6 months incarceration concurrent to the first charge. [ 3 ] The accused advised this Court that he would not be appearing to make oral argument and that he wanted his appeal to proceed by way of written argument only. The Crown, as well, decided to rely only on its written material and made no oral argument. II.

Facts and Background [ 4 ] The police had received a report from a Mr. Ruda, who was in a vehicle travelling just east of Regina (the “complainant vehicle”), of a blue Ford Explorer being driven erratically. The complainant vehicle proceeded to a Husky service station in Regina and the Ford Explorer followed the complainant vehicle there. [ 5 ] The investigating police officer assigned to the complaint had been told by his dispatcher that the operator of the Ford Explorer had been driving erratically and that the same vehicle had driven through a red light.

The dispatcher also told the officer that they could hear the suspect talking and that he sounded extremely intoxicated. The officer was directed to the Husky service station on Prince of Wales. When he arrived, he saw a vehicle matching the complainant’s vehicle particulars as well as the running blue Ford Explorer with the driver’s door open, with no driver, stopped between the gas pumps and the front door of the Husky. Mr. Racine was near the complainant vehicle trying to engage the occupants. [ 6 ] On seeing the officer, Mr. Racine then began to walk toward the Ford Explorer. The officer asked Mr.

Racine if he was the driver of the Ford Explorer but Mr. Racine replied that he did not know who owned the vehicle. The officer then asked the person in the driver’s seat of the complainant vehicle “Is this the individual” or “Is this the guy”. The person in the driver’s seat of the vehicle said “Yes, that’s him”. From the information the officer had received from the dispatcher, the officer wrongly assumed the person in the driver’s seat of the complainant vehicle was Mr. Ruda. In fact, Mr. Ruda was the passenger. Once told that Mr. Racine was “the guy”, the officer told Mr.

Racine he would have to go to the police cruiser for the purpose of an impaired driving investigation. [ 7 ] In the process of dealing with Mr. Racine, the police officer came within 4 to 5 feet of him and as he spoke to him he noted an odour of liquor on his breath, slurred speech and red and glazed eyes. Mr. Racine had difficulty in answering questions that were put to him. Mr. Racine swayed while walking to the police vehicle and some of his sentences did not make sense. The officer’s subjective opinion in light of his observations was that Mr. Racine was intoxicated.

The officer, based on his observations and the information given by the driver of the complainant vehicle and the dispatcher, formulated the belief that Mr. Racine was the operator of the Ford Explorer referred to in the call and that he was impaired. [ 8 ] Mr. Racine had no identification. He told the officer that he was Bradley Racine, born March 4, 1963. Initial checks of police and SGI databases proved fruitless. Mr. Racine was arrested for impaired driving under the name Bradley Racine. A further check of the police systems and an identifying matching photograph revealed his correct identity and birthday.

The police check also revealed that the Ford Explorer had been stolen. Mr. Racine was then also arrested for obstruction.

[ 9 ] The officer made the demand to Mr. Racine for a breath sample 13 minutes after he arrived at the Husky service station. He did this after making the observations he did about Mr. Racine and confirming his belief that Mr. Racine was the driver of the vehicle. [ 10 ] At trial Mr. Ruda did not identify Mr. Racine nor was he prepared to swear that the vehicle about which he complained to the police was the Ford Explorer. However, he positively identified the person the police arrested at the Husky as the person who was driving the Ford Explorer when it followed them to the Husky.

The driver of the complainant vehicle did not testify. III. Analysis [ 11 ] Mr. Racine made no arguments regarding the obstruction charge. He makes a number of arguments directed to his conviction under s. 254(5) of the Criminal Code . The first one challenges the trial judge’s finding that Mr. Racine was the driver of the Ford Explorer. He argues that the trial judge disregarded the fact that Mr. Ruda could not identify him in court as the driver of the Ford Explorer and the fact the police officer mistook the driver of the complainant vehicle for Mr. Ruda when he gave him information that Mr.

Racine was the driver of the Ford Explorer. Mr. Racine argues that because the officer was mistaken about who the complainant was and there was no direct evidence at trial that he was the driver of the vehicle which was being operated erratically, that this then undercut the existence of the officer’s reasonable and probable grounds to demand a sample of his breath. This argument must fail. [ 12 ] It matters not that the officer mistook the driver of the complainant vehicle for Mr. Ruda. It would not have mattered what the driver’s name was or who the driver was. Mr.

Racine had been positively identified to the police by someone in the complainant vehicle as the driver of the Ford Explorer and this provided both a subjective and objective basis for the officer’s determination that Mr. Racine was the driver. Further bolstering the officer’s belief that Mr. Racine was the driver was his observation that the Ford Explorer was stopped between the gas pumps and the front door of the Husky with its engine running, its driver’s door open and no driver, as well as the fact that Mr.

Racine started to walk toward the Ford Explorer as soon as he saw the police officer approaching. [ 13 ] The trial judge, in view of the foregoing, made a factual finding that Mr. Racine was the driver of the vehicle. I cannot say she erred in this on the whole of the evidence before her. [ 14 ] Mr. Racine also argues that the trial judge failed to apply the correct legal standard for determining whether the officer had reasonable and probable grounds to make the breath demand. Mr. Racine argues that the trial judge erred by holding the Crown to a lesser standard than a balance of probabilities.

The standard of “reasonable grounds to believe” simply requires the trial judge to determine whether the officer had a subjective belief of impairment and whether the factors articulated by the officer for such belief were reliable and capable of objectively supporting that belief on all the evidence ( R. v. Gunn , 2012 SKCA 80 , [2013] 1 W.W.R. 495). In this case Mr. Racine is simply wrong in his understanding of the law. [ 15 ] There was ample evidence to support both subjective and objective grounds for the officer’s belief that Mr. Racine was impaired. The officer’s personal observations that Mr.

Racine smelled like alcohol, his eyes were red and glazed, he swayed when he walked, he slurred his speech when speaking, he was not responsive to questions, he looked and acted like he was intoxicated and refused to answer any questions about whether he had been drinking all provide cogent objective and subjective grounds for making the breath demand. Added to these grounds is the information that the officer had received from the dispatcher respecting the behaviour of Mr. Racine’s vehicle as reported by Mr. Ruda.

The trial judge did not err in finding that the officer had subjective and objective reasonable and probable grounds for the demand. In short, I see no error made by the trial judge in either her statement of the test for reasonable and probable grounds or her application of it. [ 16 ] Mr. Racine next argues that the demand for a breath sample by the police officer was not made “forthwith”. Mr. Racine is confused about the timing of a demand as required by the Criminal Code . A demand under s. 254(3) does not have to be made “forthwith”. The relevant parts of the

section read as follows: Samples of breath or blood 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 The demand must, therefore, be made as soon as practicable and not forthwith. On the undisputed evidence before the trial judge the demand in this case met that requirement. The officer made the demand approximately 13 minutes after he arrived, as soon as he came to believe that Mr. Racine had operated the Ford Explorer while his ability to do so was impaired. [ 17 ] Mr. Racine next argues that he received ineffective representation from his counsel. This argument appears to be connected to the previous arguments of Mr.

Racine respecting reasonable and probable grounds and whether the demand was as soon as practicable. This Court has outlined a process to follow when an appellant wishes to argue ineffective representation because such arguments directly affect a member of the Bar. This process was not followed in this case and this Court is not therefore inclined to entertain any such argument. However, even if the argument were to be entertained by this Court, on a review of the transcript of the proceedings and trial there is absolutely no indication that Mr.

Racine’s counsel was ineffective in any aspect of his representation of Mr. Racine.

[18] Lastly, Mr. Racine argues that there is a reasonable apprehension of bias on the part of the trial judge. He provides 10 or moreexamples of such bias in his material. These examples revolve primarily around procedural issues before trial, including dealing withissues of disclosure and adjournments and the trial judge’s handling of the trial process.

He also argues that the trial judge waspredisposed to a particular result and closed to certain evidence and issues. [19] Judges are presumed to be impartial and anyone making such an allegation bears a very heavy onus of proving that allegation (R. v.S. (R.D.), (SCC), [1997] 3 S.C.R. 484). On a reading of the trial transcript and the procedural record as a whole, thereis no factual basis for any allegation of bias. On the basis of the record of proceedings, the trial judge appropriately dealt withMr. Racine’s matter whenever it came before her on a pre-trial basis.

As well, based on the trial transcript, she carefully andappropriately dealt with the matter at trial. There is not a scintilla of evidence that she was biased in any way. This ground of appealmust fail. [20] To the extent Mr. Racine’s appeal involves questions of fact, leave to appeal is granted. None of the grounds of appeal profferedby Mr. Racine have any merit. His appeal is dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 26th day of June, A.D. 2014. “Ottenbreit J.A.” Ottenbreit J.A. I concur “Caldwell J.A.” Caldwell J.A. I concur “Herauf J.A.” Herauf J.A.