Docket: CACR2365 Her Majesty the Queen Appellant - v. -, 2014 SKCA 80

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 80 Date: 2014-06-23 Between: Docket: CACR2365 Her Majesty the Queen Appellant - and - Cory Rezansoff Respondent Coram: Lane, Herauf and Whitmore JJ.A. Counsel: Anthony Gerein , for the appellant Cory Rezansoff, appearing on his own behalf Appeal: From: 2013 SKQB 384 Heard: June 23, 2014 Disposition: Appeal allowed (orally) Written Reasons: July 25, 2014

By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Herauf The Honourable Mr. Justice Whitmore Lane J.A. [ 1 ] The Crown seeks leave to appeal, pursuant to s. 839 of the Criminal Code , the acquittal of the respondent by a

summary conviction appeal judge on a charge of failing to comply with a demand for a breath sample contrary to s. 254(5) of the Criminal Code . We granted leave, allowed the appeal orally reinstating the conviction imposed by the trial judge, and advised brief written reasons would follow. These are the reasons. [ 2 ] A brief procedural background. In October 2009 the now respondent (hereinafter referred to as the accused for ease of reference), a resident of Manitoba, was arrested for impaired driving and failure, without lawful excuse, to comply with a demand for a breath sample.

He was also charged with driving while disqualified and pled guilty to that particular charge at trial. He was acquitted of the driving while impaired charge and convicted of the failure to supply a breath sample. He then appealed conviction and was acquitted leading to this appeal. The accused was represented by counsel at trial and at the

summary conviction appeal but was unrepresented before us. [ 3 ] On the offences of driving while prohibited and refusing to provide a breath sample, the trial judge sentenced the accused to three months incarceration to be served concurrently and a three-year driving prohibition was imposed. [ 4 ] The accused appeared before us having only obtained the Crown factum during the previous week—through no one’s fault—and advised us he had talked to his trial counsel but could not afford to pay him.

He then advised us he had turned himself in voluntarily last winter and served the incarceral term imposed on the conviction for driving while prohibited. The Court was satisfied that if the appeal proceeded, and if the Crown was successful, having served his imposed term of incarceration, the accused would be at no risk of further incarceral time. He was advised there might be a risk imposed by the Manitoba licencing or insurance authorities if there was a conviction entered on the refusal charge but he was quite prepared to proceed with the appeal just “so long as he did not have to go back to jail”.

The Crown confirmed it was not seeking any higher sentence and the effect of all of this is the accused has served the incarceral time imposed by the trial judge on the concurrent sentence imposed for driving while disqualified and failing to provide a breath sample. Because the issues on appeal involved errors of law, the Court decided to proceed, having before it obviously both the Crown factum, and the reasons of the

summary conviction appeal judge being appealed. This procedure had the added benefit of saving the accused significant additional legal costs. [ 5 ] At trial, counsel for the accused filed a Notice of Charter Application claiming the accused was unlawfully detained and arrested without reasonable and probable grounds and, further, there were no reasonable or probable grounds to demand the breath sample. The Notice alleged the accused’s ss. 8, 9, and 10(

b) Charter rights were infringed or denied because the accused was detained and arrested without reasonable and probable grounds to do so. [ 6 ] A voir dire was held after which the accused was acquitted of driving while impaired as the trial judge found the arresting officer did not have reasonable grounds to arrest the accused but the evidence and observations of the arresting officer subsequent to the arrest were admitted after a Grant analysis and a conviction on the refusal was entered. [ 7 ] I will set out the background facts.

The accused and another were in a vehicle traveling between Lloydminster and Saskatoon on September 30, 2009. A passenger in another vehicle, Fitzpatrick, saw two people urinating beside a parked truck, which turned out to be the accused’s vehicle, and after passing the parked vehicle the latter vehicle caught up to the Fitzpatrick vehicle. Fitzpatrick saw the accused’s vehicle swerving on the highway and called 911. The arresting officer, Raymond, received the report at 11:58 p.m. Fitzpatrick maintained on and off telephone communication with the police.

She was able to describe the vehicle, a Ford half-ton, blue in colour, with certain insignia, and was able to provide the police with the licence plate number. Approaching North Battleford, the accused’s vehicle nearly collided with the Fitzpatrick vehicle.

Fitzpatrick remained on the phone with the police and saw the driver and passenger of the accused’s vehicle going into a nearby liquor store and coming out with what seemed to be a case of beer. [ 8 ] During the course of these events, 911 was called twice by a second witness who identified a similar vehicle, on the same highway, swaying back and forth and swerving into the oncoming driving lane forcing a tractor-trailer to swerve onto the highway shoulder.

This witness was able to provide most of the licence plate description and was also able to provide the make and model of the vehicle with the identifying insignia. [ 9 ] A third witness, the driver of the tractor-trailer, was called and he testified that at 12:09 a.m. he was forced into the ditch by an oncoming vehicle proceeding the wrong way on a divided highway which vehicle he identified as a blue half-ton and which was proceeding “really fast”. [ 10 ] Back to the Fitzpatricks. At Radisson the police phoned Fitzpatrick back and asked if she had seen the accused’s vehicle.

The Fitzpatrick vehicle pulled over to the side of the road with Fitzpatrick still on the phone to the police and she identified the accused’s vehicle going by. The police then proceeded to pursue the accused’s vehicle at speeds between 120 and 140 kilometres per hour for about 15 minutes and eventually stopping the vehicle in Saskatoon.

Throughout all of this, road conditions were slippery due to a recent rain and obviously it was late at night. [ 11 ] The arresting officer on cross-examination indicated he did not see erratic driving but only very slow driving after activating his warning lights and, after activation, the pursued vehicle pulled into a parking lot in north Saskatoon. The officer observed the accused

was slow and deliberate as he checked his pockets for identification and his eyes were glassy. The officer noticed an odour of alcohol coming from the truck. He also noticed a beer case between the two front seats. He advised the accused he was under arrest for impaired driving while the accused was still in the vehicle. Immediately after the arrest, the accused got out of his vehicle and fell into the vehicle’s door.

The accused was handcuffed and taken back to the police car. [ 12 ] After calling for backup, the arresting officer went over to the accused’s vehicle and spoke to the passenger who admitted he and the driver had both been drinking. [ 13 ] After backup arrived and arrangements were made for the transport of the passenger, the accused was taken to the nearby Warman detachment where he was read his rights and a proper demand for a breathalyzer was made. The accused was given the opportunity to contact a lawyer but declined to do so.

Approximately an hour later it was determined the Breathalyzer instrument was not working and the accused was then taken to the Saskatoon detachment. The accused refused to properly blow into the machine and a valid breath sample could not be obtained. He was then charged with a refusal to provide a breath sample after a proper demand. TRIAL [ 14 ] The trial judge found the police officer did not have reasonable grounds to arrest the accused for impaired driving.

The trial judge excluded all of the evidence before the arresting officer saw and pursued the truck because he ruled there was no evidence as to who was driving. Further, the arresting officer followed the vehicle for approximately 30 kilometres and did not see any bad driving. The trial judge said there was no evidence the smell of alcohol came from the accused’s breath. The trial judge accepted the police officer had a subjective belief the accused was driving while impaired but he found the officer did not have a proper objective base for the officer’s subjective belief.

He speculated the arresting officer was “jumping the gun” by charging the accused while the accused was still in his vehicle. He found the accused’s s. 9 Charter rights were breached. [ 15 ] The trial judge then proceeded with a Grant analysis to decide on a Charter remedy to determine if the post-arrest evidence should be admitted. He found the arresting officer was acting in good faith and was entitled to detain the accused. He admitted the post-arrest evidence, found the refusal to give a proper breath sample was deliberate, and convicted the accused for refusal to provide a breath sample.

The “ Grant ” analysis, a three-step inquiry, arises from the Supreme Court of Canada decision in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353.

Summary Conviction Appeal [ 16 ] The accused appealed and the

summary conviction appeal judge ruled that, because the arrest of the accused was unlawful, there was not a valid demand and the accused was under no legal obligation to provide a breath sample (that is, he had a reasonable excuse to refuse to comply). [ 17 ] Having thus determined there was no valid demand and thus there was no legal obligation on the accused to comply with the faulty demand, the

summary conviction appeal judge ruled it was not likely necessary to determine if the Charter rights of the accused were breached. However, he did find the accused’s s. 9 rights were breached and possibly his s. 8 rights were breached. But, in the event he was incorrect in his initial finding, he proceeded on his own Grant analysis. [ 18 ] He found the seriousness of the Charter -infringing conduct was more serious than the trial judge did because it involved the accused being required to provide proof against himself.

He also found the trial judge’s speculation the arrest was probably a case of the arresting officer “jumping the gun” on the basis of the driving reports he received was not an adequate basis on which the trial judge could conduct a “ Grant ” analysis.

He found the attempt to force the accused to provide self-incriminating evidence without first complying with the statutory requirements made this a relatively serious Charter breach. [ 19 ] He then considered the second component of a Grant analysis, that is, the impact of the Charter breach on the accused, and found it had a serious impact on the accused. [ 20 ] He saw the third component of the analysis as militating in favour of admission of the impugned post-arrest evidence.

That component, of course, is society’s interest in an adjudication of the merits. [ 21 ] Balancing the Grant factors led him to conclude the trial judge erred in law in his determination of the first Grant factor and erred in admitting the post-arrest evidence. He ruled the admission of the evidence would bring the administration of justice into disrepute. He then set aside the conviction and entered an acquittal. [ 22 ] The Crown appeals on the basis the

summary conviction appeal judge conflated the lawfulness of the arrest and unlawfulness of the breath demand and erred in doing so. It argues there were sufficient grounds for a demand. It also says the

summary conviction appeal judge erred in overturning the trial judge’s Grant analysis by failing to accord the considerable deference required to the trial judge’s determination. [ 23 ] The Crown also argues the trial judge erred in finding there was a breach of s. 9 of the Charter and that the circumstances point to sufficient grounds for the arrest. DECISION [ 24 ] In our view, the

summary conviction appeal judge erred in law by conflating the lawfulness of the arrest and the lawfulness of the demand. The lawfulness of the demand must be determined at the time the demand and the lawfulness of the arrest must be determined at the time of the arrest. Driving while impaired and refusing a breath sample are two separate offences. One does not necessarily follow the other. Neither the trial judge nor the

summary conviction appeal judge directed their minds to the lawfulness of the demand as a component of a distinct offence.

[25] A plain reading of s. 254(3) suggests the precise point at which a peace officer must have reasonable grounds to believe a person iscommitting or, at any time within the three preceding hours, has committed an offence under s. 253 as a result of the consumption ofalcohol does not matter as long as the peace officer has the reasonable grounds to believe at the time of making the demand. Thisquestion was left open by this Court in R. v. Vandal, 2009 SKCA 79, 331 Sask. R. 171 at para. 13 as not needing to be decided in thatcase. [26] In R. v. Singer (1999), (SK KB), 176 Sask.

R. 266 (Q.B.), a case in which there was very little sign ofimpairment in the driver of a vehicle which collided with a bicycle and killed the rider. The trial judge had to decide whether the peaceofficer had reasonable and probable grounds to make the demand. She ruled: [44] …I must consider everything that the constable saw or knew about this matter at the time he had made his demand, including thecircumstances of the accident. (R. v. Saulnier (1990), 23 M.V.R. (2d) 16 (B.C.C.A.)). Further a peace officer can rely on hearsayevidence to form the reasonable and probable grounds. (R. v.

Strongquill, (SK CA), [1978] 5 W.W.R. 762 (Sask.C.A.)). [27] It is the role of this Court in such an appeal to examine the decision of the

summary conviction appeal court for reviewable erroron a standard of correctness (see R. v. Gunn, 2012 SKCA 80, [2013] 1 W.W.R. 495). It is open to this Court to substitute its ownopinion where the judge has come to the wrong legal conclusion (see R. v. Shinkewski, 2012 SKCA 63, [2012] 9 W.W.R. 674 at para.12).

Given “the standard of ‘reasonable grounds to believe’ is one of lesser probability which simply requires the reviewing court todetermine whether the factors articulated by the officer who made the breath-demand were reliable and were capable of supporting theofficer’s belief that the individual had driven while impaired or ‘over .08’ within the preceding three hours” (Gunn para. 7). It is clearthat all of the observations both prior to and after the arrest made by the arresting officer would fully support a demand for a breathsample.

We are satisfied the post-arrest conduct of the accused and the observations of the arresting officer and the admission by theaccused passenger they had both been drinking are sufficient to ground the arresting officer’s subjective belief with an objective base. We therefore see no Charter breach and it is not necessary to deal with the other grounds raised by the Crown. [28] We do wish to make the following additional comments. Again, this is an appeal from a

summary conviction appeal judge and notthe trial judge. We are not to be taken as agreeing with the trial judge’s decision to exclude all of the evidence prior to the arrestingofficer’s pursuit of the accused’s vehicle. The make, model, and colour of the vehicle were identified very early and reported to 911 andthen to the police. The first witness was also able to identify the licence plate number and certain distinct insignia or logos on thevehicle. The second witness also identified the make, model and colour of the accused’s vehicle and gave partial licence plateidentification.

The third witness, the driver of the tractor-trailer which was forced onto the shoulder to avoid a head-on collision with theaccused’s vehicle, was able to identify the colour and model of the accused’s vehicle. Two of the witnesses gave more than one accountof the driving of the accused’s vehicle by telephone. It would not be unreasonable for the police officer to assume that the person drivingat the time of the arrest was driving the vehicle earlier. Indeed, the accused was driving before the pursuit commenced. Not all policepursuits are monitored as closely as O.J.’s Bronco.

There is no imposed duty on the police to make further investigations to seek outexculpatory factors and rule out possible innocent explanations (see R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 at para. 34). It wasup to the accused to proffer an identity defence in the circumstances. [29] Nor are we to be taken as agreeing with the

summary conviction appeal judge’s rejection of the trial judge’s Grant analysis. Asset out in R. v. Hebrada-Walters, 2013 SKCA 24, 409 Sask. R. 229, at paras. 43-44, referencing the Supreme Court of Canada decisionin R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215: [43] I can find no error in the trial judge's analysis on the whole.

The standard of review for a s. 24(2) analysis is reiterated in R. v.Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44: 44 The standard of review of a trial judge's s. 24(2) determination of what would bring the administration of justice into disrepute havingregard to all of the circumstances is not controversial. It was set out by this Court in Grant and recently affirmed in R. v. Beaulieu, 2010SCC 7, [2010] 1 S.C.R. 248.

Where a trial judge has considered the proper factors and has not made any unreasonable finding, his or herdetermination is owed considerable deference on appellate review (Grant, at para. 86, and Beaulieu, at para. 5). [44] Richards J.A. in R. v. Turpin, 2012 SKCA 50, [2012] 9 W.W.R. 57, at para. 11, elaborated on the deference to be accorded to thetrial judge on a s. 24(2) analysis: 111 This Court may not simply re-weigh the facts or re-assess the evidence and substitute its own view of the proper answer to the s.24(2) question. McLachlin C.J. and Charron J., writing jointly, explained this as follows in R. v.

Grant itself: [86] In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to bestruck. Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexiblethan the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact thatpatterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications infuture cases.

In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courtsshould accord considerable deference to his or her ultimate determination. [emphasis in original]

See also: R. v. Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215 para. 51 . [ 30 ] For the above reasons, we see no Charter breach, the appeal is allowed, and a conviction for refusing to provide a breath sample is restored. The period of incarceration imposed was not unfit and has been served. The driving prohibition imposed by the trial judge is also restored.