R v Sword, 2015 SKCA 116

Court of Appeal for Saskatchewan Docket: CACR2582 Citation: R v Sword , 2015 SKCA 116 Date: 2015-11-13 Between: Joe Sword Appellant And Her Majesty the Queen Respondent Before: Jackson, Herauf and Whitmore JJ.A. Disposition: Leave granted, appeal dismissed Written reasons by: The Honourable Mr. Justice Whitmore In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Herauf On Appeal From: 2015 SKQB 9 , Saskatoon Appeal Heard: 11 September 2015 Counsel: Joe Sword for himself Beverly Klatt for the Respondent Whitmore J.A. [ 1 ] The appellant, Joseph Sword, was acquitted in Provincial Court on a charge of driving while over .08 ( R v Sword , 2013 SKPC 43 ). Upon appeal by the Crown, the

summary conviction appeal court judge overturned the acquittal and entered a conviction ( R v Sword , 2015 SKQB 9 [ QB Decision ]). The appellant now seeks leave to appeal the conviction and, if granted, appeals his conviction by the

summary conviction appeal court judge. [ 2 ] Although I find the

summary conviction appeal court judge made two errors in his analysis, these errors are of no consequence to his ultimate decision. As a result, I would grant leave to appeal, but I would dismiss the appeal. [ 3 ] The

summary conviction appeal court judge found that the trial judge erred in using the wrong test to determine whether the police officer had the right to demand a sample of the appellant’s breath.

He found the trial judge applied a test that required the constable to believe the accused actually had alcohol in his body and seemingly contemplated that such belief could only flow from some evidence in the circumstances that the accused’s consumption of alcohol was recent, when the trial judge should have made the determination on the basis of whether the police officer had reasonable grounds to suspect the appellant had consumed alcohol. [ 4 ] The following was articulated in R v Yates , 2014 SKCA 52 , 438 Sask R 78 [ Yates ]: [37] … the standard of reasonable suspicion only requires the Crown to prove a reasonable suspicion that a driver possibly had alcohol in his body. … [38] … the requirement that an investigating officer must have direct proof of a driver having alcohol in his or her body in order to found a reasonable suspicion that the driver has alcohol in his or her body is inconsistent with the prescribed standard and the requirements of s. 254(2)( b ).

As previously discussed, the applicable evidentiary standard only requires the investigating officer to have a reasonable suspicion that a driver has alcohol in his or her body, based on a constellation of objective events. (Emphasis in original) [ 5 ] Section 254(2) of the Criminal Code reads as follows: Testing for presence of alcohol or a drug 254

(2) If a police officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle … whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph ( a ), in the case of a drug, or with either or both of paragraphs (

a) and ( b ), in the case of alcohol …. (Emphasis added) [ 6 ] The trial judge observed the following: [13] Although the test for an ASD demand under the Code is quite low, the constable must still have reasonable grounds to suspect that the accused has alcohol in his body while operating the vehicle before he is entitled to make the demand.

The constable was unable to say at what point in their interaction the accused told him the timing of his last drink; that is, the Crown is unable to prove that the constable had any basis for believing that the accused had any alcohol in his body at the time the ASD demand was made. ( Sword ) While the trial judge did refer to a belief by the constable that the appellant had alcohol in his body, the trial judge nevertheless articulated the test properly in the first sentence of para. 13: “The constable must still have reasonable grounds to suspect that the accused

has alcohol in his body while operating the vehicle before he is entitled to make the demand.” [ 7 ] Therefore, I find the trial judge did not err in identifying the proper test for making the ASD demand. [ 8 ] However, I find the trial judge did make an error when he found at para. 13 (quoted above) that the Crown is unable to prove the constable had any basis for believing the appellant had any alcohol in his body at the time of the ASD demand, and again at para. 16 when the trial judge enunciated the following: “I therefore have to conclude that the constable did not have any evidence, at the time he made the ASD demand, that the accused had alcohol in his body.

The accused was therefore arbitrarily detained, in violation of s. 9 of the Charter ” (para. 16). [ 9 ] The trial judge had already found as a fact that the appellant had consumed alcohol.

The trial judge said, “With respect to the former issue, the grounds which the constable had for making the ASD demand were the rapid exit from the parking lot, the small amount of swerving of the vehicle, an odour of alcohol from the vehicle, and the accused’s statement that he had consumed alcohol ” (emphasis added, para. 12). [ 10 ] To then follow up at para. 13 that there was no evidence that the appellant had alcohol in his body at the time of the ASD demand was made is clearly an error. [ 11 ] In coming to this conclusion, the trial judge appears to have mistaken the evidence of the appellant’s admission that he had consumed alcohol with the evidence as to when the appellant had consumed his last drink. [ 12 ] The evidence of the police officer, the evidence of the appellant, and the evidence at the voir dire were consistent and clear that the police officer asked the appellant if he had been drinking, which the appellant (while he was still in his own vehicle) admitted and this admission was before the ASD demand was made.

However, the police officer and the appellant were both unsure whether the police officer asked the appellant when he had consumed his last drink—before or after the ASD demand was made, as stated by the trial judge at paras. 14–16: [14] … The evidence is uncertain, to put the best face on it, as to when the accused made his statement of recent consumption to the constable. It may have been made before the ASD demand; it may have been made before the ASD test; it may have been after the ASD test.

Not being able to determine this, I cannot include it in the officer’s grounds. [15] I note in passing that the accused, testifying on the voir dire , made reference to this conversation having occurred while he was still in his car.

As I refer to in greater detail below, I did not find the accused very convincing on the details of this conversation; I see no reason why I should give his recollection of the timing of it any greater weight. [16] I therefore have to conclude that the constable did not have any evidence, at the time he made the ASD demand, that the accused had alcohol in his body. [ 13 ] As shown above, there clearly was evidence the appellant had consumed alcohol when the ASD demand was made and the trial judge had already concluded that there was evidence.

Thus, his conclusion at para. 16 clearly amounts to a palpable and overriding error. [ 14 ] In addition, the

summary conviction appeal court judge erred when he said the following: [17] I am of the opinion that a reasonable person standing in the shoes of the police officer with knowledge of this constellation of circumstances would conclude that there were reasonable grounds to suspect that the accused possibly had, at the time, alcohol in his body. (Emphasis added, QB Decision ) [ 15 ] In so saying, the

summary conviction appeal court judge appears to have regarded what Klebuc J.A., for the majority, said in Yates at para. 37 quoted above as the test to be satisfied under s. 254(2) of the Criminal Code . [ 16 ] This is an error. Yates formally set out the proper test at para. 33: [33] Based on Chehil, MacKenzie, Jacques and Bernshaw, to the extent the latter dealt with s. 254(2) ( b ), I conclude the requirements for a valid s. 254(2) (

b) demand essentially are that: (

i) the police officer must subjectively (or honestly) suspect the detained driver has alcohol in his or her body; and (ii) the police officer’s subjective suspicion must be based on a constellation of objectively verifiable circumstances, which collectively indicate that the suspicion that the detained driver has alcohol in his or her body is reasonable. [ 17 ] The test makes no reference to a “reasonable suspicion” that the driver “ possibly had, at the time, alcohol in his body” ( QB Decision , para. 17).

Indeed, as I have indicated, s 254(2) of the Criminal Code uses the phrase “if a police officer has reasonable grounds to suspect ” (emphasis added) not possibly suspect. The comment in para. 37 of Yates adopted by the

summary conviction appeal court judge was made in the context of explaining the difference between a probability and a possibility. Klebuc J.A., in Yates , was not revising the test he had formally set out in para. 33 and which he states again at para 38: “the applicable evidentiary standard only requires the investigating officer to have a reasonable suspicion that a driver has alcohol in his or her body.” [ 18 ] However, notwithstanding that error, the

summary conviction appeal court judge correctly identified and applied the proper test at para. 13: [13 ] What s. 254(2) of the Criminal Code requires is that the investigating officer has reasonable grounds to suspect a person has alcohol in their body and has within the preceding three hours operated a vehicle. The trial judge said at para. 13 of Sword the Crown was

unable to prove the constable had any basis for believing the accused had any alcohol in his body at the time of the ASD demand.Specific evidence that the accused had alcohol in his body is not required, nor must the constable have believed the accused had alcoholin his body. What is required is reasonable grounds to suspect the accused had alcohol in his body. This is not a pedantic distinction. (Underline emphasis in original, QB Decision) [19] In conducting his own analysis, the

summary conviction appeal court judge found there were reasonable grounds to suspectthe appellant had consumed alcohol. I would agree with this conclusion. The demand was properly made. [20] Secondly, the

summary conviction appeal court judge found that the trial judge had erred by finding that the appellant’sbreath samples were not taken “as soon as practicable” as required by s. 258(1)(

c) of the Criminal Code: Proceedings under

section 255 258(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in anyproceedings under any of subsections 255(2) to (3.2) … (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if … (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case ofthe first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the sampleswere taken … evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at thetime when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of theanalyses are the same, the concentration determined by the analyses …. (Emphasis added) [21] In his analysis, the

summary conviction appeal court judge erred by determining the requirement to take the tests as soon aspracticable in s. 258(1)(

c) runs from the time of arrest until the time the samples were taken, not from the time “when the offence wasalleged to have been committed” (the time of driving): [22] The accused was arrested at 2:05 a.m. and both tests were completed by 3:11 a.m., less than 1 hour 10 minutes from the time ofarrest, well within the overall 2-hour time limit.

The trial judge found no problem with the time that elapsed between arrest at 2:05 a.m.and the arrival at the police station at 2:24 a.m.; but he held because of the passage of 25 or 29 minutes between the time of arrival atthe police station and the completion of the first test was not explained in the evidence, he had to conclude that Crown had not shown thetests were taken as soon as practicable. [23] The evidence discloses that after arrival at the police station at 2:24 a.m. the accused was booked into detention and following thisConstable Flogan assisted the accused to call his wife to arrange for a ride home when the testing procedures were complete.

This calloccurred circa 2:29 a.m. By 2:39 a.m. the accused was in the presence of the breath technician Constable Pozniak who explained thebreath testing procedure to the accused and conducted the tests. The first breath sample was taken at either 2:49 or 2:53 a.m. and thesecond at 3:11 a.m. The legislation requires at least 15 minutes between the 2 tests. Here an interval of at least 17 minutes was provided. (Emphasis added, QB Decision) [22] The

summary conviction appeal court judge then reviewed the elapsed time from the arrival at the police station until thetests were taken: [25] I see no factual basis on which to conclude that there was what can be categorized as delay in the administration of the tests. Themere passage of time is not delay if the time was occupied by other reasonable activities in the circumstances of the case. As stated in Rv Vanderbruggen (2006), (ON CA), 206 CCC (3d) 489 (Ont CA), the touchstone for determining whether the testswere taken as soon as practicable is whether the police acted reasonably.

It is reasonable to spend the time required to permit an accusedto telephone his wife to arrange a ride, reasonable for the police to spend 10 to 15 minutes to question the accused and complete astandard investigation checklist, reasonable to permit the accused to go to the washroom, to have a drink of water and reasonable to taketime to explain the testing procedure to the subject. [23] In this case, because the time of driving was so close in time to the time of arrest, merely seven minutes prior, I am of theview that the

summary conviction appeal court judge’s analysis was correct, notwithstanding his error in finding the timeframecommenced at the time of arrest, not the time of driving, because the error had no ultimate bearing on his findings that the tests weretaken as soon as practicable. The examination only pertained to the time between the appellant’s arrival at the police station and thetaking of the tests, as the trial judge found no issue with the time prior to the arrival of the appellant at the police station. [24] The appellant also submits the

summary conviction appeal court judge refused to hear him on certain factual matters.Specifically, the appellant submits it would have been difficult for the police officer to see him leave the parking lot of the bar; thepolice officer said the car kicked up dust, which is impossible because it was raining; and the police officer could not see if theappellant’s car had only crossed the centre line of the road by half an inch. The appellant also submits the police officer said theappellant parked properly and was not slurring his words. [25] These submissions are without merit.

There was no evidence that it had been raining or that it was difficult to see theappellant’s car leaving the bar or cross the centre line. The evidence as to whether the appellant parked his car properly or was notslurring his words is not relevant to the

summary conviction appeal court judge’s decision. [26] The

summary conviction appeal court judge’s findings are ultimately correct in the result. Therefore, while I would grant

leave to appeal, I would dismiss the appeal. The matter is remitted to the trial judge for sentencing. “Whitmore J.A.” Whitmore J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Herauf J.A.” Herauf J.A.