HER MAJESTY THE QUEEN v. Joanne L. Thompson, 2003 SKPC 56

Information # 24060439 2003 SKPC 56 IN THE PROVINCIAL COURT FOR SASKATCHEWAN AT WATROUS, SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN -and- Joanne L. Thompson Christopher White, for the Crown. John Williams , for the defence INTERIM RULING March 22, 2003 Jackson, PCJ The Charge Background [ 1 ] The accused stands charged that on or about the 16th day of July 2001, at Manitou Beach, in the Province of Saskatchewan, did ... "while her ability to drive a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to

section 253 (

a) and section 255(1) of the Criminal Code And having consumed alcohol in such quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle contrary to

section 253 (

b) and 255(1) of the Criminal Code ." [ 2 ] The matter came on for trial before me on February 24, 2003, in Watrous, Saskatchewan. [ 3 ] At the conclusion of the Crown's case, the defence brought a motion to exclude the Certificate of Analyses, such evidence flowing from an invalid approved screening device demand, which infringed the accused's s.8 and s.9 Charter rights. [ 4 ] The Crown conceded that if such Charter breaches were found, the appropriate remedy would be to exclude the Certificate of Analyses pursuant to s.24(2) of the Charter.

Issues [ 5 ] At issue is whether the arresting officer formed the requisite belief necessary to make a roadside demand pursuant to s. 254(2). More specifically, whether the officer's determination that the accused motorist had "consumed alcohol" was sufficient to bring it within the parameters of this section. [ 6 ] A second issue was whether the officer's opinion, so formed, could be objectively upheld on the evidence before me leading to such demand. Facts [ 7 ] The Crown called RCMP Constable Zambak as its only witness. [ 8 ] Cst.

Zambak testified he was on vehicle patrol northbound from Manitou Beach near the Town of Watrous. He encountered the accused's vehicle coming from the opposite direction, which he clocked at 90 kilometres per hour in a 60 kilometre per hour zone. [ 9 ] He initiated pursuit and the subject vehicle was stopped within approximately 200 metres of giving chase. Upon approaching the vehicle, he noted the accused to be the driver and a male to be seated in the passenger seat. A third passenger was in the rear seat.

He detected an odour of alcohol coming from the vehicle and observed a plastic bag with roughly half a dozen empty beer bottles on the floor. [ 10 ] The accused was noted to have bloodshot eyes. She was unable to produce a driver's licence or registration for the vehicle. She was polite and cooperative. [ 11 ] he accused was asked to take a seat in the rear of the patrol car. Cst. Zambak testified that while in the patrol car he was able to ascertain the odour of alcohol was emanating from the accused's breath.

The reliability of this piece of evidence was called significantly into question, however, in cross-examination when Cst. Zambak conceded that the only reference to smell of alcohol in his notes, the CANSAY statement, Continuation Report, Prosecutor's Information Sheet and Particulars of Offence related to smell of alcohol coming from the vehicle. Nowhere was there any mention of alcohol being detected on the accused's breath. [ 12 ] The importance of noting such a material aspect as alcohol coming from the accused's breath in this type of investigation is vital.

The absence of any reference to it in all five documented reports raises potential disclosure issues at least, and, in any event, compels the court to conclude that the officer may well be mistaken in this regard. [ 13 ] Cst. Zambak testified further that the accused admitted to having her last drink approximately one hour before being stopped. In cross-examination it was pointed out that this notation was found between the "demand" and "fail" portion of his notes.

In the circumstances, he conceded this admission may have in fact occurred after the ASD demand was made, although it would be his usual practice to ask this prior to the demand. [ 14 ] In any event, the officer testified that he formed the opinion that the accused "had consumed alcohol" and accordingly he administered the approved screening device demand. He reiterated this phraseology in cross-examination. [ 15 ] Based upon the ASD "fail" and the driving evidence, Cst. Zambak believed he had reasonable and probable grounds to make a formal breath demand.

He candidly admitted that he had no grounds otherwise, and if she had passed the approved screening device he would have let her go or given a 24-hour suspension, depending on the result. [ 16 ] Following the requisite rights and cautions, the accused was transported to the nearest detachment in Lanigan and subsequently provided breath samples of 120 mgs. and 110 mgs., respectively. [ 17 ] At the scene and the detachment, she declined to exercise her rights to counsel.

Decision [ 18 ] The first issue raised by the defence related to the evidence of the arresting officer that he determined the accused "had consumed alcohol" and therefore, together with the other evidence he had on hand, he believed he was justified in making the ASD demand. [ 19 ] Defence counsel maintained this was not what was required by s. 254(2) which reads, in part: Where a peace officer reasonably suspects that a person who is operating a motor vehicle ...has alcohol in the person's body..." (emphasis added) [ 20 ] In support of this proposition, defence counsel provided three decisions: R. v.

Hendel [1997] O.J. No. 2849 D.R.S. 97 -15263 (Ont. Ct. of Justice (General Division R. v. Smith [1997] O.J. No. 3677 D.R.S. 98 -01567 (Ont. Ct. of Justice (Prov. Division)); R. v. Passero [1999] O.J. No. 1370 , Court File No. 9953/98 (Ont. Ct. of Justice (General Division)). [ 21 ] The Crown subsequently acknowledged by correspondence to the court that no authority had been located to refute these decisions. [ 22 ] Initially, I had believed the comparison between "had consumed alcohol" and "has alcohol in the person's body" to be a distinction without merit.

Upon reflection, and having given careful consideration to the cases cited, I am persuaded that the words "had

consumed alcohol" are indeed insufficient for the court to conclude that the officer had a reasonable suspicion there was alcohol in her body at the time of the ASD demand. [ 23 ] Evidence of consumption manifested by physical observation and/or through dialogue with the motorist may well provide such reasonable suspicion of alcohol in the body. The threshold is far lower than the required belief to make a formal breath demand. The wording of the section, however, is clear and unambiguous. It does not leave a trier of fact with the necessity of drawing inferences that consumption of alcohol at some point in itself equates to having alcohol in the body. [ 24 ] Support for this

interpretation can be found in the words of Madam Justice Charon of the Ontario Court of Appeal in R. v. Latour, 1997 CanLII 1615 (ON CA) , 34 O.R. (3d) 150 (released June 17, 1997), at paragraph 31, cited with approval in each of the three cases referred to the court (supra): "The

section simply provides that, prior to making the demand, the peace officer must reasonably suspect that a person who is operating a motor vehicle (or who is engaged in any one of the other named activities) has alcohol in his or her body. If the peace officer forms the required suspicion, he or she may make a demand that the person provide "forthwith" a sample of breath for analysis in an approved screening device." [ 25 ] Crown counsel in R. v. Hendel (supra) at page 3, paragraph 13, cited the decision of the Alberta Court of Appeal in R. v.

Gilroy (1988) 1987 ABCA 185 (CanLII) , 3 M.V.R. (2d) 123, as a contra position, wherein Mr. Justice McClung states at page 125: "The offence does not call for proof beyond a reasonable suspicion that the suspect driver has alcohol in his body, a valid demand and an invalid refusal. Legislative priority has removed the process from the Judge's consideration of the degree of impairment that is displayed before the demand is made. The test is consumption alone and not its amount or behaviourial (sic) consequences." [ 26 ] Although Mr.

Justice McClung states "...The test is consumption alone...", this must be read in context with the first sentence of the quote "...The offence does not call for proof beyond a reasonable suspicion that the suspect driver has alcohol in his body...". (emphasis added) [ 27 ] Even if one could construe this passage to require "consumption alone" to be sufficient, I would be inclined to the contrary view that there still must be a reasonable suspicion of alcohol in the body, for the reasons stated above. [ 28 ] The second issue raised by the defence related to the objective evidence to support the arresting officer's reasonable suspicion. [ 29 ] Although this determination is unnecessary given my conclusion on the previous point raised, on the evidence before me I would clearly find there was no objective basis upon which a reasonable suspicion of alcohol in the body could be made. [ 30 ] This conclusion is reached for two reasons.

As set out previously at paragraph 12, the evidence of alcohol on the breath of the accused was not reliable in the circumstances of this particular case. Secondly, the admission of having had her last drink being possibly made after the demand (as conceded by the officer), same could not be relied upon to formulate the required reasonable suspicion. See R. v. Gavin 1993 CanLII 1978 (PE SCAD) , [1993] P.E.I.J. No. 136 (C.A.). [ 31 ] This then leaves only the evidence of speeding, bloodshot eyes, empty beer bottles in a plastic bag with three persons in the car, and smell of alcohol coming from the vehicle.

Objectively, these grounds alone cannot support a conclusion of reasonable suspicion of alcohol in the body of the motorist. A useful review in regard to this issue can be found in R. v. McDarby [1998] O.J. No. 2443 (Ont. Gen. Div.) and R. v. Trory [1998] O.J. No. 3297 (Ont. Gen.

Div.) . [ 32 ] For all of the foregoing reasons, the defence application to exclude the Certificate of Analyses based upon a breach of ss. 8 and 9 of the Charter is granted, pursuant to s. 24(2). [ 33 ] Accordingly, there being no evidence upon which to convict in regard to the second count, same is dismissed against the accused. [ 34 ] The court will now entertain submissions from Crown and defence as to the resumption of the trial in regard to the first count of impaired driving. _______________________________________________ Jackson , P.C.J.