QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 237 Date: 2012 06 08 Docket: Q.B. 11/2012 Judicial Centre: Moose Jaw BETWEEN: HER MAJESTY THE QUEEN and RONALD DENNIS WINGENBACH Counsel: Nicholas Robinson for the appellant Andrew Davis for the respondent JUDGMENT WHITMORE J. June 8, 2012 [1] This is an appeal from conviction in the Provincial Court of Saskatchewan that the appellant did, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 milliliters of blood, operate a motor vehicle contrary to section 255(1) and section 253(b) of the Criminal Code, R.S.C. 1985, c. C-46. [2] The notice of appeal states: 1. The learned trial judge erred in holding that the police officer who made demand for sample of the Appellant’s breath had reasonable and probable grounds to make such demand pursuant to section 254(3)(a) of the Criminal Code; 2. The learned trial judge erred in holding that the Appellant, upon being detained by the police, was provided with his right to retain and instruct counsel of his choice, without delay, and to be informed that right as provided by section 10(b) of the Canadian Charter of Rights and Freedoms. 3. The learned trial judge erred in holding that the Appellant, while being held for the purpose of providing samples of his breath, was not arbitrarily detained contrary to section of the Canadian Charter of Rights and Freedoms. 4. The learned trial judge erred in holding that the taking of breath samples from the Appellant did not constitute an unreasonable search and seizure pursuant to section of the Canadian charter [sic] of Rights and Freedoms. 5. The learned trial judge erred in holding that the certificate of analysis tendered by the crown was evidence of the concentration of alcohol in the Appellant’s blood pursuant to section 258 of the Criminal Code and in excluding such evidence pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms on the grounds that the Appellant’s rights were infringed or denied pursuant to section 8, or 10(b) of the Canadian Charter of Rights and Freedoms. 6. The learned trial judge erred in holding that the Appellant was the operator or had care or control of motor vehicle within the meaning of section 253(1)(a) or section 253(1)(b) of the Criminal Code. 7. The learned trial judge erred in holding that the Appellant’s ability to operate vehicle was impaired by alcohol or drug pursuant to s.253(1)(a) of the Criminal Code. 8. Such further grounds as counsel may advice [sic] and this Honourable Court may allow. [3] The appellant’s memorandum of law and oral argument, however, dealt only with the contention that the police officer did not have reasonable and probable grounds to arrest him and to demand that he provide sample of his breath for analysis, thereby infringing his right under ss. and of the Canadian Charter of Rights and Freedoms, Part of the Constitution Act, 1982, being Schedule to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”). Therefore will deal only with that ground of appeal. EVIDENCE AT TRIAL [4] Constable Forrester of the Moose Jaw Police Service observed vehicle driving north on Main Street in Moose Jaw at 11:55 p.m. Cst. Forrester noted that the front left tire of the vehicle was flat and that the car was raising dust as it was proceeding along Main Street. [5] She immediately followed the vehicle and put on her flashing lights and siren. She pulled the vehicle over into vacant parking lot. [6] The appellant exited the vehicle and Cst. Forrester saw the appellant looking in the direction of the left front tire of his vehicle. [7] The parties approached each other and Cst. Forrester asked the appellant for his operator’s license and registration. The appellant looked for his documents and got back in his car to look for the documents. Cst. Forrester testified that the appellant fumbled for his operator’s license and while looking for it, stumbled and appeared unsteady on his feet when he got back in his car. [8] Cst. Forrester noted that the vehicle’s windshield washers were on even though the weather was clear. [9] When Cst. Forrester asked the appellant if he had anything to drink, the appellant initially answered “no” but when Cst. Forrester told the appellant that she smelled alcohol, the appellant admitted to having consumed two drinks. [10] Cst. Forrester also testified that the appellant’s speech was slurred although she noted the appellant had cleft lip and this may have caused some speech impairment. [11] Cst. Forrester asked the appellant to enter the police vehicle. She testified that at this time she was considering whether she had sufficient grounds to charge the appellant with impaired driving and demand breath sample or whether to use an Approved Screening Device. [12] Once the appellant and Cst. Forrester were in the police vehicle, Cst. Forrester asked the appellant for particulars such as his name, address and other information and at 12:04 a.m., told him he was under arrest for impaired driving and gave him the Charter warning. At 12:05 a.m., Cst. Forrester demanded breath sample and gave the appellant the police warning. [13] Cst. Forrester testified as follows in giving the grounds that she had for demanding breath sample: A. Sure. And we had, like, the initial initial notices of that he was driving on flat tire up Main Street. His windshield wipers were on. He stumbled out of the car. He had problems getting his driver’s licence out. His eyes were glossy, red and bloodshot. He was slurring his speech which, again, could have been from his cleft lip and had something else. He was stumbling, and he smelled of beverage alcohol, and he also advised me that he had two drinks. Q. So you made the breath demand? did. (Transcript of Voir Dire, p. 18, lines 20 -27, p. 19, lines 4) [14] At 12:29 a.m., when the appellant was in the police station speaking with counsel, Cst. Forrester wrote her notes in her notebook. The notes of the incident in her notebook indicated that the appellant’s eyes were glossy and bloodshot: Q. And you made note, once Mr. Wingenbach was actually sitting in the room speaking with counsel, that his eyes were glossy and bloodshot; is that correct? Q. Is that yes? Q. And you’d agree with me that, at this point, while he’s in the phone room, it’s about 12:30 in the morning? A. Yeah, he’s in there at 12:29. (Transcript of Voir Dire, p. 47, lines 24-26, p. 48, lines 1-8) [15] Cst. Forrester testified that this was the first opportunity to make notes as when she was at the location of the arrest with the appellant in the police vehicle, she was writing up and completing the notice of impoundment of the appellant’s vehicle and did not get an opportunity to complete her notes until she was at the police station at 12:29 a.m. DECISION OF THE TRIAL JUDGE [16] The trial judge said at page 99, lines 16 the following, finding that Cst. Forrester had reasonable and probable grounds to make demand: THE COURT: Madam, with the greatest of respect, dealing firstly with reasonable and probable grounds, the law is very clear that you don’t examine indicia individually and with fine tooth comb. You look at the evidence as whole and determine whether the officer could reasonably come to the conclusion that she did. There is no doubt in my mind that the officer had reasonable and probable grounds. She testified to whole list of factors in her evidence. There is not the slightest indication that she didn’t make those observations or truly act upon them. The video confirms that she was correct in most of those observations. I’m satisfied that she had reasonable and probable grounds. STANDARD OF REVIEW [17] The court may allow an appeal of summary conviction for the reasons set out in para. 686 of the Criminal Code which by s. 822(1) of the Code are made applicable to summary conviction appeals. 1. The verdict is unreasonable and cannot be supported by the evidence; 2. The decision was wrong on question of law unless the court is of the opinion that no substantial wrong or miscarriage of justice has occurred; and 3. There was miscarriage of justice. [18] With respect to appeals brought on the basis the judgment is unreasonable and cannot be supported by the evidence, the test is whether properly instructed jury, acting reasonably, could have reached such verdict. The court can allow an appeal where the trial judge has made palpable and overriding error but it must not substitute its own view of the evidence for that of the trial judge, especially in matters involving findings of credibility. (See R. v. Andres (1979), 1979 CanLII 2238 (SK CA), Sask.R. 96 (Sask. C.A.), [1982] W.W.R. 249; R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] S.C.R. 909, 64 C.C.C. (3d) 193) [19] For appeals brought on the basis of an error of law, reversible errors in dealing with evidence can include: 1) misdirection respecting reasonable doubt; 2) failure to consider the evidence in totality; 3) misdirection concerning specific relevant evidence (See R. v. B.(G.), 1990 CanLII 115 (SCC), [1990] S.C.R. 57, 86 Sask.R. 142 following R. v. Morin, 1988 CanLII (SCC), [1988] S.C.R. 345, 44 C.C.C. (3d) 193). reversible error may also include an erroneous interpretation of Charter breach. (See R. v. Yuhas (1993), 1993 CanLII 9081 (SK QB), 114 Sask.R. 34, [1993] S.J. No. 488) [20] For purposes of this appeal, the appropriate test is set out in R. v. Shepherd, 2009 SCC 35 (CanLII), [2009] S.C.R. 527 at paras. 18 22. note specifically at para. 20 While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is question of law. ... Although the trial judge's factual findings are entitled to deference, the trial judge's ultimate ruling is subject to review for correctness. ISSUE Did Cst. Forrester have reasonable and probable grounds to make breath demand? LAW AND ANALYSIS [21] The appellant argues that at the time Cst. Forrester took the appellant to the police vehicle, she was not certain if she had reasonable and probable grounds to make demand for breath sample or whether she should use an ASD. However when she got to the police vehicle and the appellant was placed in the police vehicle, she very soon thereafter made demand for sample of the appellant’s breath. [22] The appellant argues that the trial judge failed to consider Cst. Forrester’s own testimony that she was not certain if she had reasonable and probable grounds to make demand for breath sample only minutes before she made the demand. [23] The appellant refers to R. v. Shepherd, 2007 SKCA 29 (CanLII), [2007] W.W.R. 659 at para. which states as follows: concise definition of reasonable and probable cause is found in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] S.C.R. 170 at p. 193: ... Reasonable and probable cause has been defined as "an honest belief in the guilt of the accused based upon full conviction, founded on reasonable grounds, of the existence of state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed" (Hicks v. Faulkner (1878), Q.B.D. 167, at p. 171, Hawkins J.) This test contains both subjective and objective element. There must be both actual belief on the part of the prosecutor and that belief must be reasonable in the circumstances. The existence of reasonable and probable cause is matter for the judge to decide as opposed to the jury. [24] The appellant argues that Cst. Forrester could not have had reasonable and probable grounds to demand sample as only minutes before she was uncertain as to whether she did have reasonable or probable grounds. Thus, the subjective element in determining whether she had reasonable and probable grounds to make the demand is not present. [25] The appellant argues that the trial judge’s failure to address this missing element amounts to breach of the appellant’s rights under s.8 of the Charter resulting in an unreasonable search and seizure. As result, the Certificate of Analysis should be excluded. [26] In short, the appellant argues that Cst. Forrester’s reasonable suspicion that the accused may be impaired does not amount to reasonable and probable grounds. [27] The respondent argues that Cst. Forrester was not obliged to gather new evidence after taking the appellant to the police vehicle. Cst. Forrester was simply analysing what she had observed. By the time Cst. Forrester placed the appellant in the police vehicle and got in the vehicle herself, she analysed what she had observed and came to the conclusion that she had reasonable and probable grounds to make demand for sample of the appellant’s breath. The duty on the officer is to act reasonably under the circumstances and Cst. Forrester did so. The respondent further argues that in the event there is breach, that the breach was merely of minor technical nature. Following the Supreme Court decision of R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.R. 353, the breath sample is minimally invasive and should not be excluded. [28] have reviewed the evidence and find that the decision of the trial judge was reasonable and supported by the evidence. It is not clear that Cst. Forrester observed the bloodshot eyes of the appellant after making the formal arrest as argued by the appellant. Cst. Forrester admitted she did not know what type of footwear the appellant was wearing. The defence made the point that if he had been wearing flip flops, that footwear may have caused him to walk awkwardly or stumble, but there was no evidence the appellant was wearing flip flops. Cst. Forrester did notice the appellant had cleft lip and considered that that may have affected his speech. [29] The trial judge was in a position to test the credibility of Cst. Forrester. In coming to his conclusion he considered the totality of the evidence. The trial judge’s conclusion is supported by the facts. Cst. Forrester’s belief was based on the observation that the appellant was driving with a flat tire and with the vehicle’s windshield wipers operating although it was a clear night, as well as all the other indicia of impairment referenced above. Even excluding the slurred speech and bloodshot eyes, the remaining indicia which Cst. Forrester observed provides ample evidence to support her belief the appellant was operating his motor vehicle while his ability to do so was impaired. The trial judge’s decision was correct. Cst. Forrester had reasonable and probable grounds to demand a sample of the appellant’s breath, and the appellant’s claim for breach of the Charter must fail. [30] The appeal is therefore dismissed. J. P.A. WHITMORE
The appellant was convicted of driving over .08 contrary to s. 253(b) of the Criminal Code. The appellant's memorandum of law and oral argument only addressed whether the police officer had reasonable and probable ground to arrest and demand his breath sample and asserted a violation of his rights pursuant to s. 8 and 9 Charter of Rights. HELD: The appeal was dismissed. The trial judge tested the officer's credibility and the judge's conclusion was supported by facts. The officer's belief was based on the observation that the appellant was driving with a flat tire, with windshield wipers operating on a clear night, as well as slurred speech and bloodshot eyes. The officer had reasonable and probable grounds to demand a sample of the appellant's breath.