LANE J.A. PROVINCIAL COURT PROVINCE OF SASKATCHEWAN INFORMATION 44907292 HER MAJESTY THE QUEEN V. WADE JEFFREY ST. GERMAINE Perry Polischuk for the Crown Daryl Labach for the Accused JUDGMENT KOLENICK, PCJ March 20, 2001 [1] The accused is charged that he did, on or about July 10th, 2000, operate a motor vehicle while his ability to do so was impaired, and also, operate a motor vehicle while over .08, contrary to s. 253(a) and 253(b) of the Criminal Code, respectively. [2] The following issues arose during the trial:1) Was there a breach of the rights of the accused under ss. 8 and 9 of the Charter to be secure against unreasonable search or seizure, and not to be arbitrarily detained, in regard to the issue of reasonable and probable grounds for the demand? If there was a breach, is there a remedy under s. 24(2) of the Charter?2) Is the evidence sufficient to prove beyond a reasonable doubt the offence of impaired driving, contrary to s. 253(a) of the Criminal Code? [3] On July 10, 2000, at approximately 2:20 a.m., Cst. Ernie Louttit of the Saskatoon Police Service was on duty. He was operating marked police vehicle, and he was stopped behind vehicle at red light. He observed that the vehicle did not move despite that the traffic light turned green at least twice. [4] The officer activated the emergency lights on his vehicle, and went to check on the driver, with concern that he might be in some nature of physical distress. He identified the accused seated upright behind the wheel, wearing bathing suit. He appeared to be sound asleep, or passed out. [5] He was aware of the smell of alcohol from the accused. He grabbed him by the wrist, and the co-accused woke up immediately. Shortly thereafter, he was able to comprehend what was happening. [6] On the evidence, the officer did not ask the accused whether he had been drinking.  He walked him back to the police vehicle, and he did not observe any problems with balance or manner of walk. As well, the accused was co-operative throughout, and he did not have any difficulty understanding his rights and the breath demand, which were read to him from a printed card. [7] Cst. Loutit also indicated that the accused's eyes were somewhat glassy or bloodshot, and that his speech was bit slurred. However, he also conceded that there was nothing in his notes regarding slurred speech, nor had it been included in the investigation documents which he had prepared shortly after the investigation. As such, I must conclude that the evidence of slurred speech is not reliable. [8] The officer testified that he was at the scene with the accused for approximately fifteen minutes, and that ultimately the accused provided breath samples of 160 milligrams, and 150 milligrams at 2:56 a.m., and 3:17 a.m., respectively. In this regard, he had concluded that he had reasonable and probable grounds for the breath demand, based upon the accused sleeping through the two green traffic lights, the strong smell of alcohol, and that his eyes were somewhat bloodshot or glassy. Issue: Was there breach of the rights of the accused under ss. and of the Charter to be secure against unreasonable search or seizure, and not to be arbitrarily detained, in regard to the issue of reasonable and probable grounds for the demand? If there was breach, is there remedy under s. 24(2) of the Charter? [9] Section 254(3) of the Criminal Code provides, in part, as follows: "254(3) Where peace officer believes on reasonable and probable grounds that person is committing, or at any time within the preceding two hours has committed, as result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable (1) such samples of the person's breath as in the opinion of qualified technician, ... are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person's blood, and to accompany the peace officer for the purpose of enabling such samples to be taken. [10] In these proceedings, the accused took the position that the officer did not have reasonable and probable grounds for making the demand, and that this conduct constituted breach of his Charter rights. This issue was considered by Dawson J. in v. Singer 1999 CanLII 12875 (SK QB), [1999] 25 CR (5th) 374, who set forth the following principles at paragraph 43: "The first issue is whether there were reasonable and probable grounds to make the demand for breath samples from the accused. As stated by the Supreme Court of Canada in v. Bernshaw (1994), 1995 CanLII 150 (SCC), 95 CCC (3d) 193 (SCC) at p. 216: ... The existence of reasonable and probable grounds entails both an objective and subjective component. That is, s. 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and, objectively, there must exist reasonable grounds for this belief: v. Callaghan, 1974 CanLII 962 (SK QB), [1974] WWR 70 (Sask. Dist. Ct.) v. Belnavis, [1993] O.J. No 637 (Gen. Div.) (QL) ... v. Richard (1993), 1993 CanLII 8567 (ON SC), 43 MVR (2d) 144 ... In deciding whether Constable Hunt had reasonable and probable grounds to make the demand, must consider everything that the constable saw or knew about this matter at the time he had made his demand, including the circumstances of the accident. (R v. Saulnier (1990), 23 MVR (2d) 16 (B.C.C.A.)). Further peace officer can rely on hearsay evidence to form the reasonable and probable grounds. (R v. Strongquill, 1978 CanLII 1815 (SK CA), [1978] WWR 762 (Sask.C.A.))." [11] In considering this matter, the court is required to examine the evidence as whole, and of course, every case will depend great deal on its individual circumstances. In this regard, in v. Wudrick (2000) MVR (4th) 248 (Sask. Q.B., Smith, J.), the court concluded that the evidence was sufficient to establish reasonable and probable grounds for the breath demand. The officer therein indicated that she observed kind of swerving in the lane, that the accused appeared to be bit unsteady on his feet when he got out of his vehicle on two separate occasions. She smelled strong odour of liquor coming from his breath, his eyes were red and glassy, and his speech was slightly slurred. [12] In v. Brezinski 2000 ABQB 373 (CanLII), [2000] WWR 237 (Alta. Q.B.), the court referred to various authorities which have considered the issue of reasonable and probable grounds for the demand, at paragraph 64: "Cases in which an investigating officer's observations of the accused's physical comportment have been held inadequate to justify the making of 254(3) demand include: R. v. Cooper (1993), 46 M.V.R. (2d) 231 (Ont. Prov. Div.). The investigating officer noted strong odour of alcoholic beverage coming from the accused's vehicle and that the accused's eyes were glassy and his speech slurred. R. v. Khanataev (May 26, 1998). Finnestad Prov. J. (Ont. Prov. Div.). The accused was observed operating motor vehicle at grossly excessive speed, dodging in and out of traffic. He displayed flushed cheeks, glassy eyes, strong odour of alcoholic beverage on his breath. There was no slurring of speech, difficulties with balance, or difficulties complying with directions or instructions. R. v. Hopkie (1994), 1994 CanLII 5049 (SK QB), 126 Sask. R. 44 (Sask. Q.B.). The demanding officer noted strong odour of alcohol coming from the accused and red eyes. He also knew that the accused was the operator of motor vehicle which had been involved in collision. The finding of the learned trial Judge, that there were no reasonable and probable grounds, was upheld on appeal. MacPherson C.J. Q.B. stated at para. 16: Neither the smell of alcohol nor redness of eyes, together or by themselves, can indicate impairment in the ability to operate vehicle. But in combination with staggering walk, slurring of speech, knowledge of erratic driving, inability to reasonably answer questions, or perhaps any of these things, could give rise to belief of impairment on reasonable and probable grounds. But none of these other factors was present to the knowledge of [the investigating constable]. R. v. M. (C.R.)(1998), 1998 CanLII 13877 (SK QB), 33 M.V.R. (3d) 308 (Sask. Q.B.). The investigating officer noted smell of alcohol and bloodshot eyes. At issue in this case was the admissibility of statement as to alcohol consumption made by the accused young person. The statement was excluded, and it was held that there was no ground upon which the officer could have formed reasonable suspicion under section 254(2) of the Criminal Code. v. Hendel (July 3, 1997). Jennings J. (Ont. Gen. Div.). In this case, it was held that notwithstanding the detection of an odour of alcoholic beverage on the breath of the accused, as well as an observation of bloodshot eyes, the investigating officer did not come to the requisite reasonable suspicion for an approved screening device demand." [13] In v. McIntosh (1972) 1972 CanLII 766 (SK QB), WWR 459 (Sask. Dist. Ct.), (Maher D.C.J., as he then was), one of the investigating officers noted in the accused the presence of strong odour of alcohol and eyes which appeared to be bloodshot. Specifically, there were no signs of staggering, and the accused appeared to be coherent. The other officer had observed an odour of liquor and the accused had admitted to him that he had had drink. The court concluded as follows at paragraph 14: "14) These authorities lead me to the conclusion that the section contemplates the situation where peace officer, acting in prudent and cautious manner, considers set of circumstances which he reasonably believes to be true, and concludes with full conviction that the offence described as impaired driving is being committed or has been committed within the previous two hours. ... An observation by peace officer of eyes that appear to be bloodshot, accompanied by smell of liquor, does not constitute reasonable and probable grounds for making demand for sample of breath. [14] Further, in regard to the issue of the admissibility of evidence, in v. Poncelet (B) 1998 CanLII 13891 (SK QB), [1998] 169 Sask. R. 273 (Sask. Q.B.), Dovell J. stated as follows at paragraph 15: "[15] The existence of reasonable and probable grounds is central to the admissibility of breath and blood sample evidence. The Saskatchewan Court of Queen's Bench has held that certificates are not to be admitted where the "prerequisite reasonable and probable grounds" have not been present. [16] In R. v. Hopkie (D.M.) (1994), 1994 CanLII 5049 (SK QB), 126 Sask. R. 44 (Q.B.), Chief Justice MacPherson found that where the investigating officer had no reasonable and probable grounds for making breath sample demand, the accused's rights under s.9 of the Charter were breached and the evidence obtained from that breach should be excluded pursuant to s. 24(2)." [15] In v. Forsberg (2000) S.J. No. 154, had made the following observations, in regard to reasonable and probable grounds for the demand, at paragraph 43: [43] It is of course apparent that the issue of what will constitute reasonable and probable grounds for the demand will vary from case to case. Therefore, for example, in situation where the signs of impairment are quite obvious and visible, it may be that peace officer can conclude with brief and cursory observation of the accused that reasonable and probable grounds for the demand do exist. Conversely, where the indicators of impairment are more subtle and not as readily apparent, an officer will need to take greater care to be satisfied that reasonable and probable grounds for the demand are in fact present in the subject. [44] In either event, the peace officer is vested with very important responsibility which is intended to ensure that members of the public are not subjected to breath demand, and all of the serious consequences that may flow from it, in the absence of reasonable and probable grounds for the peace officer making the demand." [16] In the circumstances herein, the officer observed the accused's vehicle sit through the green lights. However, thereafter, he responded immediately and awoke when he took hold of his wrist. That latter-mentioned reaction should have caused him to consider that perhaps the accused was overtired, rather than being impaired by alcohol or drug. In this regard, must conclude that it was not reasonable for the officer to assume that the accused's vehicle not moving at the lights was reliable indicator of impairment for the within purposes. [17] Therefore, the only other factors which the officer observed was the strong smell of alcohol, and eyes which were somewhat glassy or bloodshot. In my view, those two factors were not sufficient for him to have concluded that reasonable and probable grounds did exist for the demand. Rather, he needed to make further observations in prudent and cautious manner to determine if he was able to observe other reliable indicators. In this regard, it is noteworthy that the officer did not even bother to question the accused to attempt to determine the particulars of his alcohol consumption. It would appear that he was in too great rush to conclude that he had grounds for the demand, despite the absence of reliable basis for that conclusion. [18] In light of the foregoing, I find that the evidence is sufficient to establish a breach of the rights of the accused under ss. 8 and 9 of the Charter to be secure against unreasonable search and seizure, and not to be arbitrarily detained. Therefore, pursuant to s. 24(2) of the Charter, the court must also consider whether it is appropriate to exclude from evidence the Certificate of Analyses, in accord with the principles contained in v. Stillman (1997) 1997 CanLII 384 (SCC), CR (5th) 1, v. Collins (1987) 1987 CanLII 84 (SCC), 56 CR (3rd) 193, and v. Poncelet (B) (1998) 1998 CanLII 13891 (SK QB), 169 Sask. R. 273. Specifically, I conclude that the Certificate of Analyses constituted conscriptive evidence which, on balance, would not have otherwise been discovered by alternative non-conscriptive means. As well, the admission of it into evidence might well render the trial unfair, and bring the administration of justice into disrepute. [19] Therefore as well, in the absence of the Certificate of Analyses, the evidence herein is not sufficient to prove the offence under s. 253(b) of the Criminal Code beyond a reasonable doubt, and the accused is not guilty. Issue: Is the evidence sufficient to prove the offence of impaired driving contrary to s. 253(a) of the Criminal Code? [20] The leading authority is, of course, v. Stellato 1994 CanLII 94 (SCC), [1994] 31 CR (4th) 60, in which the Supreme Court of Canada approved the following, from the Ontario Court of Appeal reasons (1993 CanLII 3375 (ON CA), 18 CR (4th) 127 at para. 14): "In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond reasonable doubt before conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate motor vehicle was impaired by alcohol or drug. If the evidence of impairment is so frail as to leave the trial judge with reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. In the process of making its analysis, the Ontario Court of Appeal judgment made reference to the so-called "classic" signs of impairment, namely: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness on one's feet. Obviously this was not intended to be an all-encompassing list, and also, its application will very much depend on the circumstances of given case. [21] As mentioned previously herein, I do not regard the evidence of the accused remaining asleep through the green lights to be a reliable indicator of impairment, given that the accused was immediately awakened when the officer grabbed him by the wrist. As well, shortly thereafter, he appeared to fully comprehend the circumstances in which he was involved. [22] Therefore, one must consider the evidence of a strong smell of alcohol, and eyes which were somewhat glassy or bloodshot. In the context of Stellato, in my view, the nature and quality of this evidence of impairment is so frail as to leave me with a reasonable doubt as to impairment. Therefore, the accused is not guilty of the charge under s. 253(a) of the Criminal Code.
The accused was charged with operating a motor vehicle while his ability to do so was impaired and while over .08 (breath sample readings were 160 and 150 mg) contrary to s. 253(a) and s.253(b) of the Criminal Code, respectively. Issues arising during the trial included whether there was a breach of his s.8 and s.9 Charter rights to be secure against unreasonable search or seizure, and not to be arbitrarily detained; if there was a breach, was there a remedy under s.24(2); whether the evidence was sufficient to prove the offence of impaired driving beyond a reasonable doubt. The police officer concluded that he had reasonable and probable grounds for the breath demand based upon the accused sleeping through two green traffic lights, a strong smell of alcohol, and his somewhat bloodshot or glassy eyes. HELD: The accused was acquitted of both charges. 1)The evidence was sufficient to establish breaches of s.8 and s.9 of the Charter. The Certificate of Analysis constituted conscriptive evidence which, on balance, would not have been discovered by alternative means. Its admission into evidence might render the trial unfair and bring the administration of justice into disrepute. In the absence of the Certificate of Analysis, the evidence was not sufficient to prove the offence under s.253(b) beyond a reasonable doubt. 2)The strong smell of alcohol and somewhat bloodshot or glassy eyes were not sufficient to conclude there were reasonable and probable grounds for the demand. The court is required to examine the evidence as a whole. Every case will depend a great deal on its individual circumstances. It was not reasonable for the officer to assume that the vehicle not moving at the lights was a reliable indicator of impairment for these purposes. The evidence of slurred speech was not reliable as there was nothing in the officer's notes regarding slurred speech, nor had it been included in the investigation documents. The accused did not have any problems with balance or manner of walk, was cooperative throughout, and did not have any difficulty understanding his rights and the breath demand read to him from a printed card. The officer did not ask the accused whether he had been drinking. 3)The nature and quality of the evidence of a strong smell of alcohol, and eyes which were somewhat glassy or bloodshot, in the context of Stellato, was so frail as to leave a reasonable doubt as to impairment. The 'classic' signs of impairment (erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness on one's feet) was not intended to be an all-encompassing list, and its application will very much depend on the circumstances of a given case.