nan INFORMATION Y245194 2004 SKPC 82 IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT BETWEEN: HER MAJESTY THE QUEEN H. (A.R.) Inez Cardinal for the Crown Catherine Knox for the Youth September 14, 2004 P. S. KOLENICK PCJ JUDGMENT [1] The accused youth is charged that on April 27, 2002, near Dundurn Saskatchewan, he did operate a motor vehicle while his ability to do so was impaired by alcohol or a drug, contrary to Section 253(a) of the Criminal Code. [2] The issue which arose herein was whether the evidence was sufficient to prove impairment beyond a reasonable doubt. Review of Evidence for the Crown Sgt. Ian Mitchell [3] At about 6:00 p.m., Sgt. Mitchell of the RCMP received dispatch in regard to possible impaired driver. Therefore he patrolled south on Highway 11, hoping to intercept it. At approximately 6:53 p.m., he met vehicle which matched the description in the complaint, being operated by the accused. It appeared to be speeding. Therefore, he crossed the median on the four lane highway, followed behind, and observed. [4] He estimated the speed of the accused vehicle to have been at least 120 kilometres per hour, which was over the speed limit. As well, he noted the accused’s vehicle to make an abrupt lane change twice, without signalling. Further, it was wandering somewhat within the lane, but did not cross into the adjacent one. [5] At 6:55 p.m., after only about two minutes of observation, Sgt. Mitchell engaged the vehicle emergency flashers and shortly thereafter the accused pulled onto the shoulder and stopped. He suggested that there was some brief delay by the accused’s vehicle and that the braking was abrupt. On the evidence, the accused had passed another vehicle just prior to responding to the emergency lights and stopping, which presumably resulted in the lane changes which the officer had noted. [6] When Sgt. Mitchell first spoke to the accused behind the wheel, he was aware of strong smell of beverage alcohol in the vehicle. He asked him on two occasions if there was alcohol in the car, and the accused responded that there was not. However, the officer located part-full bottle of beer behind the front driver’s side seat, which, on the evidence belonged to Ashley Beaton. She was seated in the rear driver’s side seat, and testified for the defence. There were also two other male passengers. [7] Once the accused was out of the vehicle, Sgt. Mitchell was aware of very strong smell of beverage alcohol on his breath. He confirmed from him that he had one bottle of beer with his lunch, at approximately 2:30 p.m. In regard to other signs of impairment, he noted flushed face, eyes which were glazed and bloodshot and movements which were slow and deliberate, but no problems with balance. He described him as being “cocky” but cooperative. [8] At the scene, he also conducted field sobriety test known as the horizontal gaze nystagmus, which purports to note the degree of involuntary jerking of the eyes as they follow beam of light. According to the officer, he failed six out of six of the clues. Failing four of six indicates seventy-seven percent possibility of the presence of blood alcohol concentration of one hundred milligrams percent or more. The officer had learned this procedure at training course which he had attended in February 2002, and has only used it three times since then. He also administered heel and toe test to determine balance. The parameters of it require the presence of at least two out of eight of the indicators in order to fail. However, the accused had displayed only one, so it was regarded as inconclusive. At the detachment, Sgt. Mitchell also conducted Romberg test, in which the accused is required to tip his head back, while the officer observes for eyelid flutter. Again, the accused allegedly failed, which would indicate recent use of marijuana. [9] Sgt. Mitchell was not qualified as an expert in respect to the prior-mentioned field sobriety tests, nor was there any other expert testimony on the issues of the proper method, interpretation, and their relative reliability. [10] In any event, at the scene, at 7:00 p.m., he read the accused breath demand and rights to counsel, both of which he understood. They arrived at the Saskatoon detachment at approximately 7:45 p.m., after which the accused spoke to legal aid duty counsel for approximately ten minutes. Once that was concluded, he provided two breath samples of eighty milligrams percent each, at 7:54 p.m., and 8:15 p.m., respectively. [11] In cross-examination Sgt. Mitchell confirmed that there was no smell of marijuana use in the motor vehicle, nor were drugs located, despite his claim that the accused having failed the Romberg test was reliable indicator of marijuana consumption. [12] He indicated further that the policy of the RCMP in Saskatchewan is to charge “over .08" only when subject blows one hundred milligrams percent or higher, unless there is an injury in motor vehicle accident. However, it is discretionary matter, and in the past he has charged impaired driving with blood alcohol concentration as low as fifty milligrams percent. Evidence for the Defence The Accused [13] The accused is now twenty years old, and resides in Regina. He testified that the only alcohol which he had consumed on the day of the alleged offence was one bottle of beer, with his lunch, at approximately 2:30 p.m. The day before however, he had been partying with friends, and did not arrive home until 2:00 or 3:00 a.m. He was unsure how much he had consumed, but estimated that it was probably more than twenty bottles of beer, as well as having shared marijuana joint with four friends. [14] The next morning he awoke at roughly 11:00 a.m. or noon. As he was feeling somewhat hung over, he had one beer only, and no drugs. He decided with his friends that they would go to Saskatoon to skate, and they headed out for that purpose at 3:30 or 4:00 p.m. [15] He confirmed also that Ashley Beaton had brought 1.1 litre of Colt 45 beer. He had told her not to bring alcohol in the car, but she had insisted, so he relented. On route, the other three drank the beer with some small glasses, but the accused did not consume any of it. As well, the others had raised their glasses in toast to some of the other vehicles which they encountered on the trip. [16] The accused indicated that he was not feeling the effects of his prior consumption, and did not believe that his ability to operate motor vehicle was impaired by alcohol or drug. Further, there was nothing unusual in his manner of driving and the trip was in all respects normal, during which he was listening to music and talking with his friends. [17] He agreed that he may have been speeding, as observed by the officer, but that he was also in the process of passing another vehicle, and normally travels at approximately ten kilometres per hour over the speed limit on the highway. As well, he was unsure if he had signalled the lane changes, and may not have done so, because traffic was light, and he might not normally signal to pass the other vehicle on the divided highway with no other traffic being affected by the lane change. [18] He testified further that it was windy at the time, which may have caused him to weave somewhat in his lane, but on the evidence his vehicle did not cross into the other lane. Also, he pulled over as soon as he was aware of the police emergency lights, which he may not have immediately noticed because he was talking with his friends. As well, he did not feel that there was anything unusual in the manner in which he braked, and the process of stopping had to be delayed about thirty seconds for safety, because of the presence of the other vehicle which he had just passed. [19] He disputed that at the time he was displaying any worthwhile signs of impairment. In regard to the smell of alcohol on his breath, he suggested that perhaps it was from his substantial consumption of alcohol the day before, but he had only one beer that date, before they headed for Saskatoon. Specifically, he denied drinking any of Ashley Beaton’s beer in the car, although he allowed the others to do so. [20] He explained further that his bloodshot eyes may have been from his consumption the night before. As well, he is chain smoker and some were smoking in the vehicle, which could have caused the redness. Further, he suggested that his flushed face was perhaps the result of nervousness from his encounter with the police. Ashley Beaton [21] Ashley Beaton, age twenty, has been friend of the accused since they were children. She indicated that she in unable to recall all of the details of the event, presumably because of the passage of over two years from the date of the alleged occurrence. [22] However, she confirmed that she had brought the beer in the car, but that the accused did not drink from it, because he was driving. As well, she believed that he only had one beer at home that day before they departed. Further, during the trip, she was not aware of any nature of erratic driving by the accused which caused her any concern for her personal safety. [23] In cross-examination she indicated that she could not recall when she had first seen the accused that date, but believed it had been in the early afternoon. Apparently therefore she was not with him for the whole day. As well, she did not remember seeing him the previous day during the party, nor did she notice the smell of alcohol on the day of the alleged offence. Analysis Is the evidence sufficiently credible to prove beyond reasonable doubt the offence of impaired operation of motor vehicle, contrary to s. 253(a) of the Criminal Code? [24] In general, the burden is on the Crown to prove the constituent elements of the offence beyond reasonable doubt with credible evidence, and the accused is presumed to be innocent until proven guilty. In assessing credibility, am guided by the principles restated in R. v. McKenzie (P.N.) (1996) 1996 CanLII 4976 (SK CA), 141 Sask. R. 221 (Sask. C.A.) (from R. v. Rose (A.) (1992) 1992 CanLII 987 (BC CA), 20 B.C.A.C. (B.C.C.A.)), at paragraph 4: “First, if you believe the accused, obviously you must acquit; Secondly, if after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused.” [25] The determination of credibility does not involve the court opting for one version of events or the other. Rather, the Crown must prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the court prefers the evidence of the Crown, it must still consider whether the evidence of the accused raises reasonable doubt. [26] In R. v. Huot (M.) (No. 3) (2001) 2001 CanLII 368 (SK PC), 209 Sask. R. 171, referred to the appropriate legal principles to be applied by the court in the assessment of evidence of alleged impairment, commencing at paragraph 26: “[26] In respect to this issue, in R. v. Arevalo (B.), [2001] S.J. No. 218; 2001 CanLII 394 (SK PC), 205 Sask. R. 315 (Prov. Ct.), noted the following commencing at paragraph 8: ‘[8] Therefore, the evidence of impairment which is alleged by the Crown must be considered in the context of the principles contained in R. v. Stellato (1994), 1994 CanLII 94 (SCC), 31 C.R. (4th) 60, in which the Supreme Court of Canada approved the following, from the Ontario Court of Appeal reasons, 18 C.R. (4th) 127, at paragraph 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.’ [9] In the process of making this 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 of 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 in the case.” [27] Further, in R. v. Landes (T.) (1997), 1997 CanLII 11314 (SK QB), 161 Sask. R. 305 (Q.B., Klebuc, J.), the court referred to Stellato, supra, and made the following observations, commencing at paragraph 16: ‘[16] An opinion as to impairment, be it by the trial judge or nonexpert, must meet an objective standard of “an ordinary citizen” or “reasonable person” in order to avoid the uncertainties associated with subjective standards, particularly when based on inferences. To that end list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’s mental faculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive motor vehicle. Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot or watery eyes; (3) presence of flushed face; (4) odour of an alcohol beverage; (5) slurred speech; (6) lack of coordination and inability to perform physical tests; (7) lack of comprehension; and (8) inappropriate behaviour. [17] In my view, trial judge must carefully review all of the reported tests and observations which inferentially support or negate any impairment of the accused’s mental and physical capabilities, and then be satisfied beyond reasonable doubt that the reasonable inferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by ss. 253 and 255 of the Criminal Code. piecemeal approach supporting or negating impairment is not permissible. See R. v. Hall, at p. 66 (R. v. Hall (S.J.) (1994), 1994 CanLII 4630 (SK CA), 125 Sask. R. 62).’” [27] Therefore, these principles must be considered on the basis of the evidence. Evidence of Improper Driving [28] In Landes, supra, the court made the following observations, in the context of the evidence therein, at paragraph 19: “[19] Manner of Driving It is well-established that erratic driving may evidence impairment of the driver’s mental faculties or physical capability, or both, to drive motor vehicle due to the effects of alcohol. However, before any driving may be classified as “erratic”, it must be referable, in the context of all of the evidence, to the impairment of the driver’s skills by alcohol and not to another cause, e.g., mere negligence. Cst. Briant testified people run stop signs when they are sober and when they do, accidents often occur. similar observation may be concerning the quick turn and loss of control. The reference to speed of at least 60 kilometres per hour has little probative value in the absence of evidence as to the posted speed limit for the thoroughfares in question.” [29] On the Crown evidence herein, the accused was operating his vehicle on divided highway, in light traffic. He was exceeding the speed limit and had failed to signal lane changes, which he made in an abrupt manner as he passed the only other vehicle in the immediate vicinity. As well, although the vehicle wandered somewhat within its lane, it did not stray into the other lane of traffic. The officer noted also that the accused’s response in stopping was somewhat delayed, and that when he did stop, he braked abruptly. The opportunity to make the observations was only during roughly two minutes. [30] However, the accused took issue with the suggestion that there had been anything of note either in the timing of the stop, or the manner of braking. At that time, he was visiting with his companions, and as soon as he was aware of the emergency lights, he began to slow and pull over to the shoulder, being required to do so safely because he had just previously passed the other vehicle in the immediate vicinity. He indicated also that it was not unusual for him to speed to some extent on the highway, which may have been more on this occasion, as he passed the said vehicle. He did not dispute that he may have not bothered to signal, because the traffic was light and he was on highway. He agreed as well that the weaving within the lane may have occurred, but that there was some wind, and on the evidence the vehicle had not entered into the other lane to any extent. [31] Having given careful consideration to the evidence of the alleged erratic driving, and the accused’s explanation for it, in my view, the aspects which were observed may well have been the result of driver inattention which could have occurred whether or not his ability to operate motor vehicle was impaired by alcohol or drug. Therefore, that evidence will not be given any weight herein. Evidence of bloodshot or watery eyes [32] The accused suggested that his bloodshot eyes may have been the result of his chain smoking, and that his companions and himself had been doing some smoking on route before they were stopped by Sgt. Mitchell. That description of possible cause has an air of reality to it. As such, the bloodshot eyes will not be considered as reliable indicator herein. Further, the evidence of glazed eyes is inconclusive, in the absence of reliable evidence of bloodshot eyes. As well, the officer did not observe at all watery eyes in the accused as an indicator of impairment. Evidence of flushed face [33] The accused suggested that he may have been blushing at the time from nervousness in his encounter with the police. However, he did not indicate that he tends to get flushed face when he is under stress, and it was not particularly evident when he testified herein that the stress of the trial was causing him to blush. Therefore, the flushed face will be considered as reliable sign of impairment. Odour of alcohol [34] There is no expert evidence in these proceedings as to the rates of absorption and elimination of alcohol, and in any event, the accused was uncertain as to his precise consumption the previous day except that it was probably in excess of twenty bottles of beer, as well as single bottle of beer he had during the day. In any event, the evidence of very strong odour of beverage alcohol is reliable indicium of impairment, due to the consumption of alcohol by the accused, and it will be considered herein. Lack of coordination or inability to perform physical tests [35] On the evidence, the accused did not have any problems with balance, but rather he was moving in slow and deliberate manner. In my view, if the accused was not displaying difficulty with balance and coordination, the suggestion that he was moving slowly is not a credible indicator of impairment and will not be given undue weight for that purpose. [36] In regard to the matter of physical tests, as noted previously, the Crown purported to rely on the results of standardized field sobriety tests, including horizontal gaze nystagmus, heel and toe, and the Romberg. Sgt. Mitchell had learned at least some of the methods at training course in February 2002. Although he had used them since, it was only on few occasions, and he did not suggest that he was an expert. He claimed that the accused had failed the nystagmus because he had failed six out of six indicia, and when there are at least four out of six, it indicates seventy-seven percent chance of blood alcohol concentration of one hundred milligrams percent or more. As well, the heel and toe test was regarded as inconclusive because the accused displayed only one of eight indicators and at least two of eight are required to indicate impairment. He also failed the Romberg test, which involved the officer observing the accused’s eyelids fluttering while tipping his head back, and failure indicated recent marijuana use. In any event, I have concluded that in the absence of expert evidence to explain the scientific basis for these tests, the proper method of application, and to comment on their relative reliability, it is not appropriate for the court to rely upon them on the issue of guilt or innocence, to the prejudice of the accused. [37] In regard to the other potential indicators of impairment, as per Stellato, supra, and Landes, supra, the accused did not display slurred speech. As well, he appeared to fully comprehend his legal rights and obligations in his communications with the peace officer, and legal aid duty counsel. He did not display any mental confusion, or noteworthy inappropriate behaviour. He was described as being “cocky” but cooperative. In general, he conducted himself in rational and reasonable manner. The effect of the Intoxilyzer readings [38] As noted, the accused blew eighty milligrams percent on two occasions. Of course, he was not charged with an offence of being over .08, contrary to s. 253(b) of the Criminal Code, and indeed the policy of the RCMP is to charge only on results of one hundred milligrams percent or higher, unless there is motor vehicle accident in which an injury occurs. Further, Sgt. Mitchell indicated that in the past he had charged an accused with impaired operation, contrary to s. 253(a) of the Criminal Code, with blood alcohol concentration as low as fifty milligrams percent. Every situation in that respect will depend on its own circumstances, and obviously the particular tolerance to the same amount of alcohol consumption will vary from one individual to the next. Further, the accused did not dispute the accuracy of the Intoxilyzer results, and as such, he must be presumed to have consumed sufficient alcohol at some point to have achieved same. [39] However, regardless of that alcohol consumption, and the accused’s blood alcohol concentration, the only reliable indicia of impairment were a very strong odour of alcohol and a flushed face. Beyond that, the indicators are either inconclusive, non-existent or the accused has offered a reasonable explanation for them. As a result, the evidence is so frail as to leave a reasonable doubt as to impairment, and the accused must be acquitted. Therefore, he is not guilty of impaired operation, contrary to s. 253(a) of the Criminal Code.
The accused youth is charged with driving a motor vehicle while his ability to do so was impaired by alcohol or drug contrary to s. 253(a) of the Criminal Code. The issue was whether the evidence was sufficient to prove impairment beyond a reasonable doubt. HELD: The only reliable indicia of impairment were a very strong odour of alcohol and a flushed face. Beyond that, the indicators are either inconclusive, non-existent or the accused offered a reasonable explanation for them. The evidence is so frail as to leave a reasonable doubt as to impairment and the accused was acquitted. 1) The accused was exceeding the speed limit and failed to signal lane changes. His vehicle wandered somewhat in the lane, but did not stray into the other lane. The observations of his driving were made over 2-minute period. The aspects of the driving that were observed may have been the result of driver inattention. 2) The bloodshot eyes may have been the result of chain smoking. Further, the evidence of glazed eyes is inconclusive in the absence of reliable evidence of bloodshot eyes. 3) The evidence of flushed face was reliable evidence of impairment. 4) The evidence of strong odour of alcohol is reliable indicia of impairment, due to the consumption of alcohol by the accused. 5) The accused did not have any problem with balance, but was moving in slow and deliberate manner. If the accused was not displaying difficulty with balance and coordination, then the suggestion that he was moving slowly is not a credible indicator of impairment. The accused did not display slurred speech and appeared to comprehend his legal rights and obligations. He did not display any mental confusion or inappropriate behaviour. In the absence of expert evidence to explain the scientific basis for the physical tests administered, the proper method of application and their reliability the Court could not rely on them. 6) The accused blew 80 milligrams on two occasions. However, regardless of the alcohol consumption and the accused blood alcohol concentration, the only reliable indicia of impairment were a strong odour of alcohol and a flushed face.