QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 102 Date: 20110307 Docket: QB 236 of 2009 Judicial Centre: Yorkton BETWEEN: HER MAJESTY THE QUEEN and NORBERT F. KNOEDLER Counsel: Barrie Stricker for the Crown Daniel P. Kwochka for the Respondent JUDGMENT ON APPEAL CHICOINE J. March 07, 2011 NATURE OF THE APPEAL [1] The Crown appeals from the acquittal of the Respondent, Norbert F. Knoedler (“Mr. Knoedler”) on June 4, 2009, in Provincial Court on a charge that on or about October 27, 2007, at Esterhazy District , in the Province of Saskatchewan, having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, he did operate a motor vehicle, contrary to s. 253(b) and s. 255(1) of the Criminal Code and on a charge that on the same date and at the same place, while his ability to operate a motor vehicle was impaired by alcohol, he did operate a motor vehicle, contrary to s. 253(a) and s. 255 of the Criminal Code. GROUNDS OF APPEAL [2] The Notice of Appeal lists six grounds of appeal, all of which can be summarized as follows: That the learned trial judge erred in law in excluding two breath samples taken after the arrest of Mr. Knoedler on the basis that they were obtained in violation of s. 8 of the Canadian Charter of Rights and Freedoms, being the right to be secure against unreasonable search or seizure. [3] While the Notice of Appeal states that the appeal is taken from the learned trial judge’s order dismissing both charges in the information, the Crown did not set forth any grounds for setting aside the acquittal on the impaired driving charge and the issue was not pursued at the hearing of this appeal. In the circumstances, the appeal against the acquittal on the charge of impaired driving is dismissed and this appeal will proceed on the basis that the Crown seeks to overturn the acquittal on the charge of driving while over .08. [4] At the trial the Crown called two witnesses, namely, the arresting officer, Cst. Erin Lockyer, and the breathalyzer technician, Sgt. Ian Skinner. Defence counsel had given verbal notice of Charter issue at prior appearance but elected not to seek voir dire or to call any evidence in support of the Charter application. The Crown closed its case and the defendant elected not to call any witnesses. In his written decision (cited as 2009 SKPC 66 (CanLII), 341 Sask.R. 69) the learned trial judge stated the facts to be as follows: Cst. Erin Lockyer The accused was driving on Highway #22 near Esterhazy, Saskatchewan, on October 27, 2007, around 9:50 p.m. The accused was initially observed by the officer from her patrol car, as travelling on Highway #80 and turning east onto Highway #22. The officer made no observations of improper driving at that time. The accused was then observed by the same officer as having returned to the intersection of Highways #80 and #20 [sic], and just before reaching the stop sign, at the intersection, making complete U-turn in his pickup truck, turning back eastbound on Highway #22. 10 Upon seeing the pickup truck driven by the accused initiate U-turn, Cst. Lockyer, who was travelling south on Highway #80 toward the intersection of Highways #80 and #22, turned left onto Highway #22 and activated the emergency lights of the marked police vehicle to initiate traffic stop of the accused’s pickup truck. 11 The officer suspected that the pickup truck, in doing full U-turn near the intersection, was trying to evade the approaching police vehicle. Additionally, the U-turn was unlawful. The officer testified that the accused had explained having to make the U-turn because he was lost and was trying to return to Gerald, where he had participated in quadding event earlier that day, and hoped to reorient himself so that he could find his way home to Weyburn from there. 12 But for the U-turn itself, the officer made no notice of any abnormal driving. 13 The officer testified that the accused pulled over in normal fashion in response to the police lights, and upon coming to stop immediately exited his vehicle and walked toward the police car. 14 The accused while walking toward the police officer asked “Where’s Gerald?” meaning, where was the town of Gerald, which was about 24 kilometres east on Highway #22. The officer then asked for his driver’s licence and registration, at which point the accused turned to return to his vehicle, stumbled and losing his balance fell shoulder first into his own truck. The accused was noted by the officer as taking about three minutes to locate his photo identification. 15 While the accused searched his vehicle for documentation, the officer noticed an odour of alcohol coming from the vehicle, later identified as coming from the accused’s breath. The officer testified to no other swaying or difficulty over this three minute observation period. The officer arrested the accused for impaired driving at 9:53 p.m. while he was inside his truck. 16 The officer then asked the accused to give up his keys, because she felt the accused had been drinking. The accused was cooperative and gave up the keys. 17 The officer testified that the accused admitted to having consumed alcohol, with his last drink consumed few hours earlier. The officer had initially intended to do roadside test, but following conversation with the accused, the officer made the additional observation of slurred speech and confusion. The accused accompanied the officer to the police vehicle at 9:54 p.m. 18 Officer Lockyer recorded in her notes that she made breathalyzer demand on the accused while he sat in the back of her vehicle at 9:58 p.m. At this time, the officer read the accused his rights and warnings. 19 After the accused was read his warnings, the officer testified that the accused asked numerous times about what was going to happen next, what was going to happen to his truck, and consistently expressed his confusion with the events that were unfolding. 20 The officer left the scene with the accused at 10:04 p.m. to drive to the Esterhazy Detachment, which was about five kilometres away. Sgt. Ian Skinner 21 He was at the Esterhazy Detachment when the accused arrived with Officer Lockyer at 10:10 p.m. When the accused stepped out of the police vehicle, Sgt. Skinner inquired of the accused how things were going. The accused reported to the sergeant that he was confused as to why he was at the police station. The sergeant made the observation that he had alcohol on his breath. He also noted that the accused walked slowly but without stumbling. He further noted that the accused had flushed face and his eyes were glassy. Sgt. Skinner formed the opinion that the accused had consumed fair amount of alcohol and supported Cst. Lockyer’s theory that the accused was in confused state. 22 At the detachment, the accused asserted his right to counsel, and provided number from card in his wallet to his lawyer in Regina. After unsuccessful attempts to reach this lawyer, either at work or home, the police attempted to reach Legal Aid, on behalf of the accused. After the sixth attempt, Legal Aid was on the line and the accused had ten minute conversation with the lawyer. 23 At the detachment, the accused was cooperative, although still confused and growing more agitated. He continued to ask what was going to happen to his truck. 24 Breath tests were conducted and the Certificate of Analysis was tendered as evidence for identification purposes, subject to any ruling on the Charter issue. The readings were 110 mg/% and 100 mg/%. [5] On this appeal, the Crown argued that the learned trial judge relied on irrelevant evidence and failed to consider other more relevant evidence. Some of these factual issues will be dealt with later in my analysis of the learned trial judge’s decision by reference to the transcript of the evidence heard at the trial. Suffice it to say that the learned trial judge did not question the credibility of either of the officers. [6] The statutory law touching on matters in issue before the learned trial judge and on this appeal are found in ss. 253, 254 and 258(1)(a) and (c) of the Criminal Code, the relevant portions of which read is as follows: 253. Every one commits an offence who operates motor vehicle or has the care or control of motor vehicle whether it is in motion or not, (a) while the person’s ability to operate the vehicle, is impaired by alcohol or drug; or (b) having consumed alcohol in such quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. 254.(3) If peace officer has reasonable grounds to believe that person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (a) to provide, as soon as practicable, (i) samples of breath that, in qualified technician’s opinion, will enable proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 (a) where it is proved that the accused occupied the seat or position ordinarily occupied by person who operates motor vehicle, the accused shall be deemed to have had the care or control of the vehicle, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, in motion (c) where samples of the breath of the accused have been taken pursuant to demand made under subsection 254(3), if (i) [Not in force] (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 of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by qualified technician, evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses; THE DECISION UNDER APPEAL [7] It was the position of defence counsel at the trial that Cst. Lockyer lacked the requisite grounds for demanding breath sample under s. 254(3) of Criminal Code. The learned trial judge was aware that an analysis of the reasonable and probable grounds entailed both subjective and an objective component, and she quoted the following passage from the Supreme Court of Canada in R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] S.C.R. 254, 95 C.C.C. (3d) 193, at para. 48 The Criminal Code provides that where police officer believes on reasonable and probable grounds that person has committed an offence pursuant to s. 253 of the Code, the police officer may demand breathalyzer. 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: R. v. Callaghan, 1974 CanLII 962 (SK QB), [1974] W.W.R. 70 (Sask. Dist. Ct.); R. v. Belnavis, [1993] O.J. No. 637 (Gen. Div.) (QL); R. v. Richard (1993), 1993 CanLII 8567 (ON SC), 12 O.R. (3d) 260 (Prov. Div.); and see also R. v. Storrey, 1990 CanLII 125 (SCC), [1990] S.C.R. 241, regarding the requirements for reasonable and probable grounds in the context of an arrest. [8] The learned trial judge also referred to the Saskatchewan Court of Appeal decision of R. v. Shepherd, 2007 SKCA 29 (CanLII), [2007] W.W.R. 659, and specifically to the definition of reasonable and probable grounds adopted by Sherstobitoff J.A. at para 5: 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. She also noted that Sherstobitoff J.A. had applied this standard to the reasonable and probable grounds required for an officer to make demand for breath samples under s. 254 of the Criminal Code when he stated, at para. of his decision: In R. v. Storrey, 1990 CanLII 125 (SCC), [1990] S.C.R. 241, the Supreme Court made the point, at p. 251, that “the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish prima facie case for conviction before making the arrest.” Although the court was interpreting s. 450(1) of the Criminal Code, R.S.C. 1970, c. C-34 which sets out the police authority for arrest without warrant, the principle is applicable to this case. [9] The learned trial judge thereafter commented that the circumstances existing at the time the demand was made must be examined to determine whether the demand was reasonable. She stated, at para. 29 The appropriate time for determining whether the demand was reasonable is at the time the demand was made. The Court must consider as question of fact what information was available to the peace officer such that the officer could form both the honest belief that the accused was impaired and the objective grounds to move from suspicion to objective belief. In determining the validity of the belief, the Court must consider the totality of the circumstances surrounding the demand. [10] The learned trial judge proceeded to categorize certain indicia of impairment observed by Cst. Lockyer as capable of founding “grounds of suspicion only”. She stated, at para. 30 The observations of the arresting officer upon which the officer formed reasonable and probable grounds that he was impaired include the typical indicia of impairment associated with the forming of suspicion of impairment. These included the glassy and red eyes, the smell of alcohol on the breath, stumbling and slurred speech. Generally, these alone are grounds for suspicion only, and absent some other form of objective evidence, would not be sufficient to ground demand. (R. v. Ukrainetz, 2006 SKPC 102 (CanLII); R. v. Hicks, 2008 SKPC 15 (CanLII); R. v. Hagley [Unreported decision of Benison J., Prov. Ct. at Estevan, April 28, 2008]; R. v. Sperle, 2004 SKQB 382 (CanLII) as cited in Ukrainetz, supra.) [11] After commenting that the arresting officer is entitled to consider the circumstance as whole and need not prove prima facie case, the learned trial judge thereafter proceeded to inquire about other indicia of impairment which were not present, or which might be explained. Some of these related to Mr. Knoedler’s driving actions, his notable lack of swaying or other difficulties, his willingness to co-operate, and his volunteering that he had consumed alcohol some hours earlier. This is how she analysed these issues, at paras. 32 The officer made no note of improper driving, when initially observing the pickup truck driven by the accused, nor when in pursuit of the pickup. But for the U-turn, which was, although illegal, explained as part of the act of returning to the community of Gerald where he could reorient himself towards Weyburn, no unusual driving was observed. The accused was noted as pulling over normally when approached from behind by the police vehicle. 33 The officer noted no other swaying or difficulty in the short observation period of about three minutes from the time of the stop to the time of the arrest and demand. The accused was cooperative and gave up the keys to his vehicle upon request by the officer. He volunteered that he had consumed alcohol, with his last drink some hours earlier. The accused displayed signs of confusion and was unable to locate his documentation in the truck despite extensive searching. 34 Erratic driving has generally been adopted in impaired driving cases as indicia of impairment. None was demonstrated in this case. No evidence was tendered that the accused had difficulty walking, or getting in and out of vehicles. The accused was described as wearing muddy rubber boots and dirty clothing, which could account for his slow gait. 35 In Hagley, there was testimony of the accused’s capacity to understand and answer questions, capacity to move in and out of vehicles without difficulty, of polite and cooperative behaviour throughout the process. As well, the Court found an absence of evidence of erratic driving and finding of moderate odour of alcohol on the breath. On these grounds, Benison J. found the contradictory evidence available to the police officer in forming the objective grounds for the demand sufficient to require additional objective information, such as would be provided through roadside screening test. 36 The issue of contradictory evidence was addressed in another Saskatchewan Court in R. v. Ukrainetz, where Green J. found significant contradictory evidence could defeat the objective test. In Ukrainetz, Green J. found on the facts nothing remarkable about the manner of driving of the accused. [12] Without further analysis, the learned trial judge concluded that while she found that Cst. Lockyer had subjective belief that Mr. Knoedler was impaired, she found an absence of objective grounds sufficient for making breathalyzer demand. She thereafter decided that the absence of reasonable and probable grounds constituted an unreasonable search and seizure contrary to s. of the Charter and excluded evidence of the results of the breath tests as product of an unlawful demand. [13] Counsel for the Crown has suggested that the learned trial judge failed to give due consideration to other indicia of impairment revealed in the evidence of Cst. Lockyer which amply fulfil the objective grounds for the demand. Among these she notes that the learned trial judge fails to take into account that Cst. Lockyer had initially observed two vehicles approach the intersection of Highways 80 and 22 east of the Town of Esterhazy. Cst. Lockyer pursued the vehicle that continued northbound on Highway 80 and the other vehicle, pick-up truck with quad (an all-terrain vehicle), turned right at the intersection onto Highway 22 proceeding toward the Village of Gerald. Cst. Lockyer stopped and checked the northbound vehicle and then returned to the intersection. This had taken about 10 minutes. As she approached the intersection from the north she observed pickup truck with quad in the back travelling westbound toward the same intersection. She suspected it was the same vehicle that she had previously observed turn right onto Highway 22. Cst. Lockyer testified that the vehicle abruptly made U-turn just before reaching the stop sign at the intersection to again proceed eastbound. She considered this U-turn to be illegal because there was solid line there. She decided to check this vehicle. She turned left off of Highway 80, activated her emergency lights, and the pick-up truck pulled over onto the shoulder and stopped. [14] Cst. Lockyer testified that there were two factors which may have alerted the driver of the westbound vehicle that police vehicle was approaching from the north on highway 80. These were non-functioning headlamp on her vehicle which the driver of the pick-up truck could have noticed as he turned right onto Highway 22 and she turned left from her parked position to pursue the vehicle northbound on Highway 80. The other was the reflective material on the side of the marked police cruiser she was operating which would have been visible to the westbound driver as they both approached the intersection at approximately the same time. [15] As was noted by the learned trial judge, Mr. Knoedler immediately exited his vehicle and asked Cst. Lockyer, “Where’s Gerald?” Cst. Lockyer understood this to mean that he was inquiring where the Village of Gerald was located. Cst. Lockyer was aware that the Village of Gerald was about 20 kms east on Highway 22 and two kms north. Cst. Lockyer also learned from Mr. Knoedler while he was searching for documents in his vehicle that he had been at quad derby in Gerald that day, which was consistent with the quad in the truck box. She also learned that he was attempting to find his way home to Weyburn. [16] Mr. Knoedler’s explanation that he intended to drive from Esterhazy back to Gerald in order to get his bearings and find his way home from there is not logical. While the officer agreed in cross-examination that an inference could be drawn that he was lost, she also stated that it was another factor that indicated to her that he may have been impaired. Mr. Knoedler was coming from Gerald, he had been in Gerald all day, he was on the highway heading to Gerald and yet he claimed he could not find Gerald. To Cst. Lockyer and any other reasonable person familiar with the relative positions of Gerald, Esterhazy and Weyburn on map of South East Saskatchewan, it makes no sense to drive easterly from Esterhazy some 20 kms only to find your bearings if your destination is Weyburn. The shortest route from Esterhazy to Weyburn is to proceed westerly to Stockholm and to drive south from there on Highway to Highway 13 at Carlyle which then takes you directly to Weyburn to the west. In my opinion the learned trial judge should have considered Mr. Knoedler’s driving actions, including the illegal U-turn, as objective evidence of erratic driving. [17] Counsel for the Crown also suggests that the learned trial judge failed to give sufficient consideration to other observations made by Cst. Lockyer given her training and experience. Cst. Lockyer testified that she had been an RCMP officer for 10 years. Apart from basic training, which does include training in officer/violator contact and detecting impaired driver symptoms, she was also qualified breathalyzer technician. At the time of this incident, she was posted to Yorkton Regional Traffic Services as one of 51 dedicated traffic enforcement officers in the Province of Saskatchewan doing only traffic enforcement with their priority being the detection and prosecution of impaired drivers. This is what she was doing on the night in question. She had been at this posting for more than three years. [18] Cst. Lockyer testified about number of other indicators of possible impaired driving in relation to her contact with Mr. Knoedler. One of these was the fact that Mr. Knoedler exited his truck as soon as it came to stop and started walking toward her vehicle. She testified that this is done because the driver has something to hide in the vehicle and, in her experience, it is commonly done by drinking and impaired drivers. She was not saying that only drinking drivers do that, but most of the people who do that are people that have been drinking. [19] Cst. Lockyer also testified that she stood by Mr. Knoedler’s open driver door for about three minutes while he searched for his driver’s licence and the vehicle registration. At that time she noticed an odour of alcohol coming out of the truck and she asked him if he had just swished with mouthwash because she could smell mint in the air. Mr. Knoedler told her that he had put some mints in his mouth. He then retrieved pack of Mentos mints from somewhere in the vehicle and he handed them to her. She stated that as the conversation went on she could detect an odour of liquor on his breath as well as the mints. She testified that mints and mouthwash are often used to mask the odour of liquor on person’s breath. Mr. Knoedler admitted that he had been consuming alcohol few hours earlier. [20] Cst. Lockyer testified that after conversing with Mr. Knoedler for five minutes or so at the door of his vehicle, she was of the opinion that he was showing signs of impairment and she concluded that his ability to drive motor vehicle was impaired by alcohol. She said that she consciously determined that she would not do an approved roadside screening device demand on Mr. Knoedler. She stated that she would make an ASD demand if she suspected driver had alcohol in his body but otherwise did not display sufficient signs of impairment to ground breathalyzer demand. In this case she decided that Mr. Knoedler’s ability to drive was impaired by alcohol based on the fact that he had lost his balance and stumbled into his own truck after she had ordered him to return to his vehicle; that his speech was slurred at times; that he had an odour of alcohol on his breath; and that he was confused as indicated by his inability to orient himself. [21] Counsel for the Crown submits that the learned trial judge erred in attempting to balance the observations of the police officer which tended to indicate that Mr. Knoedler was impaired by juxtaposing them against other observations which would indicate normalcy. For instance, at para. 32 of the learned trial judge’s decision quoted above, she stated that Cst. Lockyer did not note any improper driving when she first saw the pickup truck, nor when she pursued it and it pulled over to stop. She said that the U-turn, while illegal, was explained as part of the act of returning to Gerald in order to re-orient himself. agree that these otherwise normal driving actions do not negate the otherwise illegal U-turn or the police officer’s suspicion that the driver saw her marked police vehicle and turned into the opposite direction to avoid being stopped. At para. 33 of her decision, the learned trial judge stated that the officer noted no other swaying or difficulty in the short observation period of about three minutes from the time of the stop to the time of the demand. The evidence was that Mr. Knoedler stumbled and fell shoulder first into his truck as he turned around. Thereafter, Mr. Knoedler sat in his vehicle with the door open and his left leg out while he unsuccessfully searched for his driver’s licence and registration. This is not position from which swaying would normally be observed. The fact that he was co-operative does not negate impairment by alcohol. While being uncooperative may indicate being under the influence of alcohol, not everyone who is under the influence of alcohol becomes uncooperative. agree with counsel for the Crown that these otherwise neutral observations do not negate the otherwise observable symptoms of stumbling and confusion and having difficulty locating documents. [23] Counsel for the Crown submitted that while the trial judge should analyse the observations made by the officer up to the time of demand to determine if the officer’s belief was objectively reasonable, it is permissible for the trial judge to take into consideration other evidence which might contradict the officer’s observations. However, observations such as those mentioned in para. 34 that there was no evidence that Mr. Knoedler had difficulty walking or getting in and out of vehicles does not contradict Cst. Lockyer’s observation of Mr. Knoedler stumbling and falling shoulder first into his truck. It appears that the learned trial judge was referring to Cst. Lockyer’s admission in cross-examination that, other than the stumble, she did not notice any other problems with balance or swaying, and to the evidence of Sgt. Skinner to the effect that at the police detachment in Esterhazy he noted that Mr. Knoedler walked slowly, without stumbling, and at pace slower than Cst. Lockyer. [24] agree with counsel for the Crown that these neutral observations do not constitute contradictory evidence. In addition, find the learned trial judge’s comment that wearing muddy rubber boots and dirty clothing could account for his slow gait to be speculative, especially since there was no evidence from either police officer that Mr. Knoedler’s boots were muddy. In any event, the learned trial judge failed to consider Sgt. Skinner’s observation that in his experience persons who have ingested alcohol may walk slowly in order to compensate for the effect of the alcohol. [25] As mentioned previously, the Bernshaw decision sets forth the proposition that there is both subjective and an objective component to establishing reasonable and probable grounds. This means that the officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code, and there must be reasonable grounds for this belief (Bernshaw at para. 48). In this case, the learned trial judge was satisfied that Cst. Lockyer had subjective belief that Mr. Knoedler was intoxicated. The issue before me is whether Cst. Lockyer’s subjective belief was reasonable in the circumstances. In R. v. Shepherd, 2009 SCC 35 (CanLII), [2009] S.C.R. 527, 331 Sask. R. 306, the Supreme Court of Canada affirmed (at para. 20) that while the existence of reasonable and probable grounds is grounded in 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. Therefore, while the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling is subject to review on appeal for correctness. [26] It is useful at this point to reiterate that in order to prove that an accused person’s ability to operate motor vehicle was impaired by alcohol, it is not necessary to prove marked departure from normal behaviour. If the degree of impairment establishes any degree of impairment ranging from slight to great, the offence is made out: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380, 18 C.R. (4th) 127 (Ont. C.A.), affirmed 1994 CanLII 94 (SCC), [1994] S.C.R. 478, 90 C.C.C. (3d) 160. [27] Before convicting an accused of impaired driving, the trial judge must be satisfied beyond reasonable doubt that the accused’s ability to operate motor vehicle was impaired by alcohol or drug. However, s. 254(3) of the Criminal Code only requires that peace officer have reasonable grounds to believe that person has committed the offence of impaired driving or driving while over .08. As was stated by MacDonald J.A. of the Saskatchewan Court of Appeal in R. v. Carlton (1981), 1981 CanLII 2085 (SK CA), 12 Sask.R. 84, [1981] S.J. No. 1192 (Q.L.), in an appeal on charge of refusal to comply with demand for breathalyzer test, the law does not require that in reaching such conclusion the officer must be persuaded beyond reasonable doubt that the offence had in fact been committed. MacDonald J.A. in that case approved of the observation made by the trial judge that reasonable grounds means such grounds as would lead any fairly cautious man to conclude that the person charged is probably guilty of the crime imputed. [28] In R. v. Gavin (1993), 1993 CanLII 1978 (PE SCAD), 50 M.V.R. (2d) 302, [1993] P.E.I.J. No. 136 (Q.L.), the Prince Edward Island Supreme Court Appeal Division described the reasonable and probable grounds for belief required by the peace officer making demand under s. 254(3) in the following terms at para. 7: police officer must have reasonable and probable grounds for his belief before s-s. 254(3) authorizes him to make demand for breath samples. This condition precedent guards against arbitrary and precipitous demands. That is why, prior to making demand, the officer must do such investigation or receive such information as the circumstances require to enable him to properly form belief that will justify s-s. 254(3) demand. To satisfy the test of having done so, the data the officer relies on at the time he makes his demand, when taken as whole, must have sufficient objective persuasiveness as would lead reasonable person similarly situated to conclude that more likely than not the accused had, within the preceding two hours, as result of alcohol consumption committed an offence under s. 253. [Emphasis added.] [29] In her decision, the learned trial judge listed what she described as “typical indicia of impairment” observed by Cst. Lockyer, including glassy and red eyes, the smell of alcohol on the breath, stumbling and slurred speech. She determined, however, that “these alone are grounds for suspicion only”. She suggested that absent some other form of objective evidence, these indicia would not be sufficient to ground demand. In my respectful opinion, the learned trial judge failed to consider the totality of the circumstances in determining whether Cst. Lockyer had reasonable and probable grounds to make the breath demand. Other indicia which the learned trial judge overlooked or down-played include: The officer’s suspicion that in making full U-turn prior to reaching the intersection Mr. Knoedler was attempting to evade the approaching police vehicle; The U-turn within 100 metres of the intersection of two provincial highways was an unlawful manoeuvre which constituted some evidence of erratic driving; Mr. Knoedler’s excuse for making the U-turn does not justify making this illegal manoeuvre; Mr. Knoedler’s explanation that after spending the day in Gerald he was trying to return to Gerald from Esterhazy in order to re-orient himself so that he could find his way home to Weyburn defies logic; Being lost may be result of being impaired; Mr. Knoedler immediately exited from his vehicle and walked toward the police car—conduct which Cst. Lockyer described as typical for drivers who are drinking or impaired; Mr. Knoedler’s use of mints which Cst. Lockyer explained is something people do to mask the odour of liquor on their breath; Mr. Knoedler admitted to consuming alcohol hours earlier, yet still had the smell of alcohol on his breath; Mr. Knoedler consistently expressed confusion about events as they were unfolding—which is also consistent with impairment by alcohol; Cst. Lockyer was herself qualified breathalyzer technician and for the past three years was dedicated traffic enforcement officer tasked with detecting and prosecuting impaired drivers; Cst. Lockyer’s training and experience led her to the conclusion that in these circumstances an ASD demand was inappropriate given that she honestly believed, based on her observations at the roadside and after placing Mr. Knoedler in the police car, that his ability to operate vehicle was impaired by alcohol and that she had reasonable and probable grounds to make breathalyzer demand; Cst. Skinner’s observation that at the police detachment Mr. Knoedler walked slowly and without stumbling does not contradict the fact that on the highway he stumbled and fell shoulder first into his truck; There was evidence that Mr. Knoedler was wearing big boots but no evidence that his boots were muddy or that this accounted for his slow gait; Being co-operative is not necessarily an indication of being sober. [30] With respect, I am of the view that the learned trial judge erred in finding that Cst. Lockyer’s subjective belief of impairment was not supported on the facts. Taking into consideration the totality of circumstances conclude that Cst. Lockyer had reasonable grounds to make the breath demand. The law does not require the officer to have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving while over .08 before making the demand. The officer need not demonstrate prima facie case for conviction before pursuing his or her investigation (Shepherd, SCC at para. 23). In my view, there was ample evidence to support Cst. Lockyer’s subjective belief that Mr. Knoedler had committed an offence under s. 253 of the Criminal Code. [31] Having concluded that Cst. Lockyer had reasonable and probable grounds to make the breathalyzer demand, also conclude that Mr. Knoedler’s Charter claims must fail. The Certificate of Analyses filed as Exhibit P-1 at the trial will be admitted as a full exhibit and will become part of the Crown’s case. DISPOSITION [32] The authority for the bringing of this appeal against conviction to this Court is found in ss. 812(1)(d) and 813(b)(i) of the Criminal Code. Section 822(1) states that where an appeal is taken under s. 813 in respect of conviction, ss. 683 to 689 apply, subject to certain exceptions which are inapplicable here. The relevant portions of s. 686(4) provide for the following in the case of successful Crown appeal against acquittal: 686. (4) If an appeal is from an acquittal ... the court of appeal may (a) dismiss the appeal; or (b) allow the appeal, set aside the verdict and (i) order new trial, or (ii) enter verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose sentence that is warranted in law. [33] Since the appeal has been allowed, the options are to order new trial or to enter verdict of guilty in respect of the charge of driving while over .08. In this case, I find that the Crown has proved each and every element of the charge of driving while over .08 beyond a reasonable doubt. [34] The evidence of Cst. Lockyer establishes the Mr. Knoedler was operating motor vehicle on Highway 22 in the Esterhazy District in the Province of Saskatchewan on October 27, 2007, at approximately 9:50 p.m. After observing and speaking to Mr. Knoedler for approximately five minutes, Cst. Lockyer arrested Mr. Knoedler for impaired driving and made demand for breath samples at approximately 9:58 p.m. [35] Mr. Knoedler was taken to the Esterhazy RCMP detachment where he supplied two samples of his breath at 10:49 p.m. and 11:10 p.m. into an approved instrument which resulted in readings were 110 and 100 milligrams of alcohol in 100 millilitres of blood, respectively. The demand for breath samples was made in accordance with the provisions of s. 254 of the Criminal Code and the samples were provided as soon as practicable after the time when the offence was alleged to have been committed and not later than two hours after that time. Therefore, evidence of the results of the analyses so made is, pursuant to s. 258(1)(c) of the Criminal Code, conclusive proof that the concentration of alcohol in Mr. Knoedler’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was the lowest of the concentrations determined by the analyses, which was 100 milligrams in 100 millilitres of blood. [36] There are no issues with regard to any breach of Charter rights. Mr. Knoedler was not unlawfully detained; he was advised of the reason for his arrest; he was advised that he need not say anything; and he was given an early opportunity to consult counsel. It has been established on this appeal that Cst. Lockyer had reasonable and probable grounds to make the breathalyzer demand. The Charter application was made on the basis of the evidence of the Crown witnesses at trial—not in the course of voir dire. Mr. Knoedler, through his counsel, elected not to call any evidence in the trial. Both the Crown and the defence closed their case and the learned trial judge rendered decision in respect of the Charter application as well as both charges in the information. [37] In the circumstances, I allow the Crown’s appeal, set aside the verdict of acquittal on the charge of operating a motor vehicle while over .08 and enter a verdict of guilty with respect to the offence of operating a motor vehicle while over .08 under s. 253(b) and 255(1) of the Criminal Code, being Count No. 1 on Information No. 24312600. [38] The learned trial judge’s verdict of acquittal on charge of driving while impaired under s. 253(a) and 255(1) of the Criminal Code, being Count No. on Information No. 24312600, continues to stand as it was not appealed. [39] Subsection 686(4)(b)(ii) referred to above provides that upon entering verdict of guilty the court of appeal may pass sentence or remit the matter to the trial court and direct that the trial court impose sentence that is warranted in law. In this case, since the learned trial judge has retired, elect to have this Court impose sentence. Since Mr. Knoedler may not be residing in Saskatchewan at the present time, am prepared to postpone sentencing for up to 90 days during which time counsel for the Crown and counsel for Mr. Knoedler must arrange for date for sentencing hearing before myself at the Judicial Centre of Yorkton. The sentencing may occur at any other Judicial Centre which may be more convenient to counsel and Mr. Knoedler upon consultation with the local registrar in Yorkton. [40] will remain seized with this matter until sentencing has occurred. In the event that sentencing hearing has not been held or commenced within 90 days, bench warrant will issue for the arrest of Mr. Knoedler in order to compel his attendance before this Court. J. G. A. Chicoine
The Crown appealed the respondent's acquittal on a charge of driving over .08. The Crown alleged that the trial judge erred in law by excluding two breath samples taken following the respondent's arrest on the basis that they were obtained in violation of s. 8 of the Charter of Rights. During trial, the defence gave verbal notice of a Charter issue but did not elect to seek a voir dire or called any evidence in support of the Charter application and did not call any witnesses for the defence. HELD: The Crown's appeal was granted and a verdict of guilty to driving over .08 was entered. The Court elected to impose sentence and remained seized with the matter. The trial judge failed to consider the totality of the circumstances in determining whether the officer had reasonable and probable grounds to make a breath demand. The trial judge erred in finding the officer's subjective belief in impairment was not supported by the facts. The Certificate of Analysis was admitted as a full exhibit and became part of the Crown's case. The Crown had proven the offence beyond a reasonable doubt in all respects.