INFORMATION #24207910 2005 SKPC 39 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT NORTH BATTLEFORD, SASKATCHEWAN Between: HER MAJESY THE QUEEN and CARA RAE WEESEEKASE T. Healey, for the Crown D. MacKinnon, for the Accused April 13, 2005 V.H. MEEKMA, PCJ JUDGMENT [1] The accused was charged with the following four counts: Count #1 on or about the 21st day of July, A.D. 2004 at North Battleford, in the Province of Saskatchewan, did being at large on her undertaking given to Justice or Judge, and being bound to comply with condition thereof, to wit: Keep the peace and be of good behaviour, fail without lawful excuse to comply with that condition, contrary to Section 145(3) of the Criminal Code. Count #2 and further that on or about the 21st day of July, A.D. 2004 at North Battleford, in the Province of Saskatchewan did being at large on her Undertaking given to Justice or Judge, and being bound to comply with condition thereof, to wit: Shall abstain from all use, consumption, and possession of alcohol, fail without lawful excuse to comply with at condition, contrary to Section 145(3) of the Criminal Code. Count #3 and further that on or about the 21st day of July, A.D. 2004 at North Battleford, in the Province of Saskatchewan did while her ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to Section 255(1) and Section 253(a) of the Criminal Code. Count #4 and further that on or about the 21st day of July, A.D. 2004 at North Battleford, in the Province of Saskatchewan did having consumed alcohol in such quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle contrary to Section 253(b) and Section 255(1) of the Criminal Code. [2] As there was no evidence before the Court of the undertaking alleged in Counts 1 and 2, the accused is not guilty of those two charges. FACTS The evidence with respect to Counts and is as follows: [3] The accused had been drinking alcoholic beverages at house party which ended in the early morning. She had her last beer at approximately 7:45 a.m. She went to the 711 convenience store with friends as passenger in half ton truck. In the preceding hour, the accused testified that she probably had three or four beer. She was feeling “okay”, but was extremely tired and was feeling the effects of the alcohol. [4] The accused was seated in the middle. The driver went into the store to pay for the gas and food. The passenger by the door asked the accused to drive the vehicle around the corner and park it. The accused did so. She testified “I figured it was such short distance wouldn’t harm anybody. felt like could park it few feet away.” [5] Constable Archibald observed the vehicle starting to turn very slowly. Archibald drove up beside the accused. The accused was having difficulty turning the steering wheel and the passenger was helping her. [6] Archibald walked beside the vehicle and asked the accused to stop. The accused asked her to wait minute, as she was having trouble parking. [7] Archibald asked the accused to step out of the vehicle. She asked for identification. The driver had none. She smelled alcohol as she walked alongside the vehicle and noted that the eyes of the accused were bloodshot and her speech was slurred. Archibald asked her to step into the police vehicle. The accused staggered slightly and had trouble walking to the vehicle. Archibald read the accused the Approved Screening Device (ASD) Demand at 8:15 a.m. and the accused refused. Her response was “I refuse to take test until speak to lawyer.” [8] Archibald then proceeded to arrest the accused for impaired driving, and read her Charter Rights and police warning. [9] At 8:40 a.m., Archibald read her breathalyzer demand. Between 8:17 and 8:40, Archibald had arranged for tow truck, waited for it to come for the vehicle, and spoke to the passenger, explaining that the accused was being arrested and the vehicle impounded. Archibald also called the owner of the vehicle and explained what was going to happen. Meanwhile, the accused waited in the back of the police vehicle. [10] Immediately after the breathalyzer demand was read to the accused, she started yelling and screaming. She told Archibald that she would say it had not been read, and that she would be believed because she was Native. According to Archibald, she was belligerent and very unco-operative. Her speech was very slurred, she smelled of alcohol, her eyes were bloodshot. [11] At the detachment, Archibald escorted the accused from the phone room to the breathalyzer room. She was red-eyed, argumentative, smelled of alcohol and was staggering, unable to walk straight line. [12] No notation regarding any odor of beverage alcohol or difficulty walking was recorded by Archibald in her notebook, although she took nine pages of notes. Only the red eyes and slurred speech, plus difficulty driving, and the conversations were noted. Archibald testified that she was not mistaken about the odor of alcohol in the vehicle and on the breath of the accused. [14] Archibald answered “yes” when asked on cross-examination whether she believed that the accused had alcohol in her body when she made the ASD demand. Archibald also stated on cross-examination, “I’m assuming gave the ASD to find out if she had alcohol in her system and then arrested her for impaired driving.” “It was due to her refusal” and “from the driving evidence” that she was arrested for impaired driving. [15] No explanation was noted in the officer’s notes to explain the wait from 8:17 to 8:40 before giving the accused the breathalyzer demand. Archibald agreed that she “could have” read the accused the breathalyzer demand at 8:17. She wanted to speak to the passengers before they went anywhere with the vehicle, and believed that they were not sober enough to drive. [16] The tow truck arrived at 8:45, five minutes after the breathalyzer demand was read. At 8:50 the accused arrived at the detachment. She spoke to Legal aid and at 9:26 the first breath sample was taken. [17] The accused testified that she was “kind of scared” when Archibald was walking alongside the truck as she was trying to park it, because Archibald was so close to the truck. The steering was hard. The accused estimated that it took approximately ten minutes for her to park the vehicle. [18] The accused testified that she was not really feeling the effects of the alcohol until she arrived at the police station. At the 711 she said, “there was not too much time for the alcohol to hit me.” She said “a few feet, felt confident enough to drive.” [19] On cross-examination the accused stated “I knew it would kick in,” and answered “correct” when asked if she knew that she was under the influence of alcohol. ISSUES AND ARGUMENT (i) The defence argues that the certificate of analyses should not be admissible because the breathalyzer demand was not made forthwith or as soon as practicable. The accused was unlawfully detained (S.9 of the Charter); (ii) The officer did not have reasonable and probable grounds for the breathalyzer demand (S.8 of The Charter); (iii) There is reasonable doubt as to whether the accused was impaired by alcohol at the moment in time when she was parking the truck. [21] Defence argues that there were no notes taken by the officer of odor of alcohol or difficulty walking or getting out of the truck. There is evidence explaining the slowness and difficulty driving. The driving evidence together with red eyes and slurred speech is not enough to prove impaired ability to operate motor vehicle. (1) Admissibility of the Certificate of Analyses [22] Section 254(3) of the Criminal Code requires that an officer believe on reasonable and probable grounds that person is committing or has committed an offence under S. 253; the officer then may, by demand made to that person forthwith or as soon as practicable, require that person to provide breath samples for analysis. [23] breath test demand should be made as soon as the officer forms the requisite grounds for making it. Those grounds did not change between the time the accused refused to provide an ASD sample, at 8:17 a.m., at which time Archibald arrested her for impaired driving, and 8:40 a.m., when Archibald read the accused the breathalyzer demand. [24] There was no reason for the breath demand not being made forthwith. Indeed, Archibald agreed that she could have read the demand at 8:17 a.m. [25] In v. Billette, 2001 Q.B. 150, Justice Ryan-Froslie concluded “forthwith means as quickly as possible in the circumstances.” Billette concerned S. 254(2) demand but the definition is still relevant. [26] I conclude that the demand was not made forthwith or as soon as practicable and consequently, her rights under sections 8 and 9 of the Charter of Rights were breached. [27] I also conclude that the officer did not have reasonable and probable grounds for making the breathalyzer demand. According to Constable Archibald, she gave the ASD demand to find out if the accused had alcohol in her system. When the accused refused, Archibald arrested her for impaired driving, primarily because of that refusal. [28] No explanation was offered as to why the accused was not charged with refusing to comply with the ASD demand. [29] The officer was unsure of whether the accused had alcohol in her system when she read the accused the ASD demand and there was no new evidence gathered between 8:17 a.m. and 8:45 a.m. to justify the breath demand. Therefore, the evidence does not support a subjective honest belief on the part of the officer that the ability of the accused to operate a motor vehicle was impaired by alcohol. [30] As the breath sample evidence was obtained as a consequence of the breach of the Section 8 and 9 Charter Rights of the accused, it should be excluded under Section 24(2). Its admission would render the trial process unfair and bring the administration of justice into disrepute. (2) Evidence of Impaired Operation of Motor Vehicle [31] This is the more difficult issue, due to the accused’s own testimony that she had been drinking alcohol and was feeling the effects of the alcohol at the time she was operating the motor vehicle. [33] The evidence of the officer, which I have found insufficient to support a belief of impairment as prerequisite to a breath demand, cannot alone prove impaired driving beyond a reasonable doubt. [34] The accused testified that she knew the alcohol would “kick in” and that she was not really feeling the effects until she arrived at the police station. [35] There was no expert evidence called by either side. can neither take judicial notice of the fact that she would have been more impaired later at the detachment (after, in her words, the alcohol “kicked in”), nor of the fact that she would have been impaired at the 711, after drinking three or four beer within the preceding hour. [36] She has offered an explanation for her difficulty driving. She was also tired. When I consider those explanations together with the uncertainty of the police officer as to whether or not she had alcohol in her system at the time she read her the ASD demand, I am unable to conclude beyond a reasonable doubt that the ability of the accused to operate a motor vehicle was impaired by alcohol at the time she was driving. CONCLUSION [37] I find the accused not guilty of all counts. V.H. MEEKMA, PCJ
The accused is charged with driving while over .08 contrary to s. 255(1) and s. 253(a) of the Criminal Code and impaired driving contrary to s. s. 253(b) and 255(1) of the Code. HELD: The accused is not guilty on all counts.  1) A breath test and demand should be made as soon as the officer forms the requisite grounds for making it. Those grounds did not change between the time the accused refused to provide an ASD sample at 8:17 a.m., when the officer arrested her for impaired driving and 8:40 a.m. when the officer read the accused the breathalyzer demand. There was no reason for the breath demand not being made forthwith. The rights of the accused under s. 8 and s. 9 of the Charter were breached. 2) The officer did not have reasonable and probable grounds for making the breathalyzer demand. The officer testified she gave the ASD demand to find out if the accused had alcohol in her system. When the accused refused, the officer arrested her for impaired driving. The officer was unsure of whether the accused had alcohol in her system when she read the accused the ASD demand and there was no new evidence gathered between 8:17 a.m. and 8:40 a.m. to justify the breath demand. The evidence does not support a subjective honest belief on the part of the officer that the ability of the accused to operate a motor vehicle was impaired by alcohol. As the breath sample evidence was obtained as a consequence of the breach of the s. 8 and s. 9 Charter rights of the accused, it should be excluded from evidence pursuant to s. 24(2).  3) The accused testified that she had been drinking alcohol and was feeling the effects of the alcohol at the time she was operating the vehicle. She said she knew the alcohol would kick in and that she was not really feeling the effects until she arrived at the police station. She offered an explanation for her difficulty in driving testifying that she was tired. The evidence of the officer, which was insufficient to support a belief of impairment as a prerequisite to a breath demand, cannot prove impaired driving. There is insufficient evidence to conclude beyond a reasonable doubt that the accused's ability to drive was impaired by alcohol at the time she was driving.