R. v. Rodgers (R.J.), 2011 SKQB 244

• Judge: Gabrielson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 22, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 244;(2011), 380 Sask.R. 1 (QB)

R. v. Rodgers (R.J.) (2011), 380 Sask.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JL.013

Roy John Rodgers (appellant) v. Her Majesty the Queen, as represented by the Attorney General of Saskatchewan (respondent)

(2010 Q.B.C.A. No. 44; 2011 SKQB 244)

Indexed As: R. v. Rodgers (R.J.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Gabrielson, J.

June 22, 2011.

Summary:

The accused was charged with drinking and driving offences under ss. 253(1)(a) and 253(1)(b) of the Criminal Code. The trial ruled that the certificate of analyses was not admissible because of a Charter violation. Therefore, he found the accused not guilty of driving while having an excessive blood-alcohol level under s. 253(1)(b). He convicted the accused of impaired care and control of a motor vehicle contrary to s. 253(1)(a), fined him $1,000 and prohibited him from driving for one year. The accused appealed his conviction under s. 253(1)(a).

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - A third party observed the accused (an off-duty police officer) operating a motor vehicle which had just jumped a curb and was parked in a lot - Constables Bzdel and Noesgaard arrived and noted signs of impairment - The accused failed an ASD demand, a demand for a breath sample was made, and the accused was taken to the police station - Following breathalyser readings which registered .13 and .12, the accused was charged with impaired operation of a motor vehicle and driving while having a blood-alcohol level over .08 - At trial, Noesgaard testified to numerous signs of the accused's impairment, while Bzdel testified that the only significant symptom of impairment that he noted was that the accused had alcohol on his breath - Constable Flogan, the breathalyser operator, testified that the accused appeared to have been drinking, had bloodshot eyes and smelled of alcohol - Further, having worked with the accused in the past, Flogan formed the opinion that the accused was drunk - The trial judge ruled that the certificate of analyses was not admissible because of a Charter violation - Therefore, he found the accused not guilty of the over .08 charge - However, he found that based upon Noesgaard's and Flogan's evidence, the Crown had proven that the accused was impaired while in care and control of a motor vehicle - On appeal, the accused submitted, inter alia, that the trial judge erred in considering Noesgaard's observations concerning his slurred speech as evidence to be admitted on the impaired driving count because they were made while he was detained and before he had been given his right to counsel - The Saskatchewan Court of Queen's Bench rejected this ground of appeal - The court stated that "Slurred speech is a known physical indicator of impairment absent some evidence of another cause. While statements made by the accused may not be introduced to prove impairment unless he has been advised of his Charter rights, a physical manifestation such as slurred speech may be introduced as evidence to prove impairment. Accordingly, I do not accept this ground of appeal." - See paragraphs 19 to 24.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4610 ].

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - The accused was a senior member of the Saskatoon Police Service (SPS) - While off-duty, a third party observed him operating a motor vehicle which had just jumped a curb and was parked in a lot - On-duty SPS Constables Bzdel and Noesgaard arrived and noted signs of impairment - As they were junior in rank to the accused, they requested a more senior officer to attend in accordance with SPS policy - The senior officer instructed Bzdel to administer an ASD demand - The accused failed the ASD demand, a demand for a breath sample was made, and the accused was taken to the police station - Following breathalyser readings which registered .13 and .12, the accused was charged with impaired operation of a motor vehicle and driving while having a blood-alcohol level over .08 - At trial, Noesgaard testified to numerous signs of the accused's impairment, while Bzdel testified that the only significant symptom of impairment that he noted was that the accused had alcohol on his breath - Constable Flogan, the breathalyser operator, testified that the accused appeared to have been drinking, had bloodshot eyes and smelled of alcohol - Further, having worked with the accused in the past, Flogan formed the opinion that the accused was drunk - The trial judge ruled that the certificate of analyses was not admissible because of a Charter violation - Therefore, he found the accused not guilty of the over .08 charge - However, he found that based upon Noesgaard's and Flogan's evidence, the Crown had proven that the accused was impaired while in care and control of a motor vehicle - On appeal, the accused submitted, inter alia, that the trial judge rejected or ignored the evidence of Bzdel, the senior officer on the scene and the main investigator, that the only significant symptom of impairment that he noted on the accused was that he could smell alcohol on the accused's breath, and this should have carried considerable weight - Further, Bzdel had also agreed that the degree of impairment could not be determined by the odour of alcohol and confirmed that there was nothing in his report to indicate a lack of motor skills, the accused's speech was noted on the form as "good" and the question on the form as to difficulty pronouncing words was noted as "no" - The accused suggested that the trial judge speculated that Bzdel was deliberately concealing or fabricating his evidence to assist the accused, a police colleague - The Saskatchewan Court of Queen's Bench held that the trial judge did not resort to conjecture or speculation - He made express findings of credibility concerning Noesgaard's and Flogan's evidence, preferring it to Bzdel's - The court reviewed their evidence and found no inherent improbability which would justify interfering with the trial judge's findings concerning it - See paragraphs 7 to 18.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - A third party observed the accused (an-off duty police officer) operating a motor vehicle which had just jumped a curb and was parked in a lot - Constables Bzdel and Noesgaard arrived and noted signs of impairment - The accused failed an ASD demand, a demand for a breath sample was made, and the accused was taken to the police station - Following breathalyser readings which registered .13 and .12, the accused was charged with impaired operation of a motor vehicle and driving while having a blood-alcohol level over .08 - At trial, Noesgaard testified he noticed immediately that the accused had bloodshot eyes, a flushed face, slurred speech and smelled of alcohol - This was further corroborated by his second contact with the accused where approximately 10 minutes later he noticed that the accused had dilated pupils, his lips were dry, he licked his lips, and he smacked his lips even when he was not talking - Bzdel testified that the only significant symptom of impairment that he noted was that the accused had alcohol on his breath - Constable Flogan, the breathalyser operator, testified that the accused appeared to have been drinking, had bloodshot eyes and smelled of alcohol - Further, having worked with the accused in the past, Flogan formed the opinion that the accused was drunk - The trial judge ruled that the certificate of analyses was not admissible because of a Charter violation - Therefore, he found the accused not guilty of the over .08 charge - However, he found that based upon Noesgaard's and Flogan's evidence, the Crown had proven that the accused was impaired while in care and control of a motor vehicle - On appeal, the accused submitted, inter alia, that the conviction for impaired operation of a motor vehicle constituted an unsafe verdict - The Saskatchewan Court of Queen's Bench dismissed the appeal - The court was satisfied that the trial judge analysed all of the evidence before him as was appropriate and did not use a piecemeal approach - There was ample evidence to justify his conclusion that the accused' ability to be in the care and control of a motor vehicle was impaired by alcohol - See paragraphs 25 to 32.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - [See Civil Rights - Topic 4610 ].

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses - [See first Criminal Law - Topic 1362 ].

Evidence - Topic 108

Degree, standard or burden of proof - Standard or degree of proof - Conjecture or speculation - [See first Criminal Law - Topic 1362 ].

Cases Noticed:

R. v. Hayes (K.J.) (2007), 253 N.S.R.(2d) 235; 807 A.P.R. 235; 2007 NSSC 74, revd. (2008), 263 N.S.R.(2d) 314; 843 A.P.R. 314; 2008 NSCA 23, refd to. [para. 16].

R. v. J.N.B., [1991] 1 S.C.R. 66; 117 N.R. 317; 71 Man.R.(2d) 156, refd to. [para. 17].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 19].

R. v. Hult (2008), 63 M.V.R.(5th) 287; 2008 SKQB 52, refd to. [para. 19].

R. v. Demers (M.W.) (2006), 282 Sask.R. 62; 2006 SKPC 65, refd to. [para. 19].

R. v. Coles (M.F.), [2005] A.R. Uned. 950; 2005 ABPC 277, refd to. [para. 19].

R. v. Sundquist (M.R.), [2000] 7 W.W.R. 411; 189 Sask.R. 273; 216 W.A.C. 273; 2000 SKCA 50, refd to. [para. 20].

R. v. Rivera (I.) (2011), 277 O.A.C. 26; 104 O.R. (3d) 561; 2011 ONCA 225, refd to. [para. 21].

R. v. Yuzicapi (D.L.) (2010), 351 Sask.R. 227; 2010 SKQB 137, refd to. [para. 23].

R. v. Kirkness (Q.) (2008), 318 Sask.R. 80; 2008 SKQB 259, refd to. [para. 23].

R. v. MacDonald (D.E.) (1996), 146 Sask.R. 306 (Q.B.), refd to. [para. 23].

R. v. Flasch (G.C.), [2004] Sask.R. Uned. 231; 12 M.V.R.(5th) 106; 2004 SKQB 521, refd to. [para. 25].

R. v. Holman (C.) (1998), 173 Sask.R. 214 (Q.B.), refd to. [para. 25].

R. v. Landes (T.) (1997), 161 Sask.R. 305(Q.B.), refd to. [para. 25].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 1996 ABCA 23, refd to. [para. 25].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 26].

R. v. Wilton (G.D.) (2007), 306 Sask.R. 117; 2007 SKPC 141, affd. (2009), 345 Sask.R. 81; 2009 SKQB 405, refd to. [para. 26].

R. v. Hall (S.J.) (1994), 125 Sask.R. 62; 81 W.A.C. 62 (C.A.), refd to. [para. 28].

R. v. Bigsky (J.S.), [2007] 4 W.W.R. 99; 289 Sask.R. 179; 382 W.A.C. 179; 2006 SKCA 145, refd to. [para. 31].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 32].

Counsel:

Ronald P. Piché, for the appellant;

K. Scott Bartlett, Q.C., for the respondent, Crown.

This appeal was heard by Gabrielson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on June 22, 2011.