R. v. Timmer, 2011 ABQB 629

Court of Queen ’ s Bench of Alberta Citation: R. v. Timmer, 2011 ABQB 629 Date: 20111012 Docket: 090953050S1 Registry: Edmonton Between: Her Majesty the Queen Plaintiff - and - Christian Frank Timmer Defendant Corrected judgment: A corrigendum was issued on October 13, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of

Summary Conviction Appeal of the Honourable Madam Justice L. Darlene Acton _______________________________________________________ [ 1 ] The Crown appeals a decision of Provincial Court Judge Burch who dismissed drinking and driving charges against Mr. Timmer because she determined that Mr. Timmer had been lawfully unlawfully detained contrary to

section 9 of the Charter of Rights and Freedoms . She then concluded that the only proper remedy was to exclude the evidence under section 24(2) of the Charter .

[ 2 ] The Crown submits that the learned trial judge’s finding of unlawful detention was unreasonable and unsupported by the evidence, and that excluding the evidence was an error. Background [ 3 ] On June 14, 2009, five foot, six inch Constable Schikoski observed Mr. Timmer drive through an oversized stop sign at the intersection of highways 37 and 44 with no signs of slowing or stopping. He then pulled Mr. Timmer over for the violation of the Traffic Safety Act, RSA 2000, c T-6. Mr.

Timmer was driving a very large truck with a “lift kit” modification, making the truck quite high. [ 4 ] Constable Schikoski testified that when he approached the driver’s side door to ask for the documentation required under the Traffic Safety Act , he had to get on his tip toes because of the discrepancy in height between him and the truck. He said he was able to determine that there were five men in the vehicle, that there was loud music which had not been turned down, and there was a lot of talking and laughing.

At that point the officer said he did not feel comfortable and had some safety concerns, so he asked Mr. Timmer to step outside the vehicle and accompany him back to his police vehicle. [ 5 ] Mr. Timmer complied with everything that Constable Schikoski asked him to do. Once he was in the back seat of the police vehicle, Constable Schikoski asked for his license, registration and insurance documentation in accordance with a traffic stop. [ 6 ] Constable Schikoski then asked him if he had had anything to drink, and Mr. Timmer replied that he had.

Constable Schikoski then testified that he observed an odour of alcohol coming from Mr. Timmer’s breath and that he had glassy eyes and slurred speech. It was at this point, using these indicia of impairment, that Constable Schikoski formed a suspicion that Mr. Timmer had alcohol in his body, and he executed a road side screening test with the approved screening device. The test resulted in a fail. At that point Mr. Timmer was arrested for impaired operation of a motor vehicle and read his

section 10 Charter rights. Constable Schikoski transported Mr. Timmer to the police station. The breath samples in question were taken and a certificate of analysis was generated.

The Standard of Review [ 7 ] The factual findings made by a trial judge are entitled to deference: R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 at paragraph 129 . [ 8 ] However, the ultimate question of whether there was an unlawful detention is a question of law; accordingly, the legal standard to be applied to the facts of this case must be reviewed on the standard of correctness: R v Shepherd , 2009 SCC 35 , [2009] 2 SCR 527 at paragraph 20 . Analysis [ 9 ] Much discussion was entered into over the fact of Mr. Timmer’s detention.

In my view there are levels of detention, and the further detention in the back of the police car was not lawful. Under the Traffic Safety Act , Mr. Timmer had a duty to provide documents and he discharged those duties, as he was prepared to present the officer with the necessary documents to identify himself and provide the necessary information for the traffic ticket.

[10] Taking him to the police car, a further detention, was not based on any reasonable and probable grounds or reasonablesuspicion of the offence for which he was ultimately charged, and was thus arbitrary (Grant at para. 55). [11] The officer’s safety grounds were thoroughly canvassed by the trial judge as follows: The officer chose to effect a detention of the Accused because of his officer safety concerns but those concerns were not elaboratedupon. There is no evidence from Officer Schikoski of threatening behaviour from any of the individuals in the vehicle or from theAccused.

While the officer had a right to ensure his own safety, there were other courses of action that could have been taken - a requestto turn the music off, perhaps to turn on an interior light of the truck to make visibility inside more reasonable. None of these were heardin evidence, of course, they are just suggestions, that I am saying the officer did not describe that any of these alternatives were evenconsidered by him or requested. A return to his own car to call for backup might well have made him feel more comfortable if he wasconcerned about being alone.

Clearly, and this is in evidence, there was an officer available as another officer arrived in less than 10minutes from Constable Schikoski initial stop of this vehicle as he said before he left the scene at 0017 that another officer had arrivedon scene and he left him in charge of the four occupants of the Accused’s truck. If the officer had received the documentary informationhe needed in order to complete the issuance of the Traffic Safety Act violation, he could have returned to the safety of his own car towrite the ticket, and he could have had Mr.

Timmer step out of the vehicle. [12] The learned trial judge concluded that Constable Schikoski exceeded his lawful authority in detaining Mr. Timmer in theback of his police car immediately upon approaching the truck – a groundless, warrantless detention (transcript page 9, line 18). [13] I am satisfied that there was an arbitrary detention contrary to

section 9 of the Charter in this case and the trial judgecorrectly concluded that this detention was unlawful. Exclusion of the evidence under section 24(2) of the Charter [14] The Supreme Court of Canada in R. v. Grant 2009 SCC 32 , 2009 S.C.C. 32 set out three factors that must bebalanced in determining whether evidence should be excluded under section 24(2) of the Charter of Rights and Freedoms: 1. The seriousness of the Charter infringing conduct; 2. The impact of the breach on the Accused’s Charter protected interests; and 3. Society’s interest in the adjudication of the matter on its merits. 1.

Seriousness of the Charter infringing conduct [15] The learned trial judge characterised the seriousness of the officer’s conduct as “the putting of an unarrested person, aboutwhom there was no suspicion even of commission of a crime, into the back of a police car and then questioning him and gatheringfurther evidence upon which suspicion might be based” (transcript page 82, lines 21-24).

She concluded that for the officer to do thatwithout having any cause could seriously erode public confidence in the protection of their Charter rights. [16] The Crown submits that because the officer was not acting in bad faith or in any improper manner, the breach was minor innature. When a police officer uses his authority to impose a significant detention, without reasonable grounds to suspect that any offence

has been committed, this raises “police state” fears. This is not minor. [ 17 ] The learned trial judge read paragraph 72 of the Grant analysis which emphasized that the Court must dissociate itself from conduct which could bring the administration of justice into disrepute in order to preserve public confidence in, and ensure state adherence to the rule of law. 2. The Impact of the breach on the Accused’s Charter protected interests [ 18 ] The learned trial judge observed that several different kinds of evidence were obtained from Mr. Timmer while he was unlawfully detained without access to counsel and at a time when he was not afforded his

section 7 right to silence. He was questioned, smelled, visually observed, listened to, and ultimately gave conscripted evidence in the form of a breath sample. While acknowledging that some of this evidence may possibly have otherwise been discoverable had the interaction taken place at the respondent’s vehicle window, the learned trial judge concluded that the way in which this evidence was gathered offends the administration of justice. 3.

Society’s Interest in the Adjudication of the Matter on its Merits [ 19 ] The learned trial judge said that the third factor favoured admission of the evidence and this the respondent concedes. [ 20 ] In Grant , the Supreme Court of Canada advised the trial judge must weigh the various factors, but need not be mathematically precise ( Grant paragraph 86 ) but goes on to say, “where the trial judge has considered the proper factors appellate Courts should accord considerable deference to his or her ultimate determination.” [ 21 ] I am of the view that the trial judge clearly turned her mind to each aspect of the Grant analysis and articulated her reasons as to why she favoured the first two factors and weighed them heavily in favour of excluding the evidence determining to admit the evidence would significantly damage the reputation of the administration of justice. [ 22 ] I see no error made by the learned trial judge either on her findings or in matters of law.

There is no basis upon which to interfere with her decision. [ 23 ] I am satisfied that the evidence was obtained during an unlawful detention which was serious in nature. It resulted in an array of evidence being observed including a self-incriminating statement. [ 24 ] For these reasons, the appeal must be dismissed. Heard on the 23 rd day of September, 2011. Dated at the City of Edmonton, Alberta this 12 th day of October, 2011. L.D. Acton J.C.Q.B.A.

Appearances: Mr. Scott Pittman for the Crown Mr. Donald MacCannell for the Defence _______________________________________________________ Corrigendum of the Memorandum of Decision of

Summary Conviction Appeal of The Honourable Madam Justice L. Darlene Acton _______________________________________________________ Counsel for the Crown and Counsel for Defence names changed as they were incorrect.