R v Scriven, 2016 ABQB 197

Court of Queen ’ s Bench of Alberta Citation: R v Scriven, 2016 ABQB 197 Date: 20160406 Docket: 141288407S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Quenton Kyle Scriven Appellant ___________________________ ____________________________ Reasons for Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ I. Introduction [ 1 ] Mr. Scriven appeals his conviction for operating a motor vehicle with a blood alcohol level exceeding 80 milligrams of alcohol per one hundred millilitres of blood, contrary to s 253(1) (

b) of the Criminal Code, RSC 1985, c C-46 . [ 2 ] He argues that the trial judge erred in law and made palpably unreasonable findings in determining that Mr. Scriven was not detained. In particular, he argues that he was under psychological detention prior to being informed of his Charter rights and, consequently, his admission as the driver of the vehicle cannot be used to convict him.

II. Issues [ 3 ] The sole issue in this case is whether Mr. Scriven was detained prior to incriminating himself. In answering this question, I must determine whether Mr. Scriven was under psychological detention with or without a legal compulsion. III. Facts [ 4 ] On October 22 nd , 2014, Mr. Scriven struck a tree with his motor vehicle, while driving along Lamartine Crescent in St. Albert, Alberta. [ 5 ] A witness, Don Walker, testified that he saw Mr. Scriven get out of the driver’s seat of the vehicle, examine the damage, and proceed to park his vehicle behind Mr. Walker’s vehicle. At this point, Mr.

Walker, along with others, called 9-1-1. [ 6 ] As a result, Cst. Desmond arrived at the scene at 10:34 p.m., to investigate the traffic collision. She parked in the middle of the street with her emergency lights on. She was wearing her full uniform. [ 7 ] Cst. Desmond testified that, upon arriving at the scene, she observed a vehicle parked by the curb, with a trail of coolant leading from the vehicle to a tree on the opposite side of the street. Mr. Scriven was standing near the vehicle. [ 8 ] Cst. Desmond approached Mr. Scriven, not knowing his identity or his involvement, and asked “what happened”.

He responded that he was driving and got into a collision. At this point, she noted an odour of alcohol on his breath. As a result, she made an ASD demand. The ASD registered a “fail”. She arrested Mr. Scriven for impaired driving and subsequently charged him with operating a motor vehicle with a blood alcohol level in excess of 80 milligram of alcohol in 100 millimetres of blood. [ 9 ] At trial, Mr.

Scriven brought an unsuccessful Charter application, in which he argued essentially the same issue as in this appeal, that he was detained without being afforded his Charter rights, and therefore his statement that he was driving the vehicle was inadmissible. IV. Standard of Review [ 10 ] A

Summary Conviction Appeal Court’s jurisdiction is set out in s 686(1) of the Criminal Code , made applicable to

summary conviction appeals by s 822(1) . This Court may allow an appeal if it finds that: 1. The verdict should be set aside on the grounds that it was unreasonable or cannot be supported by the evidence; 2. The judgment of the trial court should be set aside on the grounds of a wrong decision on a question of law; or 3. On any ground that there was a miscarriage of justice. The only issue in this appeal is whether the facts support a finding that Mr. Scriven was detained prior to incriminating himself. The facts themselves are not in dispute, only their application to the legal test.

This is a question of law, and the standard of review is correctness: R v Shepherd , 2009 SCC 35 at para 20 . V. Position of the parties

a) Appellant’s position [ 11 ] Mr. Scriven’s sole ground of appeal is that he was detained and not afforded his Charter rights when he initially spoke to Cst. Desmond. As a result, he argues that any information acquired during this period was inadmissible at the trial. [ 12 ] Mr. Scriven argues that he was detained by operation of s 69(1) of the Traffic Safety Act (“TSA”) , RSA 2000, c T-6, which states: ... 69(1) Where an accident in which a vehicle is involved occurs on a highway, the driver or other person in charge of any vehicle that was directly or indirectly involved in the accident shall (

a) remain at the scene of the accident or, if the person has left the scene of the accident, immediately return to the scene of the accident unless otherwise directed by a peace officer, (

b) render all reasonable assistance, and (

c) produce in writing to anyone sustaining loss or injury, to any peace officer and to any witness all or such of the following information as is requested: (

i) that person’s name and address;

(ii) the number of that person’s operator’s licence; (iii) the name and address of the registered owner of the vehicle; (iv) the licence plate number of the vehicle; (

v) a financial responsibility card issued in respect of that vehicle. [13] Mr. Scriven argues that, because he was obligated to stay at the scene, this was a psychological detention with legalcompulsion. He further argues that, because Cst. Desmond arrived on the scene with her lights activated and in full uniform, this furthersupports a finding of psychological detention.

b) Respondent’s position [14] The Crown argues that Mr. Scriven was not detained, as s 69(2) does not apply. It argues that only s 69(1) applies, which didnot require Mr. Scriven to remain at the scene. Section 69(2) states:

(2) The driver of a vehicle that …. (

b) is involved in an accident resulting in damage to property on or adjacent to a highway shall forthwith or as soon after the accident asis practicable take reasonable steps to locate and notify the owner or person in charge of the property of the fact and of the name andaddress of the driver, the number of the driver’s operator’s licence and the licence plate number of the vehicle. [15] The Crown argues that, because Mr. Scriven was not detained, the admissions he made are admissible. Furthermore, theCrown argues that, even if this evidence is excluded, an eye witness, Mr. Don Walker, identified Mr.

Scriven as the driver during thetrial. VI. Analysis [16] Absent detention, “an individual confronted by state authority ordinarily has the option to choose to simply walk away”: R vGrant, 2009 SCC 32 at para 21. Detention triggers two Charter rights: s 10(a), the individual’s right to be informed of the reasons fordetention; and s 10(b), the right to counsel. [17] The Supreme Court has recognized three categories of detention which are pertinent to ss 9 and 10 of the Charter: R vTherens (SCC), [1985] 1 SCR 613 at paras 641-644; R v Grant at para 30: 1. Physical restraint; 2.

Psychological restrain without legal compulsion; and 3. Psychological restraint with legal compulsion. [18] Mr. Scriven has not alleged a physical restraint, and the facts do not support such a finding. The only question is whether hewas under a psychological detention. I will turn first to psychological detention with legal compulsion.

a) Psychological detention with legal compulsion [19] Mr. Scriven argues that s 69(1) of the TSA compelled him to remain at the scene of the accident and answer the questionposed by Cst. Desmond. [20] The Crown argues that s 69(1) does not apply. Section 69(2)(

b) applies, which imposes no obligation to remain at the scene.Therefore no legal compulsion arises. [21] Section 69(1) states, “where an accident in which a vehicle is involved occurs on a highway”. The broad language of s 69(1)encompasses the situation in question, as the accident involved Mr. Scriven’s vehicle, and it occurred on a highway. Therefore, therequirements of s 69(1) apply to this case. [22] Although s 69(1) applies, the

section does not require an individual to remain at the scene and answer any questions posed bya police officer. Rather, this

section requires an individual to remain at the scene of an accident, render reasonable assistance, andproduce in writing to anyone sustaining loss or injury, a witness, or a peace officer five pieces of information. The following informationis required: 1) the person’s name and address; 2) the person’s driver’s licence number; 3) the name and address of the registered ownerof the vehicle; 4) the license plate number of the vehicle; and 5) the financial responsibility card issued for the vehicle.

Once the personhas provided reasonable assistance and provided the five pieces of information, he or she is free to leave. [23] The statute does not require an individual to remain at the scene once these requirements have been fulfilled, nor does itrequire the person to answer any other questions, such as how the accident occurred. The statute did not compel Mr. Scriven to answerCst. Desmond when she asked “what happened”. There was no legal compulsion for Mr. Scriven to answer the police officer’s questionand he could have remained silent. [24] This

interpretation of s 69(1) was recently given by our Court of Appeal in R v Rowson 2015 ABCA 354, in which Justice

O’Ferrall states at para 52: [52] A driver is not detained for the purposes of the Charter when he is statutorily required to remain at the scene of an accident. It issimply a statutory duty which drivers owe to their fellow drivers. There is no need at this point for the police to inform the driver of hisright to counsel. Nor is there any obligation on police to refrain from eliciting information about the accident. Indeed, the police have aduty to elicit such information, not for the purpose of a prosecution, but for the purpose of reporting on what transpired to the Registrarof Motor Vehicle Services.

In the circumstances of an automobile accident, the timely obtaining of information from one or both of thedrivers may also save a life or avert further injury or property damage. [25] Similarly, in R v Nikkel, 2006 ABPC 269, Judge Fradsham found that the obligation to remain at the scene of an accidentunder s 69(1) of the TSA does not result in a detention. [26] Therefore, Mr. Scriven was not under a psychological detention with legal compulsion. I will now turn to consider whether hewas under psychological detention without legal compulsion.

b) Psychological detention without legal compulsion [27] The majority of police encounters with the public are a mere conversation that will not amount to a psychological detention.However, as the conversation shifts to a form of coercion and interrogation it becomes more likely to be a psychological detention: R vMann, 2004 SCC 52 at para 19.

When an individual submits to police authority and reasonably believes that he has no other choice, thisis when a psychological detention arises: R v Therens at para 644. [28] A psychological detention without legal compulsion exists where “the police conduct would cause a reasonable person toconclude that he or she was not free to go and has to comply with police direction or demand”: R v Grant at para 31. [29] Although this is an objective test, the individual’s “particular circumstances and perceptions” can be taken into account.

Theaccused’s testimony is often the best source of such perceptions, but because it is an objective test, the accused need not testify toestablish that a detention occurred: Grant at para 50. [30] Furthermore, because this is an objective test, the police officer’s subjective impressions are not relevant, as long as they arenot communicated in a manner that would cause a reasonable person to think they had to comply with the direction: Grant at para 32. [31] In R v Grant the Court emphasised that “not every trivial or insignificant interference with liberty attracts Charter scrutiny”.It is only where an individual’s “liberty is meaningfully constrained” that the need for Charter protection arises: R v Grant at para 26. [32] The Court outlined a list of factors to help determine when a psychological detention occurs.

One factor is the nature of thepolice conduct. Where police are acting in a non-adversarial role and assisting the public, this is unlikely to result in a detention: R vGrant at para 36: [36] We may rule out at the outset situations where the police are acting in a non-adversarial role and assisting members of the public incircumstances commonly accepted as lacking the essential character of a detention. In many common situations, reasonable peopleunderstand that the police are not constraining individual choices, but rather helping people or gathering information.

For instance, thereasonable person would understand that a police officer who attends at a medical emergency on a 911 call is not detaining theindividuals he or she encounters. This is so even if the police, in taking control of the situation, effectively interfere with an individual’sfreedom of movement.

Such deprivations of liberty will not be significant enough to attract Charter scrutiny because they do not attractlegal consequences for the concerned individuals. [33] Similarly, where police approach bystanders at accident scenes to determine if they are witnesses and obtain information toassist their investigation, this is unlikely to result in a detention: R v Grant at para 37: [37] Another often-discussed situation is when police officers approach bystanders in the wake of an accident or crime, to determine ifthey witnessed the event and obtain information that may assist in their investigation.

While many people may be happy to assist thepolice, the law is clear that, subject to specific provisions that may exceptionally govern, the citizen is free to walk away: R v Grafe(1987), (ON CA), 36 CCC (3d) 267 (Ont CA). Given the existence of such a generally understood right in suchcircumstances, a reasonable person would not conclude that his or her right to choose whether to cooperate with them has been takenaway.

This conclusion holds true even if the person may feel compelled to cooperate with the police out of a sense of moral or civic duty.The Ontario Court of Appeal adverted to this concept in Grafe, where Krever J.A. wrote, at p 271: The law has long recognized that although there is no legal duty there is a moral or social duty on the part of every citizen to answerquestions put to him or her by the police and, in that way to assist the police: see, for example, Rice v Connolly, [1966] 2 All ER 649 at p652, per Lord Parker C.J.

Implicit in that moral or social duty is the right of a police officer to ask questions even, in my opinion, whenhe or she has no belief that an offence has been committed. To be asked questions, in these circumstances, cannot be said to be adeprivation of liberty or security. [34] The second factor outlined is the duration of the encounter.

The longer the duration, the more likely it is to be a detention: R vGrant at para 42. [35] Third, physical contact between the police officer and the individual may be relevant in determining whether the individual isdetained. [36] Finally, the particular circumstances and perceptions of the individual may be taken into account when assessing whether areasonable person in those same circumstances would perceive that they have no choice but to comply with the police direction.

[ 37 ] In this case, Cst. Desmond arrived at the scene to investigate a traffic accident. She asked Mr. Scriven a single general question, in a non-adversarial manner, in relation to a traffic investigation. She asked “what happened”. Such encounters between police and bystanders at the scene of an accident occur daily and without more do not lead to a detention. Once Cst. Desmond arrived on scene she needed to ascertain the identities of the parties involved, and had no reason to inform Mr.

Scriven of his Charter rights, as he was not under investigation for any criminal activity and she had not yet ascertained his involvement. [ 38 ] Mr. Scriven argues that, because Cst. Desmond arrived with her lights activated and in full uniform, this points to a psychological detention. I disagree. Police officers are normally in full uniform and activating their lights is a common practice. This alone does not mean that a detention arises. [ 39 ] Mr. Scriven further argues that, because Cst. Desmond believed Mr.

Scriven was unable to leave the scene of the accident, this weighs in favor of finding a psychological detention. As I stated above, the test is an objective test based on what a reasonable person perceives in the circumstances. It is irrelevant what the police officer was thinking, as long as she did not act in a manner that would lead a reasonable person to think that they had no choice but to comply. The question she asked was extremely broad, non- adversarial, and aimed at determining what happened in a traffic accident.

No reasonable person would conclude that they had no reasonable choice but to comply. [ 40 ] Finally, Mr. Scriven did not testify as to any particular characteristic or perception that would establish, despite these facts, that he thought he had no choice but to comply. [ 41 ] Taking into account the totality of the circumstances, Cst. Desmond’s conduct would not cause a reasonable person to conclude that he or she was not free to go and has to comply with the direction or demand. VII. Conclusion [ 42 ] Mr.

Scriven was not under a psychological detention with legal compulsion, as the statute did not require him to answer the question posed by Cst. Desmond. Furthermore, he was not under psychological detention without legal compulsion because a reasonable person in those circumstances would not believe they had no choice but to comply. [ 43 ] Therefore, the appeal is dismissed. Heard on the 21 st day of January, 2016. Dated at the City of Edmonton, Alberta this 6 th day of April, 2016. D.L. Shelley J.C.Q.B.A.

Appearances: Patricia Hankinson Crown Prosecutor for the Respondent Peter Shipanoff Barrister and Solicitor for the Appellant