Her Majesty the Queen - v. -, 2014 SKPC 129

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 129 Date: June 17, 2014 Information: 24473493 Location: Cumberland House _____________________________________________________________________________ Between: Her Majesty the Queen - and - Harold Fosseneuve Appearing: Ms. Ruth Fafard For the Crown Ms. Loree Richardson For the Accused JUDGMENT R.J. LANE , J [ 1 ] Harold Fosseneuve is charged on Information #24473493 that, on or about January 12, 2013 at or near Cumberland House, Saskatchewan: 1) he did while his ability to operate a motor vehicle was impaired by alcohol did operate a vehicle contrary to s. 253(1) (

a) and 255(1) of the Criminal Code ; and 2) did while having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in

100 millilitres of blood did operate a motor vehicle to wit a vehicle contrary to s. 253(1) (

b) and 255(1) of the Criminal Code . [ 2 ] The Crown proceeded summarily and was represented by Ms. Ruth Fafard and the accused was represented by Ms. Loree Richardson. The trial was conducted in Cumberland House on September 17, 2013. [ 3 ] The accused, through his counsel, served Notice of a Charter Application as follows: The accused’s rights guaranteed under ss. 8 and 9 of the Charter have been infringed or denied, the particulars of which are as follows: 1) The police had no authority pursuant to s. 209.1 of The Traffic Safety Act , SS 2004, Ch. T-18.1, to stop Mr.

Fosseneuve in the Cumberland House bar parking lot, particularly because a parking lot does not come within the definition of a “highway” under s. 2(1) (

k) of The Traffic Safety Act ; 2) The police did not have articulable cause to detain Mr. Fosseneuve; 3) The police did not have reasonable and probable grounds to believe that an offence had been committed under s. 253 within the preceding three hours, in order to demand a breath sample pursuant to s. 254(3) (a)(

i) of the Criminal Code ; and 4) The nature of the breach and the manner in which they infringed Mr. Fosseneuve’s privacy and freedom outweigh the interests of the public in these circumstances. [ 4 ] Ms. Richardson submitted that the appropriate procedure for the hearing of this application was to conduct a voir dire prior to the commencement of evidence and the trial with decision before commencement of evidence in the trial proper. [ 5 ] The relief being sought by Ms. Richardson is summarized as follows: 1) Exclusion of all evidence used to justify a roadside breath demand; 2) Exclusion of all breath evidence, including but not limited to:

a) result of roadside approved screening device;

b) Certificate of Analyses; and

c) Certificate of a Qualified Technician. 3) Exclusion of all evidence collected and observed at the roadside after Mr. Fosseneuve was detained at 23:47 hours; 4) Exclusion of all evidence collected after arrival at the detachment at 00:01 hours; and 5) An acquittal on all charges or alternatively, a stay of proceedings. [ 6 ] The evidence is quite straightforward, really leaning to one issue, and a possible Grant analysis under s. 24(2) of the Charter

of Rights and Freedoms. [ 7 ] The Crown called two witnesses, Constable Ricalton and Constable Lanoie. The first witness was Constable Ricalton, a member of the RCMP with approximately 5 years of service. He stated that he deals with intoxicated people on a daily basis and has been included or involved in more than 50 impaired/.08 investigations. He is also a qualified ASD operator. [ 8 ] He testified that on January 12, 2013, he and Constable Lanoie were on patrol in Cumberland House, Saskatchewan operating a standard RCMP Ford F150 half-ton with a light bar on the roof, decals, etc.

He saw a vehicle driving northbound on Cumberland Street in Cumberland House and saw it pull into the parking lot of the bar in Cumberland House. He stated that the motor vehicle was approximately 500 feet from him when it exited the public road and entered the bar parking lot at 11:47 p.m. He testified that he was about 30 seconds behind the vehicle and never lost sight of the vehicle. He pulled into the same parking lot once he caught up to the motor vehicle and at that point engaged the emergency lights.

He identified the accused as the person behind the wheel of the motor vehicle. [ 9 ] Constable Ricalton testified that he formed the intent to perform a Traffic Safety Act stop when the vehicle turned east off Cumberland Street into the bar parking lot. At this point, as per the testimony of Constable Ricalton, it is fair to say that the two officers in their police vehicle were 500 feet away from the motor vehicle being operated by the accused. However, Constable Ricalton did maintain that when he first saw the motor vehicle being operated by Mr.

Fosseneuve, it was on Cumberland Street. [ 10 ] When he spoke to Mr. Fosseneuve he asked for his driver’s licence and asked Mr. Fosseneuve if he had been drinking. He noted that he could smell alcohol on the breath of the accused. The accused admitted that he had had two beer to drink. He observed the accused to be “swaying side to side” and a “slight” stumble when he exited his vehicle. He did not make any observations of the footwear that the accused had on, on this January evening. He did however testify that he did not have any problem with his own footing.

The accused told Constable Ricalton that he was dropping people off at the bar. He indicated that he detained the accused at that point for an impaired driving investigation and that his grounds for detention were the following: 1) the smell of beverage alcohol; 2) the admission of consuming two beer; 3) the observation that the accused had bloodshot eyes; 4) the observation that the accused was swaying to a certain extent, and 5) the observation that the accused had a “slight” stumble. [ 11 ] He searched the accused and put him in the back of the police vehicle and at 11:54 p.m. read the ASD demand.

He indicated the accused complied, and immediately provided a sample and blew a fail. That sample was at approximately 11:54 p.m. or perhaps a minute later. He placed him under arrest at that point for impaired driving, provided him with his Charter rights, rights to counsel and police warning. He then made the breath demand at approximately 11:57 p.m. They arrived at the RCMP Detachment at 12:01 a.m. There were not any stops along the way. The accused did speak with a lawyer at 12:10 a.m. and his conversation ended at 12:16 a.m.

Constable Lanoie, who was a breath technician, conducted the breath tests. [ 12 ] The readings taken were at 12:39 a.m. resulting in a reading of .160 milligrams of alcohol in 100 millilitres of blood and 1:00 a.m. resulting in a reading of .150 milligrams of alcohol in 100 millilitres of blood. [ 13 ] In cross-examination, Constable Ricalton indicated that the bar in Cumberland House is on a corner lot and you enter it by turning east off Cumberland Street. He admitted he observed no unusual driving and that the operator of the motor vehicle was not committing any infractions.

He also acknowledged he did not activate his emergency lights until he was entering the parking lot of the hotel. [ 14 ] The next Crown witness was Constable Lanoie, who at the scene in the parking lot of the bar, did not have much to do with the accused. He did not notice the accused swaying in the parking lot of the bar however, as he was the breath technician, he was able to observe the accused at the detachment and stated that the accused “appeared” to sway side to side. And this observation would be in the detachment, as opposed to the bar parking lot.

It is a fair inference to draw, in my opinion, that if the accused was indeed swaying, it was

only marginally noticeable. He also testified that from the moment he and Constable Ricalton first observed the motor vehicle on Cumberland Street until they pulled in behind it in the bar parking lot, the time lapse was less than a minute. [ 15 ] The issue to be decided in this case is whether or not the police stop of the vehicle of the accused in the parking lot of the Cumberland House bar was a proper stop pursuant to s. 209.1 of The Traffic Safety Act to check for driver’s licence, registration and driver sobriety. It is a given that a parking lot is not a “highway” as defined in The Traffic Safety Act .

The Saskatchewan Court of Appeal clearly ruled in R. v. Lux , 2012 SKCA 129 , that a Traffic Safety Act stop in a parking lot is not a valid stop unless the police officers observed evidence that the motor vehicle had committed a violation in its operation on a public highway or even upon entrance into the private parking lot. [ 16 ] At para. 31 of R. v.

Lux , supra , the Saskatchewan Court of Appeal stated that s. 209.1 of The Traffic Safety Act “falls short of establishing that peace officers are entitled to conduct random check stops anywhere on private property where there is no basis to believe that the driver is committing any infraction or poses a threat to public safety.” This is an extraction from the brief of law of Ms. Richardson. [ 17 ] Chief Justice Popescul of the Saskatchewan Court of Queen’s Bench went further in the case of Jeffrey Anderson v.

The Queen , 2013 SKQB 219 , where the evidence was that the police officer followed the vehicle onto private property before engaging the emergency lights. However, the trial judge had accepted that the police officer, who had conducted The Traffic Safety Act stop, had formed the intention to conduct that stop while the motor vehicle was still on a public highway. The Saskatchewan Court of Appeal then in R. v.

Anderson , 2014 SKCA 32 , concluded that where the peace officer has formed the intention to conduct a Traffic Safety Act stop while the motor vehicle was still on a public highway notwithstanding that the police officer had not engaged any emergency lights, it was a proper Traffic Safety Act stop once conducted on private property. [ 18 ] In this case here I do accept Constable Ricalton’s testimony that he had formed the intention to conduct a Traffic Safety Act stop some time before he actually performed that stop, and engaged the emergency lights.

What I am having trouble with is whether he formed that intention while the motor vehicle that Mr. Fosseneuve was driving was still on the public road or if it was after the vehicle exited the public highway and was situated in the bar parking lot. [ 19 ] For those who have practised criminal law, particularly in the north, it is probably a safe assumption that most peace officers who commence their shift, particularly an evening shift, have formed the intent to stop most if not all motor vehicles that are driving in close proximity to a bar to perform a Traffic Safety Act stop.

While there is no evidence before the Court in this trial that that is what Constable Ricalton had done, not only is it common sense that most police officers would at least consider forming that intent, but indeed it is their duty to protect our highways and the public from the carnage caused by impaired drivers.

Further, common sense would suggest that a driver operating a motor vehicle near a bar is a higher risk to have been drinking, than drivers in residential areas. [ 20 ] While I find that Constable Ricalton is an officer of high integrity and was telling the truth as he believed it, I am not convinced beyond a reasonable doubt that he formed his intention to perform The Traffic Safety Act stop before the vehicle left Cumberland Street. This, of course, is supported by his admission that he formed that intention when the vehicle left Cumberland Street.

An argument could be made that the vehicle left Cumberland Street and went onto Deschambeault Street which goes into the parking lot however, it is not clear whether the border of Deschambeault Street can be clearly delineated from the beginning of the parking lot. One would have to ask oneself if Constable Ricalton, in the 30 to 60 seconds it took for him to catch up to Mr.

Fosseneuve’s motor vehicle, had seen another motor vehicle drive through a stop sign in front of him, would Constable Ricalton have formed sufficient intention to perform The Traffic Safety Act stop on the accused to the extent that he would have ignored the vehicle that just went by him disregarding that stop sign. I highly doubt it. [ 21 ] When one examines the factual findings of Provincial Court Judge Jeff Kalmakoff in the Provincial Court level decision of R. v.

Anderson , it is clear that the police officer in that case followed the suspect vehicle on Highway #18 near Carnduff, Saskatchewan, and then as the vehicle turned south on a public road the police officer did that as well. It was after that the suspect vehicle pulled onto private property and the police officer did the same that he engaged his emergency lights and commenced The Traffic Safety Act stop.

Quite clearly, the police officer in the Anderson matter was demonstrably following the accused. [ 22 ] It seems clear to me in the Anderson decision that the evidence is much stronger that the police officer not only testified he

had formed the intent to perform a Traffic Safety Act stop, however his actions were more consistent with that, than we see in the presentcase. He observed the vehicle, he followed it on the highway. He then followed it on another public highway albeit a gravel road. Hethen followed it onto private property. In the present case, the police officers observed the motor vehicle momentarily, approximately500 feet away (about 1-1/2 football field lengths to put it into perspective), when it pulled into a private parking lot.

The police officerstook anywhere from 30 to 60 seconds to reach that parking lot depending on the time estimates of Constables Ricalton and Lanoie. [23] Notwithstanding that I believe that Constable Ricalton today believes that he formed the intent to perform The Traffic SafetyAct stop while the suspect vehicle was on a public highway, I am not satisfied that the evidence proves beyond a reasonable doubt thatthat was the case. Analysis Was Mr. Fosseneuve arbitrarily detained in violation of his rights under s. 9 of the Charter? [24] It is clear that s. 209 of The Traffic Safety Act, SS 2004, Ch.

T-18.1 gives police officers the power to stop vehicles at randomand request information from the drivers and investigate driver sobriety. [25]

Section 2(

k) of The Traffic Safety Act defines “highway” as follows: (k) “highway” means a road, parkway, driveway, square or place designed and intended for or used by the general public for the passageof vehicles, but does not include any area, whether privately or publicly owned, that is primarily intended to be used for the parking ofvehicles and the necessary passageways on that area. [26] In the present case, Constables Ricalton and Lanoie testified that they did not observe any traffic infraction, mechanicalfitness problem, erratic driving or any other reason to suspect that the accused had been drinking to the extent that he was a danger to thepublic or was committing an offence such that the police could conduct an investigation without having to embark on a Traffic Safety Actstop.

Thus, the only way the police could conduct such an investigation or stop would be if it were conducted pursuant to s. 209.1 of TheTraffic Safety Act. I have concluded that I am not satisfied beyond a reasonable doubt that it was. [27] The onus of proof upon Mr. Fosseneuve is whether he has established on a balance of probabilities that his Charter rightsunder s. 9 have been violated. I have concluded that his rights were violated. [28] The Supreme Court of Canada in R. v.

Grant (2009), 2009 SCC 32 , 2 S.C.R. 353, defined the test which a Court is toapply when deciding whether evidence obtained as a result of a Charter breach ought to be admitted as evidence. The Supreme Courtset out the three factors that a Court must consider in determining whether or not the admission of the evidence would bring theadministration of justice into disrepute and these are as follows: 1. The seriousness of the Charter infringing state conduct which led to the discovery of the evidence; 2. The impact on the Charter protected interests of the accused; and 3.

Society’s interest in the adjudication of the case on its merits. [29] Generally, inadvertent breaches or minor breaches of Charter rights are less serious than deliberate breaches. [30] I have concluded that Mr. Fosseneuve’s Charter rights under ss. 8 and 9 have been infringed. I have concluded that the stateactivity is serious, particularly when one considers the evidence of the police officers to the effect that there was nothing about theaccused’s method of driving or operation of his motor vehicle that caused them concern. This would weigh in favour of excluding theevidence.

[ 31 ] The second factor is the impact on Mr. Fosseneuve’s Charter protected interests. In this situation Mr. Fosseneuve was first stopped by the police at approximately 11:48 p.m. The ASD demand was read to him around 11:54 p.m. and the first sample was taken around that time. He was arrested at 11:55 p.m and arrived at the detachment at 12:01 a.m. Mr. Fosseneuve was able to speak to a lawyer and his conversation with Legal Aid ended at 12:16 a.m. The first sample of his breath was taken at 12:39 a.m. and the second at 1:00 a.m. Mr. Fosseneuve was released at 1:20 a.m. In the circumstances Mr.

Fosseneuve was under police detention from 11:47 p.m. to 1:20 a.m., a period of time which was just shy of one and one-half hours. In this instance, Mr. Fosseneuve had committed no driving infractions and in fact, gave the police no reason to suspect that he had committed any offence. Constable Ricalton performed an unlawful Traffic Safety Act stop on private property that I had concluded he did not have the authority to conduct. In these circumstances I have concluded that the impact on Mr.

Fosseneuve is significant and this weighs in favour of exclusion of the evidence. [ 32 ] The last factor to be considered is society’s interest in an adjudication of a case on its merits. The evidence before the Court in Exhibit P-5 sets out breath analysis results of .160 milligrams of alcohol in 100 millilitres of blood and .150 milligrams of alcohol in 100 millilitres of blood. The accuracy of this evidence has not been challenged in any way and I conclude therefore that it is reliable.

That conclusion would tend to lead towards admission of the evidence. [ 33 ] However, the whole point is that I must consider the repute of the administration of justice, and in particular, the long term repute. In my opinion, the impact on Mr.

Fosseneuve’s Charter protected interests as well as the nature of the Charter breaches outweighs society’s interests in a trial of the case on its merits. [ 34 ] In this situation, the accused has established on a balance of probabilities that admitting this evidence would bring the administration of justice into disrepute. [ 35 ] As a result, the Certificate of Analyses, the results of the roadside test and any evidence relating to blood alcohol levels are excluded.

In addition, the observations of both police officers of the accused subsequent to The Traffic Safety Act stop, particularly as it relates to whether or not he showed signs of impairment, are also excluded. [ 36 ] In the event I am wrong on that, I am not satisfied that the evidence obtained by the observations of Constable Ricalton and Constable Lanoie proved to me beyond a reasonable doubt that the ability of the accused to operate a motor vehicle was impaired by alcohol. When it comes to symptoms like the smell of alcohol on the breath of the accused, it either is or it isn’t.

I accept that there was the smell of alcohol. When it comes to the admission of the accused that he had consumed two beer, in the absence of expert testimony to advise the Court what impact the consumption of two beer would have on Mr. Fosseneuve, it only establishes that he had consumed two beer. With regards to the bloodshot eyes, that by itself is simply not enough to establish impairment. As far as the observation by Constable Ricalton that the accused was swaying in the parking lot, it is noteworthy that only Constable Ricalton saw this.

Constable Lanoie’s description of what he saw at the detachment was “it appeared he was swaying”. To me, this is a conditional observation, one that enhances the credibility of Constable Lanoie in the sense that he was not so certain that it was swaying that he was going to call it that. I am not satisfied that there is enough other evidence to establish that any swaying that may have been observed was as a result of impairment. Lastly, the observation of a “slight” stumble is such a subjective observation that I simply would not accept that as evidence of impairment.

In my view, a person either stumbles or they don’t. When the word “slight” is used to describe the stumble, the description by the police officer is really a conditional one that does not display confidence that the officer truly saw a slight stumble. In other words, Constable Ricalton did everything he could to be perfectly honest in his testimony and to me the description of the stumble as being “slight” speaks very highly to the integrity and the credibility of Constable Ricalton. However, Constable Ricalton prefaces his description by the word “slight”.

I am not convinced beyond a reasonable doubt that this is a sign of impairment either. [ 37 ] In the circumstances, with the evidence I have excluded, there is no evidence to establish the blood alcohol of the accused and therefore he is not guilty of Count #2.

With respect to the evidence I have excluded on Count #1 there is no evidence of impairment and I therefore find him not guilty of that. [ 38 ] If I am wrong in excluding the observation evidence of Constables Ricalton and Lanoie in the parking lot of the bar in Cumberland House or at the detachment, I have concluded that these observations do not persuade me beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol and therefore I find the accused not guilty of that count as well.

This is especially so when the accused demonstrated no other signs of impairment that we so often see in these cases such as a lack of coordination in other physical tasks, difficulties with his speech, and problems with his driving.

[ 39 ] I am grateful to both Crown prosecutor, Ms. Fafard, and Defence counsel, Ms. Richardson, for the extensive briefs of law that they filed. They were most helpful indeed. I also wish to congratulate Ms. Richardson on a job very well done, especially as an articling student, in an area of law that few lawyers truly understand. ___________________________ R.J. Lane, J