R v Foxwell, 2023 ABCJ 137

In the Alberta Court of Justice Citation: R v Foxwell, 2023 ABCJ 137 Date: 20230704 Docket: 211227392P1 Registry: Leduc Between: His Majesty the King Crown - and - David Foxwell Accused Ruling on the Trial and Charter Voir Dire by the Honourable Justice G.A. Rice [I] Introduction David Foxwell is charged with the following: [ 1 ] Count 1: On or about the 15 th day of December, 2021, at or near Leduc, Alberta, did unlawfully resist officer Cst. Jason Leasa, a peace officer, in the execution of his duty, contrary to

section 129 (

a) of the Criminal Code of Canada . [ 2 ] Count 2: On or about the 15 th day of December, 2021, at or near Leduc, Alberta, did unlawfully resist Sheriff Jeremy Hoffman, a peace officer, in the execution of his duty, contrary to

section 129 (

a) of the Criminal Code of Canada . [ 3 ] Count 3: On or about the 15 th day of December, 2021, at or near Leduc, Alberta, did in committing an assault on Cst. Jason Leasa engaged in the execution of his duty, cause bodily harm to him, contrary to

section 270.01 (

b) of the Criminal Code of Canada . [ 4 ] Count 4: On or about the 15 th day of December, 2021, at or near Leduc, Alberta, did, having regard to all the circumstances, operate a conveyance in a manner that was dangerous to the public, contrary to

section 320.13(1) of the Criminal Code of Canada . [ 5 ] Count 5: On or about the 15 th day of December, 2021, at or near Leduc, Alberta, did operate a conveyance while his ability to operate it was impaired, to any degree, by alcohol or a drug or by a combination of alcohol and a drug, contrary to

section 320.14(1) (

a) of the Criminal Code of Canada . [ 6 ] Count 6: On or about the 15 th day of December, 2021, at or near Leduc, Alberta, did, without reasonable excuse, fail or refuse to comply with a demand made pursuant to

section 320.27(1)(

b) to immediately provide samples of his breath necessary to enable a proper analysis to be made by means of an approved screening device, contrary to

section 320.15(1) of the Criminal Code of Canada .

[ 7 ] Count 7: On or about the 15 th day of December 2021, at or near Leduc, Alberta, did fail to stop at an intersection-red light, contrary to

section 54 of the Rules of the Road Regulation under the Traffic Safety Act . [II] Overview [ 8 ] The charges arise out of a traffic stop conducted by Cst. Leasa, where, after a mandatory alcohol screening (MAS) demand, the accused drove away. Cst. Leasa tried to stop the accused from leaving, and in doing so reached through the open driver’s window with his right arm and latched onto the steering wheel and side of the accused’s motor vehicle. The vehicle continued down the roadway, travelling at speeds of about 40-45 km/h. Cst.

Leasa was dragged about 200 metres and suffered some bruising, mainly to his forearm, armpit, and ribcage area from hanging on to the side of the car. Thereafter the accused was arrested and refused to provide a breath sample. [ 9 ] After being arrested and charged, the accused was lodged at the Leduc detachment holding cells on December 15 at 11:58 p.m. Approximately 13 ½ hours after his arrest, he appeared before a Justice of the Peace and was granted bail in the amount of $500 cash plus conditions.

During the hearing the Justice of the Peace inquired if the accused could raise that bail, and duty counsel indicated that the accused had a wallet at the detachment. [ 10 ] After the bail hearing, the accused was returned to his cell where he was informed by Sgt. Whattam that they only accepted cash for bail – that is, the Leduc RCMP detachment didn’t take credit or debit cards for payment, cards that the accused had in his wallet. [ 11 ] The accused was held at Leduc cells for about 22 hours (from 13:43 on December 16 to 11:29 on December 17) after being granted release.

During that time the accused requested telephone calls but was not provided with them. He was then picked up by the Sheriffs and was taken to the Remand Centre. Once at the Remand Centre, he produced his credit or debit card and paid his bail. He was finally released at 8 p.m. on December 17. All tolled he was in custody for 43 hours, and approximately 30 hours after being granted bail. [ 12 ] Defence concedes the Crown has proven the case in respect to counts 1, 2, 4 and 6.

The accused argues that the Crown has not proven count 3 (assault causing bodily harm) or count 5 (impaired driving). [ 13 ] The Crown did not proceed on count 7, the TSA charge. [ 14 ] Although there is some issue over the charges proven, the main issue is whether there is a breach of the Charter for imprisoning the accused for 22 hours when he was had been granted bail and, in the event of a breach, whether a stay under s 24(1) of the Charter was warranted in the circumstances. [ 15 ] The accused takes no issue with the officer’s decision to have the accused appear before a Justice of the Peace for a bail hearing. [ 16 ] Procedurally, the trial commenced with the Crown calling its case on the merits.

After both the Crown and accused closed their case on the trial, a voir dire was entered into to consider the evidence of Charter breaches, if any, and the appropriate remedy. The parties agreed to this procedure. [III] Trial A. Trial Evidence: Agreed Statement of Facts An Agreed Statement of Facts was provided: [ 17 ] At approximately 22:40 hrs on December 15, 2021, Sheriff Hoffman, a traffic sheriff, was riding in a marked police vehicle with Cst. Norbert of the Leduc RCMP. They saw a police vehicle stopped at the intersection of 50 th Avenue and Discovery Way.

They were flagged down by civilians who advised that an officer had been dragged by a vehicle. [ 18 ] Upon arriving on the scene, they saw a Hyundai on the shoulder. There was a black Nissan Qashquai parked on an angle in front of the Hyundai. They saw Cst. Leasa struggling to get the Hyundai’s driver out of the vehicle. [ 19 ] Sherriff Hoffman yelled at the driver that he was under arrest and to get out of the vehicle. The driver was put in handcuffs and tensed his body after being handcuffed. He refused to provide his name or date of birth. [ 20 ] The driver of that vehicle was David Foxwell.

Sheriff Hoffman later found Mr. Foxwell’s wallet which contained his driver’s licence. [ 21 ] Sheriff Hoffman read Mr. Foxwell the full arrest, Charter, and police caution at the roadside. Mr. Foxwell’s response to each question was “I just want to die.” [ 22 ] Sheriff Hoffman transported Mr. Foxwell back to the Leduc RCMP detachment at 23:40 hours. He was assessed by emergency medical services (EMS) and it was determined that he did not need medical attention.

[ 23 ] At 23:50 Mr. Foxwell was placed in the breath sample room with Cst. Broccolo. He was subject to a lawful breath demand. He refused to provide a breath sample. [ 24 ] Mr. Foxwell had no lawful or reasonable excuse not to provide a breath sample. [ 25 ] Mr. Foxwell refused to provide his name to numerous officers while back at the detachment. Cst. Leasa estimates he was asked over 20 times with no success. B. Trial Evidence: Crown Witness #1 – Officer Jason Leasa [ 26 ] On December 15, 2021, Cst. Leasa was on patrol at about 10:30-10:45 p.m. around Discovery Way in Leduc.

He was driving a marked police vehicle and was in uniform. That evening it was dark, minus 25 Celsius and the roads were slippery. [ 27 ] While the officer was patrolling behind Canadian Tire plaza and right in front of The Canadian Brewhouse, he saw the accused drive through a stop sign. He testified he saw no brake lights. He followed the vehicle left to Discovery Way and then it went right. As Cst. Leasa tailed the vehicle, he queried the licence plate and discovered it was a rental Hyundai Elantra.

He drove up behind the vehicle and observed that instead of holding the shoulder on the right-hand turn, the vehicle immediately darted to lane 2 without a signal. He continued to follow the accused’s vehicle and engaged his emergency lights to initiate a traffic stop. The car kept driving but finally came to a stop at the red light at Discovery Way and 50 Ave. The accused’s car was parked in the left-hand turning lane facing a red light. [ 28 ] Cst. Leasa testified that when he parked behind the Elantra, the accused did not put the car in park and nudged up, not stopping. Cst.

Leasa got out on foot to interact with the accused. [ 29 ] Cst. Leasa agreed in cross-examination that he didn’t initially have a suspicion of alcohol consumption. [ 30 ] The officer testified about his interaction with the accused. In addition to the officer’s testimony, Exhibit 1 was tendered which is a video and audio recording of the communication between the accused and the officer. The video recording shows the traffic stop, with the police vehicle immediately behind the Hyundai Elantra with its emergency lights activated.

The Elantra and the police vehicle were both in the left turning lane facing a red light. [ 31 ] The roadside communications were as follows: (Leasa): Put it in park. (Leasa): Place your vehicle in park, don’t drive away, put your vehicle in park, put your vehicle in park, put your vehicle in park we have a traffic stop. Yes. (Foxwell): Yes. (Leasa): Look how long it took you to stop. Alrighty, see your documents please – your driver’s licence, insurance and registration. (Foxwell): I don’t have it on me. (He reiterated) No, I don’t have driver’s documents on me. (Leasa): You don’t have a wallet on you?

Your wallet, driver’s licence. (Foxwell): No I don’t, it’s back at my hotel. (Leasa): Alright we will deal with that later – have you heard of the MAS? (Foxwell): No I haven’t. Cst. Leasa explained the change in the legislation, and how it works. (Leasa): Need a sample of your breath. Then just as he finished those words: (Leasa): Where are you going? Put it in park, you fucking idiot. (Foxwell): I’m trying to get off the road. (Indiscernible) (Foxwell): I’m trying to get off the road. (Leasa): Get it in park, you fucking idiot. [ 32 ] After that, the recording broke up and was unintelligible. [ 33 ] Cst.

Leasa’s testimony in terms of the events at roadside paralleled the Exhibit 1 recordings. Some further details included by the officer were the following: [ 34 ] As he waited for the Approved Screening Device (ASD) to ready and before the accused drove away, he started to smell stale

liquor. Further, the officer noted that the accused never made eye contact once, keeping his chin to his chest when he spoke, which is unusual in the officer’s experience. The accused mumbled something – the officer believes it was “fuck you” – and then the accused grabbed the shifter and put it in drive. From the recording, this “fuck you” cannot be discerned but something was mumbled. The officer confirmed that the words “fuck you” cannot be heard but believes that is what the accused said. He acknowledged that the accused could have said something else. [ 35 ] When the accused started to drive, because Cst.

Leasa had the ASD in his left hand, he reached in with his right arm and tried to put the vehicle in park. He testified he was concerned for public safety (impaired driver). Also, a tow truck and a sheriff were stopped up the road, so he felt he needed to apprehend the accused in the circumstances.

The trial evidence was that the sheriff referred to as up the road was Sheriff Hoffman, who had completed the stop requiring a tow truck and was traveling away from the scene when he was flagged down by concerned citizens regarding an officer being dragged. [ 36 ] When the vehicle started to drive and as the vehicle entered into the apex of the 90 degree left turn, the officer was clamped on the side of the car with his right armpit and grabbing the steering wheel with his right hand. In his left hand he still had the ASD. After the vehicle continued travelling, Cst.

Leasa was concerned that if he didn’t hang on he would be rolled over by the back wheel. [ 37 ] When the accused started driving, he “gunned it” – referring to the vehicle’s acceleration. [ 38 ] After completing the left turn, the accused straightened out the car and headed up the road eastbound. The accused continued to accelerate (not a hard acceleration), and the officer testified they reached speeds of 60 km/h.

The officer was able to determine the rate of speed because he could see the speedometer as they travelled and from his experience estimating speeds as a traffic officer. [ 39 ] As the vehicle continued down the road, the officer pulled his legs up because there was a barrier to the side of the officer in lane 1. At this stage, he had his right hand grabbed onto the bottom of the steering wheel and he stated, “it’s a fight for control.” He could see the tow truck driver walking around up ahead. Then the accused switched to lane 2. They passed the tow truck driver.

He estimates the accused drove about 200 metres, from the left turn to the ballpark on 50 th Ave. [ 40 ] As they drove down the road, the cars that were stopped at the lights facing eastbound were now behind them. Then a civilian, Mr. White, paralleled them in lane 1 or 2. Cst. Leasa testified that the civilian put his window down and the officer asked for help. Mr. White accelerated, angled, and finally cut off the accused’s vehicle at a 45 degree angle. When the vehicle stopped, the passenger side wheels were in the snowbank on the right hand shoulder.

At this point the accused’s vehicle was still in drive and the officer stated the wheels were still spinning. [ 41 ] After stopping, Mr. White jumped out of his car and went into the rear passenger side of the accused’s vehicle and put the shifter in park. Then the officer opened the driver’s door and was able to cuff the accused’s left wrist. He still only had one hand to use because the ASD remained in his left hand. [ 42 ] Shortly after the accused was stopped, Sherriff Hoffman arrived and was able to take over the arrest from Cst. Leasa. [ 43 ] Cst.

Leasa stated at this point he was in shell shock, and then pure rage and screaming, “You are under arrest for a number of charges.” He was checked at the roadside and attended the hospital. He testified he sustained severe bruising to his forearm, bruising to his right armpit and upper rib cage area. His ring finger dislocated briefly. He sought medical attention. He suffered shoulder strain. He also suffered mental trauma. [ 44 ] He spoke to other officers and sheriffs about the incident that night. These included officer Bridges, Sheriff Hoffman and Cpl.

Brosinki, the latter being called in because of the incident. He recalls speaking to the Corporal about whether to hold the accused for bail and stated that together they decided to hold him. The reasons Cst. Leasa decided to hold the accused for a bail hearing were that it was a persons crime, there were numerous indictable offences, and the accused was from out-of-province. He completed the bail package and was off shift at 4:30 a.m. Credibility of Officer Leasa [ 45 ] I found the officer provided a credible account. Certainly, much of what he did was corroborated by the recording exhibited and other witnesses.

The recording corroborates that he told the accused that it was a traffic stop and to put the vehicle in park, and he asked for documents. There is no doubt the accused left the traffic stop illegally and the officer clamped onto the side of the vehicle to stop him from leaving. For most of the evidence of the stop and the events following, the officer’s account is credible. [ 46 ] The officer was fair with his testimony, including making concessions such as it was possible the accused said something other than “fuck you” when he drove away from the stop.

He also admitted he was supercharged during the event, and this may have affected parts of his memory. [ 47 ] I find Cst. Leasa was honest and, for the most part, a reliable witness. However, regarding reliability, due to the officer’s supercharged state there were some issues. As set out above, the officer admitted that due to his supercharged state his memory of events was affected. There were examples of some unreliable evidence, such as his testimony that when Mr. White pulled up beside him he had a conversation with Mr. White as they travelled down the road. Mr.

White testified he had his window closed and that no such conversation took place. After the stop there was a conversation between the two, but I find a conversation through the window did not take place which affects Cst. Leasa’s reliability. Another example is that immediately after the incident, Cst. Leasa thought he had tried to choke the accused while being dragged down the road, but now, in hindsight, he knows that is impossible as he had the ASD in his left hand and his right hand on the wheel. [ 48 ] I find Cst.

Leasa was an honest witness and reliable on much of his evidence, particularly the events that took place prior to him latching onto the car when his emotions were not supercharged. However, there were some reliability concerns with some of his evidence due to his heightened emotional state caused by the dangerous incident.

C. Trial Evidence: Crown Witness #2 – Mr. White [ 49 ] Mr. White is 53 years old. He was heading to work at about 10:30 p.m. and driving a 2002 Qashqai. He was parked at the traffic lights at Leduc Common. [ 50 ] He saw a vehicle make a left-hand turn and noticed that a police officer was hanging out the window. The vehicle kept going, so he decided to go through the lights to pursue it and see if he could get the vehicle to stop. He described the officer’s body as being inside the vehicle and his legs outside and being dragged. [ 51 ] He pursued the vehicle and was able to get beside it.

He honked his horn and finally the vehicle merged over to the right as far as it could go. He angled the accused’s vehicle off, and when the accused’s vehicle pulled over, he pinched it off at a 45-degree angle so the vehicle couldn’t proceed. When he stopped, the officer was asking for assistance; his window was up, but he could hear the officer. To assist, he got out of his vehicle and entered the rear door of the accused’s vehicle. [ 52 ] Once inside the rear door, Mr. White stated the vehicle was stopped but the shifter was still sitting in neutral, and he pushed it into park.

The officer was trying to get the accused out of the vehicle, and Mr. White hit the seat belt release so the officer could get him out. He described that the officer was trying to pull him out and he was trying to push him out, “but that’s not happening.” [ 53 ] Mr. White also noted a smell of alcohol from the accused. [ 54 ] Mr. White stated he was driving between 40 and 50 km/h when he angled the accused vehicle off. He acknowledged that perhaps the accused’s vehicle may not have been going as fast as he was because he was catching up. He said he did not roll his window down and talk to the officer. [ 55 ] Mr.

White testified that the accused stopped where the ball diamonds are. [ 56 ] After he helped Cst. Leasa detain the accused, other officers came on scene and took over. Credibility of Mr. White [ 57 ] In acknowledging that Mr. White was a credible witness, defence counsel aptly stated part of the reason is that he has no dog in the fight. I agree. [ 58 ] Mr. White gave detailed and exact testimony of what happened. For example, he knew the exact location and time. He knew where the Elantra finally pulled over – by the ball diamonds. He related that he went through a stop light to pursue the Elantra.

He related that at one point the officer actually put his feet up on the side of his car. He recalled that when he got in the back seat of the Elantra the vehicle was not in park, and to assist the officer he placed the shifter in park and then undid the seat belt so the officer could extract the accused from the car. [ 59 ] He was not shaken in cross. [ 60 ] I find Mr. White to be very credible and I fully accept his account of the incident in question. D. Trial Evidence: Crown Witness #3 – Mr. Ramirez [ 61 ] Very little turns on this civilian’s evidence. Like Mr. White, Mr.

Ramirez also saw a vehicle start moving and dragging someone he recognized to be an officer, and he saw the vehicle angled off by Mr. White. The only helpful evidence was that, as he followed the accused’s vehicle, he was not travelling super-fast, and he thought the officer was dragged about 50 metres. Credibility of Mr Ramirez [ 62 ] Mr. Ramirez was a fairly credible witness and another civilian just trying to help. However, he was not nearly as detailed, exacting, or accurate as Mr. White. For example, he testified that when the accused left the traffic stop, he went through a red light.

The video evidence shows this is wrong. [ 63 ] Accordingly, I prefer the testimony of Mr. White. E. Trial Evidence: Crown Witness #4 – Sheriff Hoffman [ 64 ] Most of Sheriff Hoffman’s evidence was set out in the Agreed Statement of Facts (ASF). He further testified that he had just left a scene with a tow truck up the road and was driving away when he was flagged down by a civilian. He did a U-turn and attended the scene. [ 65 ] When he drove up to the accused’s vehicle, it was stopped. He thinks it had driven 200-250 metres. He also testified that at the scene he took over the arrest of the accused from Cst.

Leasa and assisted with getting handcuffs on the accused. He stated the accused was very disoriented. The accused’s eyes were watery, there was a strong smell of alcohol from the accused, and his speech was slurred. The accused kept repeating “I just want to fucking die.” Credibility of Sheriff Hoffman

[ 66 ] Sheriff Hoffman testified in a professional manner. He was forthright and he provided a detailed account. As I say, most of his evidence was agreed to in an ASF. He did not fence with defence counsel and was not shaken in cross-examination. I find he was a credible witness. F. Trial Evidence: Defence Witness – David Foxwell [ 67 ] The accused is a 49-year-old realtor of 18 years.

At the time of the offence, he lived in Surrey, BC. [ 68 ] He flew into Leduc prior to the incident to be reimbursed for the financial assistance he had provided to a person named Cassandra Kersew, whom he had met on a previous occasion. The meeting with Cassandra was set for December 15, 2021, at 7-7:30 p.m. She never showed up and he stayed at the restaurant for about an hour or hour and a half. At the restaurant he consumed a bottle of Stella beer and a glass of red wine. [ 69 ] After that, he returned to the hotel and had another bottle of Stella. He said he was embarrassed and subdued.

He was at the hotel lounge for about 40 minutes. Then he drove to the Brewhouse to hopefully find her there (the location of the earlier meet in September 2021). [ 70 ] At the Brewhouse he consumed a pint of Stella – so all tolled he said he had four drinks that evening. He was at the Brewhouse for about 20-30 minutes. He stated he wasn’t stumbling or slurring but he knew he had had a couple drinks. [ 71 ] He said at this point his mental health was “really bad.” He said he has mental health diagnoses including ADHD and depression. He wasn’t seeing a therapist but was taking prescribed medication.

He testified that this incident with Cassandra made him feel even lower. He said he was done – “I just wanted to go home.” [ 72 ] The accused drove the rental Elantra from the Brewhouse. The roads were bad, so he was driving slowly. He was driving for a few minutes before he noticed Cst. Leasa’s emergency lights. He noticed them when he was approaching the left turn intersection. [ 73 ] At that point he was referred to the video which depicted Cst. Leasa pulling up behind him with his lights activated, and the accused pulled the Elantra forward 5 or 10 feet.

In response, the accused stated, “Initially I wasn’t even – I wasn’t sure if he was going around or coming for me, and then I kind of realized he was. And I was in a funny at a funny spot from the stop line just mo-moving away, so.” [ 74 ] In cross-examination, he agreed that Cst. Leasa asked him to put it in park multiple times, and that he did not comply with that demand. He also acknowledged in cross-examination that he had been pulled over in a traffic stop before, and that it is normal to put the vehicle in park. [ 75 ] Again, he was referred to the interaction with Cst.

Leasa, who asked him where his vehicle documents were. He replied – referring to the rental paperwork – that they were at his hotel. He testified that, in fact, his driver’s licence was in the car and his wallet was in a jacket in the back seat of the car. [ 76 ] In terms of why he drove away from Cst. Leasa, he stated, “Well I was pretty frustrated with the whole situation, and then the light went green, and he was telling me he was pulling me over, so, I was getting out of the road and pulling over.” The accused stated his intention was to get out of the road and get to the other side of the road.

In cross-examination on this point, he was asked about being frustrated and he said, “I was depressed for sure; I was really depressed.” [ 77 ] The accused first noticed the Constable on the side of his car when he moved to pull out of the intersection and out of the way.

He was surprised. [ 78 ] He had no intention to hurt the officer. [ 79 ] He didn’t stop when he first noticed the officer had jumped on his vehicle because he didn’t want him to fall into the intersection and get hurt. [ 80 ] He figured he was going 20-30 km/h with the officer on the side of the vehicle. [ 81 ] He pulled the vehicle over and he was not forced to by the Constable. He did admit Cst. Leasa had his hand on the steering wheel. [ 82 ] He noticed Mr. White’s vehicle when he was already pulling over. He said it was a good thing he was already slowing because Mr.

White pulled in front of him, and if he was going fast, he would have hit him. [ 83 ] When he finally pulled over, he stated he was trying to put the car in park. [ 84 ] Afterwards, he was distraught and couldn’t believe what had just happened. [ 85 ] In response to the Charter and caution provided to the accused by Sheriff Hoffman, he said he just wanted to die, and he meant that. [ 86 ] He was asked about not providing his name and date of birth when he was at the police station and he said, “I just didn’t know what to do.” He also agreed that he refused to provide a breath sample because, again, he “just didn’t know what to do.” Credibility of the Accused

[87] The accused was able to provide a detailed account including times, number of drinks and what took place at the roadside.Further, he did acknowledge incriminating behavior including that Cst. Leasa asked him to put it in park multiple times, and that he didnot comply with that demand. He also acknowledged in cross-examination that he had been pulled over in a traffic stop before, and that itis normal to put the vehicle in park.

I find, however, given the incident was recorded he had little choice but to acknowledge these facts.Similarly, he had little choice, given the weight of the evidence, to admit that he left the traffic stop and drove down the road with Cst.Leasa attached to his car. Therefore, the accused’s testimony nibbles at the edges of his culpability, providing reasons for his criminalacts or seeking to diminish his culpability. It is here that the assessment of his credibility lies. [88] In terms of demeanor, the accused was nervous.

However, I usually take little stock in demeanor and here I find nothing ofnote in the way the accused testified that would impact my determination on credibility. [89] I found the accused’s testimony to be incredible. [90] First, the accused lied to Cst. Leasa. During the legal traffic stop he was asked for his identification, insurance and registrationand he said he didn’t have it on him. It was later found in his jacket in the back seat of the car.

This significantly erodes his honesty as awitness. [91] Next, in relation to pulling away from the traffic stop, he stated, “Well I was pretty frustrated with the whole situation, andthen the light went green, and he was telling me he was pulling me over, so, I was getting out of the road and pulling over”. The accusedstated his intention was to get out of the road and get to the other side of the road. This is complete nonsense. He was in a left-handturning lane with a police vehicle behind him – in the road but in a much less dangerous position than driving across the road to get tothe other side.

Next, he never put the car in park even though the officer asked him to many, many times. Next, he had been in a trafficstop before and knew to put the car in park. Further, the officer was not telling him to pull over, he was telling him to stop and put the carin park. This unbelievable testimony on an important point in the trial (particularly as it relates to the assault charge) completely erodeshis credibility. [92] Similarly, the accused said he didn’t stop driving when he first noticed the officer had jumped on his vehicle because hedidn’t want Cst. Leasa to fall into the intersection and get hurt.

I don’t quarrel that the accused may not have wanted to hurt the officer,but again this makes no sense. The car was making a left turn onto the road, and there were no cars behind them as the other carstraveling eastbound were stopped at a red light. There can only be one course of action in these circumstances with an officer attached tothe side of the car, which is to immediately stop the car. Again, the accused’s testimony is unbelievable. The accused did say, which wasrecorded, that he was just trying to pull over.

That may be so, but it was disingenuous as his actions were not to pull over but to continuedriving down the road for 200-250 metres. [93] Additionally, in his evidence he is internally inconsistent. He initially stated that he was pretty frustrated with the wholesituation.

Later in cross-examination when he was asked about being frustrated, he wouldn’t admit that he was frustrated but rather hewas “depressed for sure, I was really depressed.” This may seem a small point, but as it relates to the severity of the incident, leaving atraffic stop frustrated and angry is more aggravating than leaving a traffic stop depressed. I find this inconsistency was aimed atdecreasing his culpability and again erodes his honesty. [94] The accused’s reliability is also attenuated as he was drinking alcohol. G.

W(D)/Ryon/Achuil Analysis [95] As the accused testified, I am required to engage in the analysis set out in R v W(D), (SCC), [1991] 1 SCR742 (W(D)), R v Ryon, 2019 ABCA 36 (Ryon) and R v Achuil, 2019 ABCA 299. [96] First, I remind myself that the burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt.That burden remains on the Crown so that the accused person is never required to prove his innocence or disprove any of the evidenceled by the Crown. [97] The exculpatory evidence provided by the accused is that he left the legal traffic stop because he wanted to put his vehicle in asafer place and that he travelled 20 km/h down the road.

Of note, he did not testify to the distance he travelled with the officer latched tohis vehicle nor whether he said, “fuck you.” [98] As set out above, I find the accused’s account incredible, and I don’t believe his exculpatory evidence. [99] Second, I am not left with a reasonable doubt by the accused’s testimony. There is corroboration from civilian witnesses thatthe accused did not gun it away from the traffic stop but did accelerate, so in terms of prodigious acceleration I am left with a doubt thatthis occurred.

The rest of the accused’s evidence does not leave me with a reasonable doubt. [100] Finally, based on the evidence I do accept and the facts as I find them, I must assess whether the Crown has proven theaccused’s guilt beyond a reasonable doubt. [101] In the main, the accused takes no issue with the facts but contests the following: 1) that the accused said “fuck you” when he left the stop; 2) that the accused “gunned it” when he left the traffic stop; 3) that the accused drove on the road at speeds above 20 km/h;

4) that the distance travelled by the accused during the incident was 200 metres, and 5) that the accused was slurring his words. [ 102 ] As mentioned above, the accused did not testify about whether he said “fuck you.” The officer testified he thought that the accused said “fuck you”, but the officer conceded he could have said something else. The accused did, however, mumble something. I do not find beyond a reasonable doubt that the accused said “fuck you” just as he left the traffic stop. [ 103 ] Cst. Leasa testified that the accused gunned it when he left the stop.

Although I found the officer honest, he also testified he was supercharged during this event and agreed that this may have affected parts of his memory. Further, most other witnesses testified that the car accelerated only moderately. I find the car accelerated moderately away from the stop. [ 104 ] The accused testified he drove at 20 km/h eastbound on 50 th Ave with Cst. Leasa hanging on to the side of his vehicle. I don’t believe the accused. Leasa testified he looked at the speedometer and from his experience he testified that the car travelled at 60 km/h. I make the same comment as above about Cst.

Leasa’s supercharged emotions affecting the reliability of his observations and thus his testimony. Mr. White, a very credible witness, estimated his own speed was 40-50 km/h. He acknowledged that he had to catch up to the Elantra so perhaps he was going faster than the Elantra. I find White’s estimation accurate and subtracting some speed from his evidence of 50 km/h to take into consideration the speed to catch up, I find the accused travelled at 40-45 km/h down the road with the officer on the side of his vehicle. [ 105 ] The accused did not testify to the distance he travelled.

All other witnesses, but for Mr. Ramirez, testified the accused travelled from the lights, through the left turn and then eastbound until the ball diamonds – about 200-250 metres – before pulling over and stopping. I find this was the distance. [ 106 ] The accused testified to having four drinks from about 7:30 p.m. to the time of the stop, being 10:30-10:45 p.m. I find he drank alcohol, but I don’t believe his testimony that he only had four drinks. He testified that he was not slurring or stumbling but felt he had had a couple drinks. Cst.

Leasa credibly testified that the accused drove through a stop sign and completed a quick lane change without signaling. His evidence was the accused kept his chin down and wouldn’t make eye contact, and I find the reason for that is the accused didn’t want the officer to see his eyes or smell his breath as they may evince impairment. The officer testified that as the stop progressed, he smelled stale alcohol. Further, the accused would not follow commands.

I believe the officer in his evidence on these points – reliability is not a concern as these observations were made before he became supercharged emotionally. I do note on the recording that when the accused spoke, slurring of words could not be deciphered. However, the accused mumbled and then said very little while the officer was screaming for him to put it in park, so I find the limited recorded sample of him speaking is insufficient to draw any firm conclusions on this issue. Further, as Mr.

White stated, he had to put the car in park, release the seat belt and push the accused to assist the officer in getting the accused out of the car. This level of obstinacy smacks of intoxication. Mr. White also stated he smelled alcohol. Sheriff Hoffman testified credibly that he took over the arrest of the accused from Cst. Leasa and that the accused was very disoriented. The accused’s eyes were watery, there was a strong smell of alcohol from the accused, and his speech was slurred. I accept Sheriff Hoffman’s evidence and I find this is further indicia of intoxication by alcohol.

I find that the accused consumed more than four drinks and that he was intoxicated. [ 107 ] Finally, as I do not believe the accused, I do not find he left the traffic stop because he was in a “funny spot” in the turn left lane facing the lights and wanted to get to a better place across the road. The credible evidence from Cst. Leasa and the recording is that the accused would not put the Elantra in park, he would not provide identification to Cst. Leasa, and upon being confronted with the MAS he started to drive away. He had been drinking alcohol. He was told many times by Cst.

Leasa to put his vehicle in park and stop. However, he did not, and I find that he intended to leave the traffic stop to prevent arrest. H. Findings on Counts 3 and 5 Count 3: Assault With Intent to Resist or Prevent Arrest, Causing Bodily Harm [ 108 ] Section 270(1) of the Criminal Code states that everyone commits an offence who (

b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person. [ 109 ]

Section 270.01 states that everyone commits an offence who, in committing an assault referred to in

section 270, (

b) causes bodily harm to the complainant. [ 110 ] In terms of assault, section 265(1) states that a person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly… [ 111 ] The accused argued that he did not intend to apply force to Cst. Leasa. He did not drive at Cst. Leasa; rather, it was the officer that latched himself onto the Elantra. [ 112 ] In the case at bar, I find that the accused intended to resist or prevent his lawful arrest. Therefore, Cst. Leasa was lawfully trying to stop the accused from leaving which resulted in the officer latching on to the side of the vehicle.

At the moment when the officer first grabbed onto the vehicle, I find there may not have been an application of force by the accused, and I agree he didn’t drive toward the officer. However, one moment later the accused was aware the officer was latched onto the vehicle and he was still required to stop. I find at that point he indirectly applied force to the officer by continuing to drive and did so for another 200 metres.

Further, I find driving 200 metres down the road at speeds of 40-45 km/h with an officer latched to the accused’s vehicle is far beyond careless, negligent, or even reckless – this was intentional. [ 113 ] Constable Leasa testified he suffered severe bruising to almost his entire forearm area, his right armpit and upper ribcage area.

He suffered shoulder strain and mental trauma. He sought medical help and has spoken to a therapist about the trauma. I find theseinjuries significant and constitute bodily harm. [114] I find beyond a reasonable doubt that the accused assaulted and caused bodily harm to Cst. Leasa and convict him on count 3. Count 5: Impaired Driving [115]

Section 320.14(1) states that everyone who commits an offence who (

a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination ofalcohol and a drug. [116] The decisions in R v Stellato, (1993), (ON CA), 78 CCC (3d) 380, R v Stellato, (SCC),[1994] 2 SCR 478 and R v Andrews, 1996 ABCA 23 (Andrews) provide guidance to trial judges when assessing whether a person'sability to drive was impaired by alcohol for the purposes of s 320.14(1)(a) [formerly s 253(1)(a)] of the Criminal Code.

In Andrews atpara 31, the Court set out the following general principles to be applied in an impaired driving case: (1) the onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonabledoubt; (2) there must be impairment of the ability to drive of the individual; (3) that the impairment of the ability to drive must be caused by the consumption of alcohol or a drug; (4) that the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and (5) proof can take many forms.

Where it is necessary to prove impairment of ability to drive by observation of the accused and hisconduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof bemet.

To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessingthe evidence and arriving at the required standard of proof that the ability to drive is actually impaired. [Emphasis in original.] [117] The Court in Andrews stated at para 25: [25] Impairment is a question of fact which can be proven in different ways. On occasion, proof may consist of expert evidence,coupled with proof of the amount consumed.

The driving pattern, or the deviation in conduct, may be unnecessary to prove impairment.More frequently, as suggested by Sissons C.J.D.C. in McKenzie, proof consists of observations of conduct. Where the evidence indicatesthat an accused's ability to walk, talk, and perform basic tests of manual dexterity was impaired by alcohol, the logical inference may bedrawn that the accused's ability to drive was also impaired.

In most cases, if the conduct of the accused was a slight departure fromnormal conduct, it would be unsafe to conclude, beyond a reasonable doubt, that his or her ability to drive was impaired by alcohol.

Putanother way, as was done in Stellato, the conduct observed must satisfy the trier of fact beyond a reasonable doubt that the ability todrive was impaired to some degree by alcohol… [118] The Court in Andrews noted at para 30 that the greater the departure from the norm when assessing matters such as drivingconduct, the greater the indication that the person's ability to drive was impaired. [119] Here, I have found for the reasons above that the accused was intoxicated by alcohol.

Particularly weighty is Sheriff Hoffman’sobservations that the accused smelled of alcohol, he was disoriented, and was slurring his words. This compelling evidence, totalled with(

a) the driving pattern of going through a stop sign and making a quick lane change, (

b) not meeting the officer’s eyes and keeping hischin to his chest, (

c) the marked departure from normal behaviours exhibited by the accused throughout the traffic stop, and (

d) theaccused’s admission of drinking including that he could feel the affects of the alcohol, leads me to conclude beyond a reasonable doubtthat the accused’s ability to operate a conveyance was impaired by alcohol. I convict him of count 5. [120] In light of defence counsel’s concessions on counts 1, 2, 4 and 6 and my findings on counts 3 and 5, I find the accused guilty of

counts 1 through 6 on the Information. Charter Application A. Voir Dire Evidence : Exhibits Exhibit V1 [ 121 ] Cell logs were entered in the proceedings as Exhibit V1. These are written logs setting out the guards and peace officers’ interactions with the accused during his incarceration in Leduc cells. [ 122 ] In these cell logs, the accused is denoted as #81. A

summary of the salient entries is as follows: Dec 15, 2021, at 23:24: Prisoner in with EMS and Cst. Broccolo (breath tech). Being assessed. Dec 15, 2021, at 23:58: Foxwell David lodged. Cst. Broccolo. Refused to blow (breath tech). Dec 16, 2021, from 00:01 to 03:12: At intervals of approximately 10-15 minutes, notes are made of the accused’s actions in the cell. These include using the toilet, sitting in the NW corner of the cell, sitting at the cell door, sitting at the cell door and asking for a blanket, and at the cell door moving around. At 03:12 the accused is taken to the print room.

Dec 16, 2021, at 03:44: The accused is returned from the print room and given a blanket. Dec 16, 2021, from 03:47 to 08:28: At intervals of approximately 15 minutes, notes are made of the accused’s actions in the cell. There are 11 entries of LLS facing cell door or wall. At 06:45 he is checked on by a peace officer and “confirmed breathing.” After 06:45 there are entries indicating slight variations of “LLS back bunk legs bent covered neck (with arrow down)”. At 08:28 the accused gets breakfast.

Dec 16, 2021, from 08:34 to 09:20: At intervals of approximately 10-15 minutes, noted are 5 entries indicating “LLS legs bent on back bunk facing cell covered neck (downward arrow).” Dec 16, 2021, at 09:25: The accused knocked and asked what time it was. Dec 16, 2021, from 09:32 to 11:24: At intervals of approximately 10-15 minutes, noted are 10 entries indicating, but for one use of the toilet, “LLS or LRS legs bent on back bunk covered neck (arrow down).” Dec 16, 2021, at 11:24: “Cell to interview room with Whattam.” At 11:25 he is in the phone room and is returned to his cell at 11:39.

Dec 16, 2021, from 11:42 to 13:26: At intervals of approximately 10-15 minutes, noted are 10 entries indicating, but for receiving lunch, “LLS facing wall covered neck down-knees bent.” Dec 16, 2021, at 13:33: “Cell to interview room. JIR. Sgt Whattam.” The accused is returned to his cell at 13:43 by Sgt Whattam. Dec 16, 2021, at 13:52: “Sgt Whattam open cell door to talk to pris.” Prisoner was sitting on the back bench.

Dec 16, 2021, from 14:02 to 17:09: At intervals of approximately 10-15 minutes, noted are 19 entries indicating, but for two (one for toileting), slight variations of: “LRS facing door covered chest eye contact.” At 17:09 the accused came to the door and asked for the time. Dec 16, 2021, at 17:13: Cell check by a peace officer. Dec 16, 2021at 17:15 and 17:28: The accused initially was sitting on the back bench but by 17:28 he is walking around cell. Dec 16, 2021, at 17:32: Knocked on cell door wanted a phone call – guard told him they would mention it to the next member that came through.

Dec 16, 2021, at 17:43: Sitting back bench feet on floor legs covered asked for member again. Dec 16, 2021, from 17:50 to Dec 17, 2021at 06:27: At intervals of approximately 10-15 minutes, noted are 74 entries with the vast majority stating, “LLS legs out, covered to neck facing wall.” At 19:52 he knocked on the door and asked if he could get something to eat. At 22:47 the notes indicate he talked to the guard and noted “was a half sandwich and cup in cell.” At 05:27 he knocked and asked for juice.

Dec 17, 2021, at 06:32: Checked by peace officer and “confirmed breathing.” Dec 17, 2021, from 06:42 to Dec 17, 2021 at 09:43: At intervals of approximately 10-15 minutes, noted are 16 entries with the vast majority stating, “LLS legs bent covered neck (downward arrow).” He does get breakfast at 08:07. Dec 17, 2021, at 09:50: Knocking asking for a call. At 09:54 the accused is standing at the door and at 10:05 he is standing at the door talking. Dec 17, 2021, from 10:20 to 10:59: At intervals of 10-15 minutes, noted are 4 entries stating mainly: “LLS facing wall covered waist (down arrow).”

Dec 17 at 11:10: Knocking at the door asking for a call. Dec 17 at 11:24: Out of cell to front counter by sheriff. 11:29 Foxwell released to sheriff. Exhibit V2 [ 123 ] Exhibit V2 was the accused’s bail hearing transcript. The transcript revealed a joint submission was put before the Justice of the Peace for a $500 cash deposit with one condition that the accused is not to be behind the steering wheel of any motor vehicle without the proper documentation (paraphrase). [ 124 ] At page 3 line 16, the JP queried duty counsel: Court: All right. And he has access to the funds.

A: He has his wallet there at the detachment with police, Sir. Court: All right, thank you. Exhibit V3, V4 and V5 [ 125 ] Exhibits V3, V4 and V5 were all news articles published with similar iterations of “Impaired driver arrested after Leduc RCMP officer dragged by vehicle.” B. Voir Dire Evidence: Witness #1 – Cpl. David Brosinsky [ 126 ] Cpl. Brosinsky was the NCO in charge of the Leduc RCMP traffic unit.

Very little turns on this witness’s evidence since the accused does not take issue with the police’s decision to have the accused appear for a bail hearing instead of releasing him on an undertaking. [ 127 ] He was shown exhibits V3 and V4, which included news stories that named him as providing quotes about this incident. He testified that the newspapers get the stories from media releases. He did not recall if he revised them before they went out, but he stated the releases would have been reviewed by a media relations officer.

He was not involved in the media release and did not speak to any newspapers about this incident. He had no explanation why the news articles used quotes attributed to him. C. Voir Dire Evidence: Witness #2 – Officer Matt Whattam [ 128 ] On December 15, 2021, Sgt.Whattam was on general duty and working at the Leduc detachment cells. His responsibility that day was to check the Leduc cell block to “see if a prisoner was there”, and if there was a request for duty counsel or a JIR, he was available to go back and do calls of service. [ 129 ] Sgt. Whattam indicated he had no notes or reports about this matter. Sgt.

Whattam reviewed Exhibit V1, the guards’ logbook. He stated that his only notes in the logbooks would be those noting he was on shift, the date, the time, the number of prisoners, and a sign off indicating the prisoners are alive. For the remainder of the entries, the guards write in the log. He could only recall what he would have done in a general sense. He did not recall any interactions with the accused before or during the bail hearing and very few afterwards. [ 130 ] Sgt.

Whattam agreed that on page 7 of V1 at 13:33 hours the log says, “Cell to interview room, JIR Sergeant Whattam.” He testified this would have been him taking the accused for his bail hearing. At 13:43, the notation is that the accused was brought back to his cell. He testified that what happens after the hearing is that, “If someone is given bail, say bail money then I talk to them to figure out if they can pay the bail. If they can’t pay the bail, then they get processed for the sheriffs, and the guards do all that.” (The evidence is that the sheriffs pick up the prisoners and take them to Remand.) Sgt.

Whattam continued, “If they can pay the bail then we let them have access to a phone, and they can phone whoever they need to bring them cash bail.” [ 131 ] Sgt. Whattam then reviewed the entry at page 8 of the exhibit dated December 16, 2021 at 13:52 hours. The entry stated, “Officer Whattam opens cell to speak to prisoner.” The officer testified that he doesn’t recall the exact words of the conversation, but he told the accused they only take cash for bail.

The accused was granted $500 cash bail, and after that “there is a discussion because he’s allowed to call anyone he wants to bring him the $500 cash.” He continued, “So that’s just my common practice I usually I walk them back to the cell, let everyone know kind of what is going on and then I go back, and I say pretty much, do you have anyone to call, do you have any friends, family, anyone who can bring cash money. Mr. Foxwell advised that he was told he could be driven to a bank.” Sgt. Whattam replied, “We are a third party, we just collect money for the courts.

And as far as I know that was the end of our conversation in regard to that. He didn’t have anyone to call, he didn’t want to use the phone, so I just left him in his cell.” Sgt. Whattam let the “guards know that as of right now he is not paying his bail. So, I packaged him up and let the sheriffs know that he can be picked up as soon as they can get here type thing.” [ 132 ] The officer explained their practice is that once prisoners are in custody, they stay in custody until they are released. They don’t bring prisoners out of a secure area to a financial institution for bail.

They don’t take prisoners to the courthouse to pay bail (and he’s not sure the courthouse can do that). So, the only options are to pay cash for bail or go to Remand and pay by credit card. He was unable to

say how many people have been detained longer because they only have a card. He was asked why they only accept cash and the officer stated, “I thought it was because their detachment had not been provided with point-of-sale terminal, so they weren’t capable of receiving payments from credit or debit.” [ 133 ] Sgt. Whattam testified that persons with cash bail have requested before to pay with credit cards, but he says no, they only accept cash at the detachment. Remand, he says, accepts every type of payment, and if they can’t pay bail they go to Remand.

The sheriffs come once it is determined the person can’t pay bail. He stated that as far as he knows no other RCMP detachment is able to take non-cash payments for bail in the cell block. [ 134 ] In terms of getting someone to bring them cash bail, the officer testified that the accused could go in the phone room and call whoever they want. He testified he just wanted the prisoners out of the detachment as soon as possible, “because I don’t personally want the responsibility.” He stated he had no ill will toward Mr. Foxwell. [ 135 ] He was asked when sheriffs come to pick up prisoners.

He said not at night and, “don’t quote me but it’s pretty much business hours for when they pick up our prisoners.” [ 136 ] Sgt. Whattam was the officer at the bail hearing for Mr. Foxwell. He was shown exhibit V2, the bail hearing transcript. He stated he can hear what is going on in a bail hearing over speaker phone. He was shown the part of the bail release where JP Hogle said, “All right, and he has access to funds.” And then Mr. Burk (phonetic), who was duty counsel, said, “He has a wallet there, at the detachment with police.” Sgt.

Whattam did not say anything during the hearing to make it clear that Leduc police only take cash to perfect bail, and that if the prisoner couldn’t provide cash, then he would have to wait for the sheriffs to take him to Remand. He thought the Courts knew that they only accepted cash, and they are not supposed to interrupt the hearings. [ 137 ] Sgt. Whattam reviewed the next log entry nine minutes after the bail hearing which shows the officer was back talking to the accused. Defence suggested it was because he thought of someone to phone. Sgt. Whattam did not agree.

He said again that he wants them out of cells as soon as possible, so if the accused wanted a phone call it would have happened. [ 138 ] There were cell log notations presented to the officer including December 16 at 17:32 hours, December 17 at 09:50 hours and December 17 at 11:10 hours, all noting that the accused wanted a phone call. Sgt. Whattam does not recall being made aware of the request because if he had been notified, he would have put the accused in the phone room. Credibility of Officer Whattam [ 139 ] Sgt. Whattam testified in a professional matter.

With regard to reliability, he had very limited memory of the accused’s detention and therefore relied significantly on the cell logs, so much of his evidence was corroborated. [ 140 ] He was fair in his evidence. He readily admitted that the Leduc detachment only takes cash for bail. He stated that they do not take prisoners to a place where they could perfect bail with a card. He thought the reason was policy. He admitted that after he determined the accused could not perfect bail, he packaged him up and let the sheriffs know to pick him up.

He agreed he never gave the accused any phone calls after the bail hearing. He agreed that he didn’t say anything in the bail hearing. The point is, he testified in a matter-of-fact manner and did not try to justify any of the actions of the police. In terms of the accused, Sgt. Whattam had little memory of him but recalled he asked to go to an ATM, which was an unusual request. [ 141 ] He testified to his usual practices, including only taking cash.

Another usual practice was that he didn’t want the liability of having prisoners in cells and he would do whatever possible to get them out of there, including allowing phone calls whenever requested. This testimony was very authentic, and it makes sense. [ 142 ] There were no inconsistencies in his evidence, and he was not shaken in cross. Sgt. Whattam was an honest witness and sufficiently reliable that I accept his evidence. D. Voir Dire Evidence: Witness #3 – David Foxwell [ 143 ] The accused testified that after being lodged, he was brought into a phone room to talk to duty counsel.

Duty counsel told him the charges were serious and since he was from out of town, they would ask for cash bail. Duty counsel said “$500”? The accused agreed to that amount. The accused said he didn’t have cash but had a debit or credit card. Duty counsel said the detachment could take debit. [ 144 ] The accused’s understanding was that after the bail hearing he would be released on cash and that he would be able to pay it by card. [ 145 ] He recounted a conversation with Sgt.

Whattam after the bail hearing: “Yeah, After the hearing I turned to Whattam, I said ‘okay.’ And he’s like, ‘so you’ve got $500 cash,’ and I said ‘no.’ I said ‘the duty counsel said I could pay by debit or credit.’ And he goes, ‘I guess you got bad advice then.’ And I’m like, ‘well, he said that you did.’ ‘We’re not a bank here, we don’t have anything.’ I’m like, like ‘is there not a bank machine or anything, can I like e transfer, I don’t know what the options are.’ ‘No, no, anyone you can phone’? I said ‘I don’t know, I’m not from here I’d have to think about that.” [ 146 ] And then Sgt.

Whattam took the accused back to his cell. [ 147 ] This conversation took place before leaving the room where the bail hearing occured. [ 148 ] He testified that when he got back to his cell, he thought about who he could call. Then he remembered a couple of his close friends moved to the area a couple years ago (Carla and Clay Halliday). He knocked on the cell door and Sgt. Whattam came and

entered. He told Sgt. Whattam that he thought of somebody to call. He testified, “And he’s like [referring to Sgt. Whattam] well, I’ll let you know if I’m in the mood to give you a phone call. I said well, I-I thought you said if I thought of somebody I could phone. And then, he started to get a bit aggressive [he was gruff and angry] and having words, so I kind of put my hands up and just said, look I’m not looking cause any problems. So, then he left.” [ 149 ] He did not get a phone call at that time. [ 150 ] He asked for a phone call at least eight times.

He said he was trying to catch the attention of whoever was either walking by or checking. Sometimes it was an officer; sometimes they’d acknowledge him and sometimes not so much. [ 151 ] The accused was shown exhibit V1 and confirmed the entries which noted his requests to make phone calls. He did not get a phone call. [ 152 ] The sheriffs arrived December 17 at 11:30 a.m. to take the accused to Remand. He was transported shackled in a van. The trip took approximately 40 minutes. Upon arrival he was put in a room with the other detainees for about 20 to 30 minutes.

From there he was put in a holding cell and left waiting for about 2 hours. Then he paid his bail with a card. He was allowed to leave the Remand Centre 4.5 hours after he made payment. He walked out of the doors at 8 p.m. He had already missed his flight home. [ 153 ] Once in the cab from the Remand Centre, he started finding the news stories and received notifications from friends and family asking what happened. The newspaper articles were forwarded to his local papers and websites, and it’s still happening. [ 154 ] In terms of his realtor business, he testified it’s been brutal.

He had to change offices and step down from volunteer organizations. He may lose his licence due to this incident and he has to report to the BC Financial Services Association regularly about this. [ 155 ] In terms of his mental health, since January 2022 he has been in two groups for mental health and a course for substance abuse. He still does behavioral therapy every week.

Credibility of the Accused on the Voir Dire [ 156 ] I can believe some, none, or all of the testimony of the accused. [ 157 ] Here on the voir dire where the standard is balance of probabilities and the accused has the burden of proving a breach of the Charter , an analysis of his exculpatory evidence through the lens of W(

D) is not required. Rather, the inquiry is simply, is he credible or not based on the evidence? [ 158 ] Given that the voir dire is a separate proceeding from the trial, I assess the accused’s credibility anew based exclusively on his voir dire evidence. [ 159 ] Much of the important evidence pertaining to the Charter application is corroborated by the cell logbooks and Sgt. Whattam. The accused’s evidence on these points is credible.

However, the cell logs are very thorough (to the extent that in one entry the accused’s coughing is recorded) and are in as Exhibits for the truth of their contents, so where the accused’s evidence differs from their contents, I prefer the evidence of the logbook. The logbook recorded the times the accused requested phone calls. [ 160 ] Additionally, I found Sgt. Whattam to be credible and where the evidence between the officer and the accused differs, I prefer the officer’s. In terms of his evidence about the news articles and their impact, the articles speak for themselves.

Common sense dictates they would negatively affect him and his business, so I find his evidence credible on these matters. E. Findings of Fact [ 161 ] I find the following facts in the voir dire : [ 162 ] The accused was arrested, charged and detained on December 16 at 23:58. After being granted bail in the amount of $500 plus conditions on December 16, the accused was imprisoned at Leduc detachment cells for 22 hours. Then the sheriffs transported him to the Remand Centre where he able to use a card to perfect bail.

After processing at Remand, he was released at 8 p.m. on December 17 – some 43 hours after being arrested. [ 163 ] For the much of the time he was housed, he was the only prisoner. At other times there was one more detainee. I find there is no reason for the Leduc authorities to lose track of the accused’s status in terms of bail and length of imprisonment. [ 164 ] During the bail hearing at which Sgt.

Whattam was present, in response to the JP’s query if the accused had access to the $500, duty counsel stated, “He has his wallet at the detachment with police.” The JP was satisfied with that comment and granted bail accordingly. That cash would only be taken to perfect bail at the Leduc detachment was not specifically mentioned. However, I find that whatever the payment method was to be, it was in the accused’s wallet which I infer could be cash, credit or debit card. Bolstering this finding is that the accused believed, as corroborated by Sgt.

Whattam, that the police would take him to an ATM machine where he could use his credit or debit card to get cash. I also find the reason the JP asked if the accused had access to the $500 was to ensure that he would be able to access the funds with dispatch and efficiently secure his release. Further, I am satisfied the accused had credit or debit cards in his wallet (after all, that is how he paid his bail at Remand) and could use one to pay his bail immediately after the bail hearing. [ 165 ] After the bail hearing, Sgt.

Whattam took the accused back to his cell and advised him that they would only take cash. [ 166 ] The Leduc police do not have a point-of-sale terminal and will not allow an accused to perfect bail by either accessing an ATM

machine, taking them to the courthouse to pay, or transporting them to Remand to pay by card within a reasonable period of time after bail is granted. Even though there is a dearth of evidence on the record and acknowledging some judicial notice of the ubiquitous nature of some of these methods of payment, I find that all of the aforementioned methods of payment reasonably should be available to any prisoner in these circumstances. To this payment list, I also add establishing a protocol to allow an accused to e-transfer funds for bail. [ 167 ] Sgt.

Whattam believes the reason these methods of perfecting bail are not allowed is policy. However, he is not sure of this and there is no concrete evidence on the record as to why these methods of payment are not provided. [ 168 ] The accused, if he had been able to use a credit or debit card in his possession, would have immediately perfected bail after the hearing and been released.

There is no evidence of how long it takes the detachment to release prisoners once bail is paid, but I find the time would be much less than 22 hours. [ 169 ] Even for accused persons residing in the jurisdiction, it is likely to be difficult to contact someone to attend a police detachment and provide cash bail. For those from outside the jurisdiction, the difficulties are likely much greater. [ 170 ] I find the problem of only paying cash and not being able to use credit or debit or other modern and ubiquitous methods of payment happens from time to time and that this is not a singular event.

Again, there is a dearth of evidence on this point. The evidence before the Court is: 1) Sgt. Whattam stated it is his common practice to discuss with the accused that he is allowed to call anyone he wants to bring cash. Common practice denotes it happens commonly. 2) Sgt. Whattam testified that accused persons have requested to pay by credit card, but he says no – only cash. Again, requests have been made before. 3) Sgt. Whattam stated in terms of cash bail, “I – well I don’t recall this particular incident, but I always explain to the accused, or the prisoner, that we only accept cash.

We’re a third party, we accept cash, and when the prisoners do phone for bail, I always make sure, like we don’t give out change. Make sure it’s exact cash.” Again, the phraseology of “I always explain to the accused,” belies some frequency. 4) Sgt. Whattam was asked if it is a common occurrence for someone who has been granted cash bail to be transferred to Remand to pay it. He replied, “If they can’t pay bail they go to Remand.

The sheriffs come once it is determined the person can’t pay bail.” Again, the answer relates to a “common occurrence”. [ 171 ] It is common sense that if accused persons who are granted cash bail (which I judicially note to be a regular occurrence) do not have cash on their person and are not allowed to use a card or some other modern method to pay, it may be difficult or impossible (especially if from outside the jurisdiction) for them to obtain cash for bail. [ 172 ] Once it is determined that the accused “is not paying his bail”, he is packaged up and the sheriffs are advised the prisoner is ready for pick up. [ 173 ] In these cases, the prisoner cannot perfect bail when he has the means to pay with a card until the sheriffs pick him up and take him to Remand. [ 174 ] There is no evidence of the length of time sheriffs take to pick up prisoners once notified.

Do they usually attend promptly and the 22 hours here was an aberration, or vice versa? [ 175 ] The sheriffs do not pick up at night. That means even if the sheriffs are diligent about picking up a prisoner arrested in the evening from the Leduc detachment first thing in the morning, that prisoner could potentially be held for 12 hours or more before getting to Remand. [ 176 ] There is no evidence of a protocol or parameters in relation to a reasonable time frame for the sheriffs to attend to pick up prisoners.

Therefore, the prisoner is held until the sheriffs arrive, which could be a short time or could be 22 hours. Here, there is no evidence why the sheriffs took so long. [ 177 ] There is no evidence that the Leduc police made any inquiries as to the expected time of arrival of the sheriffs, and there is no explanation for why they took 22 hours to arrive. There is no evidence of any thought by Leduc police of transporting the accused to Remand. [ 178 ] From Sgt. Whattam’s testimony and the logbook evidence, no police concern was apparent that the accused was being held for so long.

There is no evidence that anyone at the Leduc detachment even considered this type of overholding was an issue, nor is anyone doing anything about it. I find there was complete indifference from the police to when, and/or if, the sheriffs would arrive.

I find that the Leduc police, once the accused can’t pay cash, wash their hands of any responsibility for the accused perfecting bail, leaving it to the sheriffs and the Remand Centre to deal with. [ 179 ] I have found that, at times at the Leduc detachment, accused persons granted cash bail cannot perfect it through credit, debit or other efficient and reasonable means, and these persons are held to the scheduling whims of the sheriffs which are not monitored by the Leduc police.

Therefore, I find that accused persons are held longer than required at the Leduc detachment to from time to time. [ 180 ] I find that this is a systemic failure at the Leduc detachment and that the police have not considered it a problem and have done nothing to address it. [ 181 ] However, outside of the shallow factual pool evincing that this type of overholding happens, there is no evidence of how frequently and for how long and thus how severe the situation is. All I find is that this overholding happens.

[ 182 ] Whether this is the case at other detachments is not clear, as Sgt. Whattam believes but does not know for certain that other detachments take cash only – so his evidence does not rise above conjecture here. I can only find this overholding occurs at the Leduc detachment. [ 183 ] There is no evidence that the police have been made aware of this issue in the past. There is no evidence that they knew of this overholding issue and failed to take any steps to rectify it. [ 184 ] The accused testified that he first asked for a call to get cash nine minutes after the bail hearing. Sgt.

Whattam testified that wouldn’t have happened because Sgt. Whattam would have given him a call. I believe the officer, so the first request made by the accused for a phone call was December 16 at 17:32. The accused asked for three phone calls which were not given, and no explanation was provided for this. [ 185 ] I find that Sgt. Whattam was not hostile toward the accused. [ 186 ] Sgt. Whattam’s credible evidence was that he did not want to hold the accused in cells. In this vein he would have allowed him a call at any time to perfect bail. I do not accept the accused’s evidence that Sgt.

Whattam was aggressive toward him and indicated, “I will let you know if I’m in the mood to give you a phone call.” I find that the Leduc police did not exact extrajudicial penalties against the accused for the crimes he committed against their fellow police officer by holding him in cells for 22 hours. It is clear Sgt. Whattam just wanted the prisoners out of Leduc cells as soon as possible because “he didn’t want the responsibility.” [ 187 ] During the bail hearing, Sgt.

Whattam did not clarify to the JP that if the accused was detained at Leduc cells, then only cash would be accepted to perfect bail and other methods of payment were not available or would not be countenanced. [ 188 ] Once Sgt. Whattam ascertained that the accused misunderstood that he couldn’t pay with a debit or credit card, a misunderstanding I find understandable from the transcript of the bail proceedings, Sgt. Whattam took no steps to have the accused re- appear before a judicial officer to deal with it. In fact he never even considered it, saying they don’t participate in the hearings.

I find that if an accused misunderstood from the JIR hearing that bail could only be perfected by furnishing cash, and all the above means of meeting bail are unavailable, then immediate steps must be taken to have the accused appear back before a judicial officer to address the issue. [ 189 ] Although the RCMP did not exact extrajudicial sanctions against the accused, the Leduc police took no steps to facilitate the release of the accused outside of packaging him up for the sheriffs – even though he had been granted bail and had the means to perfect it through the simple use of a debit or credit card.

Instead, the accused was imprisoned for 22 hours at the Leduc detachment and given no phone calls. I have found that the overholding here was not intentional, but I agree with defence counsel when he submitted that what took place was certainly negligent. [ 190 ] The accused’s business as a realtor and his mental health have been negatively impacted by the charges and the news articles. F. Voir Dire Findings:

Section 7 of the Charter [ 191 ]

Section 7 of the Charter states: Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 192 ] The crux of the accused’s argument is that

section 7 of the Charter was breached because the accused was not provided with telephone calls to perfect bail despite requesting them. In written submissions, the accused based much of his argument for a breach on the premise that, due to the offence being one that was directed at a police officer and colleague, the police purposely denied the accused a phone call to perfect bail to punish him. As I found from Sgt. Whattam’s evidence, this was not the case. Sgt.

Whattam really did not want the accused in cells and was prepared to allow him whatever telephone calls he required to perfect bail. [ 193 ] In argument, defence counsel, relying on his written submissions, argued that there is little difference between purposely denying a person telephone calls to perfect bail as a way to exact extrajudicial sanctions, and being negligent. I disagree. Had I found the police’s denial of phone calls to keep the accused in custody was on purpose, it would have elevated the seriousness of the Charter breach to an intolerable degree.

Here, I have found that the overholding was not intentional and, with it, the main impetus for a breach finding under

section 7 of the Charter is lost. [ 194 ] Nonetheless, the police did not provide telephone calls to the accused when he requested them on three occasions and this, I find, is relevant to my assessment of the extent of any Charter breach if found. Given that

section 9 of the Charter addresses specific deprivations of the

section 7 right to life, liberty and security of the person in breach of the principles of fundamental justice, I will consider the negligent non-provision of telephone calls to the accused as part of the

section 9 Charter analysis. G. Voir Dire Findings:

Section 9 of the Charter [ 195 ]

Section 9 of the Charter states: Everyone has the right not to be arbitrarily detained or imprisoned. [ 196 ] The applicant has the burden of proving he was detained. Here, he was imprisoned so I find he was detained. [ 197 ] In R v Whipple , 2016 ABCA 232 the Court stated at para 47 state that conduct by state agent is arbitrary where it bears no

relation to or is inconsistent with the law which founds the state action under common law or statute. [ 198 ] Here, recent pronouncements of law are the antithesis of delaying release. For example in R. v. Antic, 2017 SCC 27 the Supreme Court of Canada underscored that accused persons are constitutionally presumed innocent and thus have a constitutional right to bail. Further the Charter guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms. In R. v.

Myers, 2019 SCC 18 (Myers) at para 1 the Court stated: “The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release-at the earliest opportunity and in the least onerous manner-is the default presumption in Canadian criminal law.” Within this context I agree with defence’s submission that the accused’s should be released at the earliest opportunity. [ 199 ] In the case at bar, the accused was granted bail and in an amount that he could meet in a timely way and through reasonable means.

I find that once bail is granted the police or remand authorities have a responsibility to facilitate through reasonable means the perfection of bail.

In 2023, in a cashless society, this would include: 1) allowing communication between the accused and persons outside to facilitate bail; 2) entry of third parties into detachments to provide cash bail; 3) use of a credit card, debit card, e-transfer or some other modern reasonable method of payment of bail by the accused or some third party paying the bail. [ 200 ] If this responsibility cannot be met because of the police inability to support this type of transaction or a policy that prevents the accused from using an ATM, or otherwise securing cash, then an accused who is able to make bail with a card or other modern method of payment must be transported to a facility that can support cashless payment within a reasonable time after being granted bail.

If the Sheriffs cannot transport the accused to the Remand Centre within a reasonable time after bail is granted the police must transport the accused to another facility where cashless payment of bail can be facilitated. Finally, all else having failed, upon the realization that there was a miscommunication in the bail hearing about the accused ability to perfect cash bail in a timely manner, steps must be taken to have the accused re-appear before a judicial officer to address the miscommunication or misunderstanding. [ 201 ] None of these steps were taken in the case at bar.

The Leduc detachment only takes cash. In 2023, that is not good enough when a person has been granted release. I do not deign to tell the police they must be able to facilitate other forms of payment besides cash bail, and here the record is lacking as to why only cash bail is accepted.

However, when an accused can’t provide real cash but can perfect bail by way of an easy readily available payment method that is utilized far more commonly than cash, it is insufficient to conclude that he cannot make bail and send notice to the sheriffs to pick him up and then do nothing leaving the prisoner to sit in jail for 22 hours. If the police don’t provide a reasonable cashless method to facilitate bail and bail can be perfected at the Remand Center, then police have the responsibility to ensure that the accused is picked up or transported there within a reasonable time.

The accused’s release cannot be left to the vagaries of the sheriff’s pick-up schedule. [ 202 ] Not only did the Leduc police fail in their responsibility to assist the accused perfecting bail but they also obfuscated his attempts to do so. He asked for three telephone calls for this purpose, and despite being told they would mention his request to the next member that came through, he was not given a telephone call. No reason was given. This I find aggravates the breach. [ 203 ] I find there was no reason for this accused to be detained 22-hours after his bail hearing.

The accused should have been allowed to perfect bail shortly after the hearing, and after a reasonable time for processing, be released f

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