Her Majesty the Queen - v. -, 2010 SKPC 143

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 143 Date: December 09, 2010 Information: 44802721 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert J. Fribance Appearing: Val Adamko For the Crown Keith Prior For the Accused INTERIM RULING P.S. KOLENICK , J [ 1 ] The accused is charged that he did, on or about July 4, 2009, at Saskatoon, operate a motor vehicle while his ability to do so was impaired by alcohol, and also, while his blood alcohol exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 253(1) (

a) and section 253(1)(

b) of the Criminal Code respectively. [ 2 ] Notice has been given in which the accused has claimed that his rights under s. 9 of the Charter against arbitrary detention had been infringed during the course of the investigation at the time when he was stopped by the police and also when he provided breath samples into the Intoxilyzer. Pursuant to s. 24(2) of the Charter the accused also seeks an order excluding the breathalyzer

results from the body of evidence. [ 3 ] The evidence from the Charter voir dire was admitted in the trial proper by consent.

The accused also confirmed that he does not take any issue with the admissibility of the Certificate of Analyses, or the investigation which led to it, except as it related to the prior mentioned arbitrary detention which he claims herein, and the remedy which is sought. [ 4 ] Therefore the issues herein are as follows: Is the evidence sufficiently credible for the accused to establish on a balance of probabilities that his rights against arbitrary detention under s. 9 of the Charter have been infringed? If so, should the Court order exclusion of evidence under s. 24(2) of the Charter?

Regardless, is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt the offence of impaired operation, contrary to s. 253(1) (

a) of the Criminal Code ? REVIEW OF EVIDENCE FOR THE CROWN Constable Ryan Ehalt [ 5 ] Constable Ehalt of the Saskatoon Police Service is a qualified breath technician. At 08:26 hours he was on duty proceeding westbound on Circle Drive. The weather conditions were clear and sunny, and road conditions good. [ 6 ] He was aware of a large plume of dust ahead on the roadway, where he saw the accused’s motor vehicle, a blue RAV4, stopped and pointing perpendicular toward the ditch, but apparently still on the roadway.

The accused had been proceeding eastbound on Circle Drive, and started driving in that direction again. As the accused’s motor vehicle went past the police vehicle he estimated the speed to be as high as 100 kilometres per hour, despite that he was approaching a 70 kilometre per hour speed zone. [ 7 ] The officer was concerned that the accused might have been operating a stolen motor vehicle because of the apparent erratic driving and excessive speed. Therefore he made a U-turn and headed after the accused’s motor vehicle with the emergency lights and sirens on the police vehicle activated.

However, the accused’s motor vehicle did not stop. The officer continued to be concerned that they were involved in the pursuit of a stolen motor vehicle. He had some past experience as a peace officer with being part of the pursuit of a stolen vehicle so that possibility was on his mind. [ 8 ] Although the police vehicle had been roughly two hundred yards behind when the chase started, they were closing the gap as they made their way through the intersection at Avenue C and Circle Drive.

Shortly after that, the police vehicle was right up behind the accused’s motor vehicle with the emergency equipment activated, but the accused had not pulled over to the right, nor acknowledged their presence. [ 9 ] Regardless, just prior to the southbound ramp onto Idylwyld Drive the accused had pulled into a private property approach, slowed and stopped in roughly three seconds. The officer was still of the view that he was dealing with a stolen motor vehicle.

He approached to the driver’s side, opened the driver’s door, advised the accused to shut off the engine and keep his hands in sight on the steering wheel. The accused complied with those directions. He was wearing boots which had no laces so was unsteady when he tried to walk. As well, there was a smell of alcohol which was quite heavy. [ 10 ] Therefore the accused was detained for an impaired driver’s investigation.

The factors which he noted at the time were apparent erratic driving at the outset, speeding twenty to thirty kilometres over the limit, failing to stop in response to the emergency equipment, stumbling as he walked, and the smell of alcohol from his person. His Charter rights, police warning and breathalyzer demand were all read to the accused at the scene, with the breathalyzer demand being read at 08:37 hours. As well, the accused was

identified as the driver where he was seated in the courtroom during the trial. [ 11 ] In due course the accused provided breath samples after they had attended at the Police Services Building. The Certificate of Analyses was filed for identification in the Charter voir dire . It showed samples of 170 milligrams percent and 150 milligrams percent at 09:03 hours, and 09:22 hours, respectively. [ 12 ] The officer had noted some other signs of impairment, to which there had been reference herein. He observed the accused lean on the elevator wall as he was being transported.

In the detention area, the accused had glassy eyes which were quite red and he was staring off in the distance, his fly was down, which he later zipped, and had unkempt hair. In the course of taking the breath samples, he had stumbled backwards during the second one in the same manner that he had lost his balance at the scene. When the officer spoke to the accused during that process, he would trail off in his answers, and had a distant stare. He smacked his lips repeatedly, his tongue was dry, and he grabbed at it. [ 13 ] In the course of cross-examination, the defence marked exhibit D-1 for identification.

It contained four pages of Google maps. They were used to identify the area in issue, and gave context to the unfolding of the narrative as is described by the officer in his testimony. [ 14 ] He confirmed that, when the accused had approached going eastbound, the officer had assumed that it might have been a stolen motor vehicle. Likewise there was nothing in his notes that he intended to tend to his possible duties and responsibilities as a peace officer, contained in The Traffic Safety Act .

However he was compelled to try and stop the accused and had his partner confirm to dispatch that they may be involved in the pursuit of a stolen vehicle. He estimated that the accused was only roughly five city blocks from Avenue C when they first encountered his motor vehicle, which the accused would have reached fairly fast. [ 15 ] Once the accused had reached Idylwyld Drive, he had only travelled roughly one and one-half blocks before pulling into a private approach and commencing to stop.

As well, it had only taken the police vehicle twenty or thirty seconds to catch up from behind, and the chase was not prolonged. He agreed also that it is not uncommon for people not to notice the lights and sirens of a police vehicle, but on this occasion, they were right behind the accused’s motor vehicle. In this situation, however, the officer had assumed that the accused was operating a stolen motor vehicle. As such, they needed to get close enough to note the license plate number, because his driving encounter was a concern for public safety.

In hindsight, however, the only real concern regarding the accused’s driving had been speeding. Otherwise, his driving was normal. Constable Phillip Elia [ 16 ] Constable Elia of the Saskatoon Police Service was on duty with his partner, Constable Ehalt, proceeding westbound on Circle Drive. His partner had directed him to a cloud of dust. He observed the accused driving eastbound out of that cloud, at which he regarded as a high rate of speed. They activated the emergency equipment on their police vehicle, made a U-turn, and proceeded after the accused’s motor vehicle, in the same direction.

As they approached Avenue C, it did not appear that the accused was going to stop. After they had gone past Avenue C, they got close enough to get a license plate number, which was called in to dispatch.

That information, with a description of the motor vehicle, is communicated to the dispatch for officer safety, in the case of a stolen motor vehicle. [ 17 ] Shortly thereafter, the accused proceeded southbound on Idylwyld Drive, and came to a stop, travelling roughly one hundred metres on an approach to a business at that location. [ 18 ] Once the accused had been taken to the detention area in the Police Services Building, the officer was aware of a smell of alcohol on his person, movements in slow motion, glassy bloodshot eyes, and a swollen right elbow. [ 19 ] In cross-examination Constable Elia confirmed that the emergency equipment had been activated at the same time that they made the U-turn to follow the accused.

Despite that, there had not been any response to their presence until the accused’s motor vehicle was on the approach, coming to a stop.

[20] There was no other evidence for the Crown on the Charter voir dire. As well the defence did not lead any evidence, and theaccused did not testify. ANALYSIS Is the evidence sufficiently credible for the accused to establish on a balance of probabilities that his rights against arbitrary detentionunder s. 9 of the Charter have been infringed? If so, should the Court order exclusion of evidence under s. 24(2) of the Charter? [21] The pertinent provisions of the Charter provide as follows: 9.

Everyone has the right not to be arbitrarily detained or imprisoned. . . . 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [22] My thanks for the judgments that have been filed by the parties and which were very helpful. Both Crown and Defence havereferred to R. v. Houben (2006), 2006 SKCA 129 , 289 Sask. R. 118 (Sask. C.A.). The Crown has also included R. v.

Doell(2007), 2006 SKQB 260 , 282 Sask. R. 78 (Sask. C.A.). [23] The Court also notes the statutory basis for a peace officer stopping a motor vehicle and obtaining particulars from theoperator, which is contained in s. 209.1 of The Traffic Safety Act c. T-18.1: 209.1(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer: (

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities. In any event, every case will depend on its particular facts. However, priority here should be given to some of the aspects in R. v.Houben, supra, as it refers to the principles set forth by the Supreme Court of Canada in R. v. Mann (2004), 2004 SCC 52 , 21 C.R. (6th) 1. The facts in Houben, supra, are set forth here, commencing at para. 4: 4 Two police officers, Constables Bayly and Baillargeon, were on routine patrol in a residential neighbourhood in Saskatoon on October1, 2002.

At approximately 2:30 a.m., they decided to stop a pick-up truck, which they believed they had observed on three otheroccasions going in different directions. Kenneth Houben was the lone occupant of the truck. Cst. Baillargeon asked Mr. Houben toproduce his driver’s license and registration at which point it became apparent that Mr. Houben had been consuming alcohol. 5 Mr. Houben failed the roadside screening test, and was arrested for impaired driving. Cst. Baillargeon demanded that Mr. Houben

5 Mr. Houben failed the roadside screening test, and was arrested for impaired driving. Cst. Baillargeon demanded that Mr. Houben provide samples of his breath, which he did subsequently at the police station with results of .20 and .21. As a consequence, he was charged with (

i) operating a motor vehicle while his ability to do so was impaired by alcohol, contrary to s. 255(1) and s. 253 (

a) of the Criminal Code ; and (ii) operating a motor vehicle while over .08, contrary to s. 253(

b) and s. 255(1) of the Criminal Code . The Crown withdrew the impaired driving charge at the start of trial. [ 24 ] Further commencing at para. 65 (in reference to the former version of the current s. 209.1(1) of The Traffic Safety Act ): 65 While the police officer acting under s. 40(8) need not have “reasonable grounds to detain,” it must be the police officer’s intention to be proceeding to satisfy the aims of that statute as articulated in such authorities as Mellenthin.

The police officer need not say expressly to himself or herself that he or she is proceeding to exercise the authority under s. 40(8), or testify to this express effect, but the trier of fact must be able to conclude on the basis of the evidence that the police officer was checking for “sobriety, licences, ownership, insurance and the mechanical fitness of cars.” In sum, s. 40(8) cannot be used to create a general power of detention for investigative purposes. 66 The Supreme Court in Ladouceur and Mellenthin did not justify the equivalent of s. 40(8) as a reasonable limit under s. 1 of the Charter on the basis of creating a general power of detention.

We have not been presented with any reason to expand the power of police stops beyond that articulated in those cases. 67 If a police officer has a suspicion that a driver is involved in criminal activity, unrelated to traffic enforcement, such that he or she would like to stop a motor vehicle, the suspicion must meet the test in Mann . Finally at para. 45: 45 All that remains of the basis for the police stop in this case is suspicion falling short of reasonable grounds to detain. Based on Mann , “reasonable grounds to detain” requires something more than a mere “hunch” resting entirely on intuition.

The detention cannot be simply to satisfy some curiosity. As Richards J.A., speaking for the Court in Schaeffer wrote: [44]

Section 9 of the Charter must be interpreted purposively. Seen from that perspective, it must surely engage when a police detention is based on nothing more than the bare possibility that the individual detained somehow might have offended the law in some fashion unknown to the officer making the stop. Detentions of that sort reflect the capriciousness and randomness which are perhaps the most revealing characteristics of arbitrary action. This same quote appears in the decision of the

summary conviction appeal court judge and can be appropriately restated here. [ 25 ] The accused has submitted that the nature of the conduct by the police which led to him being stopped and checked by Constable Ehalt was a breach of his rights against arbitrary detention, set forth in s. 9 of the Charter . In his view, the officer was engaging in speculation, operating on a hunch, and had no lawful basis to conduct “proactive policing” of that nature.

Therefore the evidence which was obtained by that excessive intrusion should be excluded from the body of evidence in the trial proper, as contemplated in s. 24(2) of the Charter . [ 26 ] However, while the Court is mindful of the potential for abuse of authority by the police as they engage in their duties, that was not the situation here. Constable Ehalt had initially been aware of a large plume of dust in the vicinity of the accused’s motor vehicle, where it was stopped pointing perpendicular toward the ditch. It was reasonable for him to conclude that the accused may have driven erratically.

However the accused did not remain stopped. Instead, he sped off eastbound again, at an estimated speed of 100 kilometres per hour as his motor vehicle approached a speed zone of 70 kilometres per hour. At that time, the officer became concerned that he might be dealing with a stolen motor vehicle, because of the erratic driving and increased speed. The police vehicle made a U- turn, activated the emergency lights and pursued the accused’s motor vehicle, to no avail.

Despite the activation of the emergency equipment, the accused drove his motor vehicle through the Avenue C intersection, without stopping, a distance of roughly five city blocks. In light of that conduct by the accused’s motor vehicle, the officer became even more concerned they were dealing with a stolen motor vehicle. Therefore that matter was communicated to dispatch, while they attempted to get close enough to convey the motor vehicle plate number. He also had some past experience as a peace officer being involved in the pursuit of a stolen motor vehicle and

how that might unfold.

He was aware that this situation might be more of the same. [ 27 ] Although they were right behind the accused’s motor vehicle with siren and lights flashing, the accused still did not stop as required by law, until making its way part way down the access ramp to Idylwyld Drive. [ 28 ] Not surprisingly, the officer was of the view that he might still be dealing with a stolen motor vehicle, and told the accused to keep his hands in plain view, on the steering wheel. [ 29 ] After Constable Ehalt had spoken to the accused and confirmed proper ownership, the primary focus became the drinking/driving investigation, which was the subject of these proceedings. [ 30 ] Likewise, he had not stopped the accused’s motor vehicle as part of his duties and responsibilities as a peace officer contained in s. 209.1 of The Traffic Safety Act .

Rather that had occurred because of his belief he was investigating a stolen motor vehicle. It was lawful and appropriate to detain the accused on that basis. Constable Ehalt had acted in good faith. His belief was genuine and reasonable. He had not been acting on a hunch. [ 31 ] Therefore the evidence is not sufficient for the accused to establish on a balance of probabilities that his rights against arbitrary detention under s. 9 of the Charter had been infringed.

Applying the evidence to the principles in Houben , supra, the officer here did not engage in capriciousness or randomness, which can occur in some circumstances. It was more than the bare possibility that the accused may have offended the law in some fashion, unknown to the officer making the stop. It was reasonable for Constable Ehalt to have concern for a possible stolen motor vehicle, and to detain the accused for that nature of investigation. [ 32 ] There is no need to consider a potential remedy under s. 24(2) of the Charter in light of the ruling herein.

The Certificate of Analyses is made full exhibit in the trial proper. It was not apparent that the accused was considering any other nature of defence. We will need to confirm that fact on the return date, and set a date for continuation if necessary. Otherwise, the evidence is sufficiently credible to prove beyond a reasonable doubt the constituent elements of the count of over .08, contrary to s. 253(1) (

b) of the Criminal Code . The Court orders a conditional stay of proceedings on the impaired operation count, contrary to s. 253(1)(

a) of the Criminal Code , which will become absolute in the event of no appeal being taken. ________________________ P.S. Kolenick, J