Her Majesty the Queen - v. -, 2014 SKPC 69

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 069 Date: May 6, 2014 Information: 37241471 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Andrew Spice Appearing: C. Davison For the Crown R. Piche For the Accused JUDGMENT K. LANG , J I. Introduction [ 1 ] Andrew Spice has been charged as follows:

(1) On or about the 12 th day of May, A.D. 2012 at or near Regina, Saskatchewan did, while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code ; and

(2) On or about the 12 th day of May, A.D. 2012 at or near Regina, Saskatchewan did, having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle, contrary to section 255(1) and section 253(1) (

b) of the Criminal Code . [ 2 ] Counsel for the accused argued that the Certificate of Analyses was not reliable for the purposes of the charge under s. 253(1) (b). Concerning the charge under s. 253(1) (a), counsel for the accused contends that the Crown has failed to prove this charge beyond a reasonable doubt.

In addition to the above, the accused argued that this Court must stay the proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms due to alleged violations of s. 9 and 12 of the Charter . [ 3 ] I conclude that the Certificate of Analyses may not be tendered into evidence in these proceedings as it was not obtained as soon as practicable. However, I have also concluded that the Crown has proven that the accused operated a motor vehicle while his ability was impaired by alcohol. Finally, although I conclude that the accused ’ s rights pursuant to

section 9 were breached, the appropriate remedy for this breach is not a stay of proceedings. As a result, I find Mr. Spice guilty of count 1 (impaired operation of a motor vehicle) but not guilty of count 2 (over 80). The Charter breach will be considered in sentencing. II. Facts [ 4 ] On May 12 , 2012, Constable Renchko and Constable Kotylak were driving westbound on Dewdney Avenue in Regina, Saskatchewan. It was a warm spring night. The sky was clear and the roads were dry. It was approximately 2:52 a.m.

The bars in the area were in the process of closing. [ 5 ] While driving the constables noticed a black jeep pull out in front of them. The jeep had its top down and did not have its headlights activated. The jeep proceeded to drive forward at a slow rate of speed. Constable Kotylak testified that the jeep first drove into the median lane, and then swerved into the right lane. It is notable that although the constable used the term “swerved” during her testimony, that was not a descriptor that she had placed into her general report although she did possibly use that term in her notes (p. 69 of transcript).

The jeep then went back into the median lane, only to return to the right-hand lane a short distance later. The jeep signalled to turn right onto Albert Street. Shortly thereafter the jeep signalled to make a further right-hand turn onto 6 th Avenue. After the jeep made the right-hand turn, Constable Renchko activated the police cruiser ’ s lights. The jeep vehicle pulled over immediately and without any issue. It was 2:55 a.m. at this time. [ 6 ] The accused was the only occupant in the vehicle. Constable Renchko and Constable Kotylak approached the accused at approximately the same time.

Upon approaching the accused, Constable Kotylak noticed a beer bottle in the rear console and a beer cap on the passenger’s seat. The beer bottle was within reach of the accused. [ 7 ] Upon reaching the vehicle, Constable Renchko immediately asked the accused to step out of the vehicle. As the accused exited the vehicle, Constable Kotylak noticed that the accused’s pants were undone and that he was exposing himself.

Constable Kotylak testified that “His penis was out of his pants.” Constable Kotylak further testified that the accused appeared to not be aware of the fact that he was exposing himself. [ 8 ] Constable Kotylak then asked the accused for his licence and registration. The accused initially handed Constable Kotylak his debit card and some other form of identification which Constable Kotylak was unable to identify. [ 9 ] At this point, Constable Kotylak asked the accused whether he had been drinking and where he was coming from.

The accused, in a slurred manner, stated “Gabbos”, which is a local bar located on Dewdney Avenue in Regina. At this time, Constable Kotylak also noted that the accused was “very uneasy” on his feet and that he had “very glassy” eyes. The accused also admitted at this time to having had “four or five beer” that evening. [ 10 ] At approximately 2:58 a.m., Constable Kotylak and Constable Renchko brought the accused to the police cruiser. Constable

Kotylak testified that the accused did walk to the police vehicle on his own but his steps were staggered. Given her observations up until this point of time, Constable Kotylak proceeded to arrest the accused, read the accused his rights and warnings, and make a breath demand. The accused stated that he understood his rights and warnings and that he wanted to speak to a lawyer. At some point during this time, the accused was handcuffed and searched by one of the two constables. [ 11 ] Constable Renchko then arranged for the accused’s vehicle to be seized.

Constable Kotylak was unable to state precisely when the tow truck arrived to seize the vehicle. However, Constable Kotylak did state that the party arrived at “cells” at approximately 3:30 a.m. and that the drive was approximately five minutes from the arrest scene to the station. During this time, all Constable Kotylak testified to be doing was taking notes of the incident. [ 12 ] Shortly after arriving at the station, the accused attempted to contact Legal Aid. The accused made his first attempt at 3:36 a.m., but due to the phone line being busy, was not able to contact a lawyer.

However, he was successful in contacting Legal Aid at 3:47 a.m. The call ended at 3:54 a.m. During this time, Constable Kotylak or her partner was watching the accused through a window. The accused was positioned in a manner that Constable Kotylak could see the accused’s face. However, she was not able to hear the accused. [ 13 ] Constable Kotylak then escorted the accused to the breathalyzer room, and began an observation period of the accused. Constable Kotylak testified that she did not observe the accused do anything that would affect the reliability of the tests.

The breath tests were taken at 4:03 a.m. and 4:24 a.m. The accused registered readings of 230 and 210 milligrams of alcohol in 100 millilitres of blood, respectively. The accused was then also charged with “ exceeding .08 ” and was advised that all rights and warnings applied from earlier. [ 14 ] Constable Kotylak escorted the accused to the booking area. Constable Kotylak testified that the accused would be released “once he was sober”.

She further testified that despite knowing that an accused can be released to a sober adult, she did not inquire as to whether the accused thought such an individual was available. Constable Kotylak then escorted the accused to his cell where he would spend the night. Despite being on shift until seven in the morning, Constable Kotylak did not check on the accused.

It is also notable that Constable Kotylak was unable to say whether there was a mattress on the bed as some do and do not have a mattress depending on various institutional constraints. [ 15 ] The Crown also called Constable Bowes, the breath technician on the night in question. Constable Bowes testified that he served the accused with a Certificate of Analyses of a qualified technician and identified his writing on the Affidavit of Service. He also testified that the Affidavit of Service was a fair representation of what he provided the accused.

However, Constable Bowes stated that he did not take the original copy and “place it alongside the original and see if they compare in every respect”. [ 16 ] Constable Bowes also testified as to his recorded observations on the breathalyzer technician’s check sheet. He noted that the accused’s balance was “good” and that he was “polite and cooperative”. [ 17 ] Constable Renchko was also called to the stand.

Constable Renchko was present during the stop of the accused but surprisingly she took no notes that evening and perhaps even more surprisingly she was unable to recall even the slightest detail of the stop. [ 18 ] The accused also provided testimony. Although he testified that he consumed only 4-5 drinks, he somehow does not remember being stopped on the night in question. However, the accused does remember being taken to the detachment and being arrested for and charged with impaired driving.

The accused also testified that he would have been able to go to his brother’s house on the evening in question, and that he believed his brother would have been available to pick him up. Again it is somewhat surprising that the accused would have no memory of the actual stop but does remember his time at the detachment and the fact that his brother could have picked him up. [ 19 ] Concerning the conditions of the cell, the accused testified that there was no mattress in the cell, and that he spent the night alone. He also testified that he was provided with water, but not food.

The accused testified that he was released shortly before noon. The accused’s testimony was admitted only for the purposes of the voir dire , not the trial proper.

III. Issues [20] Six issues were raised by the accused in his brief of law. Given the interrelatedness of some of these issues and theconclusions arrived thereon, it is sensible to analyse the issues in the following order: (

a) Did the Crown meet the statutory requirement in s. 258(7) of the Criminal Code by serving a copy of the Certificate of Analyst on theaccused? (

b) Did the Crown meet the statutory requirement set out in ss. 254(3) and 258(1)(c)(ii) of the Criminal Code by taking each sample assoon as practicable? (

c) Has the Crown proven beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcoholcontrary to s. 253(1)(

a) of the Criminal Code? (

d) Was the accused deprived of his right to be free from arbitrary detention or imprisonment pursuant to s. 9 of the Charter due to beingkept in custody without lawful basis? (

e) Was the accused deprived of his right to be free from cruel and unusual punishment contrary to s. 12 of the Charter? (

f) If the accused’s Charter rights were violated, is a stay of proceedings the appropriate remedy under s. 24(1) of the Charter? IV. Analysis (

a) Did the Crown meet the statutory requirement in s. 258(7) of the Criminal Code by serving a copy of the Certificate of Analyst onthe accused? [21] The Certificate of a Qualified Technician (Exhibit P-2 on the voir dire) (the “Certificate”) forms the evidentiarybasis for a charge under s. 253(1)(

b) of the Criminal Code. Obviously, the admissibility of the Certificate creates a statutory shortcut forthe Crown as it effectively relieves the Crown from having to call expert witnesses to establish that the blood alcohol content of theaccused was over the legal limit at the time of driving. [22] In order to rely on the Certificate, the Crown must comply with all statutory requirements. One of these statutory requirementsis found in s. 258(7) of the Criminal Code. That

section states as follows: No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (

h) or (

i) unless the party intending to produce it has,before the trial, given to the other party reasonable notice of his intention and a copy of the certificate [emphasis added]. [23] Counsel disagree as to what constitutes proof that a copy of the Certificate was served on the accused. The SaskatchewanCourt of Appeal held in R. v. Glass, (SK CA), [1973] S.J. No. 364, [1973] 5 W.W.R. 761 at para. 11 that a certificateof analysis meets the statutory requirement if it is a “true copy”. Justice Culliton stated as follows at paras. 9-10: 9.

The foregoing subsection does not require that the accused be served with a duplicate original certificate. This is how the sectionwould have to be interpreted if the contention of the appellant were well-founded. The

section requires that the accused be served “witha copy of the certificate”. 10. A “true copy” was defined by Lord Sumner, in delivering the opinion of the Judicial Committee in Commercial Credit Co. ofCanada Ltd. v. Fulton Bros., (UK JCPC), [1923] A.C. 798 at 806, [1923] 3 D.L.R. 611, as follows: It has been said: per Kay, J., Sharp v. McHenry (1887), 38 Ch. D. 427, that a copy is true if it is true in all essential particulars, so that no

one can be misled as to the effect of the instrument, but that if the true effect is misstated it is immaterial whether it is misstated in favourof one party or of the other [emphasis added]. [24] In R. v. Gulka, 2013 SKQB 363, [2013] S.J. No. 619, Justice Ball of the Saskatchewan Court of Queen’s Bench summariseshow that Court has expanded upon the ratio in Glass, supra. He stated as follows at paras. 22-24: 22. In reaching his conclusion on this issue, the trial judge stated at para. 18 of his decision: 18. Mr. Justice Kyle in R. v. Longley, (SK KB), [1997] S.J.

No. 207 at para. 9, sums up the approach that the Courtsshould take on this issue: It would not be unreasonable to require that if there is to be a challenge under this subsection of the affidavit or of the copies supplied, itshould be based upon a discovered difference as between the copy and the original. Otherwise the refusal to admit the certificatebecomes merely the prize in a procedural game which can only bring the justice system into disrepute. The object of this

section is toassure that the accused knows the case he has to meet. Unless the copy which he receives is in some way different from the original, thatobject has been met. There is no reason to elevate the requirement beyond that level of importance. 23. Crown counsel also cites R. v. Bergstrom (1982), (MB CA), 65 C.C.C. (2d) 351, [1982] 2 W.W.R. 95 (Man.C.A.) and R. v.

Pederson (1973), (BC SC), 15 C.C.C. (2d) 323, [1974] 1 W.W.R. 481 (B.C.S.C.) in support of theproposition that a preassembled form containing carbon paper is prima facie proof that the copy given to the accused was a true copyand that there is no requirement that the original and the copy be specifically compared. 24. I accept the Crown's submission that those authorities apply in this case… [emphasis added]. [25] The ratio of Justice Kyle in Longely, supra, upheld by Justice Ball in Gulka, supra, has also been followed by JusticeMills in R. v. Demers, 2007 SKQB 348, [2007] S.J. No. 684.

All these judgments are binding on this Court. Therefore, it is apparent thatthere must be a “discovered difference” between the copy served and the original. Merely stating that the two copies were not comparedword for word is not a requirement of the section. [26] In this case, an affidavit sworn by Constable Bowes stating that he served the accused with a true copy of the Certificate wasadmitted into evidence. Moreover, Constable Bowes testified that as a matter of regular practice, he created a copy of the originalcertificate. He further testified that he served this copy of the Certificate on the accused.

Given the evidence of Constable Bowes and thefact that there is no “discovered difference” between the original copy of the Certificate and the copy served on the accused, the statutoryrequirement under s. 258(7) has been met. (

b) Did the Crown meet the statutory requirement set out in ss. 254(3) and 258(1)(c)(ii) of the Criminal Code by taking each sampleas soon as practicable? [27] Sections 254(3) and 258(1)(c)(ii) of the Criminal Code require that if an officer demands a sample of an accused’sbreath that the officer ensure that the accused is permitted to provide samples of breath “as soon as practicable”. Failure to do so resultsin the Crown being unable to avail itself of the statutory presumption of identity: see R. v. Carter (SKCA), (SK CA),[1981] S.J. No. 1337, 59 C.C.C. (2d) 150.

Counsel for the accused only challenges the time period between the breath demand at 2:58a.m. and the arrival of the tow truck at approximately 3:25 a.m. [28] It is important to note at the outset that “a delay caused by waiting for a tow truck does not necessarily create asituation where the sample is not taken as soon as practicable”: R. v. Wetzel, 2013 SKCA 143 at para. 22, [2013] S.J. No. 757. That is,the term “as soon as practicable” does not mean “as soon as possible”. Rather, it must be determined if the sample was taken as soon ascan reasonably be expected in the circumstances.

However, once there is indication of an unusual gap in time, the Crown must explain it:see R. v. Dion, 2010 SKPC 76 at para. 12, [2010] S.J. No. 308. [29] The Crown relies on the Saskatchewan Court of Queen’s Bench decision in R. v. Berrecloth, 2012 SKQB 175,[2012] S.J. No. 281 in arguing that the as soon as practicable requirement was met. Although in that case there was a comparable waittime for a tow truck, a period of 22 minutes, Justice Wilkinson also held that (

a) the officer had a reasonable belief that it was necessaryto tow the vehicle; and (

b) the officer was complying with the accused’s request for a specific tow truck driver which contributed to thedelay. As neither of these facts is present in this case, I find the Berrecloth decision to be distinguishable.

[30] In Dion, supra, at para. 15, Judge Meekma states that in determining if the delay was reasonable in the circumstances, thefollowing must be considered: (1) whether it was necessary to call the tow truck; (2) whether the call was made with reasonable promptness; and (3) whether the officers acted reasonably in waiting as long as they did before (

a) calling a tow truck a second time, and (

b) calling for aback-up officer to wait with the vehicle. [31] In Dion, supra, it was held that the crux of the issue was not the length of time involved, but rather thereasonableness of the delay and the reasonableness of the explanation. [32] In my view, the Crown has not offered a sufficient explanation for the delay for three reasons. First, aside from ConstableKotylak testifying that she was “taking notes”, there was no other explanation for the delay. Second, Constable Kotylak did not offer anyexplanation for towing the accused’s vehicle in the first place.

This is especially important as the evidence did not suggest that thevehicle was a “safety hazard” or parked improperly. The evidence did show that the vehicle was properly parked in a well litcommercial area of the city. Finally, there is no indication that either of the constables attempted to move the process along by checkingwhether another tow truck was available or if another officer was able to attend to the scene to wait for the tow truck. Simply put, I didnot find that the officer provided any reasonable explanation as to why the vehicle needed to be towed.

The facts as I have found themsuggest there was no need to tow the vehicle. [33] Therefore although officers need not account for “every minute”, the Crown failed to account for nearly half an hour in thiscase with anything other than the fact that one of the two constables was “taking notes” and waiting for a tow truck that was notrequired. During this time, the two constables appeared to be content to wait.

Considering the delay in the circumstances, I find that thesamples were not taken as soon as practicable and accordingly the Crown cannot rely upon the Certificate to prove the blood alcohollevels of the accused at the time of driving. (

c) Has the Crown proven beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcoholcontrary to s. 253(1)(

a) of the Criminal Code? [34] Section 253(1)(

a) of the Criminal Code makes it a criminal offence for an accused to operate a motor vehicle when his or herability to drive is impaired by alcohol or drug. The level of impairment that must be proven need not be to a marked degree. Instead, theCrown need only prove beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was slightly impaired by alcohol:see R. v.

Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, aff’d (SCC), [1994] 2 S.C.R. 478. [35] It is important to observe, however, that a slight degree of impairment is not to be equated with a slight degree of impairmentto operate a motor vehicle: see Stellato, supra; R. v. Andrews 1996 ABCA 23, [1996] A.J. No. 8, leave refused [1996] S.C.C.A. No. 115,followed most recently by the Saskatchewan Court of Appeal in R. v. A.L.E., 2009 SKCA 65, [2009] S.J. No. 797. [36] In this case, the indicia of impairment of the accused were as follows: (

a) drove at low rates of speed; (

b) swerved his vehicle from lane to lane despite good driving conditions; (

c) no lights activated on vehicle at night; (

d) beer bottle in centre console and a beer cap on passenger’s seat; (

e) unaware that pants were undone, exposing his penis;

(

f) handed the officer a debit card and other unknown I.D. when asked for licence and registration; (

g) very unsteady on his feet - staggered steps; (

h) very glassy eyes; (

i) slurred speech; (

j) the evidence of significant alcohol consumption in the Certificate (which is not conclusive of the accused’s blood alcohol level at the time of driving but is a factor that can be considered when looking at the issue of impairment); and (

k) the accused’s vehicle in the bar district, just as the bars were letting out. [ 37 ] Any number of these indicia, on their own, would prove impairment. A number of these indicia of impairment require further comment. First is the evidence that the accused “swerved” his vehicle. This point was discussed during cross-examination when Constable Kotylak testified that she did not use that term in her “general report”. It was not fully canvassed with Constable Kotylak whether she used that term in her notes or whether she used a different descriptor in her general report.

However, Constable Kotylak did testify at page 69 of the transcript that she believed she had used that term in her notes. However, Constable Kotylak during her testimony at trial was steadfast in maintaining that the accused swerved his vehicle. Although it is certainly preferable that an officer make note of all details in their report, the mere fact that an observation is absent from a report or described a different way, or just contained within her notes, does not mean it is not reliable testimony.

As I found Constable Kotylak’s testimony to be fair and honest, I accept that she saw the accused swerve his vehicle. [ 38 ] Second, the accused raised the fact that aside from the swerve witnessed by Constable Kotylak, his driving was without issue. This is certainly borne out on the facts as the accused was able to make two right-hand turns and come to a stop without issue.

However, a period of driving that does not show evidence of impairment does not negate the driving evidence that was witnessed, namely the swerve of the accused’s vehicle. [ 39 ] Third, although Constable Bowes noted the accused’s balance as “good” and his coordination as “fair,” while in the breathalyzer room, the fact still remains that at the roadside the accused was unsteady on his feet and staggering. [ 40 ] Finally, the accused argues that the fact Constable Renchko did not make notes or remember any of the events undermines the reliability of Constable Kotylak’s evidence.

No authority is cited for this proposition. Given the unique circumstances, however, it is difficult to imagine that Constable Renchko had no memory of these events. Nevertheless, I cannot conclude that Constable Renchko’s lack of memory undermines the credibility of Constable Kotylak. I find the latter to have testified fairly and honestly, and I believe her evidence where it conflicts with that of the accused. [ 41 ] Considering the above indicia of impairment, the Crown has satisfied me beyond a reasonable doubt that the accused’s ability to operate a vehicle was at least slightly impaired by alcohol. (

d) Was the accused deprived of his right to be free from arbitrary detention or imprisonment pursuant to s. 9 of the Charter due to being kept in custody without lawful basis? [ 42 ]

Section 9 of the Charter reads as follows: Everyone has the right not to be arbitrarily detained or imprisoned. [ 43 ] As I understand the accused ’ s position based on his written and oral arguments, he is making two distinct arguments. First, he contends that it was not “ necessary in the public interest ” for him to be detained. As such, he argues that his rights under s. 9 of the Charter were breached when Constable Kotylak chose to detain him overnight. Second, in his written submissions, the accused emphasizes that the length of time the accused was held gives rise to a further arbitrary detention.

I will consider both arguments in turn. [ 44 ] I recently had occasion to overview the law in this area in R. v. Dimitrov , 2013 SKPC 148 , [2013] S.J. No. 507 .

Much of the following is taken from the relevant portions of that decision. (

i) was it “ necessary in the public interest ” to detain the accused? [ 45 ] Sections 497 and 498 of the Criminal Code require that an individual be released as “soon as practicable” unless one of the exceptions in subsection (1.1) is made out. Subsection (1.1) states:

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. [ 46 ] In R. v. Holbrook , 2008 SKPC 133 at paras. 25-26 , [2008] S.J. No. 615 , Harradence J., citing R. v. Janvier , 2007 SKCA 147 , [2007] S.J. No. 646 , states that in determining whether reasonable grounds exist under ss. 497 and 498 , the standard is one of “ credibly based probability ” . [ 47 ] Sections 497 and 498 do not impose a duty on police to make efforts to locate a sober person to whom they can release the detainee: see R. v. Simms , 2009 ABCA 260 , [2009] A.J.

No. 792 cited approvingly by Kalmakoff J. in R. v. Donald , 2010 SKPC 123 at para. 53 , [2010] S.J. No. 564 . As noted in R. v. Scott , 2010 SKPC 81 at para. 21 , [2010] S.J. No. 375 , however, such an inquiry is reasonable to make given the wording of ss. 497 and 498 . Absent reasonable inquiries and consideration of the available alternatives to detention, the argument that it is necessary in the public interest to detain the accused until sober becomes less compelling: Donald , supra , at para. 53 . As stated in R. v. Poletz , 2009 SKPC 121 , [2009] S.J. No. 629 , citing R. v.

Wilcox , unreported, at paras. 81 and 104, “ insobriety does not, in and of itself, make continued detention necessary ” . [ 48 ] In this case, I am unable to find a single legitimate reason for detaining the accused. Although the Crown argues that waiting to release an individual “when sober” is sufficient to comply with ss. 497 and 498 of the Criminal Code , it is necessary to point out that this argument cannot be used in every instance.

Indeed, the fact that a person is charged with impaired driving and driving over the legal limit means they are believed to some extent not to be “ sober ” . [ 49 ] It is therefore necessary for the officer to link the level of perceived insobriety to the choice to deny the accused of their liberty. This simply was not done in this case. In fact, there is evidence that suggests that the accused’s detention until sober was not required. For instance, Constable Kotylak stated that the accused was “excellent” to deal with. Constable Bowes further recognized that the accused appeared to show good balance.

Both constables also stated that the accused was cooperative throughout the investigation. [ 50 ] In my view, to accede to the Crown’s argument that detaining the accused until sober is permitted under ss. 497 and 498 on the facts of this case is incorrect. Given the above, I find that the choice to detain the accused overnight was made with complete disregard to the accused’s rights under s. 9 of the Charter . I find the conclusion of Judge Harradence in Holbrook , supra , to be apt in this case.

At para. 27 Judge Harradence concludes that “ [t]his case is an example of a complete failure … by [the officer] in implementing [her] statutory obligations regarding release of accused persons.” [ 51 ] Before leaving this topic, it is important to note that the Crown cites my decision in Dimitrov , supra , at para. 82 for the proposition that the choice to detain “ until sober ” is always permissible. This is an incorrect reading of that decision. It is important

to note that para. 82 is under the heading “was Mr. Dimitrov over held in his cell?” The authorities cited there concern the length of timethat is reasonable to detain an accused after it has been determined that the choice to detain was lawful. [52] To state the rule simply, it is arbitrary to detain the accused for a length of time after which the accused has become sober.The rationale for the distinction is simple. The ultimate release of an accused from cells involves the person being released into thegeneral public. Therefore it is important that the person is sober.

This determination is less important concerning the initial choice todetain, as in those circumstances the question is whether the accused may be released into the care of a sober individual. (ii) does the length of time the accused was detained give rise to an arbitrary detention? [53] It follows that if the choice to detain an accused was arbitrary, the duration of his detention will be arbitrary.

Nevertheless, incase my conclusion above is incorrect, I will also analyse whether the duration of the detention gives rise to a breach of the accused’s s.9 rights. [54] If the choice to detain an accused was lawful, holding an accused “until sober” is not an arbitrary detention (see R. v. Herter,2007 ABQB 756 at para. 35, [2007] A.J. No. 1498, cited approvingly in Scott, supra, at para. 18). The definition of “sober” may vary,but in previous cases a policy of not allowing detainees to be released until their blood alcohol level was “safely below 50 mgs” wasfound to be reasonable (see R. v. Burns, [2000] O.J.

No. 1743 at para. 11). [55] In R. v. McKelvey, 2008 ABQB 466 at para. 8, [2008] A.J. No. 924, cited approvingly in R. v. Grondin, 2011 SKPC32 at para. 27, [2011] S.J. No. 82, Justice Langston stated: Even if detention may have originally been necessary, the Accused was not released for over ten hours after his detention commenced.To paraphrase Maloney J. in R. v. Smith, [2005] A.J. No. 1161, 2005 ABPC 202 at para. 33, the onus of proof to establish a Charterbreach is borne by the accused, but there comes a point when the Crown must explain the accused's continued detention.

There was noexplanation put forward in this instance. [56] The facts in this case show that the accused was detained for approximately 7.5 hours. The reason for this detention was toensure the accused was sober upon release. The question at this stage of the analysis is whether this length of time gives rise to anunreasonable detention. In my view, given the accused’s high blood alcohol content, of which the detention staff was aware, the accusedhas failed to satisfy me on a balance of probabilities that the length of time for which he was detained was arbitrary. (

e) Was the accused deprived of his right to be free from cruel and unusual punishment contrary to s. 12 of the Charter? [57]

Section 12 of the Charter states as follows: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [58] Counsel for the accused mentioned in oral and written argument a potential breach of s. 12 of the Charter. The Crowncontends that the police conduct in this case comes nowhere near the threshold to prove a violation of s. 12 of the Charter. I agree withthe Crown. [59] In R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, 34 C.C.C. (3d) 97, Justice Lamer defined the term “cruel and

unusual punishment” as follows: The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of theCharter is…“whether the punishment prescribed is so excessive as to outrage standards of decency”. In other words, though the statemay impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate. [60] It is clear from the above that s. 12 imposes a very high standard. Indeed, it is necessary to “outrage standards ofdecency”.

Counsel submitted no authorities to the effect that failing to provide an accused with materials such as a mattress and food for7.5 hours meets this threshold. This is unsurprising. Such a precedent would, in my view, fall far short of the threshold set by s. 12 of theCharter. (

f) If the accused’s Charter rights were violated, is a stay of proceedings the appropriate remedy under s. 24(1) of the Charter? [61] As I found a breach of the accused’s right to be free from arbitrary detention, it is necessary to determine the appropriateremedy. Section 24(1) of the Charter states: Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [62] Many remedies may be granted pursuant to s. 24(1) of the Charter.

Amongst these remedies is a stay of proceedings. In R. v.O’Connor, (SCC), [1995] 4 S.C.R. 411 at para. 53, [1995] S.C.J. No. 98, the Supreme Court of Canada held that “thediscretion to order a stay may be exercised only in the ‘clearest of cases’, meaning that the trial judge must be convinced that, if allowedto continue, the proceedings would tarnish the integrity of the judicial process.” [63] In determining whether a stay of proceedings is warranted, it is necessary to first determine the nature of the breach.In the Supreme Court of Canada’s recent decision in R. v. Babos, 2014 SCC 16, [2014] S.C.J.

No. 16, Justice Moldaver explains at para.31 that there are two general categories for which granting a stay of proceedings may be warranted:

(1) Where state conduct compromises the fairness of an accused’s trial (the “main” category); and

(2) Where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual”category). [64] As Justice Moldaver states in Babos at para. 32, the test under each category is the same and consists of threerequirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuatedor aggravated through the conduct of the trial, or by its outcome”;

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests infavour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest thatsociety has in having a final decision on the merits” [citations removed].

[65] However, despite the test being the same, Justice Moldaver states at para. 33 that “the test may—and oftenwill—play out differently depending on whether the ‘main’ or ‘residual’ category is invoked.” As such, before expanding upon this test,it is necessary to first determine which category is appropriate on these facts. (

i) residual or main category? [66] In his oral argument, counsel for the accused argued that there was a significant “nexus” or “impact” on trial fairnessto justify a stay of proceedings. In so arguing, counsel sought to distinguish the Saskatchewan Court of Queen’s Bench decision in R. v.Salisbury, 2011 SKQB 153, [2011] S.J. No. 259 aff’d 2012 SKCA 32, [2010] S.J. No. 159 and more recently aff’d in R. v. Poletz, 2014SKCA 16, [2014] S.J. No. 53. In Salisbury, Justice Gerein held as follows: It is accepted that there was a breach of s. 9 of the Charter.

However, it occurred after the commission of the offences and after theinvestigation had been completed. There was no connection between the breach and the charges. That being so… [a stay of proceedings]in this case was disproportionate to the violation of the Charter. That is not to say there should be no remedy; only that the remedyshould be different [emphasis added]. [67] Justice Gerein goes on to cite Justice Armstrong of the Ontario Court of Appeal’s decision in R. v. Iseler, (ON CA), [2004] O.J.

No. 4332 at para. 31, 191 O.A.C. 80, in support of his conclusion: While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant’s s. 9Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. Itdid not impact on trial fairness. As Morden A.C.J.O. said in Sapusak, [1998] O.J. No. 4148, “[t]here was no temporal or causalconnection between the breach and the obtaining of the evidence”.

I am accordingly satisfied that this is not “the clearest of cases”warranting the grant of a stay of proceedings [emphasis added]. [68] Placed in the framework of the Supreme Court of Canada’s decision in Babos, Justice Gerein is simply stating thatthe “main” category is not at issue in the context of a breach of s. 9 rights due to the length of time one is over held in cells. This is sobecause the breach occurred after the offence had been committed and the investigation was complete.

In my view, it makes nodifference whether the substance of the breach occurred due to the initial choice to detain the accused pursuant to ss. 497 or 498 of theCriminal Code or due to holding the accused for an unjustified amount of time. Both breaches occur after the investigation has beencompleted. Therefore, following the ratio in Salisbury, supra, I find that the main category is not open to the accused as it does not affectthe accused’s fair trial rights. (ii) applying the residual category [69] In my view, it is the residual category that is applicable in this case.

As such, it is necessary to view the elements as cited inBabos, supra, through the lens of the residual category. [70] Concerning the first element, Justice Moldaver states at para. 35 that the trial judge must determine “whether the state hasengaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of thatconduct would be harmful to the integrity of the justice system.” Citing the Supreme Court of Canada’s decision in Canada (Minister ofCitizenship and Immigration) v. Tobiass, (SCC), [1997] 3 S.C.R. 391 at para. 91, [1997] S.C.J.

No. 82, JusticeMoldaver states at para. 36 that in applying this standard, “[t]here may be exceptional cases in which the past misconduct is so egregiousthat the mere fact of going forward in the light of it will be offensive.” However, as Justice Moldaver states at para. 36, “such casesshould be relatively very rare.” [71] Concerning the second element, Justice Moldaver notes at para. 39 that different remedies may be appropriate based onwhether the breach falls into the main or residual category. Justice Moldaver states:

Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past.

Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward [underscored emphasis added]. [ 72 ] Concerning the final element, Justice Moldaver notes at para. 40 that it takes on an added significance where the residual category is invoked. This is so as the Court is tasked with deciding whether going forward with the public interest in prosecuting crime in light of the impugned conduct strikes an appropriate balance.

If it has already been determined that the trial is unfair, as will at this stage of the analysis have been done under the “main” category, the analysis becomes redundant. [ 73 ] In conducting the balancing test at the final stage, Justice Moldaver provides the following considerations at para. 41: (

a) the nature and serio usness of the impugned conduct; (

b) whether the conduct is isolated or reflects a systemic and ongoing problem; (

c) the circumstances of the accused; (

d) the charges he or she faces; and (

e) the interests of society in having the charges disposed of on the merits. [ 74 ] In analysing these factors, Justice Moldaver states in a footnote to the above factors that “[w]here the conduct is ongoing and systemic, it may be more difficult for the court to dissociate itself from it with anything less than a stay.” Therefore, Justice Moldaver seems to place special emphasis on this factor when it is present. [ 75 ] To determine if the test for a stay of proceedings as viewed through the “residual” category is made out on the facts in this case, I turn to the relevant case law.

First, I will overview the cases cited to me by defence counsel. Second, I will overview the factual circumstances of two recent Supreme Court of Canada decisions that are on point. (

i) Defence Counsel Cases [ 76 ] In R. v. Whitford , SKPC 2011 (unreported) the accused was lodged in cells at 5 a.m. The reason given for the detention was the accused’s impairment as well as the potential that the accused could not understand the release documents and Certificate of Analyses properly. The accused’s blood alcohol level was 180 milligrams of alcohol per 100 millilitres of blood. The officer testified that he did not have any recollection of discussing with the accused whether a sober adult was able to pick him up.

The officer also stated that he had no idea when the accused would be released, demonstrating that there was a lack of plan in place when dealing with the accused. This was despite the fact that the accused had told the officers that he believed he had a sprained or broken ankle and that he was in severe pain. Despite his injury the accused was placed in a crowded cell with other impaired individuals. The accused was fed lunch but not breakfast. When the accused was finally released at 2 p.m., he requested that the officer call him a cab so he could go to the hospital.

The officer refused this request, telling him “[n]o, you have to go to the cab stand yourself.” It was revealed after the accused attended the hospital that he did in fact have a major sprain in his ankle. The accused testified that he had a sister in town that he could have been released to.

Finally, it was revealed at trial that the officers on shift were distracted by completing a form and therefore were not releasing prisoners promptly. [ 77 ] In concluding that a stay was the only appropriate remedy, Judge Meekma cited Justice Gerein’s decision in Salisbury , supra , where it was held that although generally a stay of proceedings is an inappropriate remedy for overholding, there may be exceptions.

Importantly, in so concluding, Judge Meekma states that: The injury is the factor which really, in my opinion, tips the scale…Had it not been for the injury, the pain, his vulnerability in the drunk tank, the guards ignoring his request to go to the hospital, and the additional aggravating factor of the completion of a computer form taking priority over a prisoner’s liberty, I would have been inclined to remedy the breach by reducing the sentence…

[ 78 ] The accused also cited R. v. McKelvey , 2008 ABQB 466 , [2008] A.J. No. 924 , and Holbrook , supra , as cases where a stay of proceedings was granted for an overholding breach. However, in Salisbury , supra , at para. 9, Justice Gerein cited McKelvey and Holbrook and at para. 11 explicitly decided not to follow those decisions concerning the granting of a stay of proceedings. As such, McKelvey and Holbrook have no persuasive weight in this case. (ii) Supreme Court of Canada Cases [ 79 ] The Supreme Court of Canada’s decision in Babos , supra , as well as that Court ’ s decision in R. v.

Bellusci , 2012 SCC 44 , [2012] S.C.J. No. 44 , also provide useful guides. In Babos , it was discovered that two officers had colluded against an accused to ensure evidence was admitted. In addition, the original Crown prosecutor threatened the accused with greater charges if he did not give up his right to be presumed innocent and his right to a trial and plead guilty. However, given the fact that the threat was not taken seriously by defence counsel for over a year, and that the threatening lawyer was no longer on the case for other reasons, the latter conduct was viewed as less serious.

As for the second factor, no alternative adequate remedy was argued to have been available; however, the Court noted that the evidence adduced due to the collusion of the officers simply could be excluded from evidence. At the last stage, the Court reasoned that the societal interest in trying the matter on its merits trumped the seriousness of the misconduct. This was largely due to the fact that the seriousness of the threat was viewed as relatively low. In the result, a stay was found to be inappropriate.

Instead, the evidence obtained due to the officers’ collusion was excluded from evidence. [ 80 ] In Bellusci , supra , the accused was charged with intimidating a member of the justice system. While being driven to prison with other prisoners, the jail guard informed the other prisoners that the accused was a rapist. This information in the prison system was found to be detrimental to the accused ’ s well-being. In response to the jail guard revealing this information, the accused threatened to rape his wife and children.

In response, the jail guard assaulted the accused while the accused was shackled, handcuffed, and chained to other prisoners. In the circumstances, a stay of proceedings was considered to be the only appropriate remedy. (iii) Analysis [ 81 ] Considering the first factor through the lens of the residual category, I must be satisfied that societal notions of fair play and decency have been offended to the extent that proceeding with a trial would be harmful to the integrity of the justice system. I am also to consider the fact that such a standard will only be met in “exceptional” circumstances.

No doubt the above case law provides much guidance in determining whether this standard has been met. [ 82 ] Judge Meekma’s decision in Whitford , supra , seems to be in line with the Supreme Court of Canada ’ s ruling in Babos . However, that decision, like the Supreme Court of Canada ’ s decision in Bellusci , supra , turns on highly unique circumstances, the gravity of which is not present in this case. In Whitford , an injury was not only ignored, but the accused was placed in circumstances where the injury could easily have been aggravated.

In Bellusci , an accused was assaulted while in handcuffs and shackles. It is clear that in these circumstances, the egregiousness of the state conduct was shocking. [ 83 ] Likewise, it is notable that on the facts in Babos , supra , a stay was not granted despite a relatively serious breach. However, it is notable that in Babos , the police conduct was considered sufficiently harmful to the integrity of the justice system to pass the first branch of the test. [ 84 ] In this case, the decision to detain the accused was arbitrary.

It follows that the accused was arbitrarily detained for the duration of his time in cells, that being 7.5 hours. Moreover, during this time the accused was not given a mattress or fed. Although the amount of time the accused was detained and the fact that he was not given a mattress or fed are not breaches in and of themselves, these occurrences flow from the initial breach. As such, these facts aggravate the initial detention.

[ 85 ] In my view, the integrity of the justice system is not adversely affected to a sufficient degree to pass this stage of the 24(1) test. I say so for a number of reasons. First, although the accused stated that he was not fed, he did not state that he asked anyone for food. He also did not state that he was in fact hungry or in need of food. To the extent that the accused stated that no one checked on him, I do not think the accused proved this point on a balance of probabilities. To support this assertion, the accused could have tendered into evidence the cell check log sheet from that night.

He did not do so. To conclude that the accused was not checked on—and thereby was denied an opportunity to ask for food if he so desired—is unreasonable given these observations. [ 86 ] Second, although it is unfortunate that the accused was not provided a mattress, Constable Kotylak recognized that it is only some cells that do not have a mattress. Moreover, Constable Kotylak also testified that there may be any number of reasons for a shortage of mattresses in a jail. As such, it is not the case that Constable Kotylak or the detention staff intentionally denied the accused a mattress.

Instead, it seems that due to institutional constraints, the accused was not able to be given a mattress on this occasion. [ 87 ] Before leaving this topic it is notable that in defence counsel’s view, there appears to be a growing trend in this jurisdiction to not observe ss. 497 and 498 of the Criminal Code . If there was evidence that a particular police service effectively had a policy of detaining accused arbitrarily, I would certainly reconsider my conclusion on this branch of the 24(1) test. Such evidence would strongly tilt the balance in the other direction.

However, defence counsel’s suggestion that the officer’s lack of knowledge of there being a policy in place dictating what to do in the circumstances requiring a stay is unsustainable. The police have guidance from the case law interpreting ss. 497 and 498 . Many officers have been observed to follow this guidance. The mere fact that some officers have failed to follow this guidance on a number of occasions does not justify granting a stay of proceedings. [ 88 ] If my conclusion above is incorrect, I must go on to consider the second factor.

Concerning that factor, I must focus on whether an alternate remedy short of a stay of proceedings adequately dissociate s the justice system from the Charter -infringing state conduct going forward. I am not to focus on redressing past wrongs. [ 89 ] It is notable that in the drinking and driving context, an accused who is convicted for a first, second, or subsequent offence will face a mandatory minimum sentence. It is my observation that in cases of first convictions, the minimum is generally imposed.

Therefore, an argument can be made that merely stating that the breach will be considered at sentencing is a hollow remedy. [ 90 ] However, I am aware that by operation of s. 255.1 of the Criminal Code that the accused ’ s blood alcohol readings are aggravating. As such, a minimum sentence would likely not have been imposed absent a Charter breach.

Combining the fact that the accused ’ s readings were aggravating with the above noted evidentiary lacuna, I have no trouble coming to the conclusion that a reduction in sentence is an adequate alternative remedy in these circumstances. [ 91 ] In light of this determination, it is unnecessary for me to enter into the third stage of analysis. V. Conclusion [ 92 ] In

summary, I conclude that the Crown is not permitted to rely on the Certificate of Analyses for the purpose of the presumptions of identity. Therefore, the charge under s. 253(1) (

b) must fail and the accused acquitted. However, I also conclude that the Crown has proven beyond a reasonable doubt that the accused’s ability to drive was impaired by alcohol. As I have found that the appropriate remedy for the s. 9 breach is not a stay of proceedings, but rather a reduction in sentence, the accused is found guilty of operating a motor vehicle while the accused’s ability to drive was impaired by alcohol, contrary to s. 253(1) (a). K. Lang, J