Her Majesty the Queen - v. -, 2014 SKPC 115

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 115 Date: May 23, 2014 Information: 44840824 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Francis Tovey Appearing: Mr. K. Jones For the Crown Mr. C. McLeod For the Accused DECISION OF VOIR DIRE M. HINDS , J INTRODUCTION [ 1 ] Francis Tovey is charged that on or about the 3rd day of November A.D. 2012, at or near Regina, Saskatchewan, he operated a motor vehicle while over .08, contrary to sections 255(1) and 253(1) (

b) of the Criminal Code . [ 2 ] Prior to the commencement of the trial the Defendant filed a Notice of Charter Application alleging that the accused’s rights under sections 8 and 9 of the Charter of Rights and Freedoms ( Charter ) had been violated. The accused seeks the remedies of a judicial

stay of proceedings and exclusion of evidence pursuant to subsections 24(1) and 24(2) of the Charter. [ 3 ] At the onset of the trial counsel agreed to enter into a voir dire with respect to the Charter issues. The Defence took the following positions: (1) the police arbitrarily detained the accused by removing him from his truck and placing him in the police vehicle, contrary to

section 9 of the Charter; (2) the police did not have a reasonable suspicion that the accused had alcohol in his body prior to making the ASD demand, contrary to

section 8 of the Charter ; and (3) the police arbitrarily detained the accused by placing him in cells for 3 to 4 hours after he was charged with the offences. [ 4 ] If I accept that the accused’s rights were breached, the Defence took the position that the “Fail” reading on the ASD and Certificate of Analyses should be excluded from evidence pursuant to section 24(2) of the Charter . The Crown agreed that Mr. Tovey was arbitrarily detained by the police when he was told to get out of his truck and get into the back of the patrol car; but argued that this breach of Mr. Tovey’s

section 9 Charter right should not give rise to the exclusion of the “Fail” reading on the ASD or the Certificate of Analyses pursuant to section 24(2) of the Charter . The Crown maintained there was no other violation of the accused’s Charter rights, and alternatively if there was a violation of the accused’s Charter rights, the exclusion of the “Fail” result on the ASD and Certificate of Analyses or a stay of proceedings is not warranted. [ 5 ] In this case I have determined that there was a breach of Mr. Tovey’s

section 9 Charter right from the time he was asked to get out of his car until the time he got into the patrol car and was asked to provide a breath sample in the Approved Screening Device. I did not find a breach of Mr. Tovey’s

section 8 Charter rights. I embarked upon the section 24(2) analysis set out by the Supreme Court of Canada in R. v. Grant , 2009 SCC 32 , [2009] S.C.J. No. 32 and found that the Certificate of Analyses should be admitted into evidence at the trial. I also found that Mr. Tovey’s continued detention at the police station after breath testing was a violation of his rights under

section 9 of the Charter. I dismissed the application for a stay of proceedings. FACTS [ 6 ] Constables Rick Kullman and Corey Patron are members of the Regina Police Service. Between 10:00 p.m on November 2, 2012 and 2:00 a.m. on November 3, 2012, Officers Kullman and Patron were working together in a marked patrol car on a Saskatchewan Government Insurance (SGI) enforcement program known as “Operation Overdrive”.

The purpose of Operation Overdrive was to look for and apprehend intoxicated drivers in the City of Regina. [ 7 ] Around 1:30 a.m. on November 3, 2012, Officers Kullman and Patron were driving westbound on Dewdney Avenue between Albert Street and Broad Street. This area of Regina is known as the “Bar Strip”. At approximately 1: 34 a.m. both officers observed a male and a female cross the street from the north side of Dewdney Avenue where Habanos nightclub is located to the south side of Dewdney Avenue where they got into a silver Chevy truck.

The officers proceeded past the couple and the driver, Constable Kullman made a U-turn. The officers saw the male assist the female into the truck and then get into the driver’s seat of the truck and drive eastbound on Dewdney Avenue for a few blocks. [ 8 ] The officers observed the truck for about one minute before stopping it. Constable Kullman activated the emergency lights on the patrol car and the truck pulled over to the south side of Dewdney Avenue.

The officers testified that they stopped the truck to obtain a proper driver’s licence and vehicle registration, to check out the mechanical fitness of the vehicle, and to ensure the driver was sober. [ 9 ] Both officers got out of their patrol car and approached the silver Chevy truck. Constable Kullman went to the driver’s side and Constable Patron went to the passenger side. [ 10 ] Constable Kullman testified that Mr. Tovey had been driving the truck. Mr. Tovey rolled down his window. Constable Kullman asked Mr. Tovey to produce his driver’s licence and vehicle registration. These items were produced.

Constable Kullman

recalled speaking to Mr. Tovey at roadside for about one minute. He did not make note of anything of importance. In particular he did not notice the odour of beverage alcohol coming from Mr. Tovey during this one minute meeting with Mr. Tovey at roadside. Constable Kullman testified that he wanted to get Mr. Tovey into the patrol car - “where it’s easy to smell things on his breath”. Constable Kullman then asked Mr. Tovey to come back to the passenger side of the patrol car. Constable Kullman did not recall telling Mr.

Tovey why he was asking him to come back to the patrol car, nor did Constable Patron. [ 11 ] The patrol car was parked about 10 feet behind Mr. Tovey’s vehicle. Both officers testified there was nothing unusual about the manner of Mr. Tovey’s walking that early morning. [ 12 ] Constable Patron dealt with Mr. Tovey at the back of the patrol car. Constable Patron testified that as Mr. Tovey came near to the back passenger door of the patrol car he asked Mr. Tovey if he had any weapons on him. Mr. Tovey said “no”. Constable Patron testified he then patted Mr.

Tovey down and “ . . . as I got closer I could smell beverage alcohol on his breath”. He concluded that Mr. Tovey had beverage alcohol in his body while driving. He then placed Mr. Tovey in the back of the patrol vehicle. [ 13 ] At 1: 37 a.m. Constable Patron demanded that Mr. Tovey provide a sample of his breath in an Approved Screening Device. Mr. Tovey said he understood the demand. An Approved Screening Device test took place at 1:39 a.m. The test resulted in a failure reading. Constable Patron testified a failure reading meant there is more than 100 millilitres of alcohol in 100 millilitres of Mr.

Tovey’s blood. Constable Patron arrested Mr. Tovey at 1:39 a.m. for the offence of driving while over .08. At 1:42 a.m. Constable Patron read a breath demand to Mr. Tovey and advised him of his Charter rights to a lawyer. [ 14 ] Constable Kullman got into the patrol car with his partner and Mr. Tovey. Constable Kullman busied himself with checking Mr. Tovey’s driver’s licence and registration and calling for a tow truck. Constable Kullman testified on cross-examination that he has no recollection of smelling any alcohol coming from Mr. Tovey while in the patrol car. [ 15 ] The officers transported Mr.

Tovey to the Regina Police Station where he provided two samples of his breath into an Intoxilyzer EC IR2 instrument at 2:01 and 2:21 a.m. respectively. Constable Patron subsequently charged Mr. Tovey with driving while over .08. He did not charge Mr. Tovey with impaired driving as Mr. Tovey did not appear impaired to him. [ 16 ] Constable Patron lodged Mr. Tovey in police cells after he was charged with driving over .08 for three to four hours. [ 17 ] Francis (Frank) Tovey testified at the voir dire . Mr. Tovey is 60 years of age. He is a journeyman steam fitter plumber and has worked as such for 35 years. Mr.

Tovey testified that he worked until 6:30 p.m. on November 2, 2012. He then went home and took his girlfriend out for dinner between 8:00 p.m. and 9:30 or 10:00 p.m. He recalled eating some pasta and salad at dinner and consumed a half carafe of wine. He testified that this amounted to 1 ½ glasses of wine. He then went to Habanos nightclub where he recalled having one regular bottle of beer and a drink containing 1 ounce of vodka. He testified that he left Habanos with his girlfriend around 1:30 a.m. on November 3, 2012. [ 18 ] Mr. Tovey recalled observing the police shortly after he began driving his truck.

He pulled his vehicle over and provided the officer who came to his vehicle with his driver’s licence and registration. Mr. Tovey testified this officer told him to get out of his truck and come back to the patrol car. The officer did not tell him why he was to go to the patrol car. He followed the direction of the officer. Mr. Tovey stated “I followed the police officer. You respect him. That’s how I was raised.” [ 19 ] Mr. Tovey testified that the police directed him to walk to the passenger side of the patrol car. Constable Patron took over dealing with him. Mr.

Tovey testified that Constable Patron walked behind him as he walked to the patrol car. As they neared the patrol car, Mr. Tovey recalls that Constable Patron asked him if he had any weapons on him. He told Constable Patron that he did not. Constable Patron opened the rear passenger door to the patrol car and asked him to get in. Mr. Tovey was adamant that Constable Patron did not pat him down or have any physical contact with him prior to getting into the patrol car. [ 20 ] Mr.

Tovey testified that once he was inside the back seat of the patrol car, Constable Patron told him he had to provide a breath sample in the roadside screening device. After registering a “Fail” on the ASD, Constable Patron read him a breath demand and his Charter rights.

[ 21 ] Mr. Tovey cooperated with the police. He provided two samples of his breath at the police station. He was arrested for driving while over .08. ISSUES [ 22 ] The circumstances in this voir dire give rise to the following issues: 1. Was Mr. Tovey arbitrarily detained by the police, contrary to

section 9 of the Charter ? 2. Did the police have the necessary reasonable suspicion to make the ASD demand of the accused pursuant to s. 254(2) of the Criminal Code ? If not, has the accused established a breach of his

section 8 Charter right? 3. If the accused ’ s rights under

section 8 or 9 of the Charter were breached, is the remedy of the exclusion of the Certificate of Analyses evidence pursuant to section 24(2) of the Charter warranted? 4. Was Mr. Tovey arbitrarily detained, in violation of his rights under

section 9 of the Charter , after breath samples were obtained; and if so, what, if any, remedy is appropriate and just? ANALYSIS 1. Was Mr. Tovey arbitrarily detained by the police, contrary to

section 9 of the Charter ? [ 23 ]

Section 9 of the Charter states as follows: 9. Everyone has the right not to be arbitrarily detained or imprisoned. [ 24 ] In R. v. Grant , 2009 SCC 32 at paragraph 25 , the Court summarised the definition of “detention” found in Therens as follows: [D]etention for Charter purposes occurs when a state agent, by way of physical or psychological restraint, takes away an individual ’ s choice simply to walk away. This encompasses not only explicit interference with the subject ’ s liberty by way of physical interference or express command, but any form of “ compulsory restraint ” .

A person is detained where he or she “ submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist ” ( Therens , at p. 644). [ 25 ] The police were authorized to stop Mr. Tovey’s vehicle to check for his driver’s licence and registration, the mechanical fitness of the truck and on his sobriety ( s. 209.1 of The Traffic Safety Act , S.S. 2004, c. T-18.1). [ 26 ] Constable Kullman spent about one minute with Mr. Tovey at his truck. During this time Mr. Tovey produced his driver’s licence and registration and spoke to the officer.

Constable Kullman testified that he did not make note of anything of importance during this time. He did not observe any indicia of impairment of Mr. Tovey. He candidly admitted that he wanted to get Mr. Tovey into the patrol car - “where it’s easy to smell things on his breath”. Constable Kullman then instructed Mr. Tovey to come back to the passenger side of the patrol car. Neither officer told Mr. Tovey why he was instructed to get into the back of the patrol car. Mr. Tovey rightly felt compelled to comply with this police instruction. [ 27 ] The Crown conceded that Mr.

Tovey was arbitrarily detained by the police from the time he was instructed to get out of his car until the time he was seated in the patrol car and was asked to provide breath samples in the Approved Screening Device . I agree.

[28] In R. v. Anderson, 2011 SKCA 13, police stopped the accused at 1:11 a.m. for traffic safety reasons. The traffic stop soonevolved into an impaired driving investigation. Police told the accused to exit his vehicle and get in the patrol car without any reasonbeing given. The accused complied. At 1:14 a.m. the officer made an Approved Screening Device demand. The accused complied andfailed.

The Saskatchewan Court of Appeal found that despite the fact there was only a three minute delay from the time of the trafficstop until the time of the ASD demand, the demand did not comply with the “forthwith” requirements as set out in the case law. Mr.Justice Lane, speaking for the Court said: [18] ... Finally, and most importantly for the purposes of this appeal, section 254(2) requires a police officer to make a demand. It is notuntil after the officer makes the demand that the accused becomes lawfully detained (See, for example, R. v. Anderson, 2006 SKPC 18,276 Sask.

R. 304 - note this is not the trial decision of this case). The demand must be made by the police officer as soon as the policeofficer forms the reasonable suspicion the driver has alcohol in his or her body (See: R. v. Pierman (1994), (ON CA),19 O.R. (3d) 704 (C.A.), Arbour, J.A. dissenting in part, affirmed by the Supreme Court of Canada in (SCC), [1996] 1S.C.R. 68). [19] Assuming all the requirements of section 254(2) are met, the detention would not be arbitrary and there would be no infringement ofthe Respondent’s constitutional rights.

However, in the case before us, the officers did not demand an ASD when the accused was askedto go to the back of the police car. [20] The Appellant argues the demand was not necessary in the circumstances because it was clear to the Respondent why he was beingdetained and he knew in these circumstances a demand would be made. However, the Respondent’s Charter rights cannot so easily bedispensed with. As the Supreme Court of Canada has affirmed, the “Charter must not be seen as something to be swept away in theinterests of expediency.” (R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569 at paragraph 97).

The requirement that a demand be made doesnot impose an onerous obligation on the officer. The failure to make the demand makes the detention unlawful, arbitrary, and thereforecontrary to

section 9 of the Charter. [emphasis added] [29] I am satisfied on a balance of probabilities that Mr. Tovey was arbitrarily detained at roadside in violation of hisrights under

section 9 of the Charter. 2. Did the police have the necessary reasonable suspicion to make the ASD demand of the accused pursuant to s. 254(2) of theCriminal Code? If not, has the accused established a breach of his

section 8 Charter right? [30] Section 254(2) of the Criminal Code allows a peace officer to make an ASD demand in circumstances where s/he“has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding threehours, operated a motor vehicle”. [31] Section 254(2)(

b) reads as follows: 254

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has,within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railwayequipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, thepeace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs(

a) and (b), in the case of alcohol: ... (

b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [32] The meaning of the phrase “reasonable grounds to suspect” has been considered in a number of recent cases. [33] In R. v. Kang-Brown, 2008 SCC 18 , [2008] 1 S.C.R. 456, the Supreme Court of Canada held at paragraph 75 thatreasonable suspicion means, “something more than a mere suspicion and something less than a belief based upon reasonable andprobable grounds”.

[34] In R. v. McDougall, [2013] S.J. No. 791, Madam Justice McMurtry stated as follows: 35. The meaning of the phrases “reasonable suspicion” and “reasonable grounds to suspect” were exhaustively examined in two veryrecent Supreme Court decisions, R. v. Chehil, 2013 SCC 49, [2013] S.C.J. No. 49 (QL) and R. v. MacKenzie, 2013 SCC 50, [2013]S.C.J. No. 50 (QL). Both decisions considered the “reasonable suspicion” of a peace officer in effecting a “dog-sniff search”.

However,the comments of the court are instructive in the context of the reasonable suspicion test in s. 254(2) (see MacKenzie, at para. 74). [35] In R. v. Chehil, 2013 SCC 49, the Supreme Court of Canada held as follows: (1) “Reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded inobjective facts” but “reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime”(para. 27).

(2) According to the Court the standard, “derives its rigour from the requirement that it be based on objectively discernible facts, whichcan then be subjected to independent judicial scrutiny” (para. 26).

(3) In assessing whether or not this threshold is met, a reviewing court must have regard to the “totality of the circumstances”. The assessment, “must be fact-based, flexible, and grounded in common sense and practical, everyday experience” (para.29). [36] In R. v. Nahorniak, 2010 SKCA 68, the Saskatchewan Court of Appeal, commented on what is to be considered whendetermining if there were grounds to make the ASD demand at para. 23: 23.

In deciding whether an officer had grounds to make the demand and administer the test, a court must consider all the circumstancesand evidence with respect thereto known to him when he made the demand. (See: R. v. Shepherd, 2009 SCC 35 , 2009 S.C.C.35, 309 D.L.R. (4th) 139, appealed from 2007 SKCA 29.) [37] Mr. Tovey adamantly denies he was patted down by Constable Patron prior to getting into the back of the patrol car. Hemaintains Constable Patron did not touch him. While Constable Patron testified he patted Mr.

Tovey down outside the patrol car, undercross-examination it became clear Constable Patron based this statement on what his “usual practice” is. In this case I prefer theevidence of Mr. Tovey over Constable Patron on this point. However, this factual finding is not determinative of whether ConstablePatron smelled alcohol coming from the breath of Mr. Tovey. [38] A review of the evidence reveals that before Constable Patron opened the back passenger door of the patrol car, Mr. Toveyand Constable Patron were in very close proximity to one another by the front passenger door.

A brief conversation occurred betweenthe two men. Constable Patron asked Mr. Tovey if he had any weapons. Mr. Tovey said “no”. I find that during this brief conversationMr. Tovey turned his head towards the officer and Constable Patron smelled beverage alcohol on Mr. Tovey’s breath. Constable Patronthen opened the back passenger door and Mr. Tovey got in. Constable Patron subsequently demanded that Mr. Tovey blow into theASD. [39] In the present case, I find that Constable Patron’s grounds for making the ASD demand were as follows:

A) At 1:34 a.m. he and his partner were driving along the “bar strip”. Constable Patron observed Mr. Tovey cross the street on foot fromthe area in front of a known licenced premises (Habanos Nightclub) and get in his truck.

B) He observed Mr. Tovey drive his truck a short distance before being signalled to stop. Constable Kullman initially dealt with Mr.Tovey. Constable Patron dealt with Mr. Tovey at the passenger side of the patrol car. The two men were in very close proximity to oneanother and had a brief conversation. During this conversation Constable Patron smelled beverage alcohol on Mr. Tovey’s breath.

[40] In R. v. Nahorniak, supra, the Court also discussed the import of police observation of alcohol on a person’s breath as follows: 27 The smelling of alcohol on a person’s breath, although cogent evidence of alcohol in the body, is not always the sine qua non of“reasonable suspicion”. R. v. Butchko, 2004 SKCA 159, [2005] 11 W.W.R. 95 merely stands for the proposition that the smell ofalcohol on the accused’s breath may be a sufficient condition of reasonable suspicion rather than a necessary one. [41] I am satisfied that Cst. Patron suspected Mr.

Tovey had alcohol in his body, and that is what led him to make an ASDdemand. The real issue is whether Cst. Patron’s suspicion was objectively reasonable. Considering all the circumstances I find that onan objective analysis, Constable Patron had reasonable grounds to suspect that Mr. Tovey had alcohol in his body at the time he madethe ASD demand based on the time of day, location and the smell of alcohol from Mr. Tovey’s breath. [42] Having found the officer had reasonable grounds to suspect that Mr. Tovey had alcohol in his body, it follows thatthere was no violation of his s. 8 Charter rights. 3.

If the accused’s rights under

section 8 or 9 of the Charter were breached, is the remedy of the exclusion of the Certificate ofAnalyses evidence pursuant to section 24(2) of the Charter warranted? [43] In this case I have determined that Mr. Tovey’s rights under

section 9 of the Charter were breached at the roadside. [44] In R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, the Supreme Court set out three types of inquiries which guidethe determination of whether evidence obtained as the result of the violation of the Charter rights of an individual ought to be admittedas evidence: (1) the seriousness of the Charter-infringing state conduct which led to the discovery of the evidence; (2) the impact on the Charter-protected interests of the accused; and (3) society's interest in an adjudication of the case on the merits. [45] In R. v Anderson, supra, Mr. Justice Lane conducted the Grant analysis on a very similar roadside

section 9 Charter breach,as follows: 25 In my view, the Charter breach was not serious. The Appellant says the requirement the Respondent go back to the police car waslargely for police safety. The demand was made within three minutes.

Although the overall conduct of the police officers wasunfortunate in the circumstances by not informing the Respondent of the reasons why he was asked to go back to the police car, theRespondent knew that he was being questioned about drinking and driving. . . . 27 In my view, the short period of detention indicates the impact of the breach on the Respondent’s right to be free from arbitrarydetention was minor. There was no further intrusion into his privacy, or bodily integrity or dignity (Grant, para. 111). . . . 29 Society has an obvious interest in litigating the matter on the merits.

The issue of impaired driving and the potentially seriousconsequences thereof, including endangering the lives of others, leads to inclusion of the evidence. . . . 31 In all of the circumstances, the admission of the evidence would not bring the administration of justice into disrepute and theevidence should be admitted.

[46] I adopt this analysis and apply it to this case. [47] Having regard to all the circumstances I am of the view that the admission of the “Fail” reading on the ASD test andthe subsequent Certificate of Analyses would not bring the administration of justice into disrepute and accordingly, I rule that both shallbe admitted into evidence at trial. 4. Was Mr. Tovey arbitrarily detained, in violation of his rights under

section 9 of the Charter, after breath samples wereobtained; and if so, what, if any, remedy is appropriate and just? [48] Following completion of breath testing at 2:22 a.m., Constable Patron booked Mr. Tovey in police cells until he wassober. This decision was based on Mr. Tovey’s blood-alcohol readings of 110 mg/%. Mr. Tovey was held for 3 to 4 hours. Prior tobeing placed in the cell, Mr. Tovey asked an officer if this was necessary. He was not given another option by the police. When he wasreleased 3 to 4 hours later Mr.

Tovey went to the main part of the police station, located a telephone, called a taxi and went home. [49] On cross-examination Constable Patron testified that he could not think of anyone who he lodged in cells who was lessimpaired. Constable Patron also made the following admissions on cross-examination:

a) Mr. Tovey understood police instructions and was polite and cooperative,

b) Mr. Tovey’s speech was fine,

c) Mr. Tovey’s balance was fine,

d) he had no concerns that Mr. Tovey would harm himself,

e) he had no concerns Mr. Tovey would continue the offence if he was released,

f) there was no further evidence to gather from Mr. Tovey,

g) there was no concerns that Mr. Tovey would not attend Court when required to,

h) police had identified Mr. Tovey, and

i) there were no concerns respecting the safety or security of any victim or witness to the offence if Mr. Tovey was released. [50] In R. v. Donald, 2010 SKPC 123 , [2010] S.J. No. 564, Kalmakoff J. considered the situation where an individual isarrested without warrant as follows: 45 Where an individual is arrested without warrant, as is the case with Mr. Donald, sections 497 and 498 of the Criminal Code requirethat he be released as soon as practicable upon the issuance of an appropriate release document, unless the peace officer believes onreasonable grounds as follows: (

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 bedealt 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. . . . 48 Sections 497 and 498 of the Criminal Code direct prompt release of a person who has been arrested. Continued detention of

an individual after arrest is justified only if the peace officer dealing with the person believes on reasonable grounds that the detention is necessary in the public interest (emphasis mine). The public interest includes those factors specifically listed in sections 497 and 498 , but is not limited to those factors. The public interest can include continued detention of an individual who is arrested for impaired driving, until that individual is sober or can be picked up by a sober person. Such a detention is authorized by

section 497 , and does not violate

section 9 of the Charter if the police officer’s actions in so detaining have a reasoned basis and are not capricious. When detention is necessary in the public interest, but not on one of the listed grounds in

section 497 or 498 , it is justified if it can be shown that the police acted reasonably in the circumstances. . . . 50 The only basis seriously suggested for Mr. Donald ’ s continued detention was a need to detain him until he was sober. The police may be justified in detaining a person who is so intoxicated as to be a danger to him or herself, or to the public, until that person is sober, under either sections 497 and 498 or applicable provincial legislation.

This would, of course, require an assessment of the person ’ s condition by the officer. . . . 53 Sections 497 and 498 do not impose a duty on police to make efforts to locate a sober person to whom to release the detainee. Although there is no absolute requirement that police make such an inquiry, as I noted in R. v. Scott , it is a reasonable inquiry to make, given the wording of those sections.

Absent reasonable inquiries and consideration of the available alternatives to detention, the argument that is necessary in the public interest to detain the accused until sober becomes less compelling. 54 The conditions did not exist for Mr. Donald ’ s continued detention under the enumerated grounds in sections 497 or 498 of the Criminal Code , nor did they exist under the provisions of The

Summary Offences Procedure Act . The decision to detain Mr. Donald, on the evidence before me, was based on little more than his blood alcohol readings. Although blood alcohol level is certainly a relevant consideration, and in some cases can be the primary consideration, permitting it to be the sole determinant of whether someone gets detained is too narrow a focus.

The officer making the assessment as to whether a person is lodged in cells after breath testing should consider such things as: - the accused’s blood alcohol level; - whether the accused was charged with impaired operation; - his or her level of comprehension; - whether the accused is prohibited from driving; - whether the accused’s vehicle would have been impounded; - whether there was a responsible person available to pick up the accused; - whether the accused had a criminal record and if so, its contents; - whether the accused had outstanding charges; - his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. [ 51 ] In the present case there is no evidence to suggest that it was necessary to detain Mr.

Tovey to ensure his attendance in Court. His identity had been established, the necessary evidence had been secured, and there was no reason to think Mr. Tovey would be a danger to any victim or witness of the offence. In addition the police were not concerned that Mr. Tovey’s detention was necessary to prevent a continuation or repetition of the offence. [ 52 ] The only basis suggested for Mr. Tovey’s continued detention was a need to detain him until he was sober. However, in this case Constable Patron did not charge Mr. Tovey with impaired operation of a motor vehicle.

Moreover, Constable Patron candidly testified that he could not think of anyone who he lodged in cells who was less impaired. [ 53 ] I am of the view that the conditions did not exist for Mr. Tovey’s continued detention under the enumerated grounds in sections 497 or 498 of the Criminal Code , nor did they exist under the provisions of The

Summary Offences Procedure Act . The decision to detain Mr. Tovey, on the evidence before me, was based solely on his blood alcohol readings. Regrettably the police did not consider other relevant factors which I have set forth in paragraph [44] above. [ 54 ] On the basis of the evidence before me, I am not satisfied that Mr. Tovey ’ s detention was necessary in the public interest, having regard to all the circumstances, especially in light of the fact that it appears no efforts were made to determine if there

was someone to whom he could be safely released or whether he could simply take a taxi home. [55] As a result, I find that the police officers here did not meet the standard of reasonableness, and Mr. Tovey’scontinued detention after the breath tests was unlawful. Such an unlawful detention is arbitrary, and I am therefore satisfied on a balanceof probabilities that Mr. Tovey’s detention after the breath testing was a violation of his rights under

section 9 of the Charter. [56] Having made that determination, the question now turns to what, if any, remedy is appropriate and just in the circumstances. [57] In this case the breach of Mr. Tovey’s

section 9 Charter right occurred after the commission of the offence and thegathering of evidence. It was not related to the offence or evidence gathering. [58] The Defence takes the position that the Court should grant a judicial stay pursuant to section 24(1) of the Charter. I disagree. [59] In R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411, the Supreme Court of Canada had this to sayregarding the use of a judicial stay of proceedings as a remedy for violations of Charter rights: [82] It must always be remembered that a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to theaccused’s right to make full answer and defence cannot be remedied or where irreparable harm would be caused to the integrity of thejudicial system if the prosecution were continued. [60] In R. v. Regan, 2002 SCC 12, LeBel J., for the majority said: 53.

A stay of proceeding is only one remedy to an abuse of process, but the most drastic one: “that ultimate remedy”, as this Court inTobiass, supra, at para. 86 called it. It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; analleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact.

For these reasons, astay is reserved for only those cases of abuse where a very high threshold is met; “the threshold for obtaining a stay of proceedingsremains, under the Charter as under the common law doctrine of abuse of process, the ‘clearest of cases’”(O’Connor, supra, at para. 68). 54.

Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial or to the integrity of the justice system astay of proceedings will only be appropriate when two criteria are met; (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by itsoutcome; it must be directed at prospective prejudice, not to redress past prejudice; and (2) no other remedy is reasonably capable of removing that prejudice. . . . 57.

Finally, however, this court in Tobiass instructed there may still be cases where uncertainty persists about whether the abuse issufficient to warrant the drastic remedy of a stay. In such cases a third criterion is considered.

This is the stay where a traditionalbalancing of interests is done: “it will be appropriate to balance the interests that would be served by the granting of the stay ofproceedings against the interest society has in having a final decision on the merits.” In these cases, “an egregious act of misconductcould [never] be overtaken by some passing public concern [although] . . . a compelling societal interest in having a full hearing couldtip the scales in favour of proceeding” (Tobiass, at para. 92). [61] In R. v.

Salisbury, 2011 SKQB 153 (affirmed 2012 SKCA 32), an accused was detained for over nine hours afterproviding breath samples. Gerein J. reviewed several of the authorities in this regard and determined that a stay of proceedings was notan appropriate remedy. Gerein J. stated as follows at paragraph 11: With respect, I hold the opinion that the cases cited do not correctly set out the law as it exists in this jurisdiction and as it should beapplied in the instant case. 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 the investigation had been completed. There was no connection between the breach and the charges. That being so, the remedy in this case was disproportionate to the violation of the Char ter . That is not to say there should be no remedy; only that the remedy should be different. [ 62 ] In this case the breach of Mr. Tovey’s

section 9 Charter right occurred after the drinking and driving investigation was completed. There is no connection between the breach and the charges before the Court. I am also of the view the police conduct here does not fall into the residual category (where a nexus is not required) whereby the police contravened fundamental notions of justice or undermined the integrity of the judicial process . Lastly, I am of the view that the traditional balancing of interests heavily tips the scales in favour of proceeding to a final decision on the merits. [ 63 ] While I have held that Mr.

Tovey’s blood alcohol level did not justify his continued detention, I must also consider that there is no evidence Mr. Tovey was in any way mistreated during his time in custody. Mr. Tovey was held 3 or 4 hours longer than he should have been. No additional evidence was gathered during this time. There is no evidence of any malice or improper motive on the part of the police. There is also no evidence before me of any systemic police practice of over holding, such that there is risk of perpetuating over holding for others in Mr. Tovey’s circumstances if a stay is not granted.

Overall I would characterize the breach as relatively minor. [ 64 ] As a result, I dismiss the application for a stay of proceeding as a remedy pursuant to section 24(1) of the Charter . In addition, I am of the view that exclusion of evidence (such as the ASD “Fail” or Certificate of Analyses) would also be inappropriate, as there is no connection between the breach and any evidence gained by the Crown.

SUMMARY [ 65 ] I have determined that there was a breach of Mr. Tovey’s

section 9 Charter right at roadside, from the time he was asked to get out of his car until the time he got into the patrol car and was asked to provide breath samples in the ASD. I did not find a breach of Mr. Tovey’s

section 8 Charter rights. I embarked upon the section 24(2) Charter analysis and found that the “Fail” reading on the ASD and Certificate of Analyses should be admitted into evidence at the trial. I also found that Mr. Tovey’s continued detention at the police station after breath testing was a violation of his rights under

section 9 of the Charter. I dismissed the Defence application for a stay of proceedings. ____________________________ M.J. Hinds, J