Her Majesty the Queen - v. -, 2014 SKPC 58

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 058 Date: March 17, 2014 Information: 43374508 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kirill Gorobstov Appearing: Mr. Kim Jones For the Crown Mr. Estes Fonkalsrud For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, Kirill Gorobstov is charged with driving while his blood alcohol content exceeded .08 percent and with impaired driving.

It is alleged that both offences occurred on January 10, 2013. [ 2 ] By agreement between counsel, the matter proceeded as a blended trial and voir dire . The only witness called for the Crown was Cst. Dale Crain of the Moose Jaw Police Service. The defence called no evidence.

THE EVIDENCE [ 3 ] Cst. Dale Crain testified that he has been with the Moose Jaw Police Service for approximately eight years. On January 10, 2013, in the very early morning hours, he was on duty by himself. He was in full uniform and in a marked police vehicle. [ 4 ] At approximately 2:20 a.m., at the time when the bars are shutting down and patrons are leaving those establishments, Cst. Crain drove into the parking lot of the Champs Nightclub. Immediately upon turning into the parking lot, the building was to his left and the officer was in what I would describe as a driving lane through the parking lot.

Most of the vehicles in the lot were parked to the officer’s right. At this time, two males came from the bar and crossed in front of the police vehicle, apparently heading for another vehicle in the parking lot. There was nothing unusual about their walk or behaviour that the officer testified about. He did however, honestly testify that at this very early stage, he had already made up his mind that he would stop this vehicle when it exited the parking lot. [ 5 ] The officer testified that he drove past these individuals and then began to turn around his vehicle.

As he was doing this, he noticed that the two males, in their vehicle, began backing out of their stall and angling so that they could then leave the parking lot. [ 6 ] No one testified about this, but I would surmise that the driver noticed the police vehicle turn around. After the accused’s vehicle had part way backed out of the stall, it then pulled forward into the stall and parked again. At this time, the passenger got out of the passenger’s door and stood beside the vehicle.

The accused, the driver, exited the driver’s door, got into the back seat of his car and slid across to the passenger’s side. [ 7 ] The officer testified that he immediately got out of the police vehicle. He noticed that the passenger was standing beside the car holding a beer. The officer told the passenger to dump out his beer. In the officer’s words, he then “fished the accused out of the back seat.” The officer testified that he had a loose hold of the accused’s arm as he walked with the accused to the police vehicle.

In cross-examination, he agreed with defence counsel that he would not have allowed the accused to walk away. [ 8 ] In examination-in-chief, the police officer said that once back at the police car, he noticed the smell of beverage alcohol coming from the accused. However, under cross-examination, the officer said he suspected the accused had alcohol in his body. As a result, on the way to the car he advised there would be an ASD demand. He testified under cross-examination that during this walk he smelled alcohol on the accused.

He maintained that he only detained the accused after smelling alcohol, and that he had detained the accused because of a suspicion of impaired driving. [ 9 ] Once back at the police vehicle, the officer made the formal ASD demand which resulted in a fail. The accused was taken to the Moose Jaw Police Station for the Intoxilyzer tests. Readings over .08 were obtained. The events from and after the two individuals arrived at the police vehicle are fairly unremarkable.

I will not go into them in any detail as they are not germane to this decision. [ 10 ] The officer testified that he was waiting for the accused to leave the parking lot and then he would be pulled over. I don’t know why the officer was not willing to admit to any knowledge of the Lux decision or that he had been instructed as to how to proceed in light of that decision. It seems apparent to me and I conclude that he was knowledgeable of that decision and it guided his practice.

Because of that decision, he did not immediately stop the accused and did not advise the accused he was being detained under s. 209.1 of The Traffic Safety Act . I conclude that the accused saw the police officer turning around, and decided he would not leave at that time. When it became apparent to the officer that the accused would not leave, the officer acted immediately to detain the accused. I also conclude that the accused was physically and psychologically detained from the point in time when the police officer took hold of his arm and “fished him out of his vehicle”.

I also conclude that it was back at the police vehicle, after the accused was already in detention, that the police officer first smelled beverage alcohol on the accused and gained a reasonable suspicion that the accused had alcohol in his body. Lastly, I find as a fact that this entire incident occurred on or in the parking lot of the Champs Nightclub. Further, that this incident occurred entirely on private property.

LEGAL ARGUMENTS [11] Defence counsel served and filed a Charter notice. In that notice, counsel alleges that the accused was illegally detained bythe police officer because the police officer had no right to detain him under s. 209 of The Traffic Safety Act of Saskatchewan, and hadno basis to detain him under the common law or Criminal Code. Defence counsel argues that the detention of the accused was arbitraryand infringed upon the accused’s right “not to be arbitrarily detained or imprisoned” contrary to s. 9 of the Canadian Charter of Rightsand Freedoms.

Counsel argues that all of the evidence obtained against the accused was so obtained after and directly as a result of hiswrongful and arbitrary detention. As a result, counsel asks that I exclude all of the evidence and dismiss the charges against theaccused. [12] Crown counsel concedes that as a result of the Saskatchewan Court of Appeal decision in R. v. Lux, 2012 SKCA 129, section209.1 of The Traffic Safety Act had no application to this matter as the entire incident took place in a private parking lot.

Counsel arguedthat the Crown might have a problem in this case if it had actually stopped the accused’s vehicle. He argued that the police officer didnot stop the vehicle. Rather, the officer saw the accused get out of the driver’s seat and into the back seat of his car. The officer thoughtthis was suspicious and detained the accused on that basis. It was not clear to me whether Crown counsel was alleging that this gave theofficer a power to arrest under the provisions of the Criminal Code, or whether this gave the officer the right to detain for investigativepurposes under the common law.

As a result, I shall deal with both aspects. THE ACCUSED’S CHARTER ARGUMENT [13] I can fairly quickly and easily come to the conclusion that the accused’s Charter argument, upon which he bases his defence,is sound. In the case of R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), the police saw a vehicleleave a house that they believed to be a crack house. The Court determined they had no reasonable basis for that belief. They pulledover the vehicle. The accused was a passenger in that vehicle. An officer asked him to exit the vehicle and thereafter asked a number ofquestions of the accused.

The officer then asked the accused to empty his pockets and found that the accused had a baggie containingcocaine. [14] The Ontario Court of Appeal adopted the American test of “articulable cause” and determined there was no articulable causefor the detention of the accused. Further, that his detention was arbitrary and contrary to his s. 9 rights. The Court excluded all of theevidence and acquitted the accused. [15] The Simpson case was extensively reviewed and elaborated upon by the Supreme Court of Canada when it rendered itsdecision in R. v. Mann, 2004 SCC 52 , 2004 S.C.C. 52.

In the Mann case, two police officers were approaching the scene of abreak and enter. They had a description of a suspect. They saw the accused walking down the street, and he somewhat resembled theirdescription of the suspect. They stopped him and did a pat down search and found no weapons. Moments later, they reached into hispocket and removed a small plastic bag containing marihuana. The Supreme Court carefully reviewed the police powers of“investigative detention”.

The Court concluded that the accused was unlawfully detained and again excluded the evidence and foundhim not guilty. [16] More recently, and closer to home, in the cases of R. v. Houben, 2006 SKCA 129 and R. v. Lux, 2012 SKCA 129, theSaskatchewan Court of Appeal determined that the accused was not properly stopped or properly detained under the SaskatchewanTraffic Safety Act. His detention was unlawful and contrary to his rights under s. 9 of the Charter.

In both cases, the Court of Appealexcluded all of the evidence obtained thereafter, including Intoxilyzer test results, and found the accused not guilty of the charge. [17] In my view, on the basis of all of these decisions, the accused must be lawfully and properly detained. If he is not, then he isarbitrarily detained and his rights under s. 9 of the Charter are infringed. Evidence obtained subsequent to and as a result of such anunlawful detention may be excluded by the Court resulting in acquittal. WAS THE ACCUSED UNLAWFULLY DETAINED?

[ 18 ] Before answering this question, I again note that Crown counsel argued that the accused was not stopped by the police officer. In my view, and with all due respect to Mr. Jones, this is a distinction without a difference. The accused must be lawfully detained. If he is not lawfully detained, the detention is unlawful and arbitrary. So the question becomes whether the police officer can stop and detain, or arrest and detain or has some other power to detain. [ 19 ] It seems to me that in this case, the power of the officer to detain might arise from three different areas.

Firstly, the officer might obtain the power to stop and detain under s. 209.1 of The Traffic Safety Act . Secondly, the officer might have a power to arrest and detain under the Criminal Code . Thirdly, the officer might have the power to detain for investigative purposes pursuant to the common law and the power given to police officers to investigate criminal activity. I shall briefly speak to each of these areas and ask if this officer’s detention of this accused can be justified as an exercise of this power.

THE TRAFFIC SAFETY ACT [ 20 ] At the time of the Houben case, 2006 SKCA 129 , the provincial legislation simply allowed a police officer to pull over a motor vehicle. The Court concluded that this was not a general power to check for sobriety, and not a general power to commence an investigation leading to criminal charges. As a result, the stop and detention of the accused were deemed unlawful. [ 21 ] It would seem, largely as a result of the Court of Appeal decision in Houben , that the Saskatchewan legislature reacted by enacting an amendment to what is now s. 209 of The Traffic Safety Act .

It specifically authorizes a police officer to stop a driver to determine whether and to what extent the driver has consumed alcohol. The Court of Appeal specifically noted that Crown counsel requested an expansive and all-encompassing

interpretation of this

section that would allow a police officer to pull over an individual in a parking lot to check for sobriety. The Court determined that the legislation did not support that kind of expansive

interpretation, and that s. 209 did not apply to a vehicle in a parking lot. As a result, the police could not stop and detain an individual to check for sobriety, when that individual’s activities were entirely within the bounds of a private parking lot. [ 22 ] Crown counsel conceded that s. 209 could not apply to this case as the incident entirely occurred in a parking lot. As a result, the Crown cannot justify the detention of this accused under the provisions of The Traffic Safety Act of Saskatchewan.

WAS THERE A POWER TO ARREST AND DETAIN UNDER THE CRIMINAL CODE ? [ 23 ] Above, I concluded that the accused was detained from a point in time when the officer reached into the back of the accused’s vehicle, took him by the arm and took him to the police vehicle. The most relevant moment is the moment when he reaches into the vehicle and loosely grabs the accused’s arm. At this time, did he have a power to arrest and detain? [ 24 ] Section 495(1) of the Criminal Code reads as follows: 495.

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (

b) a person whom he finds committing a criminal offence; or (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, ... [ 25 ] It is readily apparent that the accused has not committed any indictable or criminal offence at the moment he is taken into detention. Did the police officer have reasonable grounds to believe that the accused had committed or was about to commit such an offence? At that exact moment, the police officer did not know that the accused had been drinking or that he had any alcohol in his body. All he knew was that the accused got out of the driver’s side of his vehicle, and got into the back seat.

The officer characterized this as suspicious. In my view, this falls well below reasonable grounds for believing that an offence had been committed or was about to be committed. As a result, the officer did not have the legal power or right to arrest and detain the accused at that moment.

DID THE POLICE OFFICER HAVE THE RIGHT TO DETAIN THE ACCUSED FOR INVESTIGATIVE PURPOSES? [ 26 ] In the Mann case, the Court notes that there is no general power to detain an individual for investigative purposes. Any detention of an accused must be subject to Charter scrutiny. Further, that the investigative detention must be exercised in accordance with the guiding principles set out by the courts. At paragraphs 34 and 35, the Court then states: 34 The case law raises several guiding principles governing the use of a police power to detain for investigative purposes.

The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation.

The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’ s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test. 35 Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty.

Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest. [ 27 ] In my view, the detention of this accused cannot meet these tests, and cannot possibly be justified as an investigative detention.

At the time of the initial detention, there was no indication of any criminal activity and no nexus between this accused and any ongoing or recent criminal offence. There was no need to detain. The officer was acting on a hunch. His hunch was that the accused had been drinking and that he would not leave the parking lot because he had seen the police officer. It was a de facto arrest for impaired driving that subsequently led to an ASD demand and an Intoxilyzer demand. [ 28 ] I do not attribute any ill will to the police officer.

However, it is clear to me that he overstepped the legal bounds of his authority and infringed upon the accused’s rights. [ 29 ] In the normal course, I would now be required to embark upon a Grant analysis to determine whether the evidence should be excluded. However, this case is very similar to the Lux decision. As a result, I will simply adopt the Grant analysis contained in paragraphs 58 to 66 of the Lux decision. CONCLUSION [ 30 ] All of the evidence adduced in the voir dire must be excluded.

I find the accused not guilty of the charge. [ 31 ] I thank both counsel for their submissions. [ 32 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan, this 17 th day of March, 2014.

D. Kovatch, J