Her Majesty the Queen - v. -, 2012 SKPC 184

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 184 Date: December 18, 2012 Information: 45110708 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - James D. Simpart Appearing: James Fitz-Gerald For the Crown Joelle Graham For the Accused RULING ON CHARTER APPLICATION J.D. KALMAKOFF , J [ 1 ] On the evening of September 28, 2011, the Regina Police Service received a complaint of a vehicle being driven dangerously along Arcola Avenue.

Investigation of that complaint led to James Simpart being arrested for impaired care or control of a motor vehicle, and taken to Regina Police Service headquarters where breath samples were obtained from him and analysed pursuant to the provisions of the Criminal Code . As a result, Mr. Simpart was charged with offences under sections 253(1) (

a) and 253(1)(

b) of the Criminal Code . [ 2 ] Mr. Simpart alleges that the evidence which incriminates him was obtained in violation of his rights under sections 8, 9,

10(a), and 10(

b) of the Charter , and seeks the remedy of exclusion of evidence. He also alleges that, after the breath testing, he was detained in police custody for an excessive period of time, in violation of his rights under

section 9 of the Charter , and seeks a remedy for that violation as well. [ 3 ] For reasons that follow, I have concluded that there were no violations of Mr. Simpart’s rights under sections 8, 9, 10(

a) or 10(

b) of the Charter , and that the evidence in question should be admitted on the trial. FACTUAL BACKGROUND [ 4 ] The only witness to testify on the voir dire was Cst. Randy Longman, a member of the Regina Police Service. I found Cst. Longman to be fair and balanced in his testimony. He did not, in my view, overstate or embellish. He was assertive when certain, but also made fair concessions that one would expect of an honest witness when challenged in cross-examination. I accept his testimony as credible and reliable. [ 5 ] On September 28, 2011, Cst.

Longman was dispatched to a complaint of dangerous driving at 9:33 p.m. He was given a description and licence plate number for a suspect vehicle, and was told that the suspect vehicle was entering the city of Regina from the southeast, on Arcola Avenue, travelling westbound. Cst. Longman was also told that the suspect vehicle was swerving across lanes, almost hitting the ditch, and that it struck a road sign near the intersection of Arcola Avenue and Lacon Street. Dispatch information indicated that the caller making the complaint had just lost sight of the suspect vehicle. [ 6 ] Cst. Longman patrolled the area.

He located a vehicle which matched the description and had the same licence plate number as the suspect vehicle, in a parking stall behind an apartment complex near the intersection of Arcola Avenue and Rothwell Street. This is approximately one block from the intersection of Arcola and Lacon. At 9:38 p.m., Cst. Longman pulled his police car in behind the suspect vehicle and engaged his emergency equipment. Cst. Longman got out to approach the vehicle, and saw Mr. Simpart sitting upright in the driver’s seat. There was a woman in the front passenger seat. The vehicle was not running, but its headlights were on.

The keys were not in the ignition when Cst. Longman arrived. [ 7 ] Cst. Longman noticed that the driver’s side window was open about an inch. He asked Mr. Simpart to roll down the window, and to produce his licence and registration. Instead of rolling down the window, Mr. Simpart opened the door and got out of the car. When he did so, Cst. Longman observed that Mr. Simpart had difficulty with his balance, and had to use the door frame to help himself stand up. Mr.

Simpart stumbled when trying to gain his balance once he was outside the vehicle, and exhibited poor dexterity when trying to get his registration documents from the case in which they were located. [ 8 ] Cst. Longman then asked Mr. Simpart to come back to the police car. As they walked to the police car, Cst. Longman noticed that Mr. Simpart’s eyes were glassy, and that he “swayed” side to side while walking. [ 9 ] I accept Cst. Longman’s evidence in this regard. It is worth noting that, in the video from the detention area that has been entered as Exhibit D-2, it is difficult to see Mr. Simpart swaying.

However, for most of the portion of the video where Mr. Simpart is walking, the view of him is obstructed by another police officer in the frame. I also accept that, given the position of the camera and the resolution of the video, only gross deficiencies in movement would be seen on the video. Cst. Longman had a first-hand opportunity to see Mr. Simpart, and I accept his testimony. [ 10 ] Once they got back to the police car, at 9:54 p.m., Cst. Longman placed Mr. Simpart under arrest for impaired driving or impaired care or control. He then handcuffed Mr.

Simpart and placed him in the back seat of the police car. When Cst. Longman got into the police car, he immediately noticed that a strong smell of alcohol was coming from Mr. Simpart. Through conversation, as well as the surrounding circumstances, Cst. Longman was satisfied that the smell of alcohol was coming from Mr. Simpart’s breath. At 9:55 p.m., Cst. Longman advised Mr. Simpart of his right to counsel, read the police warning, and made a demand for breath samples. [ 11 ] At 9:56 p.m., Cst. Longman left the scene with Mr. Simpart. They arrived at the Regina Police Service at 10:01 p.m.

Two breath samples were obtained, at 10:20 p.m. and 10:40 p.m, with readings of 190 mg / % and 170 mg / %, respectively.

[ 12 ] Following the breath tests, Mr. Simpart was held in custody, and released at 5:27 a.m. ISSUES [ 13 ] The issues to be resolved in this case are as follows:

(1) Was the incriminating evidence against Mr. Simpart obtained in violation of any of his rights under sections 8, 9, 10(

a) or 10(

b) of the Charter;

(2) If evidence was obtained in violation of Mr. Simpart’s rights under the Charter , is the remedy of exclusion of evidence warranted; and

(3) Was Mr. Simpart 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 the incriminating evidence against Mr. Simpart obtained in violation of any of his rights under sections 8, 9, 10(

a) or 10(

b) of the Charter? [ 14 ] Given the factual circumstances of this case, a number of sub-issues arise when considering this main issue. Mr. Simpart alleges that the evidence which incriminates him was obtained in violation of several of his rights under the Charter . The potentially incriminating evidence in this case includes not only the results of the breath tests, but also observations made by Cst. Longman before those breath tests were conducted. Mr. Simpart alleges that the breaches of his Charter rights began from the first contact he had with Cst.

Longman, and argues that any evidence, including the observations made by Cst. Longman and anything that flows from those observations ought to be excluded. 1.1 At what point was Mr. Simpart detained? [ 15 ] It is clear from the evidence that Cst. Longman stopped his police vehicle behind Mr. Simpart’s vehicle in such a way as to prevent Mr. Simpart’s vehicle from being driven away. Cst. Longman engaged his emergency lights. He approached Mr. Simpart with a view to investigating a criminal offence which he believed had occurred, and with an intention to assume control over Mr. Simpart’s movements. Mr.

Simpart was detained as soon as Cst. Longman approached the driver’s side door of Mr. Simpart’s vehicle. 1.2 Did Cst. Longman unlawfully detain Mr. Simpart by preventing Mr. Simpart ’s vehicle from leaving, and entering on to private property to speak to him? [ 16 ]

Section 9 of the Charter guarantees the right of individuals to be free from arbitrary detention or imprisonment. Detention that is unlawful, or without authority, is arbitrary. [ 17 ] Mr. Simpart argues that his detention was unlawful because he was in his vehicle, on private property (a parking stall, off the street in the back of an apartment complex), when Cst. Longman detained him. Mr. Simpart relies on my decision in R. v. Anderson , 2011 SKPC 1 , as authority for that argument. The Crown relies on R. v. Lux , 2011 SKQB 424 , as authority for the lawfulness of the detention.

With the greatest of respect to counsel, neither Lux nor Anderson is applicable in these circumstances. [ 18 ] Both Lux and Anderson dealt with the authority of police, under

section 209.1 of The Traffic Safety Act , S.S. 2004, c. T-18.1, to stop vehicles on private property to check for licence, registration and sobriety. In both of those cases, police officers stopped vehicles

which were being operated on private property, in circumstances where the officers had not observed any infraction being committed,and were not investigating any particular offence when they decided to stop the drivers. [19] That is different from the case before me. Cst. Longman was actively investigating a complaint of a specific criminal offence,dangerous driving, which was ongoing or had only recently ended. He had information which suggested that the offence had beencommitted by someone driving a specific vehicle at a specific location.

He located a vehicle which matched the description, down to thelicence plate number, only one block from where the suspect vehicle had last been seen, and only five minutes after receiving thedispatch. Furthermore, there was a person in the driver’s seat of the vehicle when Cst. Longman came upon it. [20] Police officers have authority to enter onto private property to detain or arrest individuals in situations of hot pursuit (R. v.Macooh, (SCC), [1993] 2 S.C.R. 802).

Hot pursuit requires continuous pursuit conducted with reasonable diligence, sothat commission of the offence, pursuit and capture may be considered as part of a single transaction. It is not necessary that the officeractually witness the events giving rise to the offence to be in hot pursuit. As long as the pursuit is continuous and conducted withreasonable diligence in a factual chronology that can be regarded as constituting a single transaction, hot pursuit will exist even if therelevant events are observed by another witness and then reported to the police (R. v. Tetard, 2010 QCCA 2235; R. v.

Haglof (2000),2000 BCCA 604 , 149 C.C.C. (3d) 248 (B.C.C.A.)). [21] In my view, Cst. Longman was lawfully authorized to enter onto private property and detain Mr. Simpart because this was asituation of hot pursuit. [22] Even if this had not been a situation of hot pursuit, I would still have no difficulty in finding that Cst. Longman had authorityto approach Mr. Simpart on private property to speak to him and investigate the offence. Mr. Simpart was inside a vehicle, not adwelling. The vehicle, while on the driveway, was in an area that was open to public view, and to which the public had easy access.

Inthe circumstances, Cst. Longman had authority to enter onto a private driveway to have a conversation with Mr. Simpart, even though hewas sitting in a vehicle, and to ask him to produce his driver’s licence and registration (see R. v. Lotozky (2006), (ONCA), 210 C.C.C. (3d) 509 (Ont. C.A.); R. v. Evans, (SCC), [1996] 1 S.C.R. 8). [23] Accordingly, I am satisfied that Mr. Simpart’s initial detention was lawful, and not a violation of his rights under

section 9 ofthe Charter. 1.3 Was there a violation of Mr. Simpart’s rights under

section 10(

a) of the Charter? [24]

Section 10(

a) of the Charter provides that anyone who is arrested or detained has the right to be promptly informed of thereasons for the arrest or detention. [25]

Section 10(

a) applies to situations of investigative detention as well as arrest. Individuals who are detained for investigativepurposes must generally be promptly advised, in clear and simple language, of the reasons for their detention (R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59). The information provided to the detainee must be sufficient to permit him to make a reasonable decisionas to whether or not to submit to the arrest or detention (see R. v. Evans, (SCC), [1991] 1 S.C.R. 869), and also toexercise his right to counsel in a meaningful way (R. v. Nguyen, 2008 ONCA 49). In assessing whether the

section 10(

a) requirement hasbeen met, it is the substance of the interaction, not the formal wording used that is important. Put another way, the pertinent question iswhether the accused can reasonably be supposed to have understood the basis for the investigation (see R. v. Evans, [1991] 1 S.C.R. 869;R. v. S.E.V., 2009 ABCA 108; R. v. Carrier, 2008 ABCA 134; R. v. Lund, 2008 ABCA 373). [26] In this case, Cst. Longman located Mr. Simpart’s car at 9:38 p.m. Once he had done that, he spent some time checking thelicence plate, and making routine inquiries on CPIC. He then approached the vehicle, and asked Mr.

Simpart to provide his licence andregistration and roll down the window. In cross-examination, Cst. Longman said he “believed” he would have advised Mr. Simpart thathe was under investigation for dangerous driving, but could not be certain that he, in fact, did so. I am unable to conclude from theevidence that Cst. Longman advised Mr. Simpart that he was under investigation for dangerous driving, or for any offence in particular.

[27] According to the testimony of Cst. Longman, rather than rolling down the window to provide his licence and registration, Mr.Simpart got out of his vehicle. At this point, Cst. Longman noticed Mr. Simpart to have difficulty with his balance, and also to exhibit alack of dexterity when trying to locate his registration. Cst. Longman then asked Mr. Simpart to walk back to the police vehicle, withoutproviding any further specific information as to why he was being detained. During the course of that walk, Cst. Longman noticed Mr.Simpart swaying as he walked, and noticed that Mr.

Simpart’s eyes were glassy. [28] I am satisfied from all the circumstances that the reasons for Mr. Simpart’s initial detention would have been reasonably clearto him. He was in the driver’s seat of his vehicle when Cst. Longman approached him and asked for his licence and registration. Itwould have been apparent that Cst. Longman was investigating something to do with the use of the vehicle. [29] During the short walk to the police vehicle, Cst. Longman made observations regarding Mr. Simpart’s condition that changedthe nature of the investigation to one of impaired care and control. Until Cst.

Longman made those observations, impairment was not thefocus of the investigation. [30] While Cst. Longman conceded in cross-examination that part of his purpose in asking Mr. Simpart to come back to the policecar was to observe his condition, I do not agree that this was a form of informal sobriety testing. Cst. Longman did not ask Mr. Simpartany investigative questions; nor did he ask him to perform any physical tests. He simply asked Mr. Simpart to come to the police car,and made passive observations. [31] It is significant that, at this point, Mr. Simpart was already out of his own car. Cst.

Longman had not directed, or even askedhim to get out of the vehicle; Mr. Simpart did that on his own. When Cst. Longman initially approached Mr. Simpart’s vehicle, hemerely asked Mr. Simpart to roll down his window and produce his licence and registration. Rather than stay in the vehicle and simplydo as he was asked, Mr. Simpart made the choice to get out. By doing so, he put Cst. Longman in a better position to observe hiscondition. It was not incumbent upon Cst. Longman to stop making observations at that point, or to provide further informationregarding the reason for Mr.

Simpart’s detention, because the nature of Mr. Simpart’s jeopardy had not yet changed. [32] However, as soon as there was a change in the nature of Mr. Simpart’s jeopardy, i.e. when Cst. Longman made observationsthat gave rise to grounds to believe that Mr. Simpart’s ability to operate a vehicle was impaired, Cst. Longman promptly informed Mr.Simpart that he was being placed under arrest for impaired care and control, at 9:54 p.m. In the circumstances, there was no breach ofMr. Simpart’s rights under

section 10(

a) of the Charter. [33] Even if Cst. Longman failed to adequately advise Mr. Simpart of the reasons for his inital detention, as required by section10(

a) of the Charter, any such breach was technical and fleeting, and would not give rise to a remedy. 1.4 The arrest and demand for breath samples [34]

Section 8 of the Charter protects individuals from unreasonable search or seizure. A breath sample is a warrantless search orseizure, and is therefore prima facie unreasonable unless the Crown demonstrates, on a balance of probabilities, that it was reasonable. In order to discharge this onus, the Crown must establish that the search was authorized by law, the law itself is reasonable, and that thesearch was carried out in a reasonable manner (R. v. Buhay, 2003 SCC 30; R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R.v.

Shinkewski, 2012 SKCA 63). [35] The issue in this case is whether the search was authorized by law, or, more to the point, whether Cst. Longman had groundsto make a demand for breath samples under section 254(3) of the Criminal Code. That

section authorizes a police officer to make ademand for breath samples if the officer has reasonable grounds to believe that the subject of the demand is committing, or has in thepreceding three hours, committed an offence under

section 253 as a result of the consumption of alcohol. [36] The facts of this case are somewhat unusual, in that Cst. Longman arrested Mr. Simpart for impaired care or control beforeobserving the smell of alcohol coming from his breath and making the demand for breath samples. I will, therefore first considerwhether Cst. Longman had reasonable grounds to arrest Mr. Simpart.

[37] The power of arrest found in section 495(1)(

a) of the Criminal Code permits lawful arrest to be made where a peace officerbelieves on reasonable grounds that a person has committed or is about to commit an indictable offence. In R. v. Shinkewski, supra,Caldwell J.A. made the following observations regarding the legal standard of “reasonable grounds to believe” at paragraph 13: (

a) an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objective pointof view – in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeedreasonable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; (

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera v.Canada (Minister of Citizenship & Immigration), 2005 SCC 40 , 2005 SCC 40, [2005] 2 S.C.R. 100) or a prima facie case forconviction (R. v. Storrey) before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” ora hunch (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 91; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Simpson(1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.)); (

c) an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, but maydisregard information which the officer has reason to believe may be unreliable: R. v. Storrey; (

d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion: R. v. Savage,2011 SKCA 65, 371 Sask. R. 283; R. v. Nguyen, 2010 ABCA 146, 477 A.R. 395; and R. v. Storrey; (e) “…the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timing involved,the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest”: R. v. Nguyen, at para. 18; and,context includes the experience and training of the arresting officer: R. v. Nolet, at para. 48; R. v.

Whyte, 2011 ONCA 24, 266 C.C.C.(3d) 5, at para. 31; and R. v. Luong, 2010 BCCA 158, 286 B.C.A.C. 53, at para. 19. [38] In this case, Cst. Longman had received a complaint of a vehicle driving erratically. He located that vehicle within fiveminutes of receiving the dispatch, one block from where it had last been seen. Mr. Simpart was in the driver’s seat of the vehicle. Whengetting out of the vehicle, Mr. Simpart failed to follow Cst. Longman’s initial direction regarding opening the window, exhibited poorcoordination, poor balance and poor dexterity, and had glassy eyes.

Based on these observations, the dispatch report, and his trainingand experience in dealing with intoxicated people, Cst. Longman formed the belief that Mr. Simpart’s ability to operate a motor vehiclewas impaired by alcohol. Accordingly, he arrested him. [39] I am satisfied that Cst. Longman had a subjective belief that Mr. Simpart’s ability to operate a motor vehicle was impaired byalcohol at this point. I am also satisfied that his belief was objectively reasonable. Despite the fact that he had not made any visual orolfactory observation of the presence of alcohol, the evidence available to Cst.

Longman at the time of arrest, including his experienceand training in dealing with intoxicated people caused him to draw the inference that Mr. Simpart was under the influence of alcohol. AsCaldwell J.A. noted in R. v. Gunn, 2012 SKCA 80: 15. In a voir dire held to determine the reasonableness of the police officer’s belief, the trial court must consider whether theobservations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which wasdrawn by the officer; however the Crown does not have to prove the inferences drawn were true or even accurate.

In other words, thefactors articulated by the arresting officer need not prove the accused was actually impaired. This is so because that is the standard ofproof reserved for a trial on the merits (i.e., proof beyond a reasonable doubt). ... 22.

Finally, and most importantly, the simple fact that a police officer’s observations support, on the one hand, an inference whichbuttresses the officer’s belief that an accused was impaired and, on the other hand, one or more inferences of innocent or innocuousexplanation for the activity which aroused the officer’s initial suspicion is not sufficient to render the officer’s inference unreliable (see:R. v. Bush, at para. 58).

The standard of “reasonable grounds to believe” does not require that the arresting officer be in the position todispel innocent or innocuous inferences which might also be reasonably drawn from his or her observations. As noted in R. v. Shepherd(at para. 23): “..[an] officer need not have anything more than reasonable grounds to believe that the driver committed the offence ofimpaired driving or driving ‘over 80’ before making the demand.

He need not demonstrate a prima facie case for conviction beforepursuing his investigation.” [40] While these passages from Gunn are written in reference to reasonable grounds for a breath demand, they are applicablebecause both arrests and breath test demands under section 254(3) are authorized on the basis of “reasonable grounds to believe”.

[41] I am satisfied that the evidence available to Cst. Longman at the time of arrest was rationally capable of supporting theinference that Mr. Simpart’s ability to operate a motor vehicle was impaired by alcohol, and as such, the arrest was lawful. [42] Immediately after arresting Mr. Simpart, Cst. Longman placed him in the back of the police vehicle. Cst. Longman thenentered the police vehicle, and once he did so, Cst. Longman could smell a strong odour of alcohol, which he believed was coming fromMr. Simpart’s breath.

He then made a demand for breath samples, pursuant to section 254(3) of the Criminal Code. [43] In my view, it is irrelevant that Cst. Longman had decided, at the time of arrest, that he was going to make the breath testdemand (i.e., before he had smelled the alcohol coming from Mr. Simpart). The time to assess whether the officer had reasonablegrounds to make a demand for breath samples is the time at which the demand is actually made, not after the demand is made, and notbefore (see R. v. Kopperud, 2011 SKQB 192; R. v. Vandal, 2009 SKQB 32). [44] At the time he made the demand, Cst.

Longman had observed all the factors I referred to earlier, plus he had smelled alcohol,which he believed was coming from Mr. Simpart’s breath. A police officer is authorized to make a breath demand where, objectivelyspeaking, he has reasonable grounds to believe that an individual’s ability to drive is even slightly impaired by the consumption ofalcohol (R. v. Gunn, supra, at para. 9; see also R. v. Bush, 2010 ONCA 554). I am satisfied that, at the time he made the demand forbreath samples, Cst. Longman had the requisite subjective belief that Mr.

Simpart’s ability to drive was impaired by alcohol, and that hisbelief was objectively reasonable. [45] Accordingly, I am not satisfied that there have been any violations of Mr. Simpart’s rights under sections 8 or 9 of the Charterin relation to the arrest, demand for, or obtaining of breath samples. 1.5

Section 10(

b) and the Right to Counsel [46]

Section 10(

b) of the Charter guarantees that, upon arrest or detention, everyone has the right to retain and instruct counselwithout delay, and to be informed of that right. “Without delay” however, does not mean “immediately”. The detainee must be advisedof his right to counsel before being questioned or otherwise required to provide evidence (R. v. Manninen, (SCC), [1987]1 S.C.R. 1233). [47] The onus is on Mr. Simpart to establish any violation of this right on a balance of probabilities. [48] In this case, the only evidence before me is that of Cst. Longman, which I accept. While Cst.

Longman did not advise Mr.Simpart of his right to counsel at the outset of their encounter, I am not satisfied that this amounted to a breach. Cst. Longman madeobservations of Mr. Simpart and asked him to come back to the police car, but did not ask Mr. Simpart any questions or otherwise requirehim to participate in evidence gathering procedures. [49] Once Mr. Simpart was arrested, Cst. Longman immediately advised him of his rights under

section 10(

b) of the Charter. Mr.Simpart indicated that he understood his rights, and said that he did not wish to contact counsel. [50] Mr. Simpart did not express any desire to contact counsel until after the first breath test was completed. He quickly changedhis mind. At that point, Cst. Longman promptly re-advised Mr. Simpart of the right to counsel, including the availability of a reasonableopportunity to contact counsel and the fact that police were required to hold off on further attempts to gather evidence until Mr.

Simparthad either had the opportunity to exercise the right or declined to do so (the “Prosper” warning). Mr. Simpart confirmed once again thathe did not wish to contact counsel. [51] I am satisfied that Mr. Simpart was aware of his right to counsel at all relevant times. I am also satisfied that he waived theright. No breach of

section 10(

b) has been established.

1.6 Statements made by Mr. Simpart in the police car [ 52 ] After being arrested, and informed of his right to counsel and the right to remain silent, Mr. Simpart was transported to the Regina Police Service for the purpose of breath testing. According to the evidence, this was a trip of less than five minutes. While en route, Cst. Longman asked Mr. Simpart “why he was driving when his girlfriend was sober”. According to Cst. Longman, Mr. Simpart replied “I’m not drunk. The brakes in the car are a piece of shit.” [ 53 ] I am satisfied that this statement was voluntarily made by Mr. Simpart.

It was conversational; there was no interrogation taking place. The statement was not the product of any inducement or coercion. Mr. Simpart was fully aware he was in police custody and speaking to an officer. He had waived his right to counsel, and had been made aware of his right to silence. [ 54 ] I am satisfied that the statement was voluntary, and not obtained in connection with any breach of Mr. Simpart’s rights under the Charter . 2. If evidence was obtained in violation of Mr.

Simpart ’s rights under the Charter, is the remedy of exclusion of evidence warranted? [ 55 ] I am satisfied that none of the evidence obtained against Mr. Simpart was obtained in violation of his rights under sections 8, 9, 10(

a) or 10(

b) of the Charter . Having reached that conclusion, it is not necessary that I consider the question of remedy. Accordingly, the evidence led on the voir dire will be admitted on the trial proper. 3. Was Mr. Simpart 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? [ 56 ] Following completion of the breath testing in this case, at 10:40 p.m., Mr. Simpart was lodged in cells. He was not released until 5:27 a.m., nearly seven hours later. Cst. Longman testified that the decision was made to lodge Mr. Simpart, in part because of the high blood-alcohol readings, and also in part because he was concerned that Mr. Simpart may continue the offence by driving again. [ 57 ] Mr.

Simpart argues that he was detained longer than was necessary, contrary to the provisions of sections 497 and 498 of the Criminal Code , and in violation of his rights under

section 9 of the Charter . [ 58 ] While I am cognizant of the remarks of Gerein J. in R. v. Salisbury , 2011 SKQB 153 , (affirmed 2012 SKCA 32 ), regarding the procedural propriety of deciding this issue before determining the case on its merits, I am satisfied that, in this case, it is appropriate for me to determine the issue at this point. Evidence was led, and both parties made submissions regarding the “over holding” issue. The reasons which follow will explain why I have not found any breach of Mr. Simpart’s

section 9 rights to have been established. Had I found such a breach, I would not have dealt with the issue of remedy until the conclusion of the trial. [ 59 ] Where an individual is arrested without warrant, as was the case with Mr. Simpart, sections 497 and 498 of the Criminal Code require that he be released as soon as practicable upon the issuance of an appropriate release document, unless the peace officer believes on reasonable 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 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. [60]

Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. [61] Sections 497 and 498 of the Criminal Code direct prompt release of a person who has been arrested, and permit continueddetention of an individual only if the peace officer dealing with the person believes on reasonable grounds that the detention is necessaryin the public interest. The public interest includes those factors specifically listed in sections 497 and 498, but is not limited to thosefactors.

The public interest can include continued detention of an individual who is arrested for impaired driving, until that individual issober 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 Charterif the police officer’s actions in so detaining have a reasoned basis and are not capricious (R. v. Pashovitz (1987), (SKCA), 59 Sask. R. 165 (C.A.); R. v. Williamson (1986), (AB KB), 25 C.C.C. (3d) 139 (Alta. Q.B.)). When detention isnecessary 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 policeacted reasonably in the circumstances (R. v. Wilcox (12 June 2008) Prince Albert Information #31591420 (Sask. Prov. Ct.); R. v.Pashovitz, supra). [62] There is no evidence to suggest that it was necessary to detain Mr. Simpart to ensure his attendance in Court. His identity hadbeen established, the necessary evidence had been secured, and there was no evidence that Mr. Simpart would be a danger to any victimor witness of the offence. [63] The conditions did not exist for Mr. Simpart’s continued detention under the enumerated grounds in

section 497 or 498 of theCriminal Code, and while Mr. Simpart’s blood alcohol readings were high, the evidence does not suggest that he was so intoxicated as tojustify his detention under the provisions of The

Summary Offences Procedure Act, 1990, S.S. 1990-91, c. S-63.1. [64] In his testimony, Cst. Longman suggested a number of reasons that Mr. Simpart was not immediately released. First, hisblood alcohol readings were more than double the legal limit. This raised a concern, according to Cst. Longman, that Mr. Simpart maynot be able to understand the release documents if released immediately. I am not satisfied that it was reasonable for Cst. Longman toconclude that, if released, Mr. Simpart would be unable to understand his release documents. Despite the high blood alcohol readings heprovided, Mr.

Simpart appeared to be coherent and able to understand what was going on. It is also apparent from the evidence of thedetention area videos that Mr. Simpart was concerned about the issue of being released. [65] The decision to detain Mr. Simpart, on the evidence before me, was based primarily on his blood alcohol readings. Althoughblood alcohol level is a relevant consideration, and in some cases can be the primary consideration, permitting it to be the soledeterminant of whether someone gets detained is too narrow a focus (R. v. Iseler (2004), (ON CA), 190 C.C.C. (3d)11 (Ont. C.A.)).

The officer making the assessment as to whether a person is lodged in cells after breath testing should consider suchthings as (see R. v.

Price, 2010 ONSC 1898): - 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.

[ 66 ] I note that there was no evidence, from any other source, that Cst. Longman communicated his concerns to any other officer, or that any other inquiries were made, or that any factor other than the passage of time was considered before Mr. Simpart was released. Clearly, Mr. Simpart’s blood alcohol level was the primary factor in deciding to detain him. [ 67 ] Cst. Longman acknowledged that he did not ask Mr. Simpart if there was a sober person to whom he could be released.

While 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 ( R. v. Simms , 2009 ABCA 260 ), such an inquiry would, on its face, appear to have been reasonable to make in Mr. Simpart’s case, given the wording of those sections and the fact that there was an adult female person in his company when he was arrested. [ 68 ] However, I accept that because Mr. Simpart lived in Estevan, 200 kilometres from Regina, Cst. Longman was concerned that if Mr.

Simpart were released before sober, he may attempt to drive while still under the influence of alcohol. Cst. Longman held this fear, in spite of the fact that Mr. Simpart had a female person in the car with him at the time of arrest. I accept that Cst. Longman’s concern about the viability of release of Mr. Simpart to the custody of the adult female in his car was valid. Mr. Simpart had a blood alcohol concentration that was more than double the legal limit. Despite that, the adult female in his vehicle, who appeared to be sober, was in the passenger’s seat while Mr. Simpart occupied the driver’s seat.

I am satisfied that Cst. Longman was reasonable in concluding without further inquiry that this adult female was not an appropriate person to whom to release Mr. Simpart. [ 69 ] I am satisfied that the decision to detain Mr. Simpart in custody was reasonable in the circumstances, and as such authorized by sections 497 and 498 of the Criminal Code . No violation of Mr. Simpart’s rights under

section 9 of the Charter has been established. J.D. Kalmakoff, J