Her Majesty the Queen - v. -, 2021 SKPC 29

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 29 Date: April 19, 2021 Information: 991126609 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lance Kelln Appearing: M. Vanderkuur For the Crown T. Foster For the Accused CHARTER APPLICATION DECISION J. RYBCHUK, J . INTRODUCTION [ 1 ] The accused, Lance Kelln, is charged with impaired driving and refusal to provide a breath sample after being pulled over by the police on the evening of April 16, 2020.

The dash camera video footage from the police car shows an officer getting out of his vehicle and walking towards the accused’s vehicle. As the police officer begins speaking with the accused, George Strait’s country music song, “I ain’t here for a long time, I’m here for a good time…” can be heard playing loudly in the background. Unfortunately, the check stop turned out to be anything but a good time. Instead it was a very long time for both gentlemen.

FACTS [ 2 ] On the evening of April 16, 2020, Jerin Baryluk placed a call to 911 to report a driver that she believed should not be behind the wheel of a vehicle. Ms. Baryluk and her boyfriend had stopped at the Empire Hotel liquor store on the corner of Saskatchewan Drive and Albert Street in Regina, Saskatchewan to pick up some alcohol. [ 3 ] While in the parking lot, Ms. Baryluk observed a black BMW vehicle with the licence plate K-E-L-L-N pull into the parking lot. A male exited from the driver’s side of the vehicle. Ms. Baryluk described the male as stumbling as he tried to get his footing.

After exiting the car, the male approached Ms. Baryluk who was outside of her vehicle and tried to engage in conversation with her about her boyfriend’s vehicle, but she could not understand all of what he was saying due to him mumbling. She further described him as being unable to walk or stand without stumbling or swaying. [ 4 ] When the male entered the Empire Hotel, Ms. Baryluk called 911 and drove around the block twice. During her call to 911 she indicated that she thought the liquor store would refuse to sell the driver liquor based on his level of intoxication.

As she came around the block the second time and re-entered the parking lot of the Empire Hotel, she saw the male carrying a bag from the liquor store. He struggled as he got into the driver’s side of his vehicle and exited the north end of the parking lot turning right onto Saskatchewan Drive. [ 5 ] Ms. Baryluk stated that shortly after the BMW left the parking lot a police vehicle pulled in behind it and activated its lights. She said the BMW turned right again and drove the wrong way down a one-way street where the police ultimately stopped the vehicle.

However, the dash camera footage from the police cruiser clearly showed that the BMW turned right onto Smith Street which is the correct direction of traffic on that street. Wrongful observations like this made me question the overall accuracy and reliability of Ms. Baryluk’s observations during her brief interactions with the accused that night. [ 6 ] The police vehicle mentioned by Ms. Baryluk was driven by Constable Thomaschefski. He had been travelling west on Saskatchewan Drive, a few blocks east of the Empire Hotel, when he received the dispatch of a possible impaired driver. Cst.

Thomaschefski knew the report included information that the driver was unstable and staggering, the vehicle being driven was a black BMW, the licence plate was K-E-L-L-N and the location of the complaint. Upon seeing a black BMW leave the Empire Hotel parking lot heading east in the opposite direction of travel, Cst. Thomaschefski turned his police vehicle around, confirmed that the licence plate matched the report and initiated a traffic stop just before11:50 p.m. [ 7 ] The initial stop and much of the events that follow were caught on various cameras.

The interaction at the BMW was caught on the dash camera footage from the police vehicle. Unfortunately, there is no audio of that interaction as Cst. Thomaschefski did not have the microphone on him. As a result, there is only video footage of those events accompanied by the country music left playing on the radio in the police cruiser. [ 8 ] As Cst. Thomaschefski came up behind the BMW and activated his lights, he stated that the vehicle was driving at a slow, maintained speed, which he described as odd.

The vehicle then made a wider than normal right hand turn onto Smith Street which is a one-way street with traffic running south. Cst. Thomaschefski gave evidence that the BMW started pulling over, but then accelerated very quickly, then quickly slowed down and pulled over. [ 9 ] However, the video footage from the dash camera demonstrated that the turn onto Smith Street was wide because the BMW was travelling in the left-hand driving lane of traffic on Saskatchewan Drive when Cst. Thomaschefski pulled it over. This narrow

section of Saskatchewan Drive contains only driving lanes of traffic with no stopping or parking lanes on either side of the road so the BMW had to turn right across the right-hand driving lane of traffic on Saskatchewan Drive and into the right-hand driving lane on Smith Street. The BMW then had to turn further into the right-hand parking lane on Smith Street in order to pull over and stop the vehicle. It is also worth noting that the turn at this intersection is greater than 90 degrees. The braking and turn coincided with Cst. Thomaschefski’s cruiser pulling in behind the BMW.

The video also does not depict the odd speed or quick acceleration and deacceleration. Simply put, the video evidence does not support a finding that the driving was erratic. [ 10 ] Once the BMW pulled over, Cst. Thomaschefski exited his vehicle and approached the BMW. On the video, he can be seen standing on the driver’s side of the BMW towards the rear passenger door. During this time, Cst. Thomaschefski can be seen looking into the BMW and after approximately ten seconds, he shined his flashlight into the driver’s window. Within a few seconds, the driver rolled down the window and spoke with Cst.

Thomaschefski for just over a minute. While the angle of the camera is straight ahead, by viewing the reflection in the side mirror of the BMW one can see that the driver did roll down his window.

[ 11 ] In court, the constable identified the accused as the driver and the only occupant of the BMW. [ 12 ] It was Cst. Thomaschefski’s evidence that during his initial approach of the vehicle, he was watching the accused. He noted that the stereo in the BMW was loud and that the accused appeared to be concentrating on the stereo with the music getting louder. He also noted that the rear driver’s window was down. I accept Cst. Thomaschefski’s recollection of the events up to this point.

However, he then testified that he had to tap on the window to get the accused’s attention and it was only then that the accused turned the music down and mistakenly opened his door instead of rolling down his window. However, the video clearly demonstrates that Cst. Thomaschefski did not tap on the window. Instead, the accused simply rolled down the window and the two engaged in a conversation.

The accused did not open his car door in confusion. [ 13 ] The constable’s testimony was that during the minute-long conversation at the vehicle he asked the accused if he had anything to drink that night and the accused responded that he had not. Cst. Thomaschefski also stated that he told the accused that he could not have a cigarette but that the accused continued to open a new package. It was his evidence that he told the accused the reason he could not have a cigarette was that he could not have anything in his mouth if a breath sample was needed.

He also gave evidence that he told the accused several times that he could not have a cigarette and eventually had to be stern to get him to put down the package. [ 14 ] Cst. Thomaschefski stated that during this interaction he noticed that the accused’s speech was slurred; his responses seemed slow, delayed, and deliberate; and that his pupils were very dilated. I accept that Cst. Thomaschefski observed these signs during his interaction with the accused. Cst. Thomaschefski then decided to ask the accused to exit the vehicle so that he could gauge his ability to walk. [ 15 ] Returning to the video, Cst.

Thomaschefski attempted to open the driver’s door, but the door was locked. The accused opened the door but did not exit the vehicle. At this point, the accused and Cst. Thomaschefski engaged in further conversation for approximately twenty-five seconds before the accused exited his vehicle. Cst. Thomaschefski stated he instructed the accused to walk to the passenger side of the police cruiser. The accused walked over while speaking to Cst. Thomaschefski who was walking slightly behind and to the left of the accused. The police vehicle was on the accused’s right. [ 16 ] Cst.

Thomaschefski was not able to remember the specifics of the conversations at the vehicle or while walking to the police cruiser. He testified that the accused was unsteady on his feet once he exited the vehicle. Cst. Thomaschefski also stated that he could not detect an odour of alcohol at the point the accused exited the vehicle and he therefore did not believe he had the reasonable grounds to suspect the accused had alcohol in his body, required to make an Approved Screening Device (ASD) demand. Cst.

Thomaschefski also gave evidence that it was his usual practice to have the accused exit the vehicle during impaired investigations and walk back to his police cruiser so that he could assess their balance and ability to walk. At no point was the accused informed that he was participating in a sobriety test. [ 17 ] Cst. Thomaschefski stated that while the accused was walking to the cruiser his steps were a bit wide and that the accused bumped off the passenger corner of the cruiser which caused him to have to take a side-step to catch his balance. [ 18 ] After reviewing the video evidence, I cannot accept Cst.

Thomaschefski’s recollection of the accused’s physical coordination while outside of the vehicle. The accused was not staggering or swaying while conversing at the BMW. As he walked to the rear of the police cruiser, there is no indication that he was taking wider steps to balance himself. While the bump off the police cruiser is not captured on video, given Cst. Thomaschefski’s inaccurate recollection of the accused’s other motor skills, I am unsure whether and to what extent contact with the police cruiser might have been made. [ 19 ] Cst.

Thomaschefski admitted that during the accused’s walk to the police vehicle he had still not formed the reasonable suspicion to make an ASD demand. [ 20 ] Cst. Thomaschefski and the accused then moved to the passenger side of the police cruiser. Cst. Thomaschefski testified that during this interaction, the accused again asked for a cigarette. Although they were quite close to each other, Cst. Thomaschefski gave evidence that he still could not detect an odour of alcohol. [ 21 ] Cst. Thomaschefski then conducted a brief pat down search of the accused and directed him to sit in the back of the police vehicle.

He stated that the reason for directing the accused into the back seat of the cruiser was so that he could try to detect an odour of

alcohol and that this was his standard practice. Cst. Thomaschefski admitted during cross-examination that at this point, he still did not have the reasonable suspicion needed to make an ASD demand. [ 22 ] Most of the interaction at the police cruiser can be seen and heard on the in-car camera situated on the back seat of the cruiser. Cst. Thomaschefski opened the rear passenger door of the cruiser and the accused sat down with one of his legs still outside. Cst. Thomaschefski then told the accused to move his other leg into the vehicle and began to shut the door.

At that moment, the accused stood up out of the car while simultaneously asking if he was being arrested. Cst. Thomaschefski responded by saying that he had not decided yet. The accused then started to say something further while continuing to step away from the cruiser when Cst. Thomaschefski stated that he was now under arrest. The arrest occurred within a few seconds of Cst. Thomaschefski saying that he had not decided yet if he was under arrest. At this time, Corporal Jordan Marks pulled in behind Cst. Thomaschefski’s cruiser.

It was shortly after 11:50 p.m. [ 23 ] When the accused was placed under arrest, Cst. Thomaschefski noted on video and in court that the accused had asked six times for a cigarette and just was not getting it. While I accept that he told the accused that he could not have a cigarette multiple times, I cannot accept that Cst. Thomaschefski told the accused that he could not have a cigarette six times. Cst. Thomaschefski admitted during cross-examination that when the accused asked for a cigarette at the police vehicle, this was only the third time he had asked and been told no.

I accept that the accused asked if he could have a cigarette twice at his vehicle and once at the rear of the police cruiser. But I find that Cst. Thomaschefski tended to embellish the symptoms of impairment that he observed that night making his evidence not altogether reliable. [ 24 ] The accused was then placed under arrest, handcuffed and seated in the back seat of the police cruiser. While he was being handcuffed, Cst. Thomaschefski detected an odour of alcohol. The accused was then read the breath demand and given his rights. After ensuring that they were able to leave the scene, Cst.

Thomaschefski transported the accused to the Regina Police Service main station and Corporal Marks followed. Cst. Thomaschefski did not observe or record any additional indicia of impairment after he left the roadside that evening. [ 25 ] It is important to note that all of the events at the station are captured on security footage and that Corporal Marks was present up to the time when the accused was placed in cells. During his interactions with the accused, Corporal Marks testified that he did not note any indicia of impairment. [ 26 ] At the police station the accused spoke to legal counsel.

He was then placed in a breathalyzer room and instructed to blow. His first attempt was unsuccessful. Cst. Thomaschefski, who is a certified breath technician, testified that the accused blew too hard which resulted in an insufficient sample. On the second attempt, Cst. Thomaschefski testified that the accused took a deep breath, but that not enough air went into the instrument, resulting in another insufficient sample. On the third attempt, Cst. Thomaschefski testified that he heard the accused humming on the mouthpiece, but no air was entering the instrument.

This prompted him to explain to the accused the penalty for a refusal charge. This was all corroborated by the video footage. [ 27 ] On the fourth and final attempt, Cst. Thomaschefski testified that the accused did not have the mouthpiece far enough in his mouth to make a seal. He explained to the accused why each of his previous attempts did not result in a successful sample. The accused expressed a willingness to provide samples and Cst. Thomaschefski stated he would allow the accused one more opportunity to provide a sample.

During this conversation, the window of opportunity to provide a sample on the instrument timed out. [ 28 ] The constable then formally charged the accused with refusal to provide a breath sample. The accused continued to ask about being released. Cst. Thomaschefski told him that he needed to do up the paperwork and that he would try to find someone to come and pick the accused up once the paperwork was complete. He was also clear that he could not tell the accused exactly when he would be released.

The accused was also asked, but did not answer, whether he would like to speak with legal counsel again and subsequently was not given another opportunity. [ 29 ] The accused was brought back to the booking area where Cst. Thomaschefski asked him for his father’s phone number so that he could be called to come to pick up the accused. Cst. Thomaschefski then stepped off camera but returned briefly to tell the accused that he had tried the number more than once and every time it went straight to voicemail. The accused then gave Cst. Thomaschefski the number of a friend.

Once again, the constable stepped out of frame to make that call. He testified that the caller kept cancelling the attempts when he would call. There was also some conversation about calling the accused’s mother, but it was unclear whether she was in Raymore, Saskatchewan or Phoenix, Arizona and so Cst. Thomaschefski did not try to contact her. The accused also stated that even if his mother was home, she would not be willing to drive in from Raymore to pick him up. [ 30 ] When no one could be contacted, the accused was then booked in and searched. Cst. Thomaschefski explained to him that he

would have to stay overnight to sober up and he was placed in cells at 1:35 a.m. When asked about why the accused was held, Cst. Thomaschefski stated that officers need to ensure that when they release someone, that the person can care for themselves. He stated that he was the one who made the initial decision to keep the accused at the station but once he was booked in, the cell sergeant would become responsible for his release. Cst.

Thomaschefski also testified that when a person is released all depends on the situation, but the main consideration is that if released, the person will not be a problem or danger when they leave. [ 31 ] Cst. Thomaschefski also generally mentioned a Regina Police Service policy regarding detaining impaired persons when no one is available to pick them up, but he was not questioned about the specifics of that policy. When asked if he could have observed the accused to see if he could be released sooner, Cst.

Thomaschefski explained that he was not able to complete his report while also supervising the accused. [ 32 ] Cst. Thomaschefski then completed his general report. He gave evidence that his shift ended at 3:00 a.m. and all the documents he had regarding the accused were given to the cell staff who were on shift until 6:00 a.m. at which point day shift staff would start. The accused was released approximately six hours and twenty minutes later at 7:55 a.m. ISSUES [ 33 ] The issues in this voir dire are as follows: 1. Were the accused's

section 9 Charter rights to not be arbitrarily detained violated at the roadside? 2. Did Cst. Thomaschefski have sufficient grounds to place the accused under arrest and demand a breath sample? 3. If the accused’s

section 9 Charter rights were violated, what is the appropriate remedy? 4. Was any of the roadside evidence compelled and not admissible at trial? 5. Were the accused's

section 9 Charter rights to not be arbitrarily detained violated when he was held overnight at Regina Police Service? If so, what is the appropriate remedy? LAW AND ANALYSIS 1. Were the accused's

section 9 Charter rights to not be arbitrarily detained violated at the roadside? [ 34 ]

Section 9 of the Charter states: Arbitrary detention 9. Everyone has the right not to be arbitrarily detained or imprisoned. [ 35 ] The purpose of

section 9 was succinctly stated by the Supreme Court of Canada in R v Grant , 2009 SCC 32 , 245 CCC (3d) 1 [ Grant ] at para 20 : [20] The purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference. As recognized by this Court in Blencoe v. British Columbia (Human Rights Commission) , 2000 SCC 44 , [2000] 2 S.C.R. 307, "liberty", for Charter purposes, is not "restricted to mere freedom from physical restraint", but encompasses a broader entitlement "to make decisions of fundamental importance free from state interference" (para. 49).

Thus, s. 9 guards not only against unjustified state intrusions upon physical liberty, but also against incursions on mental liberty by prohibiting the coercive pressures of detention and imprisonment from being applied to people without adequate justification. The detainee's interest in being able to make an informed choice whether to walk away or speak to the police is unaffected by the manner in which the detention is brought about.

[36]

Section 9 works to balance the interests of the individual and the state by protecting individuals against unlawful stateinterference. The detention of an individual by a state official must be authorized by law; the authorizing law itself must not be arbitrary;and the manner in which the detention is carried out must be reasonable to avoid violating

section 9 (Grant at paras. 54-57; R v Le, 2019SCC 34, 375 CCC (3d) 431 [Le] at para 124). [37] It is well-established that police have the authority at common law to check the sobriety of drivers (R v Ladouceur, (SCC), [1990] 1 SCR 1257 at para 30; R v Orbanski; R v Elias, 2005 SCC 37, 196 CCC (3d) 481 [Orbanski] at para 41).Removing impaired drivers from Canadian roads falls under a police officer’s duty to preserve the peace, prevent crime and protect lifeand property. [38] While the Crown did not rely on it in this case, police also have the authority under

section 209.1(2)(

b) of The Traffic SafetyAct, SS 2004, c T-18.1 to stop a driver and ask them about their alcohol or drug consumption prior to or while operating a motor vehicle.Instead, the Crown asserted that Cst. Thomaschefski was exercising his investigative powers of detention at common law. [39] The parties agree that the initial traffic stop and detention was a lawful execution of Cst. Thomaschefski’s police duties as hewas responding to a complaint of an impaired driver. However, after initially detaining and engaging with the accused inside of hisvehicle, Cst.

Thomaschefski then requested that the accused exit his vehicle and walk to the police cruiser with the goal of gaining moreindicia of impairment. This took the detention to another level (R v Mudrovcic, [2005] OJ No 1439 (QL) (Ont Sup Ct) at para 26). Whilepolice have wide powers to stop vehicles to check for driver sobriety, the subsequent investigation is limited to reasonable steps forcarrying out that duty (Orbanski at para. 45). [40] Impaired investigations can, and often do, involve having the suspected motorist exit their vehicle for the purposes offurthering that investigation.

Detention outside of a vehicle can be authorized under

section 320.27(1) of the Criminal Code. That sectionallows an officer to demand that a person accompany them for the purpose of formal field sobriety tests or an ASD test if the officer hasreasonable suspicion that the person has alcohol in their body. [41] In R v Yates, 2014 SKCA 52, 311 CCC (3d) 437 [Yates] Klebuc, J. canvased various appellate authorities and set out, at para33, the requirements of reasonable suspicion for an officer to demand that a person accompany them for the purpose of an ASD testunder section 254(2)(b), which is now

section 320.27(1)(b): [33] Based on Chehil, MacKenzie, Jacques and Bernshaw, to the extent the latter dealt with s. 254(2)(b), I conclude the requirements fora valid s. 254(2)(

b) demand essentially are that: (

i) the police officer must subjectively (or honestly) suspect the detained driver has alcohol in his or her body; and (ii) the police officer's subjective suspicion must be based on a constellation of objectively verifiable circumstances, which collectivelyindicate that the suspicion that the detained driver has alcohol in his or her body is reasonable. [42] Klebuc, J.’s conclusion of the requirements for a valid statutory investigative detention was based partially on the body ofcase law surrounding the common law power of investigative detention.

The leading case in this area is the Supreme Court of Canadadecision in R v Mann, 2004 SCC 52, 185 CCC (3d) 308 [Mann]. That case held that police have the power to detain someone for aninvestigation “if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime andthat such a detention is necessary” (Mann at para. 45).

The Supreme Court of Canada recently reaffirmed the standard for investigative detention in Fleming v Ontario, 2019 SCC 45, 57 CR (7th) 294 [Fleming] at para 50, using language similar to that of Klebuc, J. in Yates: [50] For example, this Court held in Mann that a power of investigative detention exists at common law where (

a) the officer hasreasonable grounds to suspect that there is a clear nexus between an individual and a recent or ongoing criminal offence, and (

b) thedecision to detain is reasonable, based on an overall assessment of all the circumstances (see para. 34). [43] Therefore, if not explicit, it is implicit in the common law power of investigation detention that it contains a subjectivecomponent. The requirement of both a subjective and an objective belief in the reasonable grounds to suspect standard also parallels therequirement of both a subjective and an objective belief in the reasonable grounds to believe standard as set out in R v Bernshaw, (SCC), [1995] 1 SCR 254 [Bernshaw], R v Bush, 2010 ONCA 554, 259 CCC (3d) 127 [Bush] and R v Gunn, 2012 SKCA 80,399 Sask R 170 [Gunn] discussed later in this decision.

[ 44 ] However, before an inquiry can be conducted into whether Cst. Thomaschefski possessed a subjective suspicion that the accused was involved in a crime and whether that suspicion was objectively verifiable in the circumstances, it must first be determined whether Cst. Thomaschefski had the authority under common law investigation detention powers to further detain the accused in the manner that he did outside of his vehicle at the roadside. [ 45 ] There are limits to the power of investigative detentions.

As was stated by the Supreme Court of Canada in Mann at para. 35 : [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. [ 46 ] Any inquiry into whether police actions are authorized at common law requires an application of the ancillary powers doctrine (also referred to as the Waterfield test from R v Waterfield , [1963] 3 All ER 659 , at pgs 660-62). The Supreme Court of Canada revisited the ancillary powers doctrine in Fleming .

Beginning at para. 45, Coté, J.A. summarized the principles and stages of this doctrine: [45] The basis of the doctrine is that police actions that interfere with individual liberty are permitted at common law if they are ancillary to the fulfillment of recognized police duties. Intrusions on liberty are accepted if they are reasonably necessary — in accordance with the test set out below — in order for the police to fulfill their duties. [46] At the preliminary step of the analysis, the court must clearly define the police power that is being asserted and the liberty interests that are at stake ( Figueiras v.

Toronto Police Services Board , 2015 ONCA 208 , 124 O.R. (3d) 641, at paras. 55-66 ). The ancillary powers doctrine comes into play where the power in issue involves prima facie interference with liberty. The term "liberty" here encompasses both constitutional rights and freedoms and traditional common law civil liberties (see Clayton , at para. 59; Figueiras , at para. 49 ). Once the police power and the liberty interests have been defined, the analysis proceeds in two stages:

(1) Does the police action at issue fall within the general scope of a statutory or common law police duty?

(2) Does the action involve a justifiable exercise of police powers associated with that duty? ( R. v. MacDonald , 2014 SCC 3 , [2014] 1 S.C.R. 37, at paras. 35-36 ; Reeves , at para. 78) [ 47 ] At the second stage of the analysis, the court must ask whether the police action is reasonably necessary for the fulfillment of the duty ( MacDonald , at para. 36 ).

As this Court stated in Dedman : The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [p. 35] In MacDonald , the majority of the Court set out three factors to be weighed in answering this question: 1.the importance of the performance of the duty to the public good; 2.the necessity of the interference with individual liberty for the performance of the duty; and 3.the extent of the interference with individual liberty. [para. 37; citations omitted.] [47] Applying the test set out in Fleming , I find that Cst.

Thomaschefski was permitted at common law to detain the accused outside of his vehicle to further his impairment investigation. Under the first stage, Cst. Thomaschefski was exercising his common law duty to protect the public from impaired drivers. It was also justifiable to have the accused exit the vehicle to allow for a more extensive

investigation of the driver. [48] The second branch of the ancillary powers doctrine asks whether the police action was reasonably necessary considering thethree factors from R v MacDonald, 2014 SCC 3, [2014] 1 SCR 37. I find that it was reasonably necessary. [49] Protecting the public from impaired drivers has been recognized as being highly important due to the tragic and devastatingconsequences that are too often the result of their behaviour (see Bernshaw; R v Lacasse, 2015 SCC 64, 333 CCC (3d) 450; R v Koma,2015 SKCA 92, 329 CCC (3d) 29). [50] It was also necessary for Cst.

Thomaschefski to interfere with the accused’s liberty. Cst. Thomaschefski had a report of animpaired driver with a vehicle, licence plate and location that matched the complaint. Cst. Thomaschefski also knew that the caller hadreported observing the driver to have reduced physical coordination skills. As pointed out in Orbanski at para. 47, whether a screeningmeasure is authorized is case-specific. While observations of the driver in their vehicle may be enough in some situations, other times,more will be necessary to determine if the driver is impaired. [51] Cst.

Thomaschefski had gathered indicia of slurred speech, delayed responses, dilated pupils, and inability to follow directionswhile interacting with the accused at the BMW. Based on the circumstances, it was reasonably necessary that Cst. Thomaschefskicontinue his investigation into whether the accused had committed an offence of driving while impaired by drugs and/or alcohol outsideof the vehicle, as he had gathered all of the indicia he could with the accused inside of the vehicle.

Part of this investigation includedtesting the physical coordination of the accused. [52] Finally, the interference was minimal as the accused was only required to stand up outside of his vehicle and walk a shortdistance to the police cruiser. Moldaver, J.A. (as he then was) in R v Milne (1996), (ON CA), 107 CCC (3d) 118 (OntCA) [Milne], noted that in terms of an impact on liberty, roadside screening tests were minimal as they take little time and present only aminor inconvenience to motorists. This was the case here for the accused. [53] Based on the totality of the circumstances, Cst.

Thomaschefski’s continued investigative detention outside of the accused’svehicle was reasonably necessary in this case, as it was in the similar case of R v Baker, 2004 ABPC 218, 372 AR 230, at para 86. [54] However, while Cst. Thomaschefski was authorized at law to have the accused exit the vehicle, he did not subjectively believethat the accused was involved in the crime of impaired driving. It is not necessary for a police officer to specifically state that he formeda “reasonable suspicion” during his testimony.

Subjective belief may be inferred from reliable circumstantial evidence (R v Long, [1999]OJ No 364 (QL) (Ont Ct J (Gen Div)) at para 13; R v Harris, [2007] OJ No 675 (QL) (Ont Sup Ct); R v Broomfield, 2007 ONCJ 36 atpara 19; R v Shortall, [2002] OJ No 1447 (QL) (Ont Ct J); R v Neufeld, [1998] OJ No 5944 (QL) (Ont Ct J (Prov Div)). [55] I have already expressed my concerns with the reliability of some of the circumstantial evidence of impairment observed byCst. Thomaschefski in this case. Furthermore, at no point during direct or cross-examination did Cst.

Thomaschefski come close toexpressing anything remotely familiar to a belief or opinion that the accused might possibly be impaired by drugs and/or alcohol beforeasking him to get out of the vehicle. He was never questioned and did not say anything about whether the accused might be impaired bya drug. It was strictly alcohol. [56] Cst. Thomaschefski did testify that during his initial conversation with the accused when he first approached the BMW, heexplained to him that the reason he could not have a cigarette was because he could not have anything in his mouth if Cst.Thomaschefski made an ASD demand.

However, that statement is not enough for me to infer that the potential grounds for an ASDdemand ever actualized or that Cst. Thomaschefski would eventually go on to acquire the requisite honest belief and suspicion that acrime had possibly been committed in order to further lawfully detain the accused outside his vehicle.

To the contrary, Cst.Thomaschefski repeatedly denied in cross-examination having ever formed a reasonable suspicion that the accused had alcohol in hisbody to make an ASD demand, which is an even narrower and lesser standard of belief than reasonable grounds to suspect the accused’sability to drive was impaired by alcohol (R v Bannerman, 2016 SKPC 33 at para 29). Instead, Cst.

Thomaschefski admitted that the realreason he ordered the accused out of his vehicle and into the back seat of the police vehicle was because that was his ordinary practice inimpaired driving investigations. [57] It is a rare situation where an officer fails to articulate their subjective suspicion but provides sufficient evidence establishingobjective grounds for a reasonable suspicion. However, that is the situation here. While it may have been a lawful exercise of the

common law investigative detention power for Cst. Thomaschefski to detain the accused outside of his vehicle in the objectivecircumstances of this case, Cst. Thomaschefski’s lack of a subjective suspicion of his involvement in an offence made the detentionarbitrary. [58] Although I have found that it was reasonably necessary for Cst. Thomaschefski to detain the accused outside of the BMW, thesame cannot be said of Cst. Thomaschefski’s further detention of the accused inside the back seat of the police cruiser. [59] Cst.

Thomaschefski testified that the purpose for instructing the accused sit in the rear of the police vehicle with the doorclosed was so that he could try to detect the smell of beverage alcohol in an enclosed environment. Up to this point in the investigation,Cst. Thomaschefski had not detected any odour of alcohol from the accused. [60] Returning to the ancillary powers doctrine, the first stage is met as Cst.

Thomaschefski was still exercising his common lawduty and having an accused sit in the back of a police car is a justifiable exercise of that power in some circumstances (R v Troester(2000), (ON CA), 146 CCC (3d) 445 (Ont CA)) such as safety, security and weather. However, under the secondstage of the analysis, it cannot be said that it was reasonably necessary to have this accused sit in the back of the police cruiser in thiscase. [61] While the importance of protecting the public from impaired drivers is high, the necessity and the extent of the interference donot weigh in favour of a finding that Cst.

Thomaschefski’s actions of putting the accused in the rear of the police vehicle was reasonableor necessary. [62] In order for police action to be reasonably necessary, other, less intrusive options must not be available in the circumstances.This means that if police can use another method to fulfill their duty that is less intrusive, the action cannot be reasonably necessary(Fleming at para. 54; R v Clayton, 2007 SCC 32, [2007] 2 SCR 725, at para 21). [63] Cst. Thomaschefski had other options available to him to try to detect the odour of alcohol. Although Cst.

Thomaschefskistated that he was in relatively close proximity to the accused while conversing with him, he still could have leaned in closer to theaccused both while he was seated in the confines of his own vehicle and also while he was dealing with the accused outside of hisvehicle, to see if he could detect an odour of alcohol. Cst. Thomaschefski also had the option of asking the accused to blow in his face tosee if that would reveal an odour of alcohol (see R v Weintz, 2008 BCCA 233, 233 CCC (3d) 365, leave to appeal refused [2008] SCCANo 362 (QL) (SCC)).

Finally, he could have waited for Corporal Marks to arrive to see if he could detect the smell of alcohol. Whenofficers act as a team, the collective knowledge of the group is relevant to establishing grounds (R v Chapman, 2020 SKCA 11, 386 CCC(3d) 24, at para 58, citing R v Labelle, 2016 ONCA 110, at para 11). [64] In addition to other options being available, it was not necessary for Cst. Thomaschefski to detect the smell of alcohol.

Whileodour of alcohol is a common indicia of alcohol consumption, it is not a requirement for establishing the reasonable grounds to suspectneeded to make an ASD demand (see R v Nahorniak, 2010 SKCA 68, 359 Sask R 15, at para 26). Nor is it necessary to establish thereasonable grounds to believe needed to make a breath demand, which was the route that Cst. Thomaschefski took.

The only requirementfor establishing reasonable grounds to believe that the person’s ability to operate a conveyance was impaired is that the observations andcircumstances of the officer be rationally capable of supporting the inference of impairment (Gunn, at para. 15). There were no otherpassengers or smells in the vehicle making it necessary for Cst. Thomaschefski to remove and isolate the accused. There was no risk ofescape and the accused was able to stand on his own outside the vehicle. Additionally, the fact that Cst.

Thomaschefski had a standardpractice of putting suspected impaired drivers in the rear seat of a police cruiser further demonstrates that it was not done out of necessityin this case. [65] Finally, the extent of the interference with the accused’s liberty was too great. The back seat of a police car is, for all intentsand purposes, a portable jail cell. Once a person is placed in the back and the door shut, their ability to leave is completely at thediscretion of the officer as it is not possible to open the door from the inside. Confining the accused to the rear was the equivalent ofputting him into a cell.

This was a substantial interference with the accused’s liberty. [66] As the Supreme Court of Canada stated in R v Aucoin, 2012 SCC 66, 290 CCC (3d) 448 [Aucoin] when dealing with a

section 9breach arising from placing the accused in the back of the police vehicle while the officer was issuing tickets: [34] The problem in this case arises from the shift in the nature and extent of the appellant’s detention — and the asserted need to do a

pat-down search as a prelude to it — that flowed from Constable Burke’s decision to secure the appellant in the rear of his cruiser while he wrote up the ticket for the motor vehicle infractions. That decision carried with it increased restrictions on the appellant’s liberty interests, and the added feature of an intrusion into his privacy interests. Those factors, in my view, altered the nature and extent of the appellant’s detention in a fairly dramatic way — especially when one considers that the infractions for which he was being detained consisted of two relatively minor motor vehicle infractions. [ 67 ] All the members of the Supreme Court found that there was a breach of

section 9 in Aucoin . The majority stated the following: [36] The existence of a general common law power to detain where it is reasonably necessary in the totality of the circumstances was settled in R. v. Clayton , 2007 SCC 32 , [2007] 2 S.C.R. 725. That case moved our jurisprudence from debating the existence of such a power to considering whether its exercise was reasonably necessary in the circumstances of a particular case.

As Abella J., for the majority, observed: The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope.

This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk. [Emphasis added; para. 31] [37] That brings me to what I consider to be the flaw in the trial judge’s analysis in this case.

Given the adverse impact that the decision to secure the appellant in the rear of the cruiser would have on his liberty and privacy interests, I am of the view that a more stringent test than the one applied by the trial judge was required to support her determination that Constable Burke’s actions were lawful in the circumstances. [38] Constable Burke knew that as a prelude to securing the appellant in the rear of his cruiser, he was going to do a pat-down search on him for reasons of officer safety and the appellant’s safety.

His reason for wanting to secure the appellant was to prevent the appellant from walking away and disappearing into the crowd. The trial judge accepted the officer’s evidence in that regard.

It was late at night, the street was crowded with people, and the appellant’s vehicle was off-limits to him. [39] Accepting, as the trial judge did, that Constable Burke was concerned about the appellant walking away, I am nonetheless of the view that in the context of this case, in order to justify securing the appellant in the back seat — knowing that this would also entail a pat-down search — detaining the appellant in that manner had to be reasonably necessary . 2 In other words, the question to be asked is whether there were other reasonable means by which Constable Burke could have addressed his concern about the appellant disappearing into the crowd, short of doing what he did.

If there were other reasonable means to ensure the appellant would not flee the scene, then detaining him in the police cruiser could not be said to be reasonably necessary and would thus have constituted an unlawful detention within the meaning of s. 9 of the Charter : Clayton , at para. 20 . [40] Without wishing to second-guess the actions of the police and recognizing, as I do, that the police are often required to make split- second decisions in fluid and potentially dangerous situations, I am nonetheless of the view that Constable Burke’s actions, though carried out in good faith, were not reasonably necessary. [ 68 ] Given the above analysis and case law from the Supreme Court of Canada, I find that the accused was also arbitrarily detained when Cst.

Thomaschefski instructed him to sit in the rear of the police cruiser as the detention was not authorized by law. 2. Did Cst. Thomaschefski have sufficient grounds to place the accused under arrest and demand a breath sample? [ 69 ] Police officers have the power under section 495(1) (

a) of the Criminal Code to arrest, without a warrant, anyone who has committed an indictable offence or who the officer has reasonable grounds to believe has committed or is about to commit an offence. [ 70 ]

Section 320.28(1) of the Criminal Code also authorizes an officer to require a person to accompany them for the purposes of giving a breath sample if the officer has reasonable grounds to believe that the person operated a conveyance while their ability to

operate it was impaired to any degree by alcohol. [71] The leading case law on the “reasonable grounds to believe” standard required for a lawful arrest and breath demand isBernshaw, Bush and Gunn. While these cases were decided under the former section 254(3) of the Criminal Code, the law remains thesame under the new

section 320.28 of the Criminal Code.

A police officer must hold an honest belief that the driver is impaired byalcohol, and there must exist reasonable grounds for the belief. (See R v Straiton-Garty, 2020 NSPC 7; R v Ross, 2020 ABPC 84; and R vShepherd, 2009 SCC 35, [2009] 2 SCR 527). [72] In Gunn, Caldwell, J.A. thoroughly discussed reasonable and probable grounds (now referred to as reasonable grounds tobelieve) when an officer makes a breath demand at paras. 7-9: [7] A police officer may not demand a breath sample of an individual unless the officer has "reasonable grounds to believe" theindividual has, within the preceding three hours, driven while impaired or while over the proscribed limit.

This means the officer mustsubjectively (or honestly) believe the individual has driven while impaired or "over .08" within the preceding three hours and that beliefmust be rationally sustainable on an objective basis (see: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 48). Thisdoes not mean that the Crown has to demonstrate a prima facie case for conviction (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527,at para. 23), let alone prove its case beyond a reasonable doubt (R. v.

Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127); rather, the standardof "reasonable grounds to believe" is one of lesser probability which simply requires the reviewing court to determine whether thefactors articulated by the officer who made the breath-demand were reliable and were capable of supporting the officer's belief that theindividual had driven while impaired or "over .08" within the preceding three hours. [8] Where an individual challenges the validity of a breath-demand on the basis that the police officer's belief was not reasonable, thequestion for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officerwould have believed the individual's ability to operate a motor vehicle was impaired (see: R. v.

Storrey, (SCC), [1990]1 S.C.R. 241, at p. 250; and R. v. Restau, 2008 SKCA 147, 314 Sask. R. 224 at para. 17). This is a question of law and a trial judge'sanswer to it is measured on appeal against the yardstick of correctness (see: R. v. Shepherd). [9] When determining whether the standard of "reasonable grounds to believe" has been met, it is important to keep in mind that a policeofficer need only believe an individual's ability to drive is slightly impaired. This follows on the ratio in R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, aff'd (SCC), [1993] S.C.C.A.

No. 90, [1994] 2 S.C.R. 478, where theOntario Court of Appeal held that, for the purposes of s. 253(1)(

a) of the Criminal Code, an impaired ability to operate a vehicle may beestablished where the Crown proves any degree of impairment from slight to great. As such, the precondition to an officer's authority tomake a breath-demand may be satisfied where, objectively speaking, an officer has reasonable grounds to believe an individual's abilityto drive is even slightly impaired by the consumption of alcohol (see: R. v.

Bush, at para. 48). [73] Gunn is unequivocal that there are two components to the reasonable grounds to believe standard: the officer mustsubjectively believe that the driver was impaired by alcohol and that belief must be objectively reasonable. [74] Much of the jurisprudence on this subject focuses on the objective aspect of the reasonable grounds test. It is not difficult tosee why. Generally, officers will subjectively believe they have the grounds to arrest before doing so. However, there are times whenthat subjective belief is simply not present. [75] During both direct and cross-examination, Cst.

Thomaschefski was asked about his subjective belief both in relation to hisgrounds for arrest and breath demand and whether he had a reasonable suspicion for an ASD demand. During direct examination Cst.Thomaschefski stated that based on his observations, he believed that the accused was driving under the influence of alcohol and arrestedhim for impaired driving. This belief was based on the accused’s inability to follow instructions; being unstable on his feet; and the odourof alcohol (that was not detected until after the accused had already been arrested and while Cst.

Thomaschefski was handcuffing him).The constable had noted earlier in direct examination the signs of slurred speech; slow, delayed, and deliberate responses; very dilatedpupils; and unsteadiness when standing outside of the police cruiser. However, when asked about the observations that informed hisopinion, these indicia were not offered. [76] It is also important to recognize that Cst. Thomaschefski was relying on the information relayed to him through Ms. Baryluk’s911 call. I have given Ms.

Baryluk’s evidence little weight due to the fact that she only had brief dealings with the accused; she waswrong about the accused driving the wrong way down a one-way street; and her view that the accused’s behaviour was such that hewould not be allowed to purchase alcohol was not corroborated since the accused was in fact allowed to do so. However, Cst.Thomaschefski was still entitled to rely on Ms. Baryluk’s 911 information in formulating his reasonable grounds. As noted in Bush, at

para. 66 , an officer is entitled to consider hearsay and incomplete sources in forming their reasonable grounds to believe. [ 77 ] However, in cross-examination Cst. Thomaschefski clearly and repeatedly stated that he did not have the reasonable suspicion necessary to make an ASD demand. He was specifically asked if he had a reasonable suspicion after his engagement with the accused at the BMW, during the walk to the police cruiser and when he put the accused in the rear of his police vehicle. Each time, Cst. Thomaschefski candidly admitted that he did not have a reasonable suspicion to make an ASD demand.

I accept that when the accused was placed in the rear of the police vehicle, Cst. Thomaschefski did not honestly believe that he had the authority to demand the accused blow into an ASD. [ 78 ] The video footage from the rear of the police cruiser showed that only a matter of seconds passed between the time the accused was seated in the police cruiser and when he was placed under arrest. Cst. Thomaschefski attempted to close the door which prompted the accused to stand up and ask if he was being arrested. Cst. Thomaschefski told the accused that he had not decided yet if he was going to arrest him.

But within a few seconds of stating that he was not sure if the accused was under arrest, Cst. Thomaschefski then told the accused that he was under arrest and began placing him in handcuffs. [ 79 ] Cst. Thomaschefski’s testimony and the video evidence demonstrate that the decision to arrest the accused was made in those few seconds. Cst.

Thomaschefski also agreed during cross-examination that the only thing that changed in that short period of time was that the accused had stepped out of the police cruiser. [ 80 ] Circumstances may arise where an officer gains the reasonable grounds needed to lawfully arrest someone within seconds. Officers find themselves in dynamic and rapidly evolving situations everyday. However, the evidence here demonstrates that Cst. Thomaschefski did not subjectively believe that he had a reasonable suspicion to make an ASD demand at the point that the accused was seated in the police cruiser.

There was no evidence presented that spoke to what changed in Cst. Thomaschefski’s mind in those few seconds. In fact, the evidence available shows that the only thing that changed was that the accused stood up and inquired about the situation which resulted in him being arrested and handcuffed. Cst. Thomaschefski did mention detecting an odour of alcohol but that was only after the accused had already been arrested and he was placing him in handcuffs. [ 81 ] While Cst.

Thomaschefski did testify in direct examination that he subjectively believed the accused was driving under the influence of alcohol and so that is why he arrested him for impaired driving, given his admissions during cross-examination, I cannot accept that to be the case. If Cst.

Thomaschefski did not subjectively believe that he had met the lower standard of reasonable suspicion of alcohol in his body needed for an ASD demand, he could not possibly have believed that he had met the higher standard of reasonable grounds to believe his ability to operate a vehicle was impaired by alcohol necessary to make an arrest and breathalyzer demand. He acknowledged that he intended to put the accused in the back seat of his police vehicle regardless, as was his standard practice. I find that Cst.

Thomaschefski did not possess the subjective belief that he had the requisite reasonable grounds to believe needed to arrest the accused and subsequently demand that he provide a sample of his breath. As a result, the arrest and the breath demand were made unlawfully. [ 82 ] In the event Cst.

Thomaschefski did have a subjective belief that he had grounds for an arrest and breath demand, his belief would not have been objectively reasonable. [ 83 ] In R v Vavra , 2016 SKQB 219 , Currie, J., at para 19, provided guidance for determining if an officer’s belief was objectively reasonable: [19] When a trial judge is determining whether a reasonable person in the shoes of the police officer would believe that the driver was impaired, that determination must be based on whether the factors known to that officer are rationally capable of supporting the inference of impairment ​— not on whether those factors establish that the driver actually was impaired or even that the driver likely was impaired.

Further, the inference of impairment does not have to be the only possible inference that could be drawn from the factors. [ 84 ] When the accused was arrested, the following was known to Cst. Thomaschefski: there was a report of an impaired driver who was staggering; the accused did not have anything to drink; he did not smell of alcohol; his responses were delayed, deliberate and slow; his pupils were dilated; he had slurred speech; and he asked for a cigarette a few times indicating some inability to follow instructions.

As mentioned earlier, I do not accept that the accused’s driving was erratic; that he was unsteady on his feet; or that he was taking wide steps while walking. Furthermore, I am unsure as to whether the accused bumped into the police cruiser. This evidence was not reliable and capable of supporting Cst. Thomaschefski’s belief.

[ 85 ] While this case is a close call, I do not find that Cst. Thomaschefski’s observations rationally supported an inference that the accused’s ability to operate a motor vehicle was impaired by alcohol. Cst. Thomaschefski did not observe any reduced motor skills or physical incoordination related to driving. The real reason he arrested the accused is because he became frustrated with Mr.

Kelln who was not co-operating with his request to get into the back seat of the police cruiser, not because he had gained sufficient grounds to demand a sample of his breath for an ASD or alcohol breathalyzer testing purposes. As a result, Cst. Thomaschefski did not have grounds to arrest the accused for impaired driving under

section 495 of the Criminal Code or demand a sample of his breath under

section 320.28 of the Criminal Code . The arrest and breath demand were both legally invalid. 3. If the accused’s

section 9 Charter rights were violated, what is the appropriate remedy? [ 86 ] The accused seeks to have excluded any evidence that was gathered pursuant to the breaches of the accused’s

section 9 rights, including observations of impairment. [ 87 ] When an accused seeks a remedy under section 24(2) of the Charter in relation to a Charter breach, the judge must balance the impact of excluding the evidence with the overall and long-term repute of the justice system to find the appropriate remedy. In doing so, consideration must be given to three factors outlined by the Supreme Court of Canada in Grant . 1.

The seriousness of the Charter-infringing conduct [ 88 ] In determining the seriousness of the conduct, it is important to note that state conduct must be viewed along a spectrum; on one end, inadvertent and minor violations and on the other end, deliberate and severe violations ( Grant at paras. 72-74 ). The more serious the violation, the more it weighs in favour of exclusion. [ 89 ] There are a number of considerations that may move the needle one way or the other. Here, the fact that Cst.

Thomaschefski had a standard practice of detaining drivers by requiring them to sit in the back seat of his police cruiser when conducting impaired investigations is of particular importance. While his actions were not malicious or in bad faith, the absence of these factors does not reduce the seriousness.

In Aucoin , despite their other differences, all members of the Court held that the standard practice of putting an accused in the rear seat of the police vehicle during alcohol-related investigations raises the seriousness of the breach ( Aucoin at paras. 45, 48 and 101 ). [ 90 ] That is not to say that ordering a person out of their vehicle and into a police cruiser will always increase the severity of Charter breaches; whether or not the actions rise to that level is a fact-specific inquiry. Here, the fact that Cst.

Thomaschefski did not have the grounds to do either and did not take the time to consider whether putting the accused in the back of the police cruiser was even necessary demonstrates a pattern of disregard for Charter values, making the breach that much more aggravating and serious. This was not an isolated incident or passing mistake and can only be classified as a pattern of abuse.

As such, the Court must distance itself from such conduct in order to avoid sending a message that Charter rights can be routinely disregarded. [ 91 ] The seriousness is also heightened by the fact that other options were available to Cst. Thomaschefski. Arbour, J.A. writing for a unanimous Supreme Court of Canada in R v Buhay , 2003 SCC 30 , 174 CCC (3d) 97 [ Buhay ] at para 63 , stated that failure of the police to explore other investigative techniques available showed a lack of effort to comply with the Charter .

When asked about options such as having the accused blow in his face or leaning in closer to the accused in order to attempt to detect an odour of alcohol, Cst. Thomaschefski acknowledged those were options available to him.

The fact that this evidence could have been obtained in a manner that did not infringe the accused’s rights further leads to the need for the Court to condemn this kind of behaviour. [ 92 ] The Supreme Court of Canada has been abundantly clear: “ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith” ( Grant at para. 75 ). As such, this factor weighs heavily in favour of exclusion. 2. The impact on the Charter-protected interests of the accused

[ 93 ] This branch of the inquiry evaluates to what extent the breach actually undermined the interests of the accused that the rights engaged seek to protect. Here, the interest at play is the accused’s individual liberty while driving which is a form of qualified privilege. Being detained by the police, whether physically or psychologically, results in a person not being able to drive or walk away. They have no other option but to comply and are at the mercy of the state. [ 94 ] Brown, J.A. and Martin, J.A., writing for the majority of the Supreme Court of Canada in Le at para. 153, recently commented on what is truly at stake when a person’s

section 9 Charter rights are breached: [153] The stakes are, therefore, undeniably high when a court is presented with a breach of s. 9. The "interest" to which courts must be attuned is not merely in walking into a house, or down the street. These activities are but manifestations of the interest in one's liberty to make decisions, including decisions of fundamental importance, free from state interference ( Grant , at para. 20 ).

These freedoms are to be equally enjoyed by everyone. [ 95 ] Much like the seriousness factor, the impact on the accused is also a spectrum, ranging from “fleeting and technical to profoundly intrusive” ( Grant at para. 76 ). While the impact on the accused here does not fall squarely into the profoundly intrusive category, it is far from fleeting or technical. [ 96 ] Initially, it would appear that the first arbitrary detention breach at the accused’s vehicle did not have much of an impact overall on the accused’s liberty.

Being forced to exit his vehicle and demonstrate his ability to stand and walk properly was minimally intrusive and relatively short. However, the second arbitrary detention breach at the police cruiser compounded the overall effect of the first breach and interfered substantially with the accused’s personal liberty.

The accused was searched, arrested, handcuffed, locked in the back seat of the police vehicle, transported to the police station, held in custody, subjected to a breathalyzer, searched again and held in police cells overnight. [ 97 ] While these multiple interferences with liberty may have been justified if the officer had reasonable grounds and it was necessary to confine him in the back seat to conduct an ASD test, Cst. Thomaschefski acknowledged that was not the case here.

The officer did not even have reasonable grounds to suspect that the accused had alcohol in his body, much less reasonable grounds to suspect or believe that he was an impaired driver. The complete lack of subjective grounds resulting in multiple arbitrary detentions interfering with individual liberty makes the overall impact of the breaches that much more serious. [ 98 ] Ultimately, these types of deliberate, continuing and escalating forms of breaches had a profound impact on the accused.

The complete removal of the accused’s physical liberty for an extended period of time strongly supports exclusion of the evidence. 3. Society’s interest in the adjudication of the case on its merits [ 99 ] Society has a legitimate interest in seeing cases of impaired driving adjudicated because of the frequency of this type of crime and its impact on innocent members of the public. However, the particular circumstances of this case are a minor offence of its kind. There was no accident or injury and no evidence of poor or bad driving.

The accused displayed minimal indicia of impairment and the Crown chose to proceed summarily. [ 100 ] The evidence at stake is the observations of impairment made by Cst. Thomaschefski. This evidence is important to the Crown’s case as it forms the basis for the impairment charge and the grounds for the breath demand that ultimately led to the refusal charge. [ 101 ] However, I have already found that some of Cst.

Thomaschefski’s observations were not reliable and while the balance of his observations may not be unreliable, they do not rise to the level of reliability of other kinds of bodily evidence such as blood alcohol readings accompanied by a Certificate of Qualified Technician.

Additionally, the evidence supporting the refusal to provide a breath sample is tenuous as the accused appeared to show a willingness and effort to provide suitable breath samples and was offered another chance after his final attempt, but that chance never materialized. [ 102 ] Given the above analysis, although the third factor invariably supports inclusion of reliable evidence, I find that the weight of

that support is reduced in this case. This factor weighs in favour of inclusion, albeit only slightly. [ 103 ] Balancing all three lines of inquiry, I find that the admission of the evidence would bring the administration of justice into disrepute. The Court must distance itself from the police misconduct in this case for the long-term repute of the justice system. 4. Exclusion of the evidence [ 104 ] Having found that the accused’s

section 9 Charter rights were breached and that these breaches weighed in favour of exclusion, I must now determine what evidence was obtained in a manner that infringed or denied the accused’s rights. Defence counsel seeks to have any evidence gathered pursuant to the breaches, including in particular the observations of the accused at the roadside, excluded. The effect of granting this request would be that all signs of impairment from the time that Cst. Thomaschefski approached the vehicle to when the accused was arrested, including those used to support the arrest and breath demand, would be excluded.

While the breach of the accused’s rights does require exclusion of evidence gathered at the roadside, it does not follow that all of that evidence was gathered in a manner that infringed his rights. [ 105 ] The traffic stop was authorized by law, so the indicia of impairment gained through the initial interaction at the BMW were not connected to the arbitrary detention and cannot be excluded. [ 106 ] However, given that the accused’s

section 9 Charter rights were breached when Cst. Thomaschefski directed the accused to exit his vehicle, all indicia of impairment gathered afterwards were obtained as a result of that breach and warrant exclusion. [ 107 ] Even if the detention outside the accused’s vehicle was not one which would warrant in itself the exclusion of evidence, it was nevertheless sufficiently connected to the second unlawful detention at the police vehicle so as to warrant exclusion of evidence following both detentions.

That is, there is a nexus between the police instruction to the accused that he exit his vehicle and walk to the police vehicle and the police instruction to the accused that he sit in the back of the police vehicle that would warrant exclusion of all evidence obtained following both these directions. [ 108 ] Cst. Thomaschefski testified that it was his standard practice to have motorists: 1) exit their vehicle and walk to the police vehicle in order to assess their gait; and 2) sit in the back of the police vehicle to see if he could detect an odour of alcohol. [ 109 ] Cst.

Thomaschefski’s standard practices are connected. Having a person exit their vehicle and walk to the police vehicle serves to facilitate having the person sit in the police vehicle.

In the accused’s case, there is a clear link between being asked to exit his vehicle and enter the police vehicle. [ 110 ] The Saskatchewan Court of Appeal in R v Moyles , 2019 SKCA 72 [ Moyles ], and recently confirmed in R v Lichtenwald , 2020 SKCA 70 , 388 CCC (3d) 377 [ Lichtenwald ] adopted the following factors from R v Pino , 2016 ONCA 389 , 337 CCC (3d) 402 at para 72 , to guide courts when engaging in the “obtained in a manner” analysis required by section 24(2): The approach should be generous, consistent with the purpose of s. 24(2)[.] The court should consider the entire "chain of events" between the accused and the police[.] The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct[.] The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.

But the connection cannot be either too tenuous or too remote.

( Moyles at para. 97 ; Lichtenwald at para. 57 ) [ 111 ] The evidence excluded as a result of a breach is often evidence obtained after the breach occurred.

However, the Saskatchewan Court of Appeal in Lichtenwald , at para. 58 , also adopted Laskin, J.A.’s conclusion that evidence obtained before a Charter breach may also meet the “obtained in a manner” requirement of section 24(2) of the Charter . [ 112 ] When I consider all of these factors, the antecedent evidence gained from when the accused was ordered to exit his vehicle to when the accused was arbitrarily detained at the police cruiser meets the “obtained in a manner” requirement.

There was no break in the chain of events preceding the breach, from the moment the accused was directed to exit his vehicle and walk to the police vehicle to the moment he was arrested and placed in the back seat of the police vehicle, making them part of the same course of conduct. The indicia of impairment gathered as a result of the accused being forced to exit his vehicle and walk back to the police vehicle is contextual, temporal and causal to the breach of being forced to sit in the back of the police vehicle. It was all part of the same standard practice and same transaction that gave rise to the breach.

Finally, the connection is not tenuous or remote. [ 113 ] For these reasons, I order that all evidence following the direction to the accused to exit his vehicle, including the observations of impairment supporting the unlawful arrest and breath demand, shall be excluded from the evidence in the trial proper as it was obtained in a manner that violated the accused’s

section 9 Charter rights. 4. Was any of the roadside evidence compelled and not admissible at trial? [ 114 ] Defence counsel submitted that even if a breach did not occur, all evidence gathered after the accused was directed to exit his vehicle was compelled evidence.

The result of a finding that this evidence was compelled would be that all evidence gathered after the accused exited his vehicle would be admitted on the voir dire to establish grounds for the arrest and breath demand but would not be admitted on the trial proper for the purposes of proving the charge of impairment. [ 115 ] The limitation on the use of compelled evidence at the roadside is referred to as the limited use immunity doctrine of law which provides that lawfully obtained evidence conscripted from a detainee through roadside sobriety testing is admissible to establish grounds for an arrest or detention, but such evidence is not admissible as proof of actual alcohol consumption or impairment ( R v Roberts , 2018 ONCA 411 , 360 CCC (3d) 444 [ Roberts ], per Paciocco J.A. at para 82). [ 116 ] What constitutes compelled evidence (also referred to as conscripted evidence) and the use that can be made of such evidence in impaired driving cases was first discussed in Milne and Orbanski .

In Milne , the Ontario Court of Appeal found that evidence from roadside sobriety tests was compelled and not admissible to prove impairment. In Orbanski , the majority of the Supreme Court of Canada extended the compelled nature of roadside screening measures to include questions about alcohol consumption. [ 117 ] The reason compelled evidence is only admissible as grounds for belief of an officer and not for guilt of an accused is because it provides a justifiable limit to the violation of an accused’s

section 7 (right against self-incrimination) and

section 10(b) (right to counsel) at the roadside. At the time Milne and Orbanski were decided, it was not practically feasible for police to give rights to counsel at the roadside to persons detained for impaired driving investigations. However, with advances in technology and the prevalence of mobile smart phones, it is now possible to afford rights to counsel at the roadside and this historical justification for the infringement of an accused’s Charter rights has withered with time. [ 118 ] The idea that an accused person can be compelled to provide self-incriminating evidence that is used as proof at trial, during a time that their

section 10(

b) rights are suspended, is anathema to the way Charter rights and values have been developed and applied over time in Canada.

For these reasons, a broad and purposive approach should be taken to the concept of compelled evidence at the roadside to reinforce the reasonableness of the limit placed on the infringement of the accused’s Charter rights. [ 119 ] While Milne and Orbanski provided some examples of what would be considered compelled evidence in roadside testing, they did not provide clear guidance for determining when evidence crosses the threshold into being compelled. [ 120 ] Over the years, superior and appellate level courts have wrestled with where to draw the line for compelled evidence in relation

to the limited use immunity rule. In Ontario, the decision in R v Quenneville, 2009 ONCA 325 [Quenneville] took a narrow approach,stating in the two-paragraph decision: [1] The line drawn in R. v. Milne (1996), (ON CA), 107 C.C.C. (3d) 118 (Ont. C.A.) as to the limitation on the use ofevidence acquired at the roadside, is evidence obtained through the "compelled direct participation" in sobriety trials. The observationsmade as the respondent exited his vehicle, even in response to a direction from the officer, is not compelled direct participation in theroadside tests so as to attract the limitation on use.

See R. v. Milne at para. 40 as approved in R. v. Orbanski, 2005 SCC 37 ,[2005] 2 S.C.R. 3 at para. 58. [121] Shortly following Quenneville was R v Iannotta, [2009] OJ No 5181 (QL) (Ont Sup Ct) [Iannotta] where Hill, J., sitting as thesummary appeal court justice, heard an appeal where the officer testified that the purpose of having the accused exit the vehicle was toobserve his movements when getting out of the vehicle. Hill, J. found that based on this testimony, compliance with the officer’sdirection to exit was the sobriety test (Iannotta at para. 54).

The addition of Iannotta into the jurisprudence added to the Quennevilleapproach but only in circumstances where the officer clearly stated that their purpose for having a person exit the vehicle was to test theirability to get out of the vehicle. [122] The Ontario Court of Appeal in R v Brode, 2012 ONCA 140, 286 CCC (3d) 347 [Brode] endorsed the finding in Iannotta thatwhere there was a clear conscripted motive on the part of the officer to use the actions of exiting the vehicle as a sobriety test, thatevidence would be considered compelled (Brode at para. 68).

The required conscripted motive approach of Brode was subsequentlyadopted in the Alberta decision of R v Kangas, 2013 ABQB 383 [Kangas]. However, in both Brode and Kangas it was found that theofficers did not demonstrate a conscripted motive and the evidence was found to be admissible for proof of impairment. [123] In contrast to the Ontario approach is the British Columbia Court of Appeal’s decision in R v Visser, 2013 BCCA 393, 300CCC (3d) 388 [Visser].

In Visser, the British Columbia Court of Appeal questioned the decision in Brode, finding that if an officerdirects a motorist to exit their vehicle to assess their sobriety or alcohol consumption, any evidence gathered afterwards is compelledeven if the directed act is not a sobriety test (Visser at para. 69). [124] Greckol, J., in Kangas at paras. 49-50, identified the difficulty with the different approaches in Ontario and British Columbia: [49] It is difficult to rationalize why evidence of observed stumbling or of a staggering gait after the driver is compelled under s 254(2)[now

section 320.27(1)] of the Code or applicable provincial legislation to exit the vehicle has been held to be admissible to proveimpairment when conscriptive evidence of admitting to alcohol consumption, of sobriety tests, or of roadside test results (prior to s 10(b)rights having been afforded) has been held to be inadmissible for that purpose.

The logic behind the line drawing is not well explained inthe case law and is difficult to discern, unless based on policy considerations. [50] The distinction the court appears to have made in Brode is between compelling the driver to get out of the vehicle so the impairedinvestigation could continue and compelling the driver to provide evidence of sobriety by getting out of the vehicle. It is, perhaps, a finedistinction. In both cases, the driver has been detained and not afforded his s 10(

b) rights. In both cases the driver is being compelled toexit the vehicle so the police may further investigate whether reasonable grounds exist under s 254(3) [now

section 320.28(1)] to requirea breath sample. [125] It is against this backdrop that Scherman, J. made his findings in R v Laliberte, 2014 SKQB 242, 453 Sask R 179 [Laliberte],the leading decision in Saskatchewan. After reviewing these decisions and the decision in R v Hult, 2008 SKQB 52 [Hult], Scherman, J.departed from Hult and endorsed the narrower approach of Quenneville at para. 27: [27] Based on my review of the authorities above, I have concluded that while the trial judge may well have been bound tofollow Hult, I am not and should not.

I conclude that as a matter of law it is only responses to questions asked of drivers relating toalcohol consumption and evidence of a driver's performance in relation to requested sobriety tests that are compelled orconscriptive evidence and thereby excluded from consideration as evidence on the issue of impairment. [Emphasis added] [126] Scherman, J.’s adoption of the Quenneville approach was the product of a desire to achieve consistency in the application of the

compelled evidence limitation in impaired cases having due regard to subsequent decisions of appellate courts from other jurisdictions in Canada, at para. 25: [25] Since the Criminal Code applies throughout Canada and is interpreted and applied by courts throughout Canada, the principle of stare decisis should be applied in a manner that recognizes that courts throughout Canada are providing decisions on the same issues. A consistent approach throughout Canada seems to be preferable to varying approaches in different jurisdictions.

In applying the principle that a judge of this court should only go against a judgment of another judge of this court if subsequent decisions have affected the validity of the impugned judgment, I conclude that regard can and should be had to subsequent decisions of the superior and appeal courts of other jurisdictions. [Emphasis added] [ 127 ] Since Laliberte , the Ontario Court of Appeal has again weighed in on this issue in Roberts . Ms. Roberts had been drinking at a restaurant before driving home. On the way, she turned into the path of an oncoming vehicle on the highway, causing a collision.

When the investigating officer, Cst. Hart, arrived, he found Ms. Roberts outside of her damaged vehicle. He asked her to come with him to the police vehicle as part of his investigat

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