Her Majesty the Queen - v. -, 2016 SKPC 079

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 079 Date: May 5, 2016 Information: 46372977 Location: Meadow Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mitchell Brian Suteau Appearing: Michelle Baldwin For the Crown Ronald Piché For the Accused DECISION M. MARTINEZ , J Introduction [ 1 ] On May 10, 2015, RCMP Constables Cory Buckingham and Ken Wilkins were on duty, in uniform, and patrolling the City of Meadow Lake and area in a marked police vehicle. Cst. Buckingham was driving. [ 2 ] Shortly before 3 o’clock in the morning, Cst. Buckingham drove into the Flying Dust

First Nation Reserve which is adjacent to Meadow Lake. Almost immediately, a white Ford pickup truck drove past the police vehicle travelling in the opposite direction. According to Cst. Buckingham, it seemed to be travelling faster than vehicles typically travelled on that road and so he decided to turn his police vehicle around to follow the Ford truck. [ 3 ] The constable decided to stop the truck when he saw it slow but not completely stop at a stop sign before driving onto Highway 55.

The pickup truck pulled over on the highway moments after the officer engaged the police vehicle’s emergency lights. [ 4 ] After stopping behind the Ford pickup, Cst. Buckingham approached the driver’s side of the truck. The driver’s window was down and he detected what he described as an “overwhelming odour of alcohol” coming from the interior of the pickup truck. The officer immediately turned his mind to an impaired driving investigation. [ 5 ] There were several obviously intoxicated passengers in the truck. As for the driver, Cst.

Buckingham testified that his eyes were glossy and that he had a “possible” slight slur when he spoke. The officer asked the driver for his driver’s license. The driver identified himself as the defendant, Mitchell Suteau, but could not locate his license. When Cst. Buckingham asked him whether he had had anything to drink, Mr. Suteau responded affirmatively and said that he had consumed his last drink two hours earlier. [ 6 ] Because of the strong odour of alcohol emanating from the cab of Mr. Suteau’s truck, Cst. Buckingham could not tell whether the defendant had the smell of alcohol on his breath.

The officer believed that in order to determine whether Mr. Suteau’s breath smelled of alcohol, he needed to get Mr. Suteau away from the truck. For this reason, the constable told Mr. Suteau to get out of his truck, and then directed him to sit in the back seat of the police vehicle. [ 7 ] Soon after Mr. Suteau entered the police vehicle, Cst. Buckingham noted the odour of alcohol on his breath and demanded that he provide a roadside breath sample for analysis in an approved screening device (an ASD ), pursuant to s. 254(2) (

b) of the Criminal Code . [ 8 ] Mr. Suteau repeatedly refused to provide a breath sample despite being warned about the legal consequences of refusing to do so. Mr. Suteau then asked to speak to a lawyer. Cst. Buckingham explained to him that an ASD demand did not trigger Mr. Suteau’s right to counsel and him another opportunity to provide a breath sample. Mr. Suteau’s response was to turn his head away and say “No. I’m not going to blow. Just take me to jail.” Cst.

Buckingham promptly accommodated the defendant’s request by arresting him for refusing to provide a breath sample contrary to s. 254(5) of the Code . [ 9 ] Mr. Suteau’s trial proceeded as a blended voir dire and trial. [ 10 ] The issue to be determined in the voir dire is whether, under s. 24(2) of The Charter of Rights and Freedoms , I should exclude from evidence at trial, the odour of alcohol on the defendant’s breath, without which, Cst. Buckingham would not have had the evidentiary foundation to support his ASD demand.

The defendant submits that the reason why I should exclude the evidence is because the officer obtained that evidence by infringing his right to be free from arbitrary detention and his right to be told the reasons for his detention – rights protected under s. 9 and subsection 10(

a) of the Charter . [ 11 ] The Crown argues that Mr. Suteau’s detention was not arbitrary as, in an impaired driving investigation, a police officer is permitted to ask a detained driver to exit their vehicle

for the purpose of isolating them from the smell of alcohol in their vehicle. As for the alleged infringement of the defendant’s right to be told the reason for being detained, the Crown submits that, in the circumstances, the officer did not have to tell Mr.

Suteau the reason for his detention as the reason should have been obvious to him. [12] If I find that the officer infringed the defendant’s Charter-protected rights, the Crown’s alternative argument is that I should not exclude any evidence as the infringements were trivial and had little impact on the defendant. [13] The defendant’s second, and rather novel submission, is that if I admit the odour of alcohol into evidence at trial I still should dismiss the charge against him because the Crown has not proven the mens rea of the offence.His argument is that he mistakenly believed he had the right to talk to a lawyer before providing a breath sample, that he never waveredfrom this belief and intention, and for this reason I must find that I have a reasonable doubt about the mental element of his refusal.

TheCrown’s position is that it has proven all of the elements of the offence and that the defendant’s misapprehension of the law does notafford him a defence to the charge. [14] I will deal with the voir dire issues before addressing the mens rea defence. Voir Dire Sections 9 and 10(

a) of the Charter [15]

Section 9 of the Charter of Rights and Freedoms protects everyone’s right not to be arbitrarily detained by state authorities. A detention without lawful authority is arbitrary; see R v Mann, 2004 SCC 52, at para 20. [16] Whenever a driver pulls over and stops their vehicle in response to a police officer’s signal or demand that they do so, that driver is detained within the meaning of s. 9 of the Charter; see R v Ladouceur, [1990] 1 SCR1257, at p 1277, (SCC). [17] The defendant concedes that his detention was lawful when Cst.

Buckingham first stopped him for rolling through a stop sign but submits that it became unlawful, and for this reason arbitrary, when the constabledemanded that he get out of his truck. The Crown submits that his detention was lawful throughout. [18] In this case, Mr. Justice Binnie’s observation that “roadside stops sometimes develop in unpredictable ways”, is apt; see R v Nolet, [2010] 1 SCR 851, 2010 SCC 24. Mr. Suteau’s roadside stop for a traffic safety infractionalmost immediately transformed into an impaired driving investigation.

In such cases, at paragraph 4 of Nolet, Justice Binnie cautionedthat: “It is necessary for a court to proceed step by step through the interactions of the police and the appellants from the initial stop onwardsto determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfullyobtained at each stage of their inquiry.” [emphasis added] [19] For this reason, I will review the parameters of the officer’s authority to detain the defendant during his impaired driving investigation.

[ 20 ]

Section 209.1of The Traffic Safety Act , SS 2004, c T-18.1 [the TSA ] authorizes a police officer to detain and investigate motorists. Although the authority to detain and investigate motorists under s. 209.1 is reasonably broad, it is not a general power of detention for investigative purposes; see R v Koma , 2015 SKCA 92 , at paras 80 and 81 . Subsection 2 of s. 209.1 limits police powers to obtaining information about the detained motorist’s identity and about their consumption of alcohol or drugs before and while they were driving, and in certain circumstances, required them to perform field sobriety tests:

(2) A peace officer may, at any time when a driver is stopped pursuant to subsection (1): (

a) require the driver to give his or her name, date of birth and address; (

b) request information from the driver about whether and to what extent the driver consumed, before or while driving, alcohol or any drug or other substance that causes the driver to be unable to safely operate a vehicle; and (

c) if the peace officer has reasonable grounds to believe that the driver has consumed alcohol or a drug or another substance that causes the driver to be unable to safely operate a vehicle, require the driver to undergo a field sobriety test. [ 21 ] The inquiry under subsection 2(

a) generally entails asking the driver for their operator’s license and vehicle registration. The inquiry under subsection 2(

b) will include asking whether the driver consumed any alcoholic beverages before driving, and may include questions about the kind of beverage alcohol they drank, how many drinks they consumed, and when they had their last drink.

While asking these questions a police officer will take note of any visible physical signs that the motorist’s ability to drive may be impaired. [ 22 ] If, after this roadside investigation, the police officer has objectively reasonable grounds to believe that the person’s ability to drive is impaired by alcohol or that the volume of alcohol in their blood exceeds 80 milligrams in 100 millitres of blood, the officer can arrest the detainee and demand that they provide breath samples for analysis in an approved instrument; see Criminal Code of Canada , ​​​ s. 254(3) . [ 23 ] Under the TSA , if the evidence gleaned by the officer falls short of reasonable grounds to believe that the detainee’s ability to operate a motor vehicles is impaired by alcohol, but leaves the officer with reasonable grounds to believe that the driver cannot safely operate a motor vehicle due to alcohol consumption, the officer may detain the driver for the purpose of having them perform field sobriety tests. [ 24 ] If a police officer does not have enough evidence to support either of the “reasonable grounds to believe” described above, but has objectively reasonable grounds to suspect that the detained driver has alcohol in their blood, the officer may continue their detention for the purpose of providing breath samples for analysis in an ASD or to require them to participate in field sobriety tests under the Criminal Code ; see s. 254(2) . [ 25 ] The foregoing represents the extent of a police officer’s statutory authority to detain a driver at the roadside in an impaired driving investigation. [ 26 ] Aside from their statutory power to detain suspected impaired drivers, police officers possess the common law power to detain, for investigative purposes, suspects who they reasonably believe to be involved in a particular criminal activity; see R v Mann , 2004 SCC 52 , at para 45 .

In Mr. Suteau’s case, that criminal activity would be either of the drinking and driving offences under s. 253 of the Criminal Code , which offences are commonly referred to as impaired driving and driving while over 08.

[27] Cst. Buckingham lacked objectively reasonable grounds to even suspect that Mr. Suteau had alcohol in his body, let alone that his ability to drive was impaired by alcohol. For this reason he did not have the reasonable groundsnecessary for investigative detention at common law. [28] The officer wanted Mr. Suteau to exit his truck because he could not tell whether the defendant’s driving ability was impaired, and he could not tell whether Mr. Suteau had alcohol on his breath which would have providedreasonable grounds to suspect that he had alcohol in his body. As such, Cst.

Buckingham had exhausted his lawful statutory and commonlaw powers to continue detaining Mr. Suteau. Consequently, Mr. Suteau’s detention, outside of his truck, was arbitrary. [29] The next question is whether the officer was required to tell Mr. Suteau why he was being detained. [30] Subsection 10(

a) of the Charter provides that “everyone has the right, on arrest or detention, to be informed promptly of the reasons therefor”. The Crown submits that, despite the mandatory wording of subsection10(a), Cst. Buckingham did not have to tell Mr.

Suteau the reason for his detention because, in all of the circumstances, the reasonshould have been obvious to him. [31] In support of its argument, the Crown referred me to R v Carriere, 2010 SKPC 118, and to the following paragraph from R v Gross, 2012 ABPC 286, which paragraph has been cited with approval in at least two SaskatchewanProvincial Court decisions, namely, R v Glass, 2013 SKPC 31 , 2013 SKPC 031 and R v Niewenhuizen, 2014 SKPC 34, 2014 SKPC 034: R v Gross, at para 68 “A cautious and diligent police officer will verbally advise detainees why they have been stopped at roadside, why they are asked to exittheir motor vehicle and why they are being taken to a police vehicle.

This, even when the circumstances make those reasons obvious.The case of Klug reinforces the value of doing so. Nevertheless, the fact that this would prevent needless litigation of this issue orotherwise constitute a ‘best practice’ does not elevate it to the status of a constitutional norm. I am satisfied on the basis of bindingauthority that, where the reasons are obvious and the detainee, as here, understands the nature of the process underway, additional verbaladvice is not constitutionally mandated.” [emphasis in original] [32] The first case, R v Carriere, does not assist the Crown.

In Carriere, the Court found that the police officer, using informal language, told the defendant that he wanted him to step out of his vehicle and go to the police vehiclefor the purpose of conducting an ASD test; see paras 9 and 24. As Judge (now Justice) Kalmakoff observed, informal words weresufficient in the context. In the case before me, there is no evidence that Cst. Buckingham gave Mr.

Suteau any reason, informallyworded or otherwise, for asking him to step out of his vehicle. [33] Turning to R v Gross, in my respectful opinion, the learned Provincial Court judge’s comments in that case may reflect the state of the law in Alberta, but they do not apply in Saskatchewan. [34] The requirement that a police officer tell a person why they are being detained is not an onerous obligation. Technical language need not be used. The obligation is not onerous, but it is mandatory: R v Mann, supra, at para 21 “Section 10(

a) of the Charter provides that “[e]veryone has the right on arrest or detention to be informed promptly of the reasons therefor.” At a minimum, individuals who are detained for investigative purposes must therefore beadvised, in clear and simple language, of the reasons for the detention.”

R v Orbanski, [2005] 2 SCR 3, 2005 SCC 37, at para 31 “The Crown conceded that Orbanski and Elias were each detained within the meaning of s. 10(

b) of the Charter when pulled over by thepolice…It may be more readily apparent how being stopped and pulled over by the police amounts to a detention for s. 10 purposeswhen s. 10(

a) of the Charter is considered. I suspect every motorist would fully expect “to be informed promptly of the reasons” why heor she is being stopped.” [emphasis added] R v Evans, [1991] 1 SCR 869, at p 888, (SCC) “When considering whether there has been a breach of s. 10(

a) of the Charter, it is the substance of what the accused can reasonably besupposed to have understood, rather than formalism of the precise words used, which must govern. The question is whether what theaccused was told, viewed reasonably in all of the circumstances of the case, was sufficient to permit him to make a reasonable decision todecline to submit to arrest [or detention]…” [emphasis and bracketed words added] [35] Recently, the Saskatchewan Court of Appeal dealt with this very issue in R v Koma, 2015 SKCA 92. In that case, the defendant was driving when his vehicle collided with another.

The collision injured some occupants in theother vehicle. One of the officers investigating the collision placed the defendant in the back seat of her police cruiser in order toquestion him about the accident and assess his state of sobriety. What she did not do is tell him why she wanted him to have a seat in thepolice vehicle. Under the circumstances – namely, a police investigation of a motor vehicle accident causing injury – the Court of Appealfound that, while the defendant ought to have a general understanding of why he was being detained, the police officer infringed his s.10(

a) right by not telling him the reasons for his detention: R v Koma, at para 95, per Caldwell, JA “So, while Mr. Koma might be reasonably presumed to have had a general understanding of why he was being detained given thecircumstances, it is clear from the record that the constable never actually told Mr. Koma why he was being detained. Given this fact andthe dicta in R v Evans—and regardless of the Crown’s concession—there was simply no basis upon which the judge could haveconcluded that Mr. Koma had had a reasonable opportunity to decide to decline to submit to the detention, or alternatively, to underminehis right to counsel under s. 10(

b) of the Charter. As such, I find there is simply no basis upon which to displace the judge’s conclusionthat Mr. Koma’s rights under s. 10(

a) of the Charter had been infringed in this case.” [emphasis in original] See also, para 104 “…Whenever the state detains an individual, s. 10(

a) demands that the state advise the individual of the reasons therefor. This is astraightforward legal requirement that flows directly and obviously from the clear language of s. 10(

a) of the Charter.” [emphasis inoriginal] [36] In light of Koma, the law in this province is very clear. In Saskatchewan, a police officer’s failure to tell a suspect why they are being detained is an infringement of the detainee’s Charter-protected right to be soinformed. [37] The remaining question is what should be the consequence of the police officer’s Charter-infringing conduct.

Section 24(2) [38] When deciding whether or not to exclude evidence resulting from Charter-infringing conduct, I must assess the seriousness of the Charter-infringing conduct and its impact on the defendant’s Charter-protected interests,and then weigh these factors against society’s interest in seeing the case against the defendant adjudicated on its merits; see R v Grant,[2009] 2 SCR 353, 2009 SCC 32, at para 71.

[39] The focus of the first line of inquiry is on whether public confidence in the rule of law would be eroded by admitting the evidence. Minor or inadvertent violations of Charter-infringing conduct minimally undermine thatpublic confidence; whereas, evidence obtained through willful or reckless disregard of Charter-protected rights might risk bringing theadministration of justice into disrepute; see Grant, a paras 72-74. [40] In an earlier decision of mine involving Cst.

Buckingham, I found that he knowingly and deliberately arbitrarily detained the defendant in that impaired driving investigation; see R v Bannerman, 2016 SKPC 33, at paras 46 and47. On the evidence before me in this case, I cannot come to the same conclusion. [41] Although Cst. Buckingham is an experienced RCMP officer who should have known the limits of his authority to detain Mr. Suteau, it is apparent that he is not alone in his lack of understanding: Koma, at para 104 “So, if Constable Zulyniak subjectively knew she did not have sufficient objective grounds to make an ASD demand on Mr.

Koma, thenshe ought to have subjectively realised that she did not have sufficient objective grounds to detain him for investigatory purposes either.Frontline police officers must have at least this level of understanding of the conditions imposed on their exercise of intrusive policepowers, such as the power of detention.

A serious breach will arise where the police fail to appreciate the fundamentals of Charter-compliant conduct when carrying out routine police activities.” [emphasis in original] [42] In Koma, Justice Caldwell described that police officer’s lack of understanding as “a negligent disregard for the defendant’s s. 9 rights”; see para 104. He went on to say that, based on the evidence in that case, theseriousness of this breach of Mr. Koma’s rights was tempered by the fact that the officer acted in good faith; see para 105. [43] Based on the evidence before me, the best that can be said about Cst.

Buckingham’s disregard for Mr. Suteau’s s. 9 rights is that he was negligent. However, I cannot conclude that the constable acted in good faith. To beclear, I am not saying that his motives were improper. There simply isn’t enough evidence for me to decide the question either way. [44] Again, in Koma, the investigating officer mistakenly, but honestly, believed that she did not have to tell Mr. Koma why she was detaining him; see para 106. There is no such evidence in the case before me. For this reason, Iassume that Cst. Buckingham knew of Mr.

Suteau’s Charter-protected right to be told the reasons for his detention and that he willfullydisregarded that right. [45] The negligent infringement of the defendant’s s. 9 right and the willful infringement of his s. 10(

a) right were serious and weigh heavily in favour of excluding the evidence at trial. [46] Next, I must assess the impact of the infringements on Mr. Suteau’s Charter-protected interests. [47] Dealing first with Mr. Suteau’s detention, I find that the period of arbitrary detention lasted between three and five minutes – the vehicle stop took place shortly after 2:50 a.m., Cst. Buckingham directed Mr. Suteau to thepolice vehicle within a minute or two after stopping him, and made his ASD demand at 2:56 a.m.

His detention involved some degree ofcompulsion or coercion in that the officer “directed” him – a command – rather than “asked” him – a request – to exit his vehicle. As thedefendant did not testify in the voir dire, I don’t know whether he believed that he had any choice in the matter. In any case, Mr. Suteaucomplied with the officer’s command, as I suspect most people would when faced with a direction from a uniformed and armed policeofficer; see R v Therens, [1985] 1 SCR 613, at p 644, , at para 57 (SCC):

“In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority.

Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary.

Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.” [ 48 ] Although arbitrary, with some element of coercion involved, Mr. Suteau’s detention from the time he stepped out of his truck until the time he received the ASD demand, was relatively brief and minimally intrusive.

As such, it had little impact on his Charter ​ -protected right to be free from arbitrary detention. [ 49 ] Turning to the impact of the infringement of Mr. Suteau’s s. 10(

a) right, I note that the Court of Appeal found the impact of the infringement of Mr. Koma’s s. 10(

a) right was minimal for two reasons: • any driver involved in a serious traffic accident should know that they can’t leave the accident scene and that they might have to answer police questions about the accident, and • the questions that the police officer asked, including questions about Mr. Koma’s drinking pattern before the accident, were authorized by law. [see Koma , supra at paras 113 and 114] [ 50 ] Similar considerations are not in play in Mr.

Suteau’s case. [ 51 ] In the circumstances of a late night traffic stop, in a pickup truck with a number of obviously intoxicated passengers, and being asked questions about whether and when he had drunk alcoholic beverages, Mr. Suteau certainly should have understood that Cst. Buckingham was investigating him for impaired driving. What he did not know, and what he could not have known in the circumstances, is that the constable wanted to isolate him from the odour of alcohol in the cab of his truck in order to obtain further evidence from him – namely the odour of alcohol on his breath. [ 52 ] Cst.

Buckingham could have requested that Mr. Suteau step out of his truck and told him the reason why. This is something other police officers do routinely in similar situations of wanting to isolate a driver from confounding odours coming from the interior of the vehicle they are driving; see R v Kristensen , 2014 ABQB 46 . [ 53 ] Without this information, Mr. Suteau could not consider whether or not he should submit to his continuing detention outside of his truck. In the circumstances, this is a choice he should have been able to make.

Again, in the circumstances of this case, that right to make an informed choice is the very interest protected by s. 10(

a) of the Charter . Cst. Buckingham’s conduct effectively deprived the defendant of this important Charter -protected interest. [ 54 ] Finally, I must balance the seriousness and impact of the Charter -infringing conduct

against society’s interest in seeing this case decided on its merits. [ 55 ] While Canadians expect criminal cases to be resolved on the merits of the evidence, they also expect the courts to ensure that their Charter rights are protected. [ 56 ] If I exclude the evidence of the odour of alcohol on Mr. Suteau’s breath, the Crown’s case against him must fail as this evidence is the linchpin of the grounds for the officer’s ASD demand. This factor favours allowing the Crown to rely on the evidence at trial. On the other hand, the seriousness and impact of the Charter -infringing conduct, especially the disregard of Mr. Suteau’s 10(

a) right, without which Cst. Buckingham may not have obtained the relevant evidence, favours exclusion of the evidence. [ 57 ] Although it should never be the deciding factor, the seriousness of the charge is relevant. Conviction for refusing to provide a breath sample bears the same penalty as being convicted of a criminal drinking and driving offence.

However, I doubt that society’s interest in seeing refusal cases adjudicated on their merits is as high as is society’s interest in the successful prosecution of criminal drinking and driving offences. [ 58 ] In the end, taking all of the foregoing factors into account, I find that the balance favours excluding the evidence of alcohol on the defendant’s breath. Trial Decision [ 59 ] The result of my decision in the voir dire is that the Crown cannot prove that Cst. Buckingham possessed the requisite evidentiary foundation for making an ASD demand. As such, the demand was unlawful. Mr.

Suteau was not legally obligated to comply with an unlawful demand. Accordingly, I do not need to address his mens rea defence and dismiss the charge against him. __________________________ M. Martinez, J.