Her Majesty the Queen - v. -, 2016 SKPC 138

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 138 Date: September 7, 2016 Information: Y375897 Location: Buffalo River _____________________________________________________________________________ Between: Her Majesty the Queen - and - B.R.W.

Appearing: Robert McCann For the Crown Lee Douglas For the Defendant Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act. Decision M. Martinez , J Introduction [ 1 ] The defendant, B.R.W., faces charges of impaired driving and driving a motor vehicle when the concentration of alcohol in

his blood exceeded the legal limit [ over .08 ]. [ 2 ] The defendant’s trial began with a voir dire because he asked me to exclude the Certificate of a Qualified Technician from evidence at his trial. The information in the Certificate is that his breath samples were taken and analyzed at 1:21 a.m. and 1:49 a.m. on July 5, 2015, and that the concentration of alcohol in his blood was 160 milligrams in 100 milliliters of blood in the first sample, and 150 milligrams in the second. By virtue of s. 258(1) (

c) of the Criminal Code , RSC 1985, c C-46, the lower of the two results is presumptive evidence of the defendant’s blood alcohol concentration at the time of driving, which is why he does not want the Certificate admitted at trial. [ 3 ] The defendant submits that I should exclude the Certificate because the officer who arrested him infringed certain of his rights protected by the Canadian Charter of Rights and Freedoms .

Specifically, the defendant argues that the officer arrested him without reasonable grounds and that he did not have reasonable grounds to demand that the defendant provide samples of his breath for analysis [ breath demand ]. Consequently, the officer arbitrarily detained him contrary to

section 9 of the Charter , and subjected him to an unreasonable search and seizure contrary to

section 8 of the Charter . In both cases, the defendant submits that the appropriate remedy is to exclude from his trial the evidence obtained from him by infringing his Charter -protected rights. [ 4 ] In the voir dire , only the Crown presented evidence. Based on that evidence and the relevant law, for the reasons that follow, I deny the defendant’s application. Background Facts [ 5 ] On Saturday, July 4, 2015, R.C.M.P. Corporal Charles Cooke was on duty at the R.C.M.P. detachment in the northern Village of Dillon. It was the night shift.

From his office, he could hear all-terrain vehicles [ ATV s], as he put it, “ripping around the community”. His office also fielded public complaints that evening about the ATVs. [ 6 ] Corporal Cooke testified that he told two of his constables to try to slow down the ATVs. He also said that at one point he stepped outside of the detachment office and saw a distinctive red ATV drive away towards the lake. This particular ATV was noticeably louder than the others.

The corporal also mentioned that he saw the driver of that ATV evade being stopped by his constables. [ 7 ] When the constables returned to the detachment, they told Corporal Cooke that they had not been able to intercept the ATVs. In addition, they said that they had been told that one of the ATVs – a distinctive-looking red one, with after-market tires, and an unusually loud muffler – might be a stolen vehicle. [ 8 ] A short time later, while his constables responded to a call in a nearby community, Corporal Cooke decided to try to locate the red ATV himself.

During his patrol, specifically at about 12:13 a.m. on July 5, 2015, Corporal Cooke saw two ATVs, two other vehicles, and some people congregated in the local school’s parking lot. One of the ATVs appeared to fit the description of the possibly stolen one. [ 9 ] Corporal Cooke decided to approach the vehicles and people in the school parking lot without signaling that he was a police officer. The corporal testified that the reason he did not want the people in the parking lot to know that a police truck was approaching is that it is notoriously difficult to intercept and stop an ATV with a police vehicle.

ATVs are fast and nimble. Police trucks are not. In addition, ATVs are designed to go places where a truck cannot go. For this reason, rather than engaging his truck’s emergency lights, he switched its headlights to high beams and quickly drove directly toward the vehicles and people in the parking lot. [ 10 ] As he entered the parking lot, Corporal Cooke saw two people on the possibly stolen ATV. He saw the driver of that ATV fumbling with its controls as if trying to start it. For this reason, Corporal Cooke drove directly at the ATV intending to block its escape route.

When he was nearly upon it, the ATV suddenly shot forward. Corporal Cooke slammed on his truck’s brakes and the ATV turned hard to its right, glancing off of the driver’s side of the police truck’s front bumper and then driving directly into a nearby chain link fence. [ 11 ] Corporal Cooke jumped out his truck and ran toward the ATV, yelling “Stop!” He testified that it looked like the driver still was trying to get away because he appeared to be working the ATV’s gear shifter and manipulating its handlebars.

For this reason, Corporal Cooke grabbed the driver, pulling him off of the ATV and taking him to the ground. The driver was B.R.W.

[12] Corporal Cooke immediately told B.R.W. that he was under arrest for theft of the ATV. Then, when he smelled liquor on thedefendant’s breath, he also arrested him for impaired driving. [13] The corporal placed the defendant in his police truck and contacted his constables for assistance.

He testified that the reasonshe needed their assistance were that: • someone other than he needed to investigate the collision between the police truck and the ATV, and • the crowd of bystanders, which he estimated to number about ten people, were quite agitated by what had just happened, andwould not obey his directions not to touch the ATV. [14] Constables Fischer and Tyne arrived within seven to ten minutes.

Corporal Cooke gave them instructions and then returned tohis police truck to attend to B.R.W. [15] When the corporal re-entered the cab of his truck, he noticed a very strong odour of alcohol which had not existed before heplaced the defendant in the back seat. After talking to B.R.W. about the ATV, and confirming that it was not stolen, Corporal Cookereiterated that he was under arrest for impaired driving. At 12:33 a.m. the corporal made his breath demand, after which he transportedthe defendant to the nearby R.C.M.P. detachment where a qualified technician took B.R.W.’s breath samples.

Did Corporal Cooke Arbitrarily Detain B.R.W.? [16] The defendant contends that Corporal Cooke arbitrarily detained him because the officer lacked the lawful authority to arresthim. [17] A police officer may arrest a person, without a warrant, if the arresting officer has reasonable grounds to believe that thesuspect has committed, or is about to commit, an indictable offence; see the Criminal Code, s. 495(1)(a). [18] Reasonable grounds to believe that a person has committed, or is about to commit, a crime means more than the groundsnecessary to simply suspect that the person might be involved in criminal activity, but does not amount to being nearly certain of theperson’s guilt.

In the context of an arrest, reasonable grounds means that, when viewed objectively, the officer’s grounds for arrest aresufficient to support his or her honest belief that the suspect probably has committed, or is about to commit, a crime; see: R v Storrey,[1990] 1 SCR 241 at p 250, ; R v Mouland, 2007 SKCA 105 at para 22; R v Gunn, 2012 SKCA 80 at para 7 and 8,[2013] 1 WWR 495. [19] Corporal Cooke testified that he arrested B.R.W. because he believed the defendant was driving a stolen ATV.

Theft of amotor vehicle is an indictable criminal offence, as is possession of stolen property; see the Criminal Code, s. 333.1 and s. 354(1). In myopinion, Corporal Cooke’s belief that the defendant might be in possession of a stolen vehicle was objectively reasonable and amplysupported by the following grounds: • he had received a report that the ATV might be stolen, • he had seen the driver of the ATV evade his constables earlier that evening, and

• B.R.W. appeared to be trying to escape when Corporal Cooke drove into the school parking lot. [ 20 ] Further, if the corporal had not arrested the defendant, in my opinion, he could have detained B.R.W. under his common law power to detain suspects for investigative purposes. [ 21 ] A police officer may detain a person for the purpose of investigating their possible involvement in a crime, if: • the officer has reasonable grounds to suspect that the person was involved in a recent or ongoing criminal activity, and • detaining the suspect is necessary in order to investigate their involvement in that criminal activity. [ R v Mann , 2004 SCC 52 , at para 45] [ 22 ] In the circumstances of the case before me, Corporal Cooke certainly had good reasons to suspect that B.R.W. was involved in criminal activity, and, in light of B.R.W.’s apparent attempt to evade the police, the only way to investigate the matter that morning was to detain him, in handcuffs. [ 23 ] Because I’ve already found that Corporal Cooke lawfully detained B.R.W., the question whether he had lawful authority to do so for the crime of impaired driving is moot.

However, his grounds for arresting the defendant for the latter crime form part of the grounds for his breath demand, which I address next. Did Corporal Cooke Have Reasonable Grounds for his Breath Demand? [ 24 ] The defendant argues that a breath demand based on insufficient grounds is unlawful. For this reason the breath samples he provided were evidence obtained from him through what amounted to an unreasonable search and seizure contrary to

section 8 of the Charter of Rights and Freedoms . [ 25 ] A police officer may make a breath demand only if he or she has reasonable grounds to believe that, in the preceding three hours, the suspect has committed an offence under s. 253 of the Criminal Code ; namely, either impaired driving or driving while over .08; see Criminal Code , s. 254(3)(a)(i). Whether or not Corporal Cooke had reasonable grounds to make a breath demand is a question of mixed fact and law.

It includes subjective and objective components. [ 26 ] The officer must have honestly believed that B.R.W. had committed an offence under s. 253 of the Criminal Code , and he must have had reasonable grounds for his belief.

Those grounds must be more than would be required for him to suspect that B.R.W. had alcohol in his body, but they need not amount to grounds that would be sufficient for a prima facie case against the defendant [see R v Shepherd , 2009 SCC 35 at paras 17 and 23 , [2009] 2 SCR 527]. [ 27 ] The Court of Appeal of Saskatchewan describes the standard against which the officer’s grounds for his belief must be measured, and how a trial judge should assess that belief as follows: “…the standard of “reasonable grounds to believe” is one of lesser probability which simply requires the reviewing court to determine whether the factors articulated by the officer who made the breath-demand were reliable and were capable of supporting the officer’s belief that the individual had driven while impaired or “over .08” within the preceding three hours.

Where an individual challenges the validity of a breath-demand on the basis that the police officer’s belief was not reasonable, the

question 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.” [R v Gunn, 2012 SKCA 80 at para 7 and 8, [2013] 1 WWR 495; italics added] [28] It also is important to note that the officer does not have to believe that the suspect’s ability to operate a motor vehicle isgrossly impaired.

Slight impairment is enough; see R v Stellato, [1993] 12 OR (3d) 90, (ON CA), appeal to SCCdismissed (SCC), [1994] 2 SCR 478. [29] Corporal Cooke testified that the foundation for his breath demand included the following factors: • the defendant fumbled with the ATV’s controls as Corporal Cooke approached, • he was unable to control the ATV as demonstrated by him causing it to shoot forward directly toward the oncoming police truckand then driving it into the nearby fence, and • the odour of alcohol coming from B.R.W. during his initial arrest, which grew much stronger while B.R.W. sat in the police truck. [30] It is clear that Corporal Cooke did not detect any of the classic signs of physical impairment, such as slurred speech, or anunsteady gait, before he made his breath demand.

For this reason, the defendant argues that the physical signs of impairment describedby the corporal – fumbling with the ATV’s controls and the erratic driving as the police truck approached – are consistent with thedefendant panicking and desperately trying to avoid the police officer at all costs, rather than with his ability to drive being impaired.That being the case, the defendant submits that the odour of alcohol on his breath should have resulted in his detention for furtherinvestigation of his state of sobriety under s. 254(2) of the Criminal Code, rather than to a breath demand under s. 254(3). [31] I agree that, from a purely objective standpoint, the defendant’s argument has some merit.

However, as the Court of Appealstated in Gunn, the objective reasonableness of the arresting officer’s grounds for the breath demand must be assessed from his point ofview and in the circumstances in which he found himself. This is what I take “standing in the shoes of the officer” to mean. [32] What transpired in the parking lot happened very quickly. What the officer saw was a person who had trouble starting hisATV, and who drove it extremely erratically after he got it going. Next, he detected the odour of alcohol on the driver’s breath.

Thatodour increased substantially after the defendant had been in the police vehicle for several minutes. In my opinion, a reasonable person,looking at things from Corporal Cooke’s perspective, would say that his honest belief that B.R.W.’s ability to drive was impaired byalcohol was objectively reasonable. Conclusion [33] Having decided that Corporal Cooke did not infringe any of B.R.W.’s Charter-protected rights, I will allow the Certificate ofa Qualified Technician into evidence at his trial. ____________________________ M. Martinez, J.