Her Majesty the Queen - v. -, 2012 SKPC 79

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 079 Date: May 4, 2012 Information: 44303324 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jamie Robert Keil Appearing: Ms. Rock For the Crown Mr. Roe For the Accused JUDGMENT B.M. SINGER , J [ 1 ] In this case evidence was led on the trial proper and on a voir dire pursuant to an application under s. 24(2) of the Charter to exclude evidence allegedly because of a breach of the Accused’s rights under the Charter .

The primary defence of the Accused is one of identity. I will deal with that first. [ 2 ] I have had an opportunity to review the transcript of evidence and the argument of counsel and would like to thank both counsel for your informative and helpful briefs. I have also reviewed all of the evidence in order to determine whether the Crown has proven, beyond a reasonable doubt whether the Accused was the operator of the motor vehicle at the requisite time. I will briefly summarise the facts that I have found and the reasons for finding those facts.

[ 3 ] The police got involved with the Accused as a result of a complaint of Ms. Anna Krakowetz. She lives at […] Road, in Saskatoon, in the third house to the east of the corner of […] Road and Avenue H. The Accused lived next door, in the second house in from Avenue H. At about 11:00 at night Ms. Krakowetz heard the sound of a car engine revving and several loud noises outside her window. She looked out to see her neighbour’s car, “banging” and “smashing” into her car, by backing into it. She assumed the driver of the car was the Accused as she was sure the vehicle was his.

She did not see the face of the driver. She then went outside and the vehicle left, again she only saw the back of the driver’s head and assumed, but could not be sure, it was the Accused. [ 4 ] The car then sped off east on […] Road. While there was some confusion in her recollection, as to where she was, she then says she saw the vehicle return to the front of her house and again speed off. Worried that it might come back again, she moved her vehicle to her back yard area so that it would not be subject to any further damage. [ 5 ] She then called the police. [ 6 ] Ms. Krakowetz and the Accused have a history.

In the past she had made complaints to the police about him playing loud music and being intoxicated. They did not have a neighbourly relationship. [ 7 ] She may have exaggerated her complaints of the driving of his vehicle. Several times she referred to that vehicle repeatedly smashing or banging into her car. However, when the police later examined her vehicle, and the car of the Accused, surprisingly, there was no damage to either.

Unfortunately this raises questions about her evidence as a whole. [ 8 ] After the police arrived, they wished to examine her car, so she drove it from its location in the back around to the front of the house. She drove from the alley up Avenue H and before turning east on […] Road she saw her neighbour’s car parked on Avenue H. [ 9 ] Prior to retrieving her car, while talking to the police, she observed the Accused walking, apparently from the direction of Avenue H. She testified that he was walking on the street from the corner of […] Road and Avenue H. I have noted that later Cst.

Johnstone testified that the Accused was walking down the fronts of the lawns and Constable Lambe who saw Johnstone and the Accused together places them basically on Mr. Keil’s own lawn at that time. Ms. Krakowetz told the police officer that he was the driver of the vehicle and the policeman asked him to stop. Mr. Keil was obviously intoxicated and when the Accused did not stop, the police officer grabbed on to him. The Accused apparently fell to the ground and the officer detained him.

Another police officer took control of the Accused and it is of some note that the Accused at that time was described as: “Not so much belligerent at that point, but didn’t really believe that he had done anything […]Road, didn’t believe we really had reasons to deal with him.” [ 10 ] The officers handcuffed Mr. Keil and searched him, retrieving a fob that operates the locks on the doors of a vehicle and some keys from the Accused’s pocket. Later the police also located his vehicle on Avenue H where the witness Krakowetz had seen it.

The engine hood was warm and the car made sounds like it had recently been operated. The fob activated the door locks on the car, but no one apparently ascertained whether the keys in the possession of the Accused were for the vehicle. [ 11 ] The evidence of identity of Mr. Keil as the driver of the vehicle led through the eyewitness, Ms. Krakowetz, does not satisfy me beyond a reasonable doubt that the Accused was the operator of the vehicle she observed “banging” into her car. She could not really identify the driver of the vehicle and assumed it was her neighbour.

The first time she could positively identify the Accused to the police was when he was walking on or near his own lawn, apparently, from the direction of Avenue H, a place where the police had recently driven and not seen the Accused. [ 12 ] Has the Crown proven circumstantially that the Accused was operating that vehicle? Circumstantial evidence is evidence, which if accepted, must be consistent with the guilt of the Accused and inconsistent with any other rationale explanation. [ 13 ] Evidence that supports the position of the Crown is as follows: a.

The vehicle described by the witness was her neighbour’s vehicle.

b. That vehicle was parked in the vicinity. c. It had been recently operated. d. He had a fob that was associated with that vehicle in his pocket. e. He was spotted, on his lawn, a short way from that vehicle, albeit sometime after the alleged operation of the vehicle. [ 14 ] Evidence that does not support the Crown’s position: a. The eyewitness was antagonistic to the Accused and his drinking; she described a deliberate and repeated smashing into her vehicle, which was not supported by the physical evidence. b. The Accused when first confronted did not believe he had done anything wrong. c.

The Crown did not conclusively prove he was in possession of the keys for the vehicle. d. The Accused was not near the vehicle when the police drove by it and when first spotted was, while apparently walking in the direction away from where the vehicle was later found, on his own lawn some distance from his car. [ 15 ] It is now necessary to address the issues raised by the Accused in his application to exclude evidence, because the Accused is asking among other things to exclude the evidence of the fob and keys which is a significant part of the circumstantial case against the Accused.

For that reason I will now review the evidence as it relates to that detention. [ 16 ] Constable Johnstone was the first police officer on the scene. He was aware that Ms. Krakowetz was complaining that her neighbour had driven his vehicle into hers and had driven away. While he was talking to Ms. Krakowetz about her complaint they observed the Accused, staggering down the lawn towards them.

He identified himself as a policeman and asked him to stop, but the Accused ignored his commands, “so I grabbed on to him, at which time he fell down to the ground and I placed handcuffs on him while I sorted out what was going on at the situation”. Evidence would indicate that the Accused was detained at about 11:49 p.m. Johnstone had no further dealings with the Accused. He could not remember if he removed the handcuffs or not, but turned the Accused over to another police officer, Constable Gilbertson. [ 17 ] Constables Gilbertson and Lambe arrived, also in response to Ms. Krakowetz’s complaint.

Constable Gilbertson testified that when he got there, Constable Johnstone was already there, dealing with Mr. Keil. As he approached he noted Constable Johnstone attempt to grab hold of the Accused who fell to the ground. He then dealt with the Accused as Johnstone went to talk to the complainant. It was apparent to Constable Gilbertson that the Accused fell to the ground due to his state of intoxication. [ 18 ] At that point in time Gilbertson and Lambe believed that Mr.

Keil was being detained while Constable Johnstone investigated a possible hit and run or impaired driving charge because he was basically identified as the person responsible by the witness and was found outside the house where the offence had taken place. Constable Gilbertson believed the Accused was impaired due to his falling to the ground, the strong smell of alcohol, bloodshot and glassy eyes, and slurred speech.

He was asked to retrieve his identification from his wallet and three times removed from his wallet and presented to the officers his Visa card. (I presume that he no longer had handcuffs on when he went searching through his wallet.) [ 19 ] In addition the Accused swayed when he walked. [ 20 ] Constable Gilbertson testified that based upon the information in the dispatch, the Accused’s level of impairment and proximity to the scene of the hit and run, he had grounds to detain the Accused for further investigation of the hit and run and impaired charge.

He then put the Accused in handcuffs and patted him down for officer safety. He testified “when he was patted down, found in his pocket was a set of keys and a key fob”. Constable Lambe testified that it was he who detained the Accused and searched him. The only reason he gave to search was because he was detained. He took it upon himself to remove the keys and fob from the Accused’s pocket. [ 21 ] By this time Constable Johnstone had learned from the witness that the Accused’s vehicle was around the corner.

He and Gilbertson went in search of that vehicle, found it and confirmed it belonged to the Accused by using the key fob to set off a horn or other signal in the car. Upon locating the vehicle and ascertaining that it had recently been driven, the police officer called his partner, Constable Lambe, who had remained with the Accused, to arrest him for impaired driving and to give him his rights and warnings as

well as the Intoxilyzer demand. [22] The Defence raises several breaches of the Charter. He alleges that the police did not promptly notify the Accused of thereason for his detention and did not immediately give him his rights to counsel, thus breaching s. 10(

a) and (

b) of the Charter. Healleges that the police in conducting the search and seizing the keys and fob as a result, conducted an unreasonable search and thereforebreached s. 8 of the Charter. He alleges that the police did not have sufficient information to detain the Accused and therefore arbitrarilydetained him violating s. 9 of the Charter. As a result of these breaches the Accused wishes me to exclude all of the evidence thatoccurred after his detention pursuant to s. 24(2) of the Charter. [23] The Accused was detained at approximately 11:49 but was not arrested until approximately 12:01.

During the time of hisdetention he was handcuffed and in the back of a patrol car. There was no evidence led to indicate that at any time during that 11minutes of detention the Accused was advised of the reason for his detention and Constable Lambe testified that he did not advise himthat he could consult counsel. As indicated the Accused was being detained while the police investigated further. At the time of hisdetention the police relied upon the complainant’s evidence that the Accused had driven into her vehicle and then sped off. In additionthey observed the Accused to be intoxicated.

He was detained while they further investigated the allegation of hit and run and thepossible charge of impaired driving. [24] In R. v.

Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59, the Supreme Court discussed the concept of “InvestigativeDetention” and said at least four things about it that are relevant to this case: (1) there is no general power of detention for investigativepurposes, however, police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that theindividual is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances; (2)at a minimum, individuals who are detained for investigative purposes must be advised, in clear and simple language, of the reasons forthe detention; (3) they should be brief in duration, so compliance with s. 10(

b) should not excuse prolonging, unduly and artificially, thedetention, and (4) where a police officer has reasonable grounds to believe that his safety or the safety of others is at risk, the officer mayengage in a protective pat-down search of the detained individual. [25] I conclude that the police had grounds to detain the Accused for the investigation of the crime of hit and run. At that time,they believed and it was reasonable to believe, that the witness had positively identified the Accused as the operator of a motor vehiclethat banged into her car and driven off.

Once they saw his degree of impairment they had evidence to detain him on a charge of impaireddriving. I have concluded that the police, on an objective view of the circumstances, had sufficient grounds to detain him. [26] Once detained they did have the power to search him, however, the Court in Mann clearly stated that a search incidental to alawful arrest proceeds under different rules and criteria than a search of an individual being detained for investigative purposes.

As theCourt said in Mann: I note at the outset the importance of maintaining a distinction between search incidental to arrest and search incidental to aninvestigative detention. The latter does not give licence to officers to reap the seeds of a warrantless search without the need to effect alawful arrest based on reasonable and probable grounds, nor does it erode the obligation to obtain search warrants where possible. [27] The general duty of officers to protect life may give rise to the power to conduct a pat-down search incidental to aninvestigative detention.

However, this search power does not exist as a matter of course; the officer must believe on reasonable groundsthat his or her own safety, or the safety of others, is at risk and the police must understand that the power to detain for investigativesearches does not allow for incidental search for anything but a weapon.

A search for weapons may only be carried out when the officerhas reasonable and probable grounds to believe that the detainee is carrying weapons or is a dangerous and armed person. [28] I do not think police understand the distinction allowing for a search of an individual when they are detained for investigativepurposes and when they are detained for arrest.

The courts allow for only a minimal intrusion into the privacy of an individual when thedetention is to further an investigation, and while an officer may say that he is patting the detainee down for safety reasons, there has tobe some objectively reasonable grounds present for that pat-down. The Court allows a search for officer safety, however, this may be,while a detainee is in investigative detention, no more that a minimal pat-down search for weapons, not a search for evidence.

In thiscase, objectively speaking, there was no particular reason for the officer to be concerned for the safety of himself or others when he didthe search. Indeed, Officer Lambe who did the search, did not testify it was for officer safety, but that he did the search as a matter ofcourse. When he patted the pocket of the Accused there was no way that the keys or fob could feel like a weapon.

When he reachedinto the Accused’s pocket, it was not for his or anyone else’s protection but to retrieve the means to help locate the Accused’s vehicle. [29] The search of the Accused and the retrieval of evidence from his pocket was a breach of the Accused’s right to be free from

an unreasonable search and seizure. It was a warrantless search and it was unjustified, unreasonable and illegal. [ 30 ] As I indicated I have already determined that the detention was not arbitrary, the police had the requisite subjective and objective grounds to detain this Accused for further investigation. However, an officer who detains for investigative purposes must inform the Accused of the reason for that detention and must also inform him of his rights to counsel, without delay. Suberu v. R. , 2009 SCC 33 and R. v.

Mann , (supra) . [ 31 ] In this case, Constable Lambe testified that when the Accused was detained for further investigation, he was not advised of his right to contact counsel. Given the series of events I have concluded that the police officer most likely did not advise the Accused of the reason for his detention. Constable Lambe testified Mr. Keil was being held to verify his identification, yet the police already knew who he was from the witness, his neighbour, and they had reviewed his driver’s licence on which his address and name were printed.

I have concluded then that the Accused’s rights under sections 10(

a) and 10(

b) were infringed. [ 32 ] Thus I am faced with a case where the defence has satisfied me that the police conducted an unreasonable search and that the police breached the Accused’s rights for about 11 minutes, by not informing of the reason for his detention and by not giving to him his right to contact a lawyer without delay.

I must now determine if as a result of those breaches I should exclude the evidence of what followed pursuant to s. 24(2). [ 33 ] Section 24(2) requires that a judge exclude evidence that was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter , if it is established that, in all the circumstances, its admission would bring the administration of justice into disrepute. In R. v.

Grant, 2009 SCC 32 , the Court elucidated the meaning of “bring the administration of justice into disrepute” and explained that the objective of s. 24(2) is to prevent the evidence obtained through a breach from further damaging the repute of the justice system. It is to protect the system, not punish the police or the state. [ 34 ] The role of the Court is to make an objective assessment, based upon all the circumstances of the case before it and of the values underlying the Charter

section breached, and determine if inclusion of the evidence would cause the public to think less of the justice system ( Grant , para. 68 ). The Court asks itself does inclusion of the evidence obtained from a breach (1) send the message that the Court condones state misconduct; (2) sends the message that protection of the Accused’s Charter rights matter little; or (3) does society have a greater interest in adjudicating the case on its merits ( Grant , para. 71 ).

While each case must be determined on its unique circumstances the Court in Grant hinted at the outside parameters of the analysis when at para. 127 it said: “where reliable evidence is discovered as the result of a good faith infringement that did not greatly undermine the Accused’s protected interests, the trial judge may conclude that it should be admitted under 24(2).” Conversely the Court went on to say, “... deliberate and egregious police conduct that severely impacted the Accused’s protected interests may result in exclusion, notwithstanding that the evidence may be reliable.” [ 35 ] I have determined in this case that the breaches were numerous and point to ignorance on the part of the police as to the distinction between their powers upon arrest and their powers upon investigative detention.

As soon as the police were able to confirm that the Accused’s vehicle had recently been operated they formally arrested him, informed him of the reason for the arrest and gave him his rights to counsel, the police warning and a demand to supply a suitable sample of his breath as they were required to do.

The approximate 11 minutes of investigative detention was not an infringement of his rights, but the combination of their failing to inform him of the reason for his arrest, and not giving his rights to counsel without delay, coupled with the illegal search and seizure of the fob and keys were in total breaches serious enough to bring the administration of justice into disrepute. The police were mistaken and as a result wilfully set out to ignore the Accused’s rights. The search and seizure of the keys and fob had impact on the case.

They were used to identify the Accused’s vehicle and the Accused as a possible driver of that vehicle. I therefore exclude the evidence of the fob and keys.

Applying the Grant analysis, I would not, if it were required, have excluded any other evidence. [ 36 ] However, the exclusion of that evidence of the fob and keys further weakens the circumstantial case against the Accused to the extent that the Crown has failed to prove beyond a reasonable doubt that the Accused was the operator of the motor vehicle. [ 37 ] As a result the Accused is found not guilty of both charges before me. _________________________________ B.M. Singer, J