Her Majesty the Queen - v. -, 2014 SKPC 121

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 121 Date: May 26, 2014 Information: 24379979 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Varun Kalsi Appearing: J. Hiatt For the Crown J. Graham For the Accused DECISION ON VOIR DIRE J. BENISON , J CIRCUMSTANCES [ 1 ] Some time after midnight on the 3 rd of November 2012, Cst. Dickie of the Estevan RCMP observed a vehicle in a parking lot adjacent to King Street in Estevan.

The vehicle was stuck on a curb and the driver was moving back and forth trying to get off the curb. Cst. Dickie went to investigate the situation and determined that no one was injured or otherwise needed assistance. While talking to the driver, Varun Kalsi, the accused, the officer observed signs of impairment and performed an Approved Screening Device test on the accused. After a fail reading was obtained, the accused was taken to Estevan Police Service where samples of breath were obtained with readings in excess of the legal limit.

The accused was charged with driving with a blood alcohol level above the legal limit (s. 253(1)(b)) and impaired driving (s. 253(1)(a)).

ISSUES [ 2 ] The defence raised the following arguments:

(1) The accused was arbitrarily detained and this should result in exclusion of evidence obtained as a result of the detention.

(2) The accused was not informed promptly of the reason for his detention, resulting in a breach of his right under s. 10(

a) of the Charter to be advised promptly of the reason for his detention.

(3) The Crown refused or failed to provide proper disclosure. ANALYSIS Arbitrary Detention [ 3 ] I do not agree with the defence position that the accused was detained when the officer pulled in behind the accused’s vehicle and put on the police car lights and siren. Clearly, the officer had a duty and responsibility to investigate what was going on with the vehicle hung up on the curb and being driven back and forth in an attempt to extricate it. Police officers have a broad mandate for public safety. They are often first to arrive at the scene of an accident, or perhaps a fire, or a mere vehicle breakdown.

In this case, even though the officer activated his lights and siren, this is not necessarily indicative of a detention. The accused’s vehicle was in a parking lot where other vehicles might be passing and subject to danger if the accused’s vehicle suddenly backed out.

By pulling in behind the accused’s vehicle, the officer averted this possibility. [ 4 ] I distinguish this situation from one where a police officer pulls up behind a parked vehicle in a parking lot and activate his lights and siren for no apparent reason; this would be an arbitrary stop. [ 5 ] In the present case, once the officer ascertained that the accused was not injured or required assistance, the officer would not have any reason to be further involved. However, when he observed symptoms of alcohol consumption, the officer was justified in proceeding with an impaired driver investigation.

The accused was detained at the point where the officer made a demand for an Approved Screening Device sample. [ 6 ] If I am wrong in my conclusion that the accused was not detained when the officer first arrived on the scene, it would be my conclusion in any event that the detention was not arbitrary. The officer had good reason to stop at the scene and investigate what was happening. At the initial stage, the officer was not required to advise the accused of the reason for the stop. The accused could not possibly be unaware of the reason for the stop. The case of R. v. Lund , [2008] A.J.

No. 1207 (C.A.) sets out that the informational requirement of s. 10(

a) can be inferred from the context or circumstances in each case. The inquiry must be whether, substantially, the accused can reasonably be supposed to have understood the basis for the investigation. [ 7 ] Almost immediately upon talking to the accused, the officer formed a suspicion that the accused had alcohol in his body and proceeded to make an approved screening device demand. After embarking on an impaired driver investigation, Cst. Dickie promptly advised the accused of the reason for his arrest as well as his rights to counsel. In my opinion, the officer acted properly throughout the investigation and did not infringe the accused’s Charter rights at any point. Right to Counsel

[ 8 ] I have previously indicated that the accused’s right to counsel arose when he was arrested on the drinking and driving charges. At this time he was promptly afforded his rights to counsel. I find no basis for the defence position that the accused’s rights to counsel arose at an earlier point. At the initial stage of the detention the officer was not investigating a possible offence, but rather checking to see what the problem was and whether assistance was required. During this brief period of obtaining information, where no offence is being investigated, the duty to inform is not triggered, in my opinion.

When the matter quickly became an impaired driving investigation, the officer clearly had the authority to follow the normal investigative procedures such as noting an odour of alcohol, red or glossy eyes, and questions about the accused’s alcohol consumption. The defence appears to be arguing that the Orbanski case does not apply to this situation before the Court because the initial detention was not made pursuant to The Traffic Safety Act .

However, once the officer observed signs of alcohol consumption, he had authority under s. 209.1 of The Traffic Safety Act to pursue the investigation. [ 9 ] The defence further argues that this was not a stop at a roadside. This argument places too literal a meaning on the word “roadside”. A driver in a parking lot has a responsibility to other users of the area and is subject to the rules set out in s. 211 of The Traffic Safety Act , which draws in offences related to things such as speeding, undue care and attention, stunting, turning, yielding and signalling.

Thus, a driver breaching any of these rules in a parking lot is subject to being stopped by a police officer. Once stopped, the driver could be subject to sobriety checks. It is clear from this that a parking lot falls within the definition of roadside contemplated by the Court in Orbanski . Disclosure [ 10 ] The defence had requested disclosure of copies of maintenance records and technicians’ logs for the previous 6 months with reference to the instrument used to test the accused. The Crown refused to provide all of this information. [ 11 ] Cst.

Dickie, the investigating officer, testified that there were 3 insufficient samples in the course of the breath testing on the accused. There was no evidence before the Court as to the reason for the 3 insufficient samples. One possibility is that the instrument was malfunctioning; another is that the accused was not blowing properly.

Defence counsel argued that with disclosure of the requested items the accused may be able to call expert evidence to suggest that the instrument was malfunctioning. [ 12 ] There must be a reasonable possibility that the information requested could be useful to the accused in making full answer and defence: R. v. Banford , 2011 SKQB 418 at para. 5 . I believe that the defence has met this threshold.

Accordingly, I am ordering that the Crown produce the following: Copies of maintenance records and technicians’ logs for the previous 6 months with reference to the instrument used to test the accused. [ 13 ] Disclosure shall be provided within 10 days to defence counsel. To protect the privacy of other individuals named in the disclosure material, the Crown is permitted to black out the names of such individuals. If any of the material ordered to be produced does not exist or has been destroyed, the Crown must apply to the Court for instructions. J. Benison, J