Her Majesty the Queen - v. -, 2018 SKPC 56

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 056 Date: October 4, 2018 Information: 991043263 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kevin Latzkowski Appearing: Ms. Denluck For the Crown Mr. Peter Abrametz For the Defendant JUDGMENT B.G. MORGAN , J [ 1 ] Mr. Latzkowski is charged with failing or refusing to provide an ASD sample based on the events of March 3, 2018 in Saskatoon, Saskatchewan. Mr.

Latzkowski has brought an application for Charter relief, so by consent, this matter was argued on a blended voir dire /trial. I will detail the specifics of the Charter application, and depending on the result of that (the defendant seeks exclusion of the evidence), I will then deal with the issue respecting the offence itself. [ 2 ] I am going to provide a brief overview at this point, although I will make additional findings of fact where necessary to apply those facts to the specific defence or Charter relief sought.

[ 3 ] The evidence consisted of Mr. Jeremy Tamke, a commissionaire at the Saskatoon Airport who instigated the call to the police, and the evidence of Constable Ryan Crawford, the police officer who dealt with the defendant. Mr. Latzkowski elected not to call evidence on the voir dire or the trial. The Facts [ 4 ] Mr. Tamke was the commissionaire on duty at the time at the Saskatoon Airport. At approximately 12:30 a.m., the defendant approached him at the airport and Mr. Tamke noticed that his speech was slurred a bit, and he noticed a little bit of stumbling and that Mr.

Latzkowski volunteered “I shouldn’t have been driving”. [ 5 ] Mr. Latzkowski had come into the airport because he was confused about the flights. Apparently he was there to pick up his wife, whose flight was delayed for some reason. [ 6 ] Mr. Tamke went on to say that after the “curb cleared”, meaning all passengers had been discharged from the last flight that night, he noticed that Mr. Latzkowski was still there. He noted the vehicle was running, his seat was reclined, and he was sleeping. Mr. Tamke knocked on the window which resulted in a brief response from the defendant, although he then went back to sleep.

This prompted Mr. Tamke to call his supervisor, who called the police, based on his concerns. Mr. Tamke was just inside the door when police arrived and saw the defendant dealing with the police. Although he did not say exactly what he told the police, he did say he communicated with them. [ 7 ] Based on receiving a dispatch at approximately 2:30 a.m. to a possible impaired driver at the Saskatoon Airport, Constable Crawford went to investigate accompanied by Constable Conrad. Constable Crawford had been advised that there was a male in a RAV 4 that was parked in the bus stop at the airport.

The officers arrived at 2:38 a.m. Constable Crawford saw the described vehicle parked in the bus stop at the southeast side of the airport and pulled in behind it with lights activated. He then went to the driver’s side window, noticing the security guard, Mr. Tamke, by the building. Constable Conrad went to the passenger side door. [ 8 ] Constable Crawford knocked on the window of the vehicle, which was running, and noticed a gentleman with his seat reclined sleeping behind the steering wheel. Mr. Latzkowski was that individual, and indicated he was there to pick up his wife.

At this point, both police officers opened each of the front doors of the vehicle. [ 9 ] Constable Conrad reached in to turn off the keys from the far side, but was having some difficulty doing so, so Constable Crawford turned off the ignition and put the keys on the hood of the car. When doing so, he noticed a “small odour of liquor” from inside the vehicle. [ 10 ] Based on all of this, Constable Crawford suspected that Mr. Latzkowski may have alcohol in his body.

I note his evidence was that this belief from his observations was supplemented by what he had been advised by his dispatcher, obviously based on what Mr. Tamke or his supervisor passed on. [ 11 ] At 2:41 a.m. Constable Crawford read the Approved Screening Device (ASD) demand, had the defendant step out of the vehicle, “placed the handcuffs to the rear for officer safety, for my safety”, and escorted him to the passenger side rear door of the police vehicle. (Transcript p 16, line 13) [ 12 ] Constable Crawford was not sure the defendant understood the demand, so he read it again at 2:46 a.m.

[ 13 ] The constable then obtained the ASD from a box in the back portion of the SUV that the police were operating that night, and with that device, obtained three samples but each came back “insufficient air”. The officer explained each time to the defendant that he was not blowing hard enough. The fourth time he attempted to get a sample an “error” message appeared on the ASD.

It is clear from the questions and answers of the officer throughout that he believed that it was possible this device was not working due to the winter conditions, as he had said this was the first time this ASD was not working in the cold, and he had used it in colder weather.

Although there was no evidence of the exact temperature at the time, Constable Crawford indicated it was normal winter weather in Saskatchewan, the number -11 or -12 C. was suggested, and I note this was approximately 2:30 a.m. in very early March in Saskatchewan. [ 14 ] Constable Crawford once again explained to the defendant in simplified terms what he needed to do and left him in the cruiser to get the second ASD from the back of his vehicle. When presented with the ASD for the first attempt on the second device, the defendant refused to blow into it. The officer explained to Mr.

Latzkowski that he could be criminally charged if he refused, asking again if he would provide a sample, receiving the same reply. [ 15 ] Constable Crawford explained one last time what the consequences would be of refusing to blow, and Mr. Latzkowski said he would not. Accordingly, he was arrested at 2:57 a.m. for the refusal. He was therefore in handcuffs for 16 minutes, the entire time which he was not under arrest. [ 16 ] Rights and warning were read and Mr. Latzkowski expressed a desire to talk to counsel.

He was transported to detention. [ 17 ] That is the general background as to what occurred, and there is no issue with those background facts. There is, of course, an issue over what Charter application, if any, those facts support, which I will turn to next. Charter application [ 18 ] There are a number of Charter applications although I only find it necessary to deal with the first one. Mr. Abrametz raises sections 7, 8, 9 and 10(

a) and 10(b). 1) The accused was arrested during the time when only an investigative detention was justified: it is known that the accused was arrested because the officers handcuffed him behind his back despite the absence of any reason or justification to do so being evidenced. [ 19 ] The fact of the defendant being handcuffed immediately upon leaving the vehicle, during a situation that was clearly an investigative detention authorised by s. 254 of the Criminal Code , is troubling. I will now examine this matter more fully. [ 20 ] In further response to why he had handcuffed Mr.

Latzkowski the officer stated: Transcript page 17, lines 10 - 26: Q Now, you also indicated that you had handcuffed Mr. Latzkowski when you removed him from the vehicle. Can you explain a bit further why that was? A Your Honour, in my experience as a police officer over the course of the -- the last several years, any time that I have detained an individual under these circumstances, they do get handcuffed. Individuals are -- do carry weapons on them, can become very unpredictable, and -- and as such, to maintain that control over an individual, I do handcuff them when they go into my patrol cruiser.

Even so, for the purposes of providing a sample into an ASD device. Q Now, was a pat-down search ever conducted on Mr. Latzkowski? A I believe it ’ s entirely possible that I gave him a brief pat-down. I don ’ t remember specifically a pat-down, but if I would have detained him, and placed him in handcuffs, I would say -- it -- it ’ s a common practice for me to give a very brief pat-down just along the sides and the waistband for any potential weapons, knives, guns, anything sharp. So it ’ s entirely possible that I did. I don ’ t remember specifically doing it.

[ 21 ] There was nothing in the officer’s notes to confirm that he did do a pat-down, and he candidly stated “given as such, [nothing in my notes] I don’t believe I did, however it is entirely possible I gave him a brief pat-down”. ( transcript page 18, lines 7 - 8). [ 22 ] I find that in fact no pat-down search occurred. That would of course be a quick way to ascertain “some facts justifying the handcuffing in the interest of officer or public safety”, as quoted in the Vulic case to be discussed later.

I also find the officer’s stated reason to be generic, with no reference to the facts of this case. [ 23 ] At the time of handcuffing Mr. Latzkowski, the officer agreed, he was “detained at that point” (transcript page 45, line 34). He had done nothing to frighten or offend the officer (transcript page 45, line 41). [ 24 ] The reason for the detention was explored on cross-examination starting at transcript page 48, line 33 - 41, to page 49, line 1 : Q MR. ABRAMETZ: Thank you, Sir. No.

So what you ’ re saying is that everybody you detain, you ’ re going to handcuff them, you don ’ t care if it ’ s a 90-year-old lady or a -- an 18-year-old boy, that ’ s what you ’ re saying? A No, sir. That ’ s not what I ’ m -- I ’ m saying. I ’ m saying that, in this case, Mr. Latzkowski was detained and handcuffed for my safety. And given my experience, that people of all ages, all sizes, from different backgrounds, can be dangerous to myself, to themselves, and Mr.

Latzkowski was handcuffed in case he had any weapons on him, anything of that nature, or if he was to become a danger to myself. [ 25 ] This officer was with another officer, no other individuals were present in the vehicle with the accused and there was no suggestion whatsoever in the behaviour of the accused to suggest that he was a risk to flee, or that he was a risk to officer safety. [ 26 ] In cross-examination, Constable Crawford agreed that, as far as he could recall, there were no concerns based on any information that came up when the license plate was queried. There were no concerns when Mr.

Latzkowski’s name was run, such as outstanding warrants. The officer agreed “I didn’t have any concerns in dealing with him right off the . . . right off the get go.” (Transcript page 38, lines 39 - 40) [ 27 ] The officer did not think there was any traffic around, and it was a well lit area (Mr. Tamke had noted all passengers had departed, as referred to in para. 6 of this decision.) [ 28 ] This issue of handcuffing in such a situation was addressed directly in R v Vulic , 2012 SKQB 221 , 397 Sask R 235 [ Vulic ] a case involving a drug investigation.

Although a collateral issue here was whether or not a pat-down search is lawful, Mr. Justice Laing does note, citing R v Mann , that: The power to detain cannot . . . become a de facto arrest”, which is what I conclude Constable Schmidt effected on the accused in this matter. It is police policy to handcuff a person upon arrest and to search and seize all personal items on the person, which is what Constable Schmidt did.

An investigative detention does not justify interference with liberty by handcuffing the person behind his or her back in the absence of some facts justifying the handcuffing in the interest of officer or public safety . . . [ 29 ] As noted by Mr.

Justice Laing in Vulic , investigative detention does not justify interfering with the liberty of an individual by handcuffing an individual under investigative detention, in the absence of some facts justifying the handcuffing in the interest of officer or public safety. (my emphasis) [ 30 ] In this case, Constable Crawford testified that he handcuffed the defendant because he had concerns, not knowing the accused, that the latter may have weapons, and he also had concerns about the potential for unpredictable behaviour by an individual.

However, in cross-examination, Constable Crawford agreed that the accused did not pose any trouble, referring to him as “polite, cooperative gentleman.” I find that this officer handcuffed the defendant without doing an analysis of this person’s alleged risk; rather, he relied on experience with other individuals he had dealt with in his career. He certainly made no assessment of this individual.

Further, when he placed the defendant in the police car, he left him somewhat perched on the inside of the back seat with his feet outside, rendering suspect any concerns the officer stated respecting potential damage to the inside of the police car. [ 31 ] Many cases have dealt with this issue, essentially taking the same position as the Vulic case (the Crown relies on two cases in particular).

In R v Ryan Stubel , 2013 SKPC 105 [ Stubel ], Judge Labach (as he then was) dealt with the issue, among others, as to whether or not the accused’s s. 8 or s. 10 Charter rights were violated when he was handcuffed by a police officer. On the facts of that case, Judge Labach specifically noted that the officer’s “purpose in detaining him was to ensure he did not flee the scene so he could make a roadside screening demand to determine if arrest and further detention were warranted.

As a result, he handcuffed the accused and immediately made the formal screening demand.” [ 32 ] In R v Oliver Masse , 2016 SKPC 148 [Masse ], the officer arrested the accused for impaired driving and handcuffed him. [ 33 ] These cases are distinguishable on their facts.

In the Stubel case, the investigative detention coincided with the handcuffing, that was done to ensure the accused would not flee so that the officer could continue his investigation of the defendant for impaired driving. [ 34 ] Judge Labach specifically held that “the investigative detention of the accused for impaired driving was reasonable and objectively sustainable on the totality of the evidence known to the officer at the time”.

In para. 49, it was noted that “his purpose in detaining him was to ensure he did not flee the scene so he could make a roadside screening demand to determine if arrest and further detention were warranted. As a result he handcuffed the accused and immediately made the formal screening demand.” [ 35 ] I note that case dealt with a situation where the officer had information from the dispatcher of the subject vehicle driven by the accused making efforts to leave the accident scene.

The officer then personally observed the defendant “trying to get around an individual who was telling him to stay put until the police arrived”. As such, the officer had good grounds to believe that this particular individual might flee the scene, based on his observed behaviour. That was, understandably, the reason for the handcuffing. [ 36 ] Stubel does go on to quote R v Vulic , [para 20] .

To the extent that the argument is made by the Crown that there are “occasions when handcuffing a person on an investigative detention is justified”, I take no issue. [ 37 ] In the Masse case the Court did not look in detail at the handcuffing issue during the investigation stage. [ 38 ] Upon review of a number of other cases dealing with this, certain principles become clear.

In R v Vulic , the Court was faced with a situation in which a man was handcuffed immediately when he left his vehicle after being stopped by police officers, who had, prior to the stop, seen him place something under the dashboard of the vehicle, which they suspected to be drugs. In para 16, Justice Laing specifically held that “an investigative detention does not justify interference with liberty by handcuffing the person behind his or her back in the absence of some facts justifying the handcuffing in the interests of officer or public safety , which facts are lacking in this matter”. (my emphasis).

As I do not accept the officers reasoning, the same situation applies here. This action clearly exceeds a brief pat-down search. [ 39 ] Mr. Justice Laing found that the detention of Mr. Vulic was unlawful and arbitrary, as in his view, there was simply no reason to handcuff the accused for an investigative detention on the facts of that case. This principle was applied in R v Wong , 2009 BCPC 89 , again dealing with the detention of the accused in a drug investigation. That individual was immediately handcuffed for safety reasons.

According to the trial judge, that handcuffing constituted a de facto arrest noting that “even if the detention had been lawful as an investigative detention, then police do not have carte blanche to use handcuffs on an investigative detention”. [ 40 ] In R v Strilec , 2010 BCCA 198 , 256 CCC (3d) 403 an individual was handcuffed who had been stopped for some traffic violations. Again, the Court found that a de facto arrest had occurred with the handcuffing, although the detention exceeded what was necessary and reasonable on the facts of that case.

[ 41 ] In R v DiMaria , 2012 ONCJ 358 , the individual was handcuffed prior to the administration of a roadside screening test. The Court concluded that the detention was arbitrary and contrary to s. 9 of the Charter , noting that the individual was in handcuffs “for no good reason”. [ 42 ] In R v Campbell , 2016 ONCJ 236 [ Campbell ], the trial judge did a lengthy review of the cases (see paras 123 to 128 in particular). The judge did specifically state that handcuffing an individual under investigation may be reasonably necessary in some cases.

However, as did Justice Laing, the Court in Campbell came to the conclusion that the real issue was whether the handcuffing was reasonably necessary for the police to fulfill their duty. [ 43 ] In R v Ord e, 2017 ONCJ 822 , the officer handcuffed the accused, placed him in the back of the police cruiser, took the individual’s car keys so he could not drive away, and crossed the street to use the washroom in a nearby restaurant. This officer had testified that the handcuffing was done by the officer for “his safety”, not making it clear whose safety he was talking about.

That decision noted that the ASD test is used to evaluate a suspicion that an individual may have alcohol in their body, and therefore may be impaired, but the point is made that the ASD may confirm suspicion of a crime being committed. There is nothing in failing the ASD that constitutes an offence itself.

Thus, the uptake of that case is that handcuffing is generally something done when the person is being arrested, and not something done when no crime has been committed. [ 44 ] In R v Romaniuk , 2017 ONCJ 235 , the accused was handcuffed and put in the back of the police cruiser after being informed that he was under investigation for drinking and driving offences. An ASD test was administered and after unsuccessful attempts, Mr. Romaniuk was arrested for refusal. As in this case, the arresting officer cited officer safety as a reason for handcuffing. It would appear he did this as a general practice.

The Court noted that handcuffing an individual prior to arrest should not be done as a policy reason, or as a matter of regular practice; the test is whether or not the officer’s subjective belief about safety concerns is objectively reasonable. [ 45 ] Finally, in R v Uffelman , 2018 SKPC 8 , a lone officer did a pat-down search of an accused prior to administering the ASD. Many cases have justified a cursory pat-down search being conducted on a detainee but handcuffing in the absence of sound reasons is another matter.

As Judge Baniak states in para 27: “the objective component will be established if it is determined that the police officer’s honest belief in the existence of safety concerns is supported by the facts. It is necessary to consider the totality of circumstances that existed in this case”.

Having undertaken that review, Judge Baniak found that the pat-down search was reasonable. [ 46 ] It is necessary to objectively look at all of the facts of the case to see if the police officer’s subjective belief that handcuffing was necessary during an investigative detention was objectively reasonable in the circumstances and therefore justified. [ 47 ] I am cognizant of the fact that an officer dealing with an impaired driving investigation is having to make decisions quickly, without the benefit of lengthy reflection and research in the area that a trial judge has.

However, the cases are also equally clear that, depending on the circumstances, the act of handcuffing during an investigative detention can, although not necessarily does, become a Charter breach. [ 48 ] In examining these circumstances, I have no question that the officer had a subjective belief that handcuffing was appropriate. [ 49 ] However, looked at objectively, I cannot determine that the facts of this case allow for this type of action. There were two male police officers at the scene of the Saskatoon Airport in the early morning hours. There is no suggestion there was any flight risk from Mr.

Latzkowski, nor is there any reason to believe he may have had weapons on him. That is, of course, always a possibility. However, the overall test is what is objectively reasonable in the circumstances, and in the circumstances of this case, handcuffing should not have been done. This is particularly so when one considers the fact that someone being detained, as Mr. Latzkowski clearly was for the purposes of providing an ASD breath sample, is at this point presumed completely innocent.

Failing an ASD is not an offence. [ 50 ] Based on all the evidence I find that this was routine practice for this officer to handcuff most detained individuals during an impaired driving investigation. I appreciate he refers to “officer safety” but in this case that could easily have been dealt with by a pat- down search, which I find this officer did not do with Mr. Latzkowski. As it was a routine practice to handcuff in these circumstances,

and based on the evidence, I also find that there was no particular assessment by this officer as to whether this individual was a safety threat. He simply handcuffed Mr. Latzkowski as part of his standard practice and I find his proffered reasons for doing so were standard answers that failed to assess this situation. Objectively, he cuffed the defendant in the absence of ascertaining any facts that would justify such action and this is objectively unreasonable. [ 51 ] I find this alleged Charter breach has been established under each of sections 7, 8, and 9. I will now do the “ Grant ” analysis. 1.

The seriousness of the Charter infringing state conduct. [ 52 ] As noted in Grant , at para 74, state conduct which results in Charter violations does vary in seriousness. At one end, admission of evidence obtained through inadvertent or minor violations of the Charter may “minimally undermine public confidence in the rule of law”.

At the other end, “admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative affect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.” In my view, this conduct falls on the more serious side of the equation. Whereas it is true that Mr.

Latzkowski, being under detention for the purposes of providing an ASD demand, is in the same situation of countless other Canadians, what I do find tends to make this more serious is that the police officer handcuffs innocent individuals as a routine practice, and appears not to consider any other options, such as a pat-down search.

This is a breach of one of the fundamental liberties that citizens have, which is that “everyone has the right to life, liberty and security of the person and the right to not be deprived thereof except in accordance with the principles of fundamental justice.” As a general rule, the cases would indicate that one who is under investigative detention is not ordinarily handcuffed, and it is a significant deprivation of one’s liberty. This factor favours exclusion. 2. Impact upon the Charter -protected interests of the accused [ 53 ] I find this to be a serious impact upon Mr.

Latzkowski’s right to be treated fairly by the police. The breach, by handcuffing this individual during an investigation detention when there was no need for such action, I find to be quite intrusive. Again, granted that Mr. Latzkowski was subsequently charged with refusal and was then subject to handcuffing in any event at that time, the fact remains that this is a serious intrusion on his right to security of the person. This police action had a significant impact on the protected rights. This factor favours exclusion. 3.

Society ’s interest in the adjudication on the merits [ 54 ] As noted in Grant, society does generally expect criminal charges be dealt with on its merits. The Court is to look at not only on the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. [ 55 ] Here, if the evidence is not admitted, (that evidence being anything said by Mr.

Latzkowski that would be directly relevant to his refusal charge made after the handcuffing) that would ultimately lead to an acquittal; the Crown would have no evidence. [ 56 ] However, on the other hand, allowing this type of conduct to go without remedy would, in my view, have a negative impact on the administration of justice. Obviously, impaired driving and refusal to provide breath samples are serious matters. Although Mr. Latzkowski is not charged with an impaired driving offence, that is perhaps at least partly because he refused to provide a sample.

The cost in human life of impaired driving cannot be understated. Without this evidence, the Crown would have no case. I have determined that society’s interest in adjudication on the merits favours the inclusion of this evidence, not its exclusion. [ 57 ] In looking at all these considerations, I find that it is necessary to exclude the evidence, and I therefore grant the Charter relief sought as indicated in this decision.

[ 58 ] There being no evidence to determine that the defendant committed the offence with which he is charged, I find him not guilty. _____________________ B.G. Morgan, J