Her Majesty the Queen - v. -, 2013 SKPC 59

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 059 Date: May 3, 2013 Information: 24479000 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Andrew Edgar Sedley Appearing: Barrie Stricker For the Crown Shane Wagner For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] This case involved a police investigation of a domestic dispute complaint which turned into an impaired driving investigation, and resulted in Mr.

Sedley being charged with driving a vehicle while his ability to do so was impaired by alcohol and while his blood alcohol content was over 80 mg%. The circumstances raise three issues under the Charter of Rights and Freedoms and two substantive issues of proof on the trial. The only witness to testify was RCMP Cst. Filipe Vicente. His evidence was applied, with the agreement of counsel, to the consideration of the Charter issues and to the trial proper.

II. BACKGROUND [ 2 ] The early morning hours of July 5, 2012 were not quiet or uneventful for Cst. Vicente. Together with other police officers he was called to a serious motor vehicle accident on Broadway Street in Yorkton. While there, at 3:17 a.m., he received word of a 911 call from Kendra Sedley at 30 Elizabeth Avenue. Her complaint was of a domestic dispute, and that Mr. Sedley had driven away from that residence after making a suicide threat. [ 3 ] After consulting with his supervisor, Cst. Vicente drove by himself to the Sedley residence, a distance which took him a couple of minutes.

While the normal police practice was for two officers to attend such a complaint, his supervisor directed him to go alone because Mr. Sedley had left the residence. [ 4 ] At the residence he spoke to Mrs. Sedley, who appeared to him to be intoxicated. Mrs. Sedley repeated the initial complaint she had given to the 911 operator - that there was a domestic dispute and that Mr. Sedley said he would end his life by driving in front of a truck and then drove away. At that point in their discussion, Mrs. Sedley’s cell phone rang. She then spoke to Mr.

Sedley and the officer overheard her tell him that he had previously had his arms around her neck and that he should come home and they would work things out. [ 5 ] Shortly thereafter Mr. Sedley drove down the street, past the police officer’s vehicle on the street, and into the Sedley driveway. Upon Mr. Sedley emerging from his vehicle, Cst. Vicente met him and asked him to take a seat in his police vehicle. Subsequently, after speaking again to Mrs. Sedley and then to Mr. Sedley in his police vehicle, Cst. Vicente arrested Mr. Sedley at 3:47 a.m. for an offence under s. 253 of the Criminal Code .

After reading him the breath demand, and giving him a police warning and his rights to counsel, the officer drove Mr. Sedley to the RCMP detachment. There, after speaking to a lawyer, Mr. Sedley provided breath samples of 100 and 90 mg% at 4:34 and 5:01 a.m., respectively. III. ISSUES [ 6 ] After considering the written Charter notice filed by the defence and the submissions of counsel, I will determine the following issues:

(1) Did the officer’s actions in placing Mr. Sedley into the back seat of the police car constitute a violation of Mr. Sedley’s rights under ss. 9 and 10(

a) and (

b) of the Charter ?

(2) Did the officer make the breath demand as soon as practicable after he formed the belief that Mr. Sedley had committed an offence under s. 253 , and, if not, did this constitute a violation of Mr. Sedley’s rights under ss. 8 and 9 of the Charter ?

(3) Were the officer’s arrest of Mr. Sedley for impaired driving and the subsequent breath demand based on lawful grounds? If not, did they constitute a violation of Mr. Sedley’s rights under ss. 8 and 9 of the Charter ?

(4) Did the Crown prove beyond a reasonable doubt that there was compliance with s. 258(7) of the Criminal Code ?

(5) Did the Crown prove beyond a reasonable doubt that Mr. Sedley’s ability to operate a motor vehicle was impaired by alcohol? IV. ANALYSIS

(1) Did his initial detention breach Mr. Sedley ’s Charter rights? [ 7 ] Mr. Wagner contended that when the officer placed Mr. Sedley into the back seat of the police vehicle this constituted an

arbitrary detention and a violation of his rights under ss. 9 and 10(

a) and (

b) of the Charter . In determining whether these breaches have been made out, I must first decide whether Mr. Sedley was detained. If so, I must further decide: (1) whether that detention was arbitrary (contrary to s. 9); and (2) whether Mr. Sedley’s rights to be advised of the reason for his detention and to retain and instruct counsel without delay, and to be informed of that right, were violated (contrary to s. 10(

a) and (b)). For the reasons that follow:

(1) While I accept that Mr. Sedley was detained, I do not accept that his rights under ss. 9 and 10(

a) were violated; and (2) while I agree that his rights under s. 10(

b) were violated, I will not exclude any evidence under s. 24(2) as a result of that breach. [ 8 ] The Supreme Court defined “detention”, for Charter purposes, to mean “a suspension of an individual’s liberty interest by virtue of a significant physical or psychological restraint at the hands of the state”. [1] Here, while Mr. Sedley was not handcuffed and while the officer said Mr. Sedley agreed to his suggestion to get into his police vehicle, nevertheless he was placed into the back seat of a police vehicle from which he was not able to open the doors to exit. The officer then went back and spoke again to Mrs.

Sedley and Mr. Sedley remained there for a number of minutes before the officer returned. In my view this was a significant physical restraint at the hands of the state and constituted a detention. But was it arbitrary? [ 9 ] In R. v.

Mann , the Supreme Court said that an investigatory detention that is carried out lawfully is not arbitrary. [2] The Court further said police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect, in all the circumstances, that the individual is connected to a particular crime and that such a detention is necessary. [3] In this case I find the officer’s actions in detaining Mr. Sedley were lawful and not arbitrary and, as a result, did not constitute a breach of his rights under s. 9.

That is because: (1) the officer was investigating a domestic dispute complaint and had overheard Mrs. Sedley say to Mr. Sedley that he had his arms around her neck. As a result, the officer had reasonable grounds to suspect an assault had taken place and that Mr. Sedley was connected to it; and (2) given the potential volatility of the situation, and the suicide threat made by Mr. Sedley, the detention was necessary as the officer, quite properly, decided not to allow Mr. Sedley to re-enter the matrimonial home and as the officer had no other available option to ensure that Mr.

Sedley not depart the scene, where he might become a danger to himself or others. [ 10 ] I am further not satisfied that Mr. Sedley’s rights under s. 10(

a) of the Charter , to be informed promptly of the reasons for his detention, were violated. That is because I am satisfied that the officer told Mr. Sedley the reason for his detention: to discuss his side of what had happened with his wife. [ 11 ] Regarding his s. 10(

b) right to retain and instruct a lawyer and to be informed of that right, the Supreme Court, in Suberu , said that these rights were to be given immediately. [4] In this case, I am satisfied this did not happen. While it is not clear how long Mr. Sedley was in the back seat of the vehicle, we know he arrived at 3:26 a.m. and was arrested for impaired driving, and given his rights to counsel, at 3:47 a.m. Whatever that interval, he was not provided with his s. 10(

b) rights immediately upon being detained. [ 12 ] Despite that s. 10(

b) breach, given the situation Cst. Vicente found himself in, this is not a case where I will exclude evidence under s. 24(2). That is because I do not view this as a serious violation: (1) as the officer - the only one initially on the scene - was preoccupied with trying to ascertain whether an assault had taken place and if so who the aggressor was; and (2) as the suicide threat was key to why the officer suggested Mr. Sedley get into the police vehicle - where he would not be a threat to himself or others - as opposed to letting him return to the matrimonial home or to walk or drive away.

Taken together, the circumstances faced by the officer at the point he placed Mr. Sedley into the police vehicle and the reality that the officer gave Mr. Sedley his s. 10(

b) rights minutes later when arresting him for impaired driving, satisfy me that the admission of any evidence resulting from this breach would not bring the administration of justice into disrepute.

(2) Was the breath demand made as soon as practicable after the officer formed the belief Mr. Sedley had committed an offence under s. 253 ? [ 13 ] The defence contends that the breath demand by Cst. Vicente was not made as soon as practicable after he came to believe that Mr. Sedley had committed an offence under s. 253 , as required under s. 254(3), and therefore that this constitutes a breach of his rights under ss. 8 and 9 of the Charter . I disagree.

[ 14 ] The officer said at 3:41 the direction of his investigation changed from that of a domestic assault to an impaired driving investigation. I accept - given his concerns about the domestic dispute complaint and about Mrs. Sedley’s claim that Mr. Sedley had threatened suicide - that he did not turn his mind to the issue of impaired driving prior to that time. Following a conversation with Mr. Sedley, he arrested Mr. Sedley for impaired driving at 3:47 a.m. and read him the breath demand.

This was about six minutes after the impaired driving investigation began. [ 15 ] The Saskatchewan Court of Appeal defined the term “as soon as practicable” to mean without an unreasonable or unjustified delay. [5] Given that the officer spoke to Mr. Sedley before making the demand, I am not satisfied on a balance of probabilities that there was any unreasonable or unjustified delay in the officer making this demand. This Charter application is dismissed.

(3) Were there reasonable grounds to arrest Mr. Sedley for impaired driving and to make the breath demand? [ 16 ] The Crown contends that Cst. Vicente had reasonable grounds to arrest Mr. Sedley for impaired driving and to demand that he provide a sample of his breath under s. 254(3). For the following reasons, I disagree. The legal test [ 17 ] Section 254(3) of the Criminal Code allows a police officer to demand breath samples from a person, if he believes, on reasonable grounds that a person has committed, within the preceding three hours as a result of the consumption of alcohol, an offence under s. 253 .

The test to be applied, is whether Cst. Vicente, subjectively, had an honest belief that Mr. Sedley was driving while impaired and, if so, whether, objectively, there were reasonable grounds for that belief. [6] The evidence possessed by the officer when he arrested Mr. Sedley and read him the breath demand [ 18 ] Cst. Vicente said that, upon Mr. Sedley getting out of his vehicle on the driveway, that he was unsteady on his feet. He as well said that Mr. Sedley had a flushed face and glassy eyes. He said the basis of his breath demand to Mr. Sedley was that:

(1) Mr. Sedley had driven up to the house; (2) after he emerged from his vehicle, he was unsteady on his feet, was moving slow, and had a tired- looking flushed face and glassy eyes; (3) there was an odour of alcohol in the police vehicle when he spoke to Mr. Sedley and Mr. Sedley was exhibiting “dry mouth”; and

(4) Mr. Sedley admitted to having a few drinks. [ 19 ] Cst. Vicente also said that when he spoke to Mrs. Sedley, who appeared to him to be intoxicated, she told the officer that the two of them had a couple of drinks at some location in Yorkton and then went to a second location where both had consumed alcohol. No amounts were mentioned, nor were any times. The officer acknowledged that Mrs. Sedley was in the worse condition of the two and appeared to have been crying when he arrived. [ 20 ] The officer said when Mr.

Sedley drove up, he was driving fairly slow, but otherwise the officer noted no concerns about his driving. He noted no problem with Mr. Sedley’s speech and agreed that Mr. Sedley had no problem talking to him. He as well agreed that he did not know whether the alcohol was coming from Mr. Sedley’s breath, and admitted it was possible that the alcohol could have been spilled on Mr. Sedley. [ 21 ] On cross-examination Cst. Vicente was shown a portion of his file synopsis that said: “Upon his exit out of his vehicle it was clear to Cst.

Vicente that the accused was intoxicated.” When asked whether he meant by this that he thought Mr. Sedley was impaired at the point he got out of his vehicle, the officer said that, based on his discussion with Mrs. Sedley and from his observations at the time Mr. Sedley got out of the vehicle, Mr. Sedley appeared to be under the influence. He, however, denied that he turned his mind to investigating him for impaired driving until after he spoke to him in the police vehicle at 3:41 a.m.

Were there reasonable grounds under s. 254(3) ? [ 22 ] Given the totality of the evidence the officer had at the point he arrested Mr. Sedley, I accept that he could have reasonably believed that Mr. Sedley had alcohol in his body, so as to support a demand for an approved screening device sample, a device I accept he had with him given his admission that this was likely the case. [ 23 ] However, I do not accept that Cst. Vicente had reasonable grounds to believe that Mr. Sedley had committed the offence of impaired driving within the previous three hours. That is because his observations of Mr.

Sedley - unsteady on his feet, moving slow, a tired flushed face, dry mouth, glassy eyes, the odour of alcohol coming generally from him and his admission that he had a few drinks - must be balanced against the time this occurred (3:26 a.m.), the lack of credible evidence about when or what he was drinking, and the reality that he had just driven into the driveway, and was conversing with the officer, without any noticeable difficulty. [ 24 ] Because I do not accept that the officer had reasonable grounds under s. 254(3) to support his arrest and the breath demand, I am satisfied that Mr.

Sedley was arbitrarily detained at the time of arrest, contrary to s. 9, and that the subsequent breath tests taken from him constituted an unreasonable search and seizure under s. 8. But should the evidence of those breath tests be excluded under s. 24(2)?

Exclusion of the Certificate of Analyses [ 25 ] The question of whether the admission of evidence, gained as a result or following a Charter breach, would bring the administration of justice into disrepute depends on a balancing of three factors: (1) the seriousness of the breach, (2) the impact of the breach on the Charter -protected rights of the accused, and (3) society’s interest in the adjudication of the case on its merits. [7] [ 26 ] I view the breach of Mr. Sedley’s right to be free from arbitrary detention as serious and favouring exclusion.

Not only did the officer arrest him and demand he provide a breath sample without lawful grounds, the officer could easily have demanded he provide a sample into an approved screening device, and thereby leave no doubt about whether or not the grounds for arrest and Intoxilyzer demand existed. Here, the officer clearly over-reached his lawful authority. I am satisfied in all the circumstances that the officer’s mistake amounted to more than a minor error in judgment but rather could properly be categorised as careless. [ 27 ] In considering the impact of this breach on Mr.

Sedley’s Charter -protected rights, I must consider the competing interests regarding this impact. On the one hand, the breath tests were minimally intrusive [8] and he was released from custody by the officer after he provided breath samples. On the other hand, he was arrested without lawful authority, taken by police car to a local police detachment and required to provide self-incriminating evidence, all of which I am satisfied was an unjustified interference with his liberty.

While not as clear as the first branch of the Grant test, in my view the second branch of the test favours exclusion of the breath test evidence. [ 28 ] The Certificate of Analyses in this case is both relevant and reliable evidence. There is no question that society’s interest in the adjudication of the case on its merits favours inclusion of this evidence. [ 29 ] This was a case where the officer acted too quickly in arresting Mr. Sedley and in demanding that he provide a sample of his breath under s. 254(3) . In balancing what I accept to have been a serious breach of Mr.

Sedley’s right to be free from arbitrary arrest and detention under s. 9 of the Charter and a resulting unjustified interference with his liberty, on the one hand, with society’s interest in an adjudication of this case on its merits, on the other, I have concluded - considering the long term repute of the justice system - that admission of the Certificate of Analyses into evidence in this case would bring the administration of justice into disrepute. The Certificate of Analyses is excluded.

(4) Was s. 258(7) of the Code complied with? [ 30 ] If I am wrong in my decision to exclude the Certificate of Analyses, I will consider whether s. 258(7) of the Code was

complied with in this case. That subsection provides: “No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (

h) or (

i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.” The Crown contends that this subsection was complied with. I disagree. [ 31 ] In R. v.

Vogel , Judge Jackson found that the failure by an officer to compare the original Certificate of Analyses to the copy served on the accused, as confirmed in the officer’s testimony, constituted a failure to prove beyond a reasonable doubt a condition precedent to the admissibility of the Certificate of Analyses. [9] Despite the reality in Vogel that the certificate had been tendered into evidence prior to the cross-examination of the officer, Judge Jackson ruled that the Crown was not able to rely on the certificate given the reasonable doubt that had been raised on cross-examination about compliance with s. 258(7). [ 32 ] In this case, Cst.

Vicente initially testified that he served a true copy of the Certificate of Analyses on Mr. Sedley. Later, in cross-examination, however, he acknowledged that he did not complete the affidavit of service of Notice of Intention to Produce Certificate until two weeks later, when he was able to swear it before a commissioner for oaths. He acknowledged that he was not, at the time he swore the affidavit, in a position to compare what was served on Mr. Sedley with the original. When asked whether, at the time he served the document on Mr.

Sedley, he checked to see whether or not the original Certificate of Analyses and the copy were identical, the officer said he didn’t believe he did. [ 33 ] Similar to Judge Jackson’s finding in Vogel , the cross-examination of this officer leaves me with a reasonable doubt that the Crown, in this case, complied with s. 258(7) of the Code . As a result, although the Certificate of Analyses was initially tendered into evidence before the cross-examination of the officer, I hold that the Crown is not entitled to rely on the Certificate of Analyses for proof that the alcohol content in Mr.

Sedley’s blood exceeded 80 mg% at the time he was driving.

(5) Proof of impaired driving [ 34 ] The Supreme Court of Canada has approved the following test for impairment: ... If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment established any degree of impairment ranging from slight to great, the offence has been made out. [10] [ 35 ] Applying this standard in this case, I have a reasonable doubt that Mr. Sedley’s ability to operate a motor vehicle was impaired by alcohol. [ 36 ] Cst. Vicente said that, upon exiting his vehicle, Mr.

Sedley was unsteady on his feet and moving slowly, and had a flushed face and glassy eyes. Further, he noted a smell of alcohol coming from him - not specifically from his breath - when Mr. Sedley was in the police vehicle. Regarding Mr. Sedley’s flushed face, he said Mr. Sedley’s face was very flushed, just tired looking and kind of “out of it”. The officer said Mr. Sedley was driving fairly slowly but did not note any other concerns over the short time he witnessed Mr. Sedley driving. He as well said Mr.

Sedley had no problem speaking to him, but he kept licking his lips as though his mouth was dry. [ 37 ] The officer said that later in the morning when he released Mr. Sedley to a friend, Mr. Sedley was still moving slowly and was unsteady. Having viewed Mr. Sedley at the trial, the officer believed that he was moving at a faster pace on the trial date. [ 38 ] Given his observations of Mr. Sedley, the officer said he believed Mr.

Sedley was intoxicated and was not in a condition to be operating a motor vehicle, as doing so was what he described as a divided attention task which may be made difficult by the reduced reaction time that is caused by consuming alcohol. On cross-examination the officer confirmed, as contained in the file synopsis, that he formed the opinion that Mr. Sedley was under the influence of alcohol immediately after Mr. Sedley drove up and got out of his vehicle, albeit he was at that point focussed on whether an assault had taken place and not whether Mr. Sedley was driving while impaired.

[39] At the trial a video taken at the detachment was tendered into evidence as Exhibit D-1. That video showed three cameraviews of areas of the detachment while Mr. Sedley was there. The poor and choppy quality of, and the lack of detail in, the video makesimpossible any conclusion about the manner of Mr. Sedley’s movement or his condition. [40] Setting aside the issue of whether he was committing a provincial statute offence in doing so, I am satisfied that Mr. Sedleywas performing the divided attention task of talking on his cell phone just before he pulled his vehicle up to his residence.

Given noother evidence of poor driving, we are left with the following: slow, unsteady movements; a flushed tired looking face at 3:26 a.m.;glassy eyes; the smell of alcohol generally coming from him; that his speech was normal but that he licked his lips; and that he took afew tries to provide a suitable sample at the detachment. Based on that evidence, I don’t accept the officer’s opinion that Mr. Sedleywas intoxicated and, further, I am left with a reasonable doubt that Mr. Sedley’s ability to operate a motor vehicle was impaired byalcohol. V. CONCLUSION [41] Because I hold a reasonable doubt that Mr.

Sedley’s ability to operate a motor vehicle was impaired by alcohol, he is foundnot guilty on count #1. Because I have excluded the Certificate of Analyses, and, in the alternative, have determined that the Crown didnot comply with s. 257(8) of the Code, I am left with a reasonable doubt that he operated a vehicle while his blood alcohol content wasover 80 mg%. Mr. Sedley is found not guilty on count #2. R. Green, J [1] R. v. Suberu, 2009 SCC 33 at para. 21. [2] 2004 SCC 52 at para. 20. [3] At para. 45. [4] Supra at para. 42. [5] R. v. Janzen, 2006 SKCA 111, at para. 4. [6] R. v.

Bernshaw (1995), (SCC), 95 C.C.C. (3d) 193 (at page 216). [7] R. v. Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1. [8] See paragraph 111 in Grant. [9] 2010 SKPC 185. [10] R. v. Stellato, (SCC), [1994] 2 S.C.R. 478.