Her Majesty the Queen - v. -, 2016 SKPC 33

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 033 Date: February 19, 2016 Information: 90113925 Location: Meadow Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyson Gregory Bannerman Appearing: Robert McCann For the Crown Ronald Piché For the Accused Voir Dire and Trial Decision M. Martinez , J Introduction [ 1 ] Mr. Bannerman is accused of impaired driving contrary to s. 253(1) (

a) of the Criminal Code and driving when the concentration of alcohol in his blood exceeded the legal limit contrary to s. 253(1)(

b) of the Code [ over .08 ]. On January 28, 2016, his trial proceeded as a blended voir dire and trial. When the voir dire concluded, Crown and defence confirmed that neither would call additional evidence at trial.

[ 2 ] Before the trial, Mr. Piché filed a Notice of Charter Application containing one reason why his client submits that I should exclude the Certificate of a Qualified Technician [the Certificate ] from the trial evidence. Other grounds for exclusion arose as the Crown’s case unfolded, as did a reason why the defendant submits that if I allow the Certificate into evidence at trial, the Crown cannot rely it. I will address the latter issue before dealing with the issues under the Charter of Rights and Freedoms .

If admitted as evidence at trial, can the Crown rely on the accuracy of the Certificate? [ 3 ] Subject to a number of preconditions, the breath analysis results described in a Certificate of a Qualified Technician are conclusive proof of the concentration of alcohol in a person’s blood at the time of driving (the presumption of accuracy ), unless there is evidence tending to show that: • the approved instrument was malfunctioning or was operated improperly, • the malfunction or improper operation resulted in readings showing that the concentration of alcohol in the person’s blood exceeded the legal limit, and • the concentration of alcohol in the person’s blood would not in fact have exceeded the legal limit at the time of driving. [ s. 258(1) (

c) of the Criminal Code ] [ 4 ] Citing Mr. Justice Barrington-Foote’s decision in R v By , 2015 SKQB 86 , the defendant submits that the Crown cannot rely on the presumption of accuracy, because it did not prove, beyond a reasonable doubt, that the breath-testing procedure was conducted properly. In By , at para. 159 , Justice Barrington-Foote stated that “evidence which raises a reasonable doubt as to whether the breathalyser malfunctioned or was operated improperly may be sufficient, without more, to rebut the presumption of accuracy in s. 258(1) (c)…”.

In By , as in the case before me, the evidence was that mouth alcohol can skew the results of the breath analysis, and for this reason a suspect must be watched, for at least 15 minutes before each breath sample is taken, to ensure that they don’t burp, belch, or otherwise risk introducing alcohol into their mouth. In By there was clear evidence that the police officers did not closely watch the accused throughout the required observation periods. There is no such evidence in this case. [ 5 ] Mr. Bannerman did not testify in the voir dire .

For this reason, the only evidence about what occurred during the observation periods is the testimony of the investigating officer. That officer was Constable (now Corporal) Buckingham. He testified that he observed Mr. Bannerman for approximately 20 minutes before the defendant gave his first breath sample and then for about another 20 minutes before his second breath sample was taken. [ 6 ] Throughout these periods, Constable Buckingham stood at the Meadow Lake RCMP detachment’s booking counter, only a few feet from Mr. Bannerman who sat in a chair directly across the hallway from him.

In cross-examination, he said that he has “no memory” of Mr. Bannerman asking to go to the bathroom, or of he, the officer, leaving Mr. Bannerman in order to speak to someone else, or of turning his back on Mr. Bannerman. [ 7 ] The officer’s lack of memory of things that might have happened, in the absence of any other evidence, is not evidence that any of those things did happen. For this reason, I have no reasonable doubt that the officer kept a close watch on the defendant as he was required to do. If I allow the Certificate into evidence at trial, the Crown can rely on the presumption of accuracy.

Charter Issues Grounds for ASD demand and sections 8 and 9 of the Charter [ 8 ] The defendant submits that the investigating officer infringed the defendant’s Charter -protected right to be secure from unreasonable search or seizure and his right not to be arbitrarily detained as he did not have reasonable grounds for his roadside approved

screening device [ ASD ] demand. [ 9 ] When a police officer demands that a person provide a breath sample for roadside analysis in an ASD, the officer must reasonably suspect that the person has alcohol in their body and has operated a motor vehicle in the previous three hours; see Criminal Code , s 254(2)(b). The officer’s subjective belief must be reasonable when assessed objectively; see R v Shepherd , 2009 SCC 35 , [2009] 2 SCR 527, at para 17 ; also R v Gunn , 2012 SKCA 80 at para 7 and 8 , [2013] 1 WWR 495. [ 10 ] Shortly after stopping Mr.

Bannerman to check his sobriety, and before making the ASD demand, Constable Buckingham observed or learned the following things: • Mr. Bannerman fumbled slightly while opening his wallet when producing his driver’s license • his eyes were slightly glossy • the constable noted a slight slur when Mr. Bannerman spoke • Mr. Bannerman admitted that he had drunk four beer during the previous day • Mr. Bannerman’s breath smelled slightly of beverage alcohol. [ 11 ] These facts, when taken together, objectively support the officer’s suspicion that Mr. Bannerman might have alcohol in his body.

For this reason, the officer’s ASD demand did not infringe any of Mr. Bannerman’s Charter rights. Did the investigating officer improperly obtain evidence from the defendant? [ 12 ] The critical issue is not that grounds for the ASD demand did not exist, but rather how the investigating officer obtained the pivotal evidence of the odour of alcohol on the defendant’s breath. Before dealing with the legal issues, I will lay out the relevant facts.

Facts [ 13 ] On July 12, 2015, RCMP Constables Buckingham and Fenton were in uniform and on patrol in a marked police truck travelling west on Highway 55 near Meadow Lake, Saskatchewan. At 12:45 a.m., give or take two to three minutes, as the officers approached the intersection of Highways 55 and 4, Constable Buckingham saw a pickup truck cross the intersection and continue travelling on a grid road. The constable decided to stop the truck to check the driver’s state of sobriety.

In his experience, drunk drivers often use back roads to get to their destination. [ 14 ] The officer activated the police vehicle’s emergency lights and the driver of the pickup truck pulled over almost immediately. Both constables then approached the truck. [ 15 ] Constable Buckingham went to the driver’s side. The only person in the truck was Mr. Bannerman. The constable asked him for his license and registration. Mr. Bannerman fumbled slightly with his wallet when he opened it to retrieve his documents. The officer noted a slight slur when Mr. Bannerman spoke and saw that his eyes were slightly glossy.

However, when cross-examined, the officer could not recall any specific words or phrases that the defendant slurred. Constable Buckingham asked Mr. Bannerman whether he’d had anything to drink and Mr. Bannerman replied that he had drunk four beer during the previous day while at Greig Lake in Meadow Lake

Provincial Park. [ 16 ] At this point, Constable Buckingham knew that he did not have grounds for an ASD demand as he had not noticed the smell of alcohol coming from Mr. Bannerman or his vehicle. Constable Buckingham testified that he believed there might be explanations, other than alcohol consumption, for the slight fumbling with the wallet, the slight slur, and the slightly glossy eyes. Examples he gave were that Mr. Bannerman might have been tired or nervous. [ 17 ] Despite not having a reasonable suspicion that Mr.

Bannerman had alcohol in his body, Constable Buckingham radioed for an ASD to be brought to his location. He had a hunch that Mr. Bannerman had alcohol in his body. His intention, as he put it, was to “continue my observations with him, continue my investigation”. For this reason, Constable Buckingham asked Mr. Bannerman to get out of his truck and walk to the police vehicle.

The defendant did as he was asked and Constable Buckingham noted that the defendant didn’t display any balance problems as he walked from his vehicle to the police truck. [ 18 ] At the police truck, Constables Buckingham and Fenton engaged the defendant in conversation. According to Constable Fenton’s testimony, the three of them stood two to three feet apart and spoke for a few minutes. Constable Fenton described Mr.

Bannerman as soft-spoken and “hard to get a read on.” She said that “after a while” she noticed that his words were slightly slurred, but she did not detect the smell of beverage alcohol on his breath. However, Constable Buckingham said that during this conversation he noted a “slight odour” of beverage alcohol on Mr. Bannerman’s breath.

At that point the officer asked the defendant to sit in the back seat of the police vehicle, where he spoke with the defendant further before reading him the ASD demand at 12:53 a.m. [ 19 ] Another RCMP officer arrived with the ASD while Constable Buckingham was reading the demand to Mr. Bannerman. The roadside analysis of the defendant’s breath sample returned a “Fail” reading, giving Constable Buckingham reasonable grounds to arrest the defendant for impaired driving and to demand that he provide breath samples under s. 254(3) of the Criminal Code .

Argument [ 20 ] In cross-examination, Constable Buckingham agreed with defence counsel that the smell of alcohol on the breath is the most important factor grounding a reasonable suspicion that a person has alcohol in their body. The defendant contends that the manner in which the officer was able to detect the slight smell of alcohol on his breath infringed his Charter -protected right against unreasonable search and seizure because the officer did not tell him the reasons for his detention.

The Crown counters that the officer was not required to tell him the reasons for his detention as, in the circumstances, the reasons were obvious. [ 21 ] I also invited counsel to give me their submissions about whether Mr. Bannerman’s detention, from the point that Constable Buckingham asked him to exit his vehicle to the point of the ASD demand, was arbitrary. Although, counsel declined my invitation, I do address the question in my decision. Right to be informed of the reasons for being detained [ 22 ] Mr. Bannerman was detained from the moment the police officers pulled him over.

Constable Buckingham’s reason for stopping Mr. Bannerman was to check his state of sobriety. Such random stops are authorized under s. 209.1 of The Traffic Safety Act , SS 2004, c 18 .1 [the TSA ]. Subsections 2(

a) and (

b) authorize a police officer to obtain from detained drivers, information about their identity, and information about their consumption of alcohol or drugs before and while they were driving. After the police officer obtains this information, the driver is free to go unless the officer has other grounds to detain him or her. [ 23 ] In Mr.

Bannerman’s case, Constable Buckingham detained him in order to continue his investigation but did not tell him why he asked him to exit his truck, and a few minutes later, did not tell the defendant why he wanted him to sit in the back seat of the police vehicle. [ 24 ] Everyone who is detained by a police officer has the right “to be informed promptly of the reasons” for their detention; see Charter s. 10(a). In R v Mann , [2004] 3 SCR 59, 2004 SCC 52 , a para. 21, Mr.

Justice Iacobucci made it very clear that a person always has the right to know the reasons why they have been detained, even when the detention is for investigative purposes only:

“At a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention.” [ 25 ] Police officers bear the responsibility of informing detainees of the reasons for their detention, and in this case, Constable Buckingham failed in this obligation. Arbitrary detention [ 26 ] Constable Buckingham candidly admitted that, after questioning Mr. Bannerman while he was in his pickup truck, he did not have reasonable grounds for an ASD demand. Clearly, the constable also knew that he did not have the grounds necessary to have the defendant perform field sobriety tests: field sobriety tests under s. 254(2)(

a) of the Code require the same reasonable suspicion foundation as an ASD demand, and similar tests conducted under s. 209.1(2)(

c) of the TSA demand a much higher threshold as the officer must have reasonable grounds to believe that the driver has consumed alcohol that causes the driver to be unable to safely operate a vehicle. [ 27 ] Because he did not have grounds to continue detaining Mr. Bannerman under the Criminal Code or the TSA , and his stated purpose was to continue his investigation and observations, Constable Buckingham may have believed that he was exercising a peace officer’s common law power to detain individuals for investigative purposes. [ 28 ] The police power to detain persons for investigative purposes is limited.

Above all else, investigative detention of an individual must be founded upon objectively reasonable grounds to suspect that the person being investigated is implicated in a particular criminal activity. If the police cannot articulate reasonable grounds for such a suspicion, the nature and extent of the detention’s interference with the subject’s individual liberty are irrelevant: Mann , at para 34 “The case law raises several guiding principles governing the use of a police power to detain for investigative purposes.

The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation.

The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.” [ 29 ] In this case, the relevant criminal activity with which Mr. Bannerman may have been associated is either of the criminal drinking and driving offences with which he is charged.

If Constable Buckingham did not have reasonable grounds to suspect that Mr. Bannerman had alcohol in his body, he certainly did not have reasonable grounds to suspect that the defendant’s ability to drive was impaired by alcohol or that he was “over .08”. [ 30 ] It is clear to me that the constable was acting on a hunch about Mr. Bannerman’s state of sobriety, and a hunch simply isn’t a valid reason for detaining anyone: Mann , at para 34 “Police powers and police duties are not necessarily correlative.

While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch , nor can it become a de facto arrest.” [emphasis added]

[31] For these reasons, Mr. Bannerman’s detention, outside his own vehicle, was arbitrary. Right to Counsel [32] Following Mr. Bannerman’s “fail” reading on the ASD, Constable Buckingham arrested him for impaired driving, demandedthat he accompany him to provide samples of his breath into an approved instrument, and gave him his right to counsel, and policecaution. Mr. Bannerman understood everything and declined to consult counsel. [33] Constable Buckingham read Mr. Bannerman the breath demand, right to counsel, and police caution, from cards issued to himby the RCMP.

As he did not have those or similar cards with him when he testified, the constable worked from memory and paraphrasedwhat he told the defendant. This led to defence counsel’s submission that there is no evidence that the constable told Mr. Bannermanabout Legal Aid’s toll free number, which, he argued, constitutes a breach of his client’s right to counsel under s. 10(

b) of theCharter. [34] When a person is arrested, the police immediately must tell them of their right to consult a lawyer; see R v Suberu, 2009 SCC33, [2009] 2 SCR 460, at para 4. In addition to informing a detainee that they have the right to retain and instruct counsel without delay,the arresting officer must inform them about available free legal advice services such as Legal Aid and duty counsel; see R v Brydges,[1990] 1 SCR 190, at p 215, (SCC).

In Saskatchewan, if a person is arrested outside normal business hours the policeofficer’s obligation includes telling the detainee that he or she can contact Legal Aid duty counsel through a toll free telephone number;see R v Pearce, 2003 SKQB 105, at para 17. [35] Crown counsel submits that because Constable Buckingham read Mr. Bannerman’s right to counsel from a standard RCMP-issued card, he must have told the defendant about the toll free number. What counsel suggests is that I take judicial notice of whatusually is in the standard card issued to RCMP officers. This I cannot do.

The Crown bears the burden of proving that the officer toldMr. Bannerman about all aspects of his right to counsel, and on the evidence before me, it failed to do so. This constitutes a breach ofMr. Bannerman’s s. 10(

b) right to counsel. Exclusion of the Certificate [36] Mr. Bannerman submits that the remedy for the various infringements of his Charter rights should be exclusion of theCertificate under s. 24(2) of the Charter. More particularly, in respect to the infringements of his right to know the reasons for hisdetention, the defendant submits that I should exclude from the evidence at trial, the evidence of the odour of beverage alcohol on hisbreath and all of the evidence flowing from it.

The remedy would apply to his arbitrary detention. [37] The Crown’s position is that I should not exclude any evidence from trial because society’s interest in this case being decidedon the merits outweighs the minor and brief infringements of Mr. Bannerman’s Charter-protected rights.

Analytical Framework [38] The overarching principle in assessing whether to exclude evidence obtained by infringing an accused person’s Charter-protected rights, is whether admission of the evidence would, in all of the circumstances, bring the administration of justice intodisrepute; see R v Grant, [2009] 2 SCR 353, 2009 SCC 32, at para 68. [39] In Grant, the Supreme Court laid out a framework that calls for assessing and balancing the following factors: • seriousness of the Charter-infringing state conduct • impact on the Charter-protected interests of the accused

• society’s interest in an adjudication on the merits Seriousness of the Charter-infringing state conduct [ 40 ] The focus of this first line of inquiry is on the nature of the police officer’s conduct. Was it minor, or was it serious? Was it a fleeting violation of the defendant’s Charter rights? Was the officer’s conduct the result of an honest mistake or did the officer display a willful or reckless disregard for the defendant’s Charter rights?

Serious infringements of Charter -protected rights tend to favour exclusion of the evidence discovered because of the infringement. [ 41 ] In my opinion, Constable Buckingham’s apparent failure to tell Mr. Bannerman about Legal Aid’s toll free telephone number was inadvertent and of minor effect. The officer did tell Mr. Bannerman that he could contact Legal Aid duty counsel for free legal advice. This information implies that the call would cost him nothing. Telling him that the free advice included a free telephone call would add little to the information he already had.

This infringement of the defendant’s s. 10(

b) right to counsel does not favour exclusion of the Certificate. [ 42 ] The officer’s conduct in relation to Mr. Bannerman’s detention outside of his own vehicle is another matter entirely. [ 43 ] Not informing someone of the reason why they are being detained may seem to be a minor or technical error. However, if a person does not know why a police officer is detaining them, they cannot consider whether the detention is lawful or whether they must comply with the officer’s request. I consider Constable Buckingham’s failure to tell the defendant the reasons for his continuing detention to be a serious infringement of his s. 10(

a) right, particularly because the officer did not have a lawful reason to detain him. [ 44 ] Arbitrarily detaining a person, even for a short period, is, in and of it itself, a serious infringement of that person’s liberty which is protected under s. 9 of the Charter . [ 45 ] In this case, the seriousness of these infringements of Mr. Bannerman’s rights is significantly elevated for the simple reason that I find that the officer’s conduct amounted to a willful or reckless disregard of Mr. Bannerman’s rights protected under sections 8 , 9 , and 10(

a) of the Charter . [ 46 ] Constable Buckingham has been a member of the RCMP since 2008. He knew he did not have reasonable grounds to detain Mr. Bannerman. More than once, on cross-examination, the officer emphasized that he “asked” Mr. Bannerman to exit his truck and walk over to the police truck, and that he “asked” him to get into the police truck before finally making the ASD demand.

The clear implication of what the constable said, and of the way in which he said it, was that he was requesting rather than demanding or commanding that the defendant do these things. [ 47 ] The distinction between a request and a demand is very real. As suspect can refuse to comply with a request but not with a lawful demand.

Although very few people would have refused Constable Buckingham’s “requests” – particularly when faced with two uniformed and armed RCMP officers – there is an argument to be made that the defendant voluntarily remained at the scene and was not detained if he voluntarily complied with a simple request. I am certain that Constable Buckingham is aware of this distinction, which is why he emphasized asking, as opposed to demanding, that Mr. Bannerman do certain things.

For this reason, I conclude that, rather than mistakenly thinking he had the power to detain the defendant for investigative purposes, Constable Buckingham knew that he didn’t, and he did it anyway. [ 48 ] These factors favour exclusion of the evidence of the smell of alcohol on the defendant’s breath and all of the evidence resulting from it. Impact on the Charter-protected interests of the defendant

[ 49 ] As Mr. Bannerman did not testify, there is no evidence that knowing about Legal Aid’s toll free telephone number would have affected his decision not to consult a lawyer. For this reason, the impact of Constable Buckingham’s technical breach of the informational component of the defendant’s right to counsel was minimal. [ 50 ] Mr. Bannerman’s arbitrary detention deprived him of his liberty only for a few minutes. However, the impact on the defendant of those few minutes was significant.

It was during this period of detention that Constable Buckingham detected the evidence of the odour of alcohol on the defendant’s breath, which ultimately lead to his arrest and to the charges before the court. If the constable could have obtained the same evidence through lawful means, the impact of his Charter -infringing conduct is significantly diminished; see Grant , at para 125 : “… In determining the impact of the breach, the discoverability of the derivative evidence may also be important as a factor strengthening or attenuating the self-incriminatory character of the evidence.

If the derivative evidence was independently discoverable, the impact of the breach on the accused is lessened and admission is more likely.” [ 51 ] I do believe that Constable Buckingham could have obtained the odour of alcohol evidence lawfully. Subsection 209.1(2)(

b) of the TSA , empowers a police officer to ask a driver “whether and to what extent” the driver consumed alcohol, either before or while driving. In my opinion, this does not limit the investigating officer to asking “Have you had anything to drink?” and “How much did you have to drink?” In the case before me, Constable Buckingham would have been well within his legal authority, and might have detected the slight odour of alcohol on Mr.

Bannerman’s breath, had he lingered for a minute or two longer, leaned in a little closer toward the open driver’s window’ and asked the defendant a couple more questions, such as “Is that all you had to drink?” or “When did you have your last drink?” [ 52 ] Because the police officer might have obtained the relevant evidence lawfully, the impact on the defendant of the Charter - infringing conduct only slightly favours exclusion of the evidence.

Society’s interest in an adjudication on the merits [ 53 ] Canadian courts at all levels, over and over again, have affirmed society’s abiding interest in seeing drunk drivers prosecuted and punished. This fact also is reflected in continuing legislative changes increasing the penalties for drinking and driving offences while reducing the scope of the potential defences available to offenders. The public’s interest in seeing drunk driver caught and punished, certainly favours inclusion of the evidence, especially as the odour of breath alcohol is “real” evidence and the Crown’s entire case depends on it.

Conclusion [ 54 ] Society’s interest in adjudication of this case on the merits favours including all of the voir dire evidence at trial. Society’s interest outweighs the impact on the defendant of the Charter -infringing conduct because the conduct led to discovering evidence that could have been found through lawful means. [ 55 ] The central question really is whether allowing the Crown to rely on evidence obtained through the willful or reckless disregard of the defendant’s Charter ​ -protected rights would bring the administration of justice into disrepute.

Despite the importance of adjudication on the merits of this case, admitting into evidence at trial, evidence that was obtained through the deliberate infringement of the defendant’s Charter -protected rights, would not be in the public interest, nor would it engender respect for the rule of law. [ 56 ] For these reasons, I will not admit into evidence at trial, the evidence of the odour of alcohol on Mr. Bannerman’s breath and all of the Crown’s evidence arising from it, including the Certificate of a Qualified Technician.

Trial Decision [ 57 ] As I did not admit into evidence at trial, the smell of alcohol on Mr. Bannerman’s breath, and the Certificate, and as the remaining evidence leaves me with a reasonable doubt about whether Mr. Bannerman’s ability to drive was impaired, I dismiss both

charges against him. __________________________ M. Martinez, J.