Her Majesty the Queen - v. -, 2011 SKPC 185

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 185 Date: December 7, 2011 Information: 24153853 Location: Pierceland, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Timothy Peter Eckel Appearing: Robert McCann For the Crown Gerald Perkins For the Accused JUDGMENT AT TRIAL AND CHARTER RULING J.A.

NIGHTINGALE , J [ 1 ] As the result of an encounter with Conservation Officer Robert Skeels on the 25 th of November 2009, near Goodsoil, Saskatchewan, Timothy Eckel has been charged with four offences against the Criminal Code of Canada.

These are: (1) operating a motor vehicle while his ability to do so was impaired by the consumption of alcohol; (2) operating a motor vehicle on a highway in a manner that was dangerous to the public; (3) failing to stop his vehicle as soon as was reasonable in the circumstances while being pursued by a peace officer operating a motor vehicle; and (4) resisting a peace officer engaged in the execution of his duty by actively resistant behaviour while being arrested. [ 2 ] Mr. Eckel has pled not guilty to the charges and has also alleged breaches of several of the rights guaranteed to him by the

[ 2 ] Mr. Eckel has pled not guilty to the charges and has also alleged breaches of several of the rights guaranteed to him by the Canadian Charter of Rights and Freedoms , in particular the rights to be free from unreasonable search and seizure and from arbitrary detention.

He asks for an array of remedies for these breaches, including a judicial stay of proceedings, the exclusion of Crown evidence obtained through the breaches, a reduction of sentence for any offences of which he may be found guilty and/or costs or damages against the Crown. [ 3 ] With the agreement of counsel I have conducted a trial of the charges on their merits but have allowed counsel to seek to elicit evidence in support of and in opposition to Mr. Eckel’s Charter issues without conducting a voir dire into those issues.

Counsel indicated their comfort with me sorting out at trial the several evidentiary and persuasive burdens borne by each party in the resolution of the charges proper and the Charter issues. [ 4 ] After carefully considering the case and issues on the merits and without reference to the Charter , I have concluded beyond a reasonable doubt that Mr. Eckel is guilty of the offence of dangerous driving and not guilty of the other three offences. I am also satisfied on a balance of probabilities that Mr.

Eckel’s Charter right to be free from arbitrary detention has been breached, and that a judicial stay of proceedings concerning all the charges is the only appropriate remedy for that breach. [ 5 ] Robert Skeels, a Conservation Officer employed by the Ministry of the Environment of the Province of Saskatchewan and a peace officer, was invited by the West Boundary Fishermen’s Co-operative, a group representing the interests of its members, all commercial fishers of the waters in the Pierceland District of the province, to attend a meeting of the Co-operative, held on the 25 th of November 2009.

The Co-operative members were particularly interested in learning from him what commercial fishing access they might expect to the Cold Lake Air Weapons Range that winter. As I understand the evidence, limited winter access to the Range is arranged annually for members of the Co-operative to commercially harvest a catch, and while the Range is operated by the Federal Department of National Defence, access to it also requires the involvement of the Provincial Ministry of the Environment.

The evening meeting was held in a fish plant owned by the Co-operative at Beacon Hill, a small community a brief distance east on Provincial Highway #55 from Pierceland, Saskatchewan. [ 6 ] According to Officer Skeels, Mr. Eckel, a member of the Co-operative and personally known to the officer, arrived after the meeting had begun. This tardiness offended Officer Skeels. The officer’s chagrin caused him to immediately focus his attention upon Mr. Eckel and ultimately to engage with Mr. Eckel in the contact giving rise to the charges. [ 7 ] Officer Skeels testified that during the meeting he observed Mr.

Eckel to be flushed of face, belligerent with fellow Co- operative members, obscenely argumentative and unheeding of the comments of others, conduct which Officer Skeels deemed “inappropriate to the meeting”. He described Mr. Eckel as mumbling and at times hard to understand and at other times loud. He was also of the opinion that Mr. Eckel, who was clad in a quilted plaid shirt coat, sweat pants and camouflage work boots, was “inappropriately dressed” for the meeting and was not properly groomed. Lastly, he found that Mr.

Eckel was “disrespectful” towards him at the meeting. [ 8 ] Officer Skeels testified initially that he saw Mr. Eckel stagger as he entered, saw him swaying in his seat at the meeting and that he staggered again when he left the room. For reasons which Officer Skeels articulated in his testimony, he testified that he was careful to never get close to Mr. Eckel and was therefore never in a position to smell Mr. Eckel’s breath, and thus was unable to perceive whether an odour of beverage alcohol was present. At another point in his testimony, the officer described Mr.

Eckel coming so close that the officer found it necessary to take a step backwards. [ 9 ] Officer Skeels’ testimony is confusing as to the circumstances under which Mr. Eckel left the meeting. At one point he testified that Mr. Eckel stormed out of the meeting in anger but at another point suggested that Mr. Eckel had tried to leave the meeting surreptitiously so as to avoid detection of his impaired state. In either event, Officer Skeels contacted the R.C.M.P. by radio to tell them he believed there was potential for Mr. Eckel to drive while impaired, and received advice as to what he should say to Mr.

Eckel to prevent that; Officer Skeels testified that he had already formed his opinion that Mr. Eckel was too drunk to drive by the time he followed Mr. Eckel from the hall. The R.C.M.P. also told Officer Skeels that they were dealing with enough other matters that they could neither assume carriage of the situation nor provide assistance to him. He then followed Mr. Eckel out to the parking lot of the hall, where he found Mr. Eckel urinating next to a power pole. The officer formally identified himself by name and occupation, notwithstanding that the men knew each other on a first name basis.

Officer Skeels then told Mr. Eckel that he believed Mr. Eckel was impaired and that Mr. Eckel needed to find a sober driver to take him home. Mr. Eckel’s response, according to Officer Skeels, was, “Fuck off, Rob, you fucking dink”.

[ 10 ] Officer Skeels watched Mr. Eckel move towards his own vehicle and was concerned when Mr. Eckel’s path took him close to the officer’s patrol vehicle. He testified that he believed that either Mr. Eckel’s impairment led him to pass so close, or else that Mr. Eckel was bent on damaging the patrol vehicle as he passed it. Mr. Eckel did not damage the patrol vehicle, then or at any point during the encounter which followed. [ 11 ] Having received Mr. Eckel’s obscenity-laden response to his caution about driving, Officer Skeels watched as Mr.

Eckel moved to his own vehicle, opened the trunk and retrieved some sort of cloth which he wrapped around the rear licence plate. Mr. Eckel closed the trunk, entered the vehicle and drove off to the east on Highway #55. Officer Skeels got into his patrol vehicle and followed, engaging the vehicle’s emergency lights. Mr. Eckel pulled over promptly, got out of his vehicle onto the highway with his arms spread wide and said, in apparent exasperation, “Now what did I fuckin’ do?” Officer Skeels again formally introduced himself, told Mr.

Eckel he was under arrest for impaired driving and ordered him to move behind his own vehicle. He placed his hand on Mr. Eckel’s shirt and was about to handcuff him when, according to the officer, Mr. Eckel squared off as if to engage in a fist fight. According to Officer Skeels Mr. Eckel said, “You’re not putting those fucking cuffs on me”. The officer allowed Mr. Eckel to return to and enter his vehicle, but then walked to the open driver’s window and shot a stream of pepper spray at Mr. Eckel’s head, as Mr. Eckel tried to put the car’s transmission into drive. Mr.

Eckel put his left hand up to block the stream and drove away. [ 12 ] Officer Skeels got back into his patrol vehicle and gave chase, now adding the siren to the emergency lights. He described Mr. Eckel swerving a lot as he accelerated away to the east, and then rapidly gaining speed. The officer observed that his own speedometer registered 160 kph., the maximum speed at which the patrol vehicle is governed. Mr. Eckel was still gaining. Officer Skeels testified that he was barely able to maintain visual contact in his high beam headlights, and watched Mr.

Eckel swerve once across the centre line of the highway to miss a deer, a violent manoeuvre which nearly resulted in a loss of vehicle control. The officer testified that during the pursuit another vehicle entered the highway from a grid road, although he was too far back to determine how close Mr. Eckel may have passed to that vehicle. [ 13 ] Officer Skeels was unprepared to state the distance over which he pursued Mr. Eckel, indicating that it was from just outside Beacon Hill to just before the intersection of Highway #55 and the road which runs north to Goodsoil, where Mr. Eckel lives.

He did testify that in radio communication with the R.C.M.P. during the latter part of the chase, he was advised that, applying their protocol, he should abandon the chase, and he did. According to Officer Skeels’ evidence, eighteen minutes passed between his following Mr. Eckel out of the West Boundary Fishermen’s Co-op Hall and his leaving off of the chase. At his request that he be provided with a map upon which he could mark the start and end points of the pursuit, I allowed him so to do, and this map with his markings has been exhibited at the trial.

From a perusal of this exhibit I conclude that the distance covered was longer than twenty kilometres. [ 14 ] The foregoing is a

summary of Officer Skeels’ testimony. What it does not reveal is the manner in which Officer Skeels gave his evidence, nor some of the details in it. [ 15 ] I am deeply troubled by Officer Skeels’ testimony, as well as by his behaviour in Court in giving it. It is patently clear that he feels great antipathy of long duration towards Mr. Eckel. I find that this rancour has so coloured Officer Skeels’ view of Mr. Eckel that he has lost that professional detachment one expects of a peace officer, and which gives one a confidence that the officer’s testimony is being given objectively.

Further, Officer Skeels’ inclination to exaggerate and to interpret all of Mr. Eckel’s words and actions as drunk and threatening, in my opinion, elevates that absence of objectivity to a degree such that I cannot rely on his evidence. I will set out a number of examples of this phenomenon. [ 16 ] In his evidence in-chief, Officer Skeels testified about observing Mr. Eckel staggering on both arrival at and departure from the meeting. Under cross-examination he revised that to a sidestep on entry and possible two on departure.

He agreed under cross- examination that the swaying in the seat was subtle or “slight” and was visible only “if you paid attention”. [ 17 ] The officer’s conclusion that Mr. Eckel’s state of dress, his deportment at the meeting and his general state of personal grooming all indicated impairment by alcohol is rendered ironic considering what I saw of Mr. Eckel at his trial. At the risk of giving judicial evidence I may say that I observed that in Court Mr. Eckel was dressed in exactly the same style of clothing described by the officer as worn at the meeting.

I observed that his hair was not neat and his beard was somewhat scruffy. I noticed that, though he sat and listened quietly, his skin colour rose as he heard Officer Skeels’ evidence, so that by the end of cross-examination his face was quite a deep red. He occasionally shifted his weight in his chair. Certainly no one in Court raised any concern that Mr. Eckel had come to his trial drunk.

[ 18 ] Officer Skeels’ opinion that Mr. Eckel, by walking so close to the officer’s patrol vehicle, was intent on doing harm to it makes little sense until considered together with a number of the officer’s other gratuitous comments, mannerisms and body language while testifying. While responding to Crown counsel’s questions, Officer Skeels made such comments as: “the gentleman despises me” and “he cares not for the job I do”. In describing his interaction with Mr. Eckel after having pulled him over on the highway he said, “My true belief is that if he’d got hold of me he’d get my gun and shoot me”.

The bulk of the officer’s evidence shows, however, that Mr. Eckel was focussed on leaving the officer’s company, not on remaining to fight him or harm him. [ 19 ] A number of times under direct examination Officer Skeels would respond to innocuous questions in a markedly defensive manner, as though his integrity was under attack. For example, Crown counsel questioned him about the surface of the parking lot outside the hall, which I took to be an attempt to eliminate the suggestion that Mr. Eckel might have sidestepped because of uneven ground.

Rather than responding calmly and factually, Officer Skeels instead began to argue, to justify, to raise his voice. He strove often to anticipate the direction of a line of questioning, to the point where I found it necessary to admonish him to simply answer the question being asked. At times the officer’s voice was loud, incredulous, emotional - all in response to non-threatening questions from Crown counsel. [ 20 ] Officer Skeels initially described Mr. Eckel’s behaviour in the hall parking lot as aggressive, leaving the impression that Mr. Eckel wanted to fight.

He described raised fists and assertive gestures. He testified that Mr. Eckel was, “in my face”. Later he retreated from this, indicating only that Mr. Eckel’s arms had been outstretched at his sides in a questioning stance, and that Mr. Eckel never came near enough such that his breath could be smelled. [ 21 ] Officer Skeels’ histrionics became much more pronounced under cross-examination. He was often sarcastic, smirking and argumentative. He took several unsolicited opportunities to repeat his belief that, “the gentleman despises me”.

This conduct reached its zenith during an exchange with Defence counsel concerning the scene on the highway as Mr. Eckel made to leave after being pepper sprayed. Confronted with the apparent contradiction between his concerns for his personal safety around Mr. Eckel and the fact that Mr. Eckel was doing everything in his power to leave, the officer conceded that Mr. Eckel was no longer a threat, but then added he was still concerned that Mr. Eckel would get control of the car and try to run the officer over, or hurt his wife, his children, his neighbours.

Even if the latter part of that comment was a rhetorical concern about a drunk driver on the road, it made no sense since Mr. Eckel was determined to drive east, away from Pierceland and the officer’s family and neighbours. [ 22 ] Under cross-examination Officer Skeels was asked whether he had considered employing a roadside screening device to augment or corroborate the signs of impairment he believed he had observed in Mr. Eckel.

He responded by commenting that whenever he has used the device in the past it has confirmed his opinion, so now he only uses it when dealing with drunken people in the Provincial Parks and then only to demonstrate to them that they are intoxicated. As an investigative tool he does not find it useful. [ 23 ] These are some of the disturbing features of Officer Skeels’ testimony; there were many others, some of which would be reflected in a transcribed record of the proceedings.

Some aspects of his evidence, such as voice volume and tone, would not appear in a written record and could only be gleaned from hearing him testify or from listening to the voice recording of the trial. Other aspects would not manifest themselves even then, for they included non-verbal behaviours such as eye-rolling, shrugs, smirking, angry glares at counsel and other gestures. [ 24 ] Mr. Eckel called Defence evidence in the form of testimony by Wayne Clarence Witzaney, another member of the West Boundary Fishermen’s Co-operative who was present at the meeting. Contradicting Officer Skeels, Mr.

Witzaney testified that generally speaking the meetings are not quiet, always respectful affairs, but rather are often rollicking events with raised voices and obscenities. He likened fishermen’s conversation to that of sailors, and testified that this colourful language was certainly given voice at the meeting. He said that the topic of access to the Air Weapons Range and related issues about the setting of fishing boundaries causes emotional upset for the members every year and is frequently the subject of heated debate.

He added that the meeting room, the main floor of a fish plant, features seating comprised of wooden planks resting across overturned fish tubs, and that many people shift their posture on these uncomfortable perches. He testified that the room has poor acoustics, requiring that people shout to be heard. Mr. Witzaney, who could hear Mr. Eckel’s contributions to the arguments that evening, said he formed the opinion that no one was drunk at the meeting. He also testified that both Mr.

Eckel and Officer Skeels became angry and loud during the argument. [ 25 ] Due to the features of Officer Skeels’ testimony which I have described, I am disinclined to make factual findings based upon his opinions and

interpretations of events and behaviours. I do not think that the officer deliberately lied under oath; rather I think that he has so lost his perspective concerning Mr. Eckel that he was prepared to draw inferences and conclusions not founded in reality. I am

prepared to accept some of his testimony, such as the much more factual description of Mr. Eckel’s driving once the two of them droveaway from the roadside stop just east of Beacon Hill. As to what had happened earlier than that, his evidence does not satisfy to therequired degree of proof beyond a reasonable doubt. [26] I have no hesitation in finding that the officer held a subjective belief in Mr. Eckel’s impairment by alcohol, but in my viewthat belief was subjective to a fault.

When examined objectively, the information available to the officer by the time he formed hisopinion in the meeting was incapable of amounting to reasonable grounds for such belief. The officer testified that his belief was “solid”by the moment he followed Mr. Eckel from the hall. All the officer had seen and heard to that point was one sidestep as Mr. Eckelentered the meeting room, his loquaciousness, cursing and red face at the meeting, a slight slurring of speech and another sidestep or twoon leaving. Into the articulated grounds for belief the officer added his view that Mr.

Eckel was late for the meeting, was disrespectfulof the officer and was inappropriately dressed. He had not smelled beverage alcohol from Mr. Eckel’s breath, had not questioned Mr.Eckel to learn whether there was an admission about drinking, had not examined Mr. Eckel’s eyes to see whether they bore any of thesigns of alcohol ingestion, had not conducted any sort of sobriety testing. He was not prepared to contemplate these avenues ofinvestigation nor the administration of a roadside screening device test, in the latter case because of his view that such tests only confirmthe correctness of his opinions.

I find that, viewed objectively, the observations made by the officer are not capable of providingreasonable grounds for arrest, and certainly not of proof of impairment beyond a reasonable doubt. In my opinion the behavioursexhibited by Mr. Eckel in the parking lot and afterwards are at least as consistent with extreme agitation in response to the officer’sconduct as they are with impairment. [27] On the merits of the case I therefore find that I am not satisfied beyond a reasonable doubt that Mr.

Eckel’s ability to operate amotor vehicle was impaired by alcohol, nor am I satisfied to the same required degree that the officer was in the proper execution of hisduty in detaining and arresting Mr. Eckel such as to find Mr. Eckel guilty of the offence of resisting arrest. In closing arguments Crowncounsel wondered aloud whether I might find that the officer had some authority in law to detain Mr. Eckel under the general powersbestowed by the provincial Traffic Safety Act, but the testimony of the officer makes plain that he made no claim of resort to thatauthority; he wanted to arrest Mr.

Eckel for impaired driving and for no other reason. [28] As to the count of failing to stop his vehicle in order to evade a peace officer while being pursued by one, to convict I must besatisfied beyond a reasonable doubt of several mental elements. The first, of course, is that Mr. Eckel, in driving away from the scene,would know that the officer did not want him to.

That much is pretty clear from the events immediately prior to his departure; beingpepper sprayed to the head while being ordered to remain makes the officer’s wishes plain. [29] The second element to the Code s. 249.1(1) charge is also a mental one - whether Mr. Eckel knew that he was being pursued,and whether he drove in the manner that he did so as to evade that pursuit. He had just been pepper sprayed to the head, which may betaken to have altered his visual perception, although one cannot know how effective his hand was in deflecting the spray and reducing itseffects.

He very rapidly gained speed and put considerable distance between his vehicle and that of the officer, which may have reducedthe auditory effectiveness of the siren. The same distance factor may have reduced the extent to which Mr. Eckel could see theemergency lights of the patrol vehicle far behind him.

However there is no evidence to suggest that driving as he did that night was Mr.Eckel’s normal habit - and I certainly hope it was not - which leaves the inescapable impression that he must have driven that way to getaway from Officer Skeels. [30] I have found that, considered objectively, the officer lacked reasonable grounds to detain Mr. Eckel for impaired driving andthat the officer was therefore not in the execution of his duty in purporting to arrest Mr. Eckel for that offence. It follows that Mr. Eckelwas entitled to leave the area.

In my opinion however, in leaving at the speed that he did, and in driving at night at very high speed in thepresence of other motorists over the distance that he travelled, Mr. Eckel committed the offence of dangerous driving. In reaching thisconclusion I have followed the law as enunciated by the Supreme Court of Canada in R. v. Beatty, 2008 SCC 5 , [2008] S.C.R.49, 228 C.C.C. (3d) 225. As to the actus reus, I find that viewed objectively, the manner of Mr. Eckel’s driving amounts to a markeddeparture from the standard of a reasonably prudent person in the circumstances which existed at the time.

As to the mens rea, I amsatisfied beyond a reasonable doubt that Mr. Eckel was enraged, experiencing at least some of the effects of a stream of pepper sprayhaving been deployed into the interior of his vehicle and, in driving a considerable distance at 160 kph, must have been aware of thedangers of such high speeds at night in rural Saskatchewan. A reasonable person would have apprehended the risk and would not haverun it. This is also one of those cases in which, in my opinion, mere speed in all the circumstances is sufficient to ground liability. See:R. v.

Richards (2003), (ON CA), 174 C.C.C. (3d) 154, 169 O.A.C. 339 (C.A.). I would therefore find Mr. Eckelguilty of the offence of dangerous driving. [31] I have also concluded that in driving as he did, Mr. Eckel was attempting to get away from Officer Skeels. I am satisfied thatthis was his intention as well as his motive. I am not satisfied, however, that he was aware that the officer was pursuing him, given thevast distance he quickly put and maintained between the two vehicles. I would therefore find him not guilty of this offence.

[32] Having resolved the various charges on their merits, I turn next to a consideration of the Charter issues in the case. I will dealquickly with the claim by Mr. Eckel that his right to be free from unreasonable search and seizure, guaranteed has been violated. In lightof the evidence, neither party argued seriously that this right has been violated. No search of Mr.

Eckel was conducted, no bodilysubstances were sought or obtained from him and he was not placed in a situation in which he was required to provide conscriptedevidence, beyond the facile claim by Officer Skeels that another of his purported grounds for belief in Mr. Eckel’s impairment byalcohol was Mr. Eckel’s “failure” to deny it, the officer apparently forgetting that another of Mr. Eckel’s Charter rights is to remainsilent in the face of accusation by the state. I find that Mr. Eckel’s right to be free from unreasonable search and seizure has not beenviolated. [33] I find that Mr.

Eckel’s right to be free from arbitrary detention has been violated. In my opinion Officer Skeels lackedreasonable grounds to detain and arrest for impaired driving. The officer made no claim to have held Mr. Eckel for investigativedetention, either at the scene outside the hall or in the roadside stop that he carried out soon after. By the time he encountered Mr. Eckeloutside the hall, the officer had, in his mind, already conducted his investigation, reached his conclusions and was prepared toimmediately arrest in the event that Mr. Eckel drove.

Once he had seen the driving, the officer purported to effect that arrest. When Mr.Eckel resisted by words and by pulling away and entering his own vehicle, the officer pursued the matter and later decided to lay thecharge of resisting the arrest. [34] The Crown has filed and has in oral argument referred to several cases in which the officer’s grounds for detention survivedCharter s. 9 scrutiny. These are: R. v. Russell, 2010 SKPC 33 and R. v. Bush, 2010 ONCA 554. In both of those cases, however, therewas either an admission of drinking by the suspect or the presence of an odour of beverage alcohol.

In the case of Mr. Bush, he was alsoobserved by the arresting officer to be dazed, possessed of glassy eyes and weaving back and forth while standing and being brieflyinterviewed. While driving he had also collided with a curb, careened across other lanes of traffic and had struck a light pole, snappingthe rear axle of his vehicle. Ms. Russell had driven forcefully into the front steps of a house, extensively damaging the concrete andrendering her vehicle inoperable, all in unremarkable driving conditions. In the ambulance with Ms. Russell after the accident, thearresting officer asked whether Ms.

Russell had been drinking and received a positive reply. Ms. Russell also becameuncharacteristically belligerent and uncooperative with police soon after. Both of these cases are thus distinguishable on their facts fromthe case at bar, in my view. [35] I am mindful of course of the Supreme Court of Canada’s opinion in Storrey v.

The Queen (1990), (SCC),53 C.C.C. (3d) 316, in which the Court held that an arresting officer need not establish a prima facie case for conviction before makingthe arrest and that such an arrest does not become unlawful simply because the officer intends to continue the investigation after it. Here, however, Officer Skeels has testified as to his opinion having already been formed from what he had seen inside the hall; in hisview the case required no further investigation and indeed, breath testing would only have confirmed his opinion, so he didn’t need toconduct it.

In light of the objectively entirely inadequate grounds for his belief, his detention of Mr. Eckel was, in my opinion, arbitraryand in contravention of Mr. Eckel’s Charter s. 9 right. [36] I am also satisfied on a balance of probabilities that there is both a temporal and a causal link between the breach of theCharter s. 9 right and the incident of dangerous driving; they are, in my view, inextricably linked. Mr. Eckel would not have drivenaway in the manner he did had the unfortunate encounter with Officer Skeels not occurred. Put another way, I am satisfied that this wasall one event, one transaction.

Had the temporal and causal connections been tenuous, the need for a Charter remedy may well havealso been so. See: R. v. Goldhart, (SCC), [1996] 2 S.C.R. 463, 107 C.C.C. (3d) 481. [37] I turn next to a consideration of the appropriate remedy, if any, under s. 24(1) and (2) of the Charter. The most drastic ofremedies is, of course, a judicial stay of proceedings, to be applied only in the clearest of cases and only where a lesser remedy wouldadequately protect the constitutional right which has been violated. See: R. v. Power, (SCC), [1994] 1 S.C.R. 601 andR. v. O’Connor, (SCC), [1995] 4 S.C.R. 411.

In O’Connor, supra, the Supreme Court of Canada observed that, while astay of proceedings as a Charter remedy is most often reserved for cases where trial fairness demands that response - where the prejudicecaused by the state’s misconduct will be manifested, perpetuated or aggravated by the continuance of the trial, there is also a so-calledresidual category of cases in which a judicial stay may be called for.

Such cases include those in which the prosecution is conducted insuch a manner as to amount to unfairness of such a degree that it contravenes fundamental notions of justice and thus undermines theintegrity of the judicial process. The Supreme Court of Canada in O’Connor further held that a stay should be granted only when theaffront to fair play and decency caused by the Charter breach is disproportionate to society’s interest in the effective prosecution ofcriminal cases.

[38] More particularly, where a judicial stay of proceedings is contemplated, it may be granted only where it has clearly beenshown that the impugned state conduct violates those fundamental principles of justice which underlie the community’s sense of fairplay and justice. This threshold has sometimes otherwise been expressed as requiring a finding that to continue the proceedings wouldbring the administration of justice into disrepute or an abuse of process. The remedy has also been referred to as “exceptional” in itsapplication.

Where the alleged misconduct has been that of the police, it must be shown as well to have involved bad faith or impropermotive: see R. v. D’Amico (1993), (ON CA), 16 O.R. (3d) 125 (C.A.). [39] Finally, in the case of R. v. Dikah (1994), (ON CA), 89 C.C.C. (3d) 321 (Ont.

C.A.), affd (SCC), [1994] 3 S.C.R. 1020, the Ontario Court of Appeal held that a judicial stay of proceedings is not an appropriate remedy where theviolation relates to the evidence of a Crown witness, so long as the Defence has had full opportunity to explore factors relevant to thecredibility and ultimate reliability of the witness before the trier of fact. In Dikah the concern was that the police had paid an agent, nowa Crown witness, to engage in drug transactions with the accused, which the Defence alleged was offensive to trial fairness.

The OntarioCourt of Appeal held that the fee arrangement was not so offensive as to require a judicial stay, and that the police policy of paying theiragents was a necessary element of law enforcement in investigating the illicit drug trade, given the difficulties inherent in suchinvestigations. [40] In my opinion, the conduct of the officer in the present case is quite different from that impugned in Dikah, supra.

There theconduct was carried out as part of what was ultimately ruled to be a necessary, if odious, policy of law enforcement, one which wasregularly applied in drug investigations, presumably by a variety of police officers. In the case before me, the officer acted alone and didso in a manner which demonstrated his intense personal dislike of the Accused. I have found that he exaggerated his observations andinterpreted many objectively neutral factors, from Mr. Eckel’s choice of clothing to his choice of language to his purported lack ofrespect for the officer, as signs of impairment.

He too readily jumped to conclusions, not only about Mr. Eckel’s impairment but alsoabout Mr. Eckel’s motives and intentions. These unsupported conclusions led him to adopt an extremely aggressive attitude towards Mr.Eckel. He conducted no investigation, sought no evidence to confirm what I have determined to be an utterly unfounded belief in Mr.Eckel’s impairment by alcohol and indeed testified to the effect that seeking such confirmatory evidence was a waste of time and effort.

I have no idea whether Officer Skeels’ decision to deploy pepper spray was made inside or outside normal police guidelines for its use,but in the circumstances here it was, in my view, reckless and extreme. [41] Officer Skeels’ demeanour when testifying went beyond the merely impatient and entered the realm of the combative.

In myopinion a bystander at Court would have serious concerns that an officer of the law should give such testimony and in such anemotionally charged and defensive manner, and that such testimony could be used as a foundation for factual findings in a court of law. [42] I find that the officer’s conduct, both on the occasion he encountered Mr. Eckel in November of 2009 and in testifying aboutthat encounter, has crossed the line of professional detachment to the degree that it demonstrates bad faith.

That bad faith may well beborne of fear, but whatever the cause, I have decided that it not only cannot be condoned, it must also bear a constitutional consequencefor the Crown. [43] I have considered whether a lesser remedy than a judicial stay of proceedings - for example an exclusion of the evidence ofthe dangerous driving, a reduction in the sentence for that offence - could provide an adequate remedy for this breach of a Charter right. I have decided that they, or any combination of them, could not provide that remedy.

In my opinion this is one of those clearest of caseswhere to allow the further prosecution of this case would so offend the community’s sense of fair play and decency that it wouldundermine the integrity of the judicial process and bring the administration of justice into disrepute. Only a stay of proceedings cancommunicate the justice system’s need to dissociate itself from conduct such as that shown by the officer in this case, as displayed by him both on the 25th of November 2009, and in the act of testifying at trial. While I appreciate that counsel for Mr.

Eckel has contendedfor an additional or alternative remedy in costs or damages, it is my view that once a stay of proceedings has been entered, I am withoutjurisdiction to consider the appropriateness of those remedies. [44] I direct that the proceedings in relation to Information number 24153853 are stayed. [45] DATED at the Village of Pierceland, Saskatchewan this 7th day of December 2011.

Jeremy Nightingale, J