Her Majesty the Queen - v. -, 2014 SKPC 128

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 128 Date: June 24, 2014 Information: 24481053 Location: Creighton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Percival Brian Taylor Appearing: Mr. Harold Johnson For the Crown Mr. Percival Brian Taylor Self-represented Accused JUDGMENT S.I.

ROBINSON , J [ 1 ] Percival Brian Taylor, date of birth October 23, 1947, of Flin Flon, Manitoba stands charged that he on or about October 30, 2012, at Flin Flon, Saskatchewan: a. while his ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle, to wit, a truck, contrary to paragraph 253(1) (

a) of the Criminal Code ; and b. having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle, to wit, a truck, contrary to paragraph 253(1) (

b) of the Criminal Code .

[ 2 ] This matter came before me for trial in Creighton on May 13, 2014. At trial, Constable Scott Stuart of the Creighton RCMP was called as the sole Crown witness. The accused, representing himself, elected to call no defence evidence. At the close of the trial, I adjourned the matter to June 24, 2014, for decision.

The Facts [ 3 ] Constable Stuart testified that on the evening of October 30, 2012, he saw a red truck leave the vicinity of the Hooter Bar in Creighton and, after stopping at a stop sign for a few seconds, make a left turn onto the “Creighton Freeway” to travel towards Flin Flon. (Flin Flon, which sits on the Saskatchewan-Manitoba border, is just over one kilometre east from Creighton.) Constable Stuart followed the red truck in his police truck and noted the red truck’s licence plate number. He did a computer check of the licence plate number.

His check revealed that while the red truck was validly registered to the accused, the accused’s driver’s licence had been expired for almost a year. Constable Stuart therefore engaged his emergency lights to stop the accused’s vehicle for a licence check. [ 4 ] After Constable Stuart engaged his emergency lights, the accused’s vehicle continued on for about a quarter kilometre and then pulled over to the shoulder at the South Hudson Street corner on the outskirts of Flin Flon. Constable Stuart found the accused to be the sole occupant of the red truck.

The accused produced an older, two-part Saskatchewan driver’s licence. The photograph portion of the licence was valid, but the right-to-drive portion had expired on October 31, 2011. [ 5 ] Constable Stuart testified that upon stopping the accused, he found the accused had “somewhat slurred speech but it was difficult to garner that given his age.” He also said the accused had very glossy eyes that were pink-rimmed. The accused was smoking what appeared to be a freshly lit cigarette.

The accused denied having been drinking. [ 6 ] Constable Stuart then advised the accused he was under arrest for driving without a valid driver’s licence. He secured the accused in the back of his police truck at 22:23 hours. He read the accused his “legal rights” from a card and asked him if he wanted to call a lawyer. Later, at 22:29 hours, Constable Stuart leaned into the back of the police vehicle to clarify the accused’s preferred given name. Upon doing so, he noted a strong smell of liquor coming from the accused’s breath.

Constable Stuart then formed the opinion that the accused had alcohol in his body and, at 22:31 hours, he made a demand upon the accused to provide a breath sample into an approved screening device. [ 7 ] The accused did provide an approved screening device breath sample, and that sample resulted in an “F” (or fail) reading. Based on this, the accused was re-arrested, this time for impaired operation of a motor vehicle, and taken back to the Creighton RCMP detachment for breath testing.

After the accused spent some time attempting to reach legal counsel and actually speaking to Legal Aid duty counsel, he provided breath samples into an approved instrument. The accused was then released from custody and, at about 00:40 hours, Constable Stuart gave the accused a ride home. Charge of Impaired Driving [ 8 ] With regard to the charge of impaired driving, I am not satisfied that the Crown has proven beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol. The evidence suggests that the accused’s driving was proper.

I do not find that his delay at a stop sign for four or five seconds could be construed as improper. Indeed, some delay at stop signs must surely be desirable. Nor do I find anything of concern in the length of time it took for the accused to bring his vehicle to a stop after being signalled to do so. As he was on the main Creighton Freeway thoroughfare, it was practical for the accused to pull over at the South Hudson intersection. [ 9 ] I have also considered whether Constable Stuart’s observations of the accused up until his arrest might provide grounds for a finding that the accused was impaired by alcohol.

I find the evidence offered from these observations is limited. Constable Stuart referred to the accused’s speech being slurred but qualified that observation by suggesting that the accused’s age might have affected the accused’s speech. I noted in court that while the accused was well spoken, his pronunciation of the letter “s” might be perceived as a slur. I do not think much weight can be given to any possible slurring. The only other possible evidence of impairment was Constable

Stuart’s observation that the accused’s eyes were very glossy and pink-rimmed. That observation might indicate some level of impairment by alcohol. However, standing alone, it would not support a conclusion that the accused was impaired by alcohol. [ 10 ] Constable Stuart did smell alcohol on the accused’s breath after he had arrested the accused. As I will discuss later, the fact that the odour of alcohol was detected after the accused’s arrest is problematic.

But in any event, while the odour of alcohol would be evidence that the accused had been consuming alcohol, it would not, without more, constitute significant evidence of impairment by alcohol. Offence of Driving Over 80 [ 11 ] The Crown has tendered a Certificate of a Qualified Technician setting out the test results of breath samples provided by the accused. The results were 120 milligrams of alcohol in 100 millilitres of blood at 23:52 hours and 110 milligrams of alcohol in 100 millilitres of blood at 00:13 hours (on October 31).

If I were to find that these test results are admissible in evidence, the offence under paragraph 253(1) (

b) would be made out. [ 12 ] In my mind, there is a clear problem with the admissibility of the breath test results. Until Constable Stuart arrested the accused for not having a valid driver’s licence and placed him in the back of the police vehicle, he did not have grounds to support an opinion that the accused had alcohol in his body. It was only after the accused’s arrest that Constable Stuart noted alcohol on the accused’s breath. This odour of alcohol allowed the constable to demand that the accused provide a breath sample for the approved screening device.

The resulting fail reading on the approved screening device provided Constable Stuart with his main ground for making a breath test demand pursuant to subsection 253(3) of the Criminal Code . So, with this chain of events in mind, it is important to examine the accused’s initial arrest. [ 13 ] The right of police to arrest a person for driving without a valid driver’s licence is set out in subsection 276(1) of The Traffic Safety Act . That subsection reads: 276(1) If a peace officer finds a person contravening

section 32 [driving without a valid driver’s licence], 57, 140, 209.1, 213 or 239, the peace officer may arrest that person, if the officer has reasonable grounds to believe that the person will not appear in court to answer a summons. [ 14 ] Subsection 276(1) makes it clear that although a right of arrest for driving without a valid driver’s licence does exist, the right is a limited one. It only exists where an officer has reasonable grounds to believe that a person will not appear in court in response to regular process.

Here, there is no evidence to suggest that the accused would fail to appear in court to deal with a no driver’s licence ticket. Indeed, the evidence actually suggests the opposite. The accused apparently lives in Flin Flon, Manitoba, a nearby sister community to Creighton.

And significantly, once the accused had provided breath samples at the Creighton RCMP Detachment, Constable Stuart courteously gave the accused a ride home without any apparent concern regarding future court appearances. [ 15 ] I might add that the usual penalty for a no driver’s licence charge is a modest fine and surcharge totalling $150.00—an amount not likely to provoke flight by an accused. It is also noteworthy that changes to The

Summary Offences Procedures Act, 1990 now allow for a default conviction where a person fails to attend on a no driver’s licence ticket. With these changes in place, a police officer issuing such a ticket has little reason to give any thought at all to whether an accused is likely to attend court. [ 16 ] On the evidence before me, I conclude that the accused’s arrest for no driver’s licence was not a lawful arrest. [ 17 ] Since the accused’s arrest was not lawful, I find that the accused’s right under

section 9 of the Charter not to be arbitrarily detained or imprisoned has been breached. I also find that his right under

section 8 of the Charter to be secure against unreasonable search or seizure has also been breached. Exclusion of Evidence

[18] Having found that the accused’s

section 9 and

section 8 rights have been breached, I must now consider whether the accusedis entitled to any relief. More specifically, I must decide whether I should make an order under subsection 24(2) of the Charter toexclude any evidence collected after the accused’s initial arrest by Constable Stuart. [19] In this case, the accused did not provide either the Crown or the Court with any notice of an intention to request the exclusionof evidence because of a Charter breach. Ideally, both the Crown and the Court will be given advance notice of a defence application tohave evidence excluded because of a Charter breach.

A failure to give notice can result in a judge refusing to hear a defenceapplication. This is well set out in the Ontario Court of Appeal decision in R. v. Kutynec, (ON CA), [1992] O.J. No.347. [20] In the case before me, it is not surprising that the accused gave no advance notice respecting a Charter breach since he wasself-represented at trial. Although there was some suggestion in the evidence that he had served in the RCMP in an earlier time, therewas no indication that he has had any recent legal training. He did not make any reference to his rights under the Charter during thetrial.

It is reasonable to assume that he was not familiar with how the Charter spells out specific rights or how an accused should allegea breach of those rights at trial. [21] Even though the accused did not give any advance notice of an application to exclude evidence because of a Charter breach, Iwill proceed as if such notice had been given. I do so to ensure fairness to the accused. An individual’s rights under the Charter existquite independently of any procedural rules associated with asserting them.

Where an accused is self-represented, as is the case here, itwould not be fair for me to avoid addressing a Charter breach simply because of a procedural lapse. I find support for my position inKutynec, supra, where, at paragraph 20, Finlayson J.A. stated: I do not suggest that a trial judge can never consider, at a later point in the trial, the admissibility of evidence which has been tenderedwithout objection.

A trial judge has a discretion to allow counsel to challenge evidence already received and will do so where theinterests of justice so warrant. [22] In deciding to address the breach of the accused’s Charter rights, I have considered whether doing so might cause prejudice tothe Crown. I do not believe it will. I did not raise any issue regarding the accused’s arrest for no driver’s licence when the Crown’s casewas being presented. However, its seems unlikely that an early discussion of any Charter breaches arising from the accused’s arrestwould have changed how the Crown presented its case in any significant way.

I did raise the issue of the accused’s arrest during theCrown’s final argument. I invited the Crown to present further argument or file case law on what effect that arrest may have had on theaccused’s Charter rights. The Crown has not made further submissions. [23] With the benefit of hindsight, I can say that it would have been preferable to have had a voir dire to determine whether theaccused’s Charter rights had been breached and whether evidence connected to those breaches should be excluded from the trial. But Ido not see that the lack of a voir dire prevents me from dealing with those issues. [24]

Section 24 of the Charter reads as follows: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [25] In the case of R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32, the Supreme Court of Canada dealt with the issue ofhow courts should handle an application to exclude evidence under subsection 24(2) of the Charter.

In Grant, McLachlin C.J. andCharron J. wrote, at paragraphs 68 through 70: 68 The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the

integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective.

It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. 69 Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. 70 Finally, s. 24(2)’s focus is societal.

Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. [ 26 ] The Supreme Court went on to say that in considering whether evidence should be excluded following a Charter breach, a court should look at:

a) the seriousness of the Charter -infringing conduct;

b) the impact of the Charter breach on the interests of the accused; and

c) society’s interest in an adjudication of the case on its merits. [ 27 ] In the case before me, the accused’s arrest without lawful authority must be seen as serious. Indeed, any arrest is a serious matter. Upon being arrested, an individual does not have the right to continue on with his or her affairs. This is true even when those affairs are of a pressing nature. An arrest also affects one’s personal dignity. Accordingly, Canadians can reasonably expect that an arrest will only be made with proper authority and in a legal manner.

They can reasonably expect a judicial response to an unlawful arrest. [ 28 ] The accused’s arrest would necessarily have had some impact on him. He was deprived of his freedom for just over two hours. Constable Stuart also had his vehicle towed from the road. It can be presumed that the accused would have had to pay a towing fee and perhaps also a storage fee before getting his vehicle back. While the accused’s arrest was of a relatively short duration, its impact on the accused was not insignificant. [ 29 ] Society does have an interest in having a case adjudicated on its merits.

It has a strong interest in having impaired drivers prosecuted. However, the facts in the present case are not egregious. They do not give any particular support for the breach of the accused’s Charter rights. [ 30 ] After considering the three factors referred to in Grant , I am deciding that any evidence against the accused obtained after his arrest by Constable Stuart should be excluded from the Crown’s case. I do so primarily because of the seriousness of the accused’s arrest.

The ordinary Canadian citizen would not expect that someone driving in their home community could be arrested for a traffic violation having a usual fine of $150.00. Allowing evidence derived from the accused’s arrest to become admissible trial evidence would bring the administration of justice into disrepute. It follows that I must exclude the evidence that the accused had alcohol on his breath, the evidence of the “F” reading on the approved screening device, and also the Certificate of a Qualified Technician from the trial evidence.

Conclusion [ 31 ] I have indicated earlier that the Crown has not proved its case with respect to the accused’s charge of operating a motor vehicle while impaired. I have reached the same conclusion with respect to the accused’s charge of operating a motor vehicle while over 80. As I am excluding all of the evidence collected after the accused’s arrest by Constable Stuart, I am left with essentially no evidence to support that second charge. I therefore find the accused not guilty of operating a motor vehicle while impaired and not guilty of operating a motor vehicle while over 80.

____________________________________ S.I. Robinson, J