Her Majesty the Queen - v. -, 2012 SKPC 103

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 103 Date: July 10, 2012 Information: 24429194 Location: Wakaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Marshall Luke Knaus Appearing: Ms. L. O ’Connor For the Crown Mr. M. Deshaye For the Accused DECISION ON VOIR DIRE B. MORGAN , J INTRODUCTION: [ 1 ] Mr. Knaus is charged with two counts, proceeded summarily, based on the events of October 15, 2010, at Melfort, Saskatchewan. The charges are formally set out in the Information.

Count 1 is a charge of impaired operation of a motor vehicle, and count 2 is a charge of driving while his blood alcohol level exceeded the permitted amount.

[ 2 ] At the outset of the trial the Court entered into a voir dire , as counsel for Mr. Knaus alleged that there was a breach of Mr. Knaus’

section 8 Charter right to be free from unreasonable search and seizure and his

section 9 Charter right to be free from arbitrary detention, arguing that the police had no reasonable and probable grounds to effect an arrest for impaired operation of a motor vehicle, and flowing from those alleged breaches, no right to make a breath demand under section 254(3) of the Criminal Code . THE FACTS: [ 3 ] The officer who effected the arrest (whom I will refer to as the arresting officer) was operating a police cruiser with a partner (whom I will refer to as the other officer).

These officers had just completed a call, and were returning to the RCMP Detachment in Melfort, Saskatchewan, at approximately 3:15 a.m. on October 15. As they approached Main Street in Melfort, they noted a vehicle which appeared not to have operating tail lights, and appeared to be speeding. This vehicle was heading northbound on Main Street in Melfort, the officers approaching that street from a side street which runs perpendicular to Main Street.

As the arresting officer put it, as a result of those observations, “... we decided that we were going to stop this vehicle before we headed back to the office”. (Transcript, page 5, lines 16 and 17) [ 4 ] That vehicle continued northward, turning easterly on a road that eventually became a gravel road, and the police officers followed it, turning on the lights as they pursued the vehicle.

The vehicle then pulled to the right, in what both officers referred to as a hasty manoeuvre, skidding somewhat at the point where the paved road turned to a gravelled surface. [ 5 ] The officers both exited the vehicle and arrested Mr.

Knaus, the sole occupant of the vehicle. [ 6 ] Turning to the particulars of precisely what led to the decision to arrest for impaired operation of a motor vehicle, the following facts are pertinent. [ 7 ] In reply to a general query as to the arresting officer’s experience with calls that involve alcohol, which was placed at about 90 percent of all calls handled by that officer, and when asked what some general signs are that are looked for in dealing with people under the influence of alcohol, the reply was: Umm, if they’re standing we kind of look for balance, how steady or unsteady they are on their feet.

For speaking, if they can speak clear, if there’s slurred speech. Sometimes people don’t realize how loud they are when they are impaired. So if someone is yelling, you know, that’s a sign that they may be intoxicated. Look at their eyes, their pupils, if they are dilated, not dilated, glossy, red, squinted, barely open. Slurring when they’re speaking. Different appearances about their clothing attire. Sometimes people don’t realize that their pants are undone when they’re standing there talking to you. Various things like that. (Transcript, page 3, line 16 to page 4, line 6) [ 8 ] At the time of the stop, Mr.

Knaus had immediately exited the vehicle, and taken about five steps towards the police vehicle, at which point he was directed to get back into the vehicle. He stood where he was. The arresting officer testified as follows: Q And when the vehicle came to a stop, what did you do? A At that point the driver immediately got out of the driver’s seat before we could even have a chance to run the licence plate or prepare us to get out of the vehicle first. So [the other officer] took the loudspeaker and advised the driver to get back in his vehicle........ Q Okay and did he, in fact, get back in his vehicle?

A Not initially. He had taken a few steps towards us. [The other officer] had announced it again, and then at that point the driver put his hands up in the air and then put his hands on his head. Q And then what happened? A And then we got out of the vehicle and went into - I should back up a second. When he did get out of the vehicle, he had staggered toward us, you know kind of, kind of letting me believe that at that point he was impaired. So when he put his hands on his head, he had just waited there by the door. We came around to the driver’s side and as we got close to him, we came right up behind

him, told him he was under arrest for impaired operation, impaired driving, and I handcuffed him and walked him to the back seat of my police car and he was unsteady on his feet as I guided him back to the police car. And [the other officer] searched him and put him in the back seat. (Transcript, page 8, line 18 to page 9, line 25) [ 9 ] When questioned what observations, if any, were made about Mr. Knaus’ appearance as he walked towards the officers, the arresting officer replied: Well, just he was - with his hands on his head, he was unsteady on his feet.

He didn’t say much, so it was hard to tell if he was slurring at that time. But at that point he appeared to be intoxicated. (Transcript, page 10, line 26 to page 11, line 4) [ 10 ] On the issue of when the arresting officer first smelled alcohol, the officer testified as follows: Q Okay. And once he was placed under arrest, what observations, if any, did you have a chance to make of his appearance? A Well, he was unsteady on his feet when he came out. He needed guidance to go back to the police car. Like he was cooperative, so he wasn’t yelling or swearing or anything like that.

But he did have slurred speech when we talked and his eyes were quite glossy and they looked bloodshot at the time. Q And did you make these observations before or after he got in the police vehicle? A On the way to the police vehicle. And then once I got back to the police vehicle after I had looked in his truck, I could smell the odour of alcohol was quite strong at this point. Q And had you smelled alcohol before that? A I did, not as strong as once I came back to the police car after he had been in there for a couple of minutes.

Q And when did you smell alcohol before - A When I was - Q -he was in the police vehicle? A When I was placing him under arrest, I was looking at him as we were walking back to the police car and you could smell the odour of alcohol from him. Q And where was it coming from? A From his breath when I was talking to him. (Transcript, page 17, line 11 to page 18, line 12) [ 11 ] As to the arrest itself, the arresting officer testified as follows in cross-examination: Q At which point did you and [the other officer] make the decision to arrest Mr. Knaus? A When he wasn’t listening to us the first time around. Q Okay.

And was it your intention to arrest him for impaired driving at that point? A Yes it was. Q Okay. And it’s only once you get a chance to walk up to him that you, in fact, effect that arrest; is that fair to say? A Correct, yeah. The tail lights, the speed, the driving evidence of the swerving, the abrupt stop, he appeared unsteady on his feet, he didn’t listen to the commands initially. It took twice to do that. And that was enough for me to continue with the impaired, arrest for impaired. And then once I did approach him, it solidified my grounds to arrest him for impaired driving. Q Okay.

And now, when you are in the vehicle with [the other officer], is it communicated between the two of you that you will be arresting him? A Absolutely. (Transcript, page 33, lines 1 to 22)

[ 12 ] Going further on that issue of the decision to arrest, the arresting officer testified as follows: A ....We knew this driver was going to be put under arrest, whether it was for dangerous driving, or - and then once we stopped, impaired driving. Q But to be fair, when you advised him that he was under arrest, you said, “you’re under arrest for impaired driving”. A Correct. Q Okay. So is it fair to say then while you’re in the vehicle you make the decision to arrest him for impaired driving? A While I was in the vehicle, like prior to getting out? Q Yes.

A I had - I felt then that I had enough grounds right there for impaired driving and then just a little more ground once I exited the vehicle. (Transcript, page 34, lines 7 to 23) [ 13 ] Further on, the following exchange took place: Q Now, you had indicated initially that when you approached Mr. Knaus you didn’t have any conversation with him prior to arresting him, did you? A No. Q Okay. So you didn’t have the opportunity to observe any smell on his breath prior to arresting him, did you? A No. Q Okay. And you had also indicated that as you approached him, you approached him with the intention of arresting him.

A Correct. (Transcript, page 36, line 22 to page 37, line 8) [ 14 ] In brief, defence counsel argues that the arresting officer decided to arrest Mr. Knaus before either officer exited the vehicle, and calls into question whether or not the officer could have, at that point, the requisite subjective belief, and, if so, whether that belief was objectively reasonable.

The basic argument is that, at the time the decision to arrest was made, all that had been observed, from a distance of approximately one and a half blocks, was a vehicle that appeared to be speeding, without tail lights, one that swerved somewhat as the road changed from pavement to gravel. There is simply no evidence whatsoever, it is argued, at the time the decision to make the arrest was made, of any consumption of alcohol.

In all, the defence argues, the reasonable and probable grounds for effecting an arrest were completely absent. [ 15 ] Further, it is argued, as the arrest was made immediately after exiting the vehicle, there had been no conversation with Mr. Knaus. Thus, it is argued, Mr. Knaus’ Charter rights under s. 8 and 9 have been breached. [ 16 ] The defence further argues that the Court should look at what grounds were in existence at the time the decision to arrest was made, again, while the officers were in the vehicle prior to exiting the vehicle.

Even if the Court were to assess the officers’ subjective belief at the time of actually effecting the arrest, the only thing that could be added to what had already been observed was a slight swaying of the feet when Mr. Knaus walked approximately five feet. [ 17 ] In support of his argument, defence has filed a book of authorities, including the following cases which I have reviewed: R. v. Adhofer , 2010 ABPC 235 ; R. v. Waters , 2010 ABQB 607 ; R. v. Gunn , 2010 SKPC 63 ; R. v. Maslanko , 2011 ABPC 202 ; R. v. Chorney , 2008 ABPC 206 ; R. v. Haut, 2009 ABPC 337 and R. v. Taulk , 2008 ABPC 222 .

These types of cases are all fact sensitive; the ones counsel relies on generally show cases that illustrate what would justify subjective and objective grounds for arrest.

[18] In brief, the Crown argues that the high rate of speed, the fact that Mr. Knaus didn’t stop for the police initially, the swervingupon going to the gravel road, and his swaying on his feet, justify the decision to arrest.

Further, as the arresting officer approached Mr.Knaus, there were observations of red eyes, and there was a smell of alcohol at some point, which would support the arresting officer’sbelief, although she acknowledged that it was not exactly clear when that smell of alcohol was initially observed. (Having had thebenefit of reading a transcript, I am now able to answer that question.) [19] It is the Crown position as well that, in assessing the arresting officer’s subjective belief, the Court should look at everythingthat occurred up to the time of the actual arrest. [20] Crown counsel relies on the cases of R. v.

Lees, 2011 SKPC 98 , 2011 SKPC 098 and R. v. Dwernychuk, 1992ABCA 316. [21] Both counsel have agreed that the case stands or falls on the decision of this Court respecting whether or not the officer hadreasonable and probable grounds to effect an arrest for impaired driving. The issue respecting the grounds for the breath demand isdependent on the determination of the first issue. ANALYSIS: [22] In order to effect a lawful arrest, the arresting officer must have reasonable and probable grounds to believe that Mr. Knauswas committing the offence for which he was arrested.

This subjective belief, if held, must be objectively reasonable. In order to assessthat question, it is necessary to look at the evidence that was available to that arresting officer.

Facts discovered after the arrest wasmade are not relevant, as such facts would not have been available to the arresting officer at the time of the arrest. [23] The Court is not to look at this in a piecemeal fashion; rather, the Court is to examine the totality of that evidence, anddetermine, essentially, whether a reasonable person in the place of the officer would have believed that reasonable and probable groundsexisted for the arrest. (See R. v. Poyntz, 2012 ONCJ 245, [2012] O.J.

No. 1877, and the cases cited therein, at paragraphs 37 and 38.) [24] I find that the following facts were available to the arresting officer at the time the decision to arrest was made: - the vehicle was without operating tail lights; - the vehicle appeared to be speeding, for a period of a few minutes and perhaps three kilometres; and - when the emergency lights on the police vehicle were engaged, the vehicle came to a stop, albeit in a fashion that was abrupt, and didinvolve a swerve to the right ditch. [25] The arresting officer confirmed that at the point the police vehicle pulled up behind the stopped Knaus vehicle, that officersuspected the driver might be impaired due to the fact that he was speeding, and his vehicle had no operating tail lights. (Transcript,page 30, lines 2-9) [26] What was not available to the arresting officer at that time were any signs that this officer testified would normally be reliedon if that officer were to encounter an individual thought to be under the influence of alcohol, referred to in paragraph 7 of this decision: balance, slurred speech, loudness of voice, observation of the person’s eyes, and observations as to the person’s clothing attire.

I alsonote that there was no mention of the smell of alcohol even being something the officer would look for in such a case, but of course thatcould not be observed at the time of the decision to arrest even if it was a sign an officer arresting for impaired driving would look for.

Further, during the period of time in which the police vehicle was following the Knaus vehicle down Main Street, and then east onMcDonald Avenue, the arresting officer agreed that there was no swerving, etc., observed of the Knaus vehicle, this in spite of the factthat there were street lights on both streets, although Main Street was better lit than McDonald Avenue. What swerving the arrestingofficer did see was confined to the time when the paved road turned to gravel, and that was in a poorly lit area. However, thoseobservations were confirmed by the other officer and I find them to be accurate.

[27] As well, I note that the arresting officer testified that this individual was going to be arrested, either for dangerous driving oroperating a motor vehicle while his or her ability to do so was impaired by alcohol. The other officer did not recall any conversation, pre-arrest, with the arresting officer respecting the plans to arrest. When queried on that point, he commented that he wasn’t sure what Mr.Knaus would be arrested for. I agree with that observation. I find that the decision to arrest was that of the arresting officer’s alone.

Inmy view, what has occurred is that the arresting officer’s initial resolve to stop the vehicle, made when the officers first saw the Knausvehicle, became elevated to a decision to arrest for impaired driving, in the absence of any investigative work being done to justify anarrest for that charge.

It was clear from the tone and content of the other officer’s testimony that he wanted to stop the vehicle andinvestigate the matter further in order to decide what course of action to follow. [28] Having said that, I find that the arresting officer had a subjective belief that grounds to arrest were in existence; it would be arare case indeed that an officer would arrest without holding a belief that the person had committed an offence.

However, I concludethat the belief that an arrest for impaired operation of a motor vehicle was not objectively reasonable. [29] The only grounds that could have been added to the arresting officer’s belief at the time of the arrest itself was that Mr.Knaus appeared to be unsteady on his feet after exiting the vehicle, based on observations of his movement of mere feet, and that he didnot follow the other officer’s direction to return to his vehicle.

In my view, these additional observations add nothing to matters: therewere still insufficient grounds, on an objective basis, to justify the arrest for impaired operation of a motor vehicle at that time. Specifically, I find that the observation of the smell of alcohol, the alleged slurred speech, and the observation of his eyes, all came afterthe fact of the arrest. [30] I find that there were no reasonable and probable grounds to arrest Mr. Knaus for impaired driving. I find that there thedefence has established a breach of Mr.

Knaus’ Charter rights. [31] As for the remedy, the “Grant analysis” requires the Court to look at a number of factors. [32] Dealing firstly with the seriousness of the Charter-infringing state conduct, I find this to be a serious breach. I am mindfulthat the arresting officer had determined, almost immediately upon first observing the vehicle, to stop that vehicle. I assume thatdecision was made based on the vehicle lacking operating tail lights, and the fact that it appeared to be speeding. The vehicle could havebeen stopped in any event, under the authority of

section 209.1 of The Highway Traffic Act, which may well have led to an investigativedetention, depending on a number of factors. (See R. v. Papillion, 2010 SKQB 475.) However, to move immediately to an arrest, in theabsence of proper grounds to do so, is a serious breach of the Charter, and favours exclusion of any evidence obtained as a result of thearrest.

This would include, of course, the evidence obtained as a result of the breath demand which flowed from the initial arrest. [33] Although there is nothing to suggest that the arresting officer lacked good faith, the fact remains that the arresting officeracted on no more than a hunch in arresting for impaired operation of a motor vehicle. As was pointed out in R. v.

Harrison, 2009 SCC34, [2009] 2 S.C.R. 494, at paragraph 20: “While an officer’s “hunch” is a valuable investigative tool - indeed, here it proved highlyaccurate - it is no substitute for proper Charter standards when interfering with a suspect’s liberty”. As was noted in R. v. Anderson,2012 SKPC 44 , 2012 SKPC 044, at paragraph 23, “...further investigation was warranted in this particular instance”. [34] The second consideration is the impact of the breach on the Charter-protected interests of the accused. As defence counselargues, the arrest led to Mr.

Knaus being handcuffed, deprived of his liberty, and being compelled to provide incriminating evidenceagainst himself. The Crown argues that the arrest was of short duration, and that the breath samples were minimally invasive, which arevalid points. However, in my view, if the evidence obtained after the breach was allowed into evidence, the admission of that evidencewould significantly undermine the very interest sought to be protected; of what use would the Charter right be otherwise? Whereas it istrue that, had the arresting officer taken the time to investigate the matter prior to arresting Mr.

Knaus, the facts observed post-arrest maywell have come to light anyway, that should not be a consideration. That is, Mr. Knaus may well have been in the same position eitherway. However, this type of reasoning will do little to protect an individual’s Charter rights, and would do nothing to ensure that thepolice, when arresting an individual, took reasonable investigative steps prior to doing so. This second ground favours exclusion. [35] The third consideration is society’s interest in the adjudication of the case on its merits.

I conclude that the truth-seekingfunction of the criminal trial process would be better served if the evidence were admitted. The breath test results are real evidence of asubstantial probative value, and are essential to the Crown proving count 2, the “over .08” charge. The signs of impairment made post-arrest are necessary for the Crown to help establish the “impaired driving” charge in count 1. These factors would favour inclusion ofthe evidence.

[ 36 ] The above-noted factors need to be weighed collectively; the decision as to whether or not to admit, or exclude, the evidence, is not made based on a Court having found two factors favouring exclusion, and one factor favouring inclusion. The test is stated as follows in Harrison at para. 36 : The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case.

The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed. [ 37 ] This is what might be referred to as a “standard” impaired driving charge; that is, there is nothing out of the ordinary involved.

There was, in my view, a serious Charter breach that cannot be sanctioned. On balance, I have concluded that the benefits of exclusion, in this case, outweigh the benefits of inclusion, and I therefore conclude that any evidence obtained after the arrest was made is to be excluded from the trial proper. B. Morgan, J